50,000,000 Revolving Credit Facility SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 25, 2008 among KINRO, INC. LIPPERT COMPONENTS, INC. The Lenders Party Hereto and JPMORGAN CHASE BANK, N.A. as Administrative Agent and WELLS FARGO...
Exhibit
10.1
$50,000,000
Revolving Credit Facility
SECOND
AMENDED AND RESTATED
CREDIT
AGREEMENT
dated
as
of
November
25, 2008
among
KINRO,
INC.
XXXXXXX
COMPONENTS, INC.
The
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
and
XXXXX
FARGO BANK, N.A.
as
Documentation Agent
Exhibit
10.1
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as of November
25, 2008, among KINRO, INC., an Ohio corporation, XXXXXXX COMPONENTS, INC.,
a
Delaware corporation, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as Administrative Agent and Xxxxx
Fargo
Bank, N.A., as Documentation Agent.
The
parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms.
As
used
in this Agreement, the following terms have the meanings specified
below:
“Adjusted
LIBOR Rate”
means
with respect to a LIBOR Rate Advance for the relevant Interest Period, the
sum
of (i) the Applicable Rate Margin plus (ii) the quotient of (a) the LIBOR Rate
applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest
Period.
"Adjusted
One Month LIBOR Rate"
means,
with respect to a CB Floating Rate Loan for any day, the sum of (i) 2.50% per
annum plus (ii) the quotient of (a) the interest rate determined by JPMorgan
Chase Bank, N.A. by reference to the Page to be the rate at approximately 11:00
a.m. London time, on such date, or if such date is not a Business Day, on the
immediately preceding Business Day, for dollar deposits with a maturity equal
to
one (1) month, divided by (b) one minus the Reserve Requirement (expressed
as a
decimal) applicable to dollar deposits in the London interbank market with
a
maturity equal to one (1) month.
"Administrative
Agent"
means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
Lenders hereunder (and, where applicable, under the Guarantee Agreements and
the
Subordination Agreement).
"Administrative
Questionnaire"
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
"Affiliate"
means,
at any time, and with respect to any Person, (a) any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or
is
Controlled by, or is under common Control with, such first Person, and (b)
any
Person (other than institutional holders and publicly traded mutual funds)
beneficially owning or holding, directly or indirectly, 30% or more of any
class
of voting or equity interests of the Company or any Subsidiary or any
corporation of which the Company and its Subsidiaries beneficially own or hold,
in the aggregate, directly or indirectly, 10% or more of any class of voting
or
equity interests. Unless the context otherwise clearly requires, any reference
to an "Affiliate" is a reference to an Affiliate of the Company.
"Applicable
Percentage"
means,
with respect to any Lender, the percentage of the total Revolving Credit
Commitments represented by such Lender's Revolving Credit Commitments. If the
Revolving Credit Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Revolving Credit Commitments
most
recently in effect, giving effect to any assignments.
"Applicable
Rate Margin"
means,
for any day, with respect to any Eurodollar Loan or CB Floating Rate Loan,
the
General Margin therefor as specified in Schedule
1.01-1
hereto.
"Approved
Subordinated Debt"
means
Indebtedness subordinated to the Obligations of the Borrowers under this
Agreement and the other Loan Documents on terms approved in writing by the
Administrative Agent and the Required Lenders.
"Asset
Sale"
shall
mean any sale, transfer, lease or other disposition of any property or asset
of
any Credit Party or any of its Subsidiaries except a sale, transfer, lease
or
other disposition in the ordinary course of business (a) of cash, (b) of
temporary cash investments, (c) of trade receivables, (d) of inventories, or
(e)
of any asset by any Credit Party or by a Subsidiary to any Credit Party or
to
another Subsidiary.
"Assignment
and Acceptance"
means
an assignment and acceptance entered into by a Lender and an assignee (with
the
consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit A
or any
other form approved by the Administrative Agent.
"Availability
Period"
means
the period from and including the Restatement Effective Date to but excluding
the earlier of the Maturity Date and the date of termination of the Revolving
Credit Commitments.
"Board"
means
the Board of Governors of the Federal Reserve System of the United States of
America.
"Borrower"
means
each of Kinro, Inc., an Ohio corporation, Inc., and Xxxxxxx Components, Inc.,
a
Delaware corporation.
"Borrowing"
means
portions of the Loans of the same type, made, converted or continued on the
same
date and, in the case of Eurodollar Loans, as to which a single Interest Period
is in effect.
"Borrowing
Request"
means a
request by a Borrower for a Borrowing in accordance with Section
2.03.
"Business
Day"
means
(i) with respect to the Adjusted One Month LIBOR Rate and any borrowing, payment
or rate selection of Adjusted LIBOR Rate Advances a day (other than Saturday
or
Sunday) on which banks generally are open in Texas and/or New York for the
conduct of substantially all of their commercial lending activities and on
which
dealings in United States dollars are carried on in the London interbank market,
and (ii) for all other purposes, a day other than a Saturday, Sunday or any
other day on which national banking associations are authorized to be
closed.
"Capital
Expenditures"
means,
for any period, the sum of all amounts that would, in accordance with GAAP,
be
included as capital expenditures on the consolidated statement of cash flows
for
the Company and its consolidated Subsidiaries during such period (including
the
amount of assets leased under any Capital Lease Obligation during such period),
less the net proceeds received by such Persons during such period from sales
of
fixed tangible assets as reflected on the consolidated statement of cash flows
for that period.
"Capital
Lease"
means,
at any time a lease with respect to which the lessee is required concurrently
to
recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
"Capital
Lease Obligations"
of any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“CB
Floating Rate”
means
the Prime Rate; provided that the CB Floating Rate shall, on any day, not be
less than the Adjusted One Month LIBOR Rate. The CB Floating Rate is a variable
rate and any change in the CB Floating Rate due to any change in the Prime
Rate
or the Adjusted One Month LIBOR Rate is effective from and including the
effective date of such change in the Prime Rate or the Adjusted One Month LIBOR
Rate, respectively.
“CB
Floating Rate Loan”
means
any Loan which is based on the CB Floating Rate.
"Change
in Control"
means
(a) the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof, excluding management personnel as listed in
the
proxy statement dated April 21, 2008 of the Company), of Equity Interests
representing more than 35% of the aggregate ordinary voting power represented
by
the issued and outstanding Equity Interests of the Company; (b) occupation
after
the Restatement Effective Date of a majority of the seats (other than vacant
seats) on the board of directors of the Company by Persons who were neither
(i)
nominated by the board of directors of the Company nor (ii) appointed by
directors so nominated; (c) the acquisition after the Restatement Effective
Date
of direct or indirect Control of the Company by any Person or group; or (d)
the
ownership after the Restatement Effective Date by any Person other than the
Company of any capital stock of a Borrower, or the ownership by any Person
other
than a Borrower, or the Subsidiary of the Borrower that is the owner thereof
as
of the Restatement Effective Date (or such later date on which the Guarantor
becomes a Guarantor hereunder), of any capital stock or other equity interest
in
any Guarantor.
"Change
in Law"
means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or,
for purposes of Section 2.13(b), by any lending office of such Lender or by
such
Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time.
"Collateral"
means
any property or rights in which, pursuant to the Security Documents, there
has
been granted (or purported to have been granted) to the Collateral Agent for
the
ratable benefit of the Lenders, a security interest.
"Collateral
Agent"
means
JPMorgan Chase Bank, N.A., as Collateral Agent under the Pledge Agreement.
"Company"
means
Drew Industries Incorporated, a Delaware corporation.
"Company
Guarantee"
has the
meaning given to such term in Section 4.01(a).
"Consolidated
Indebtedness"
means,
as of the date of determination, all Indebtedness owed or guaranteed by any
Credit Party and any of its Subsidiaries (but shall not include the undrawn
amount of any Letters of Credit), determined on a consolidated basis in
accordance with GAAP.
"Consolidated
Interest Expense"
means,
for the period in issue all net interest expense of the Company and its
Subsidiaries, whether paid or accrued, without duplication, determined on a
consolidated basis in accordance with GAAP.
"Consolidated
Net Income"
means,
for any period, the net income or loss of the Company and its Subsidiaries
for
such period determined on a consolidated basis in accordance with GAAP, but
excluding: (i) non-cash after-tax charges for the impairment of goodwill or
other related intangibles; (ii) extraordinary gains or losses; (iii) net
earnings of any business entity (other than a direct or indirect Subsidiary)
in
which the Company or any of its Subsidiaries has an ownership interest unless
such net earnings shall have been received in the form of cash distributions;
(iv) any portion of net earnings of any Subsidiary of the Company which for
any
reason is unavailable for distribution to the Company; (v) the cumulative effect
of a change in accounting principles; and (vi) a charge recorded in the fiscal
quarter of the Company ending December 31, 2008 of up to $2,500,000 for certain
executive post-employment severance charges; (vii) any and all gains and losses
that would be categorized as other comprehensive income under GAAP.
"Consolidated
Net Worth"
means,
as of the date of determination, (a) the sum of (i) the par value (or value
stated on the books of the Company) of the capital stock (but excluding treasury
stock and capital stock subscribed and unissued) of the Company and its
Subsidiaries plus
(ii) the
amount of the paid-in capital and retained earnings of the Company and its
Subsidiaries, in each case as such amounts would be shown on a consolidated
balance sheet of the Company and its Subsidiaries as of such date prepared
in
accordance with GAAP, minus
(b) to
the extent included in clause (a), all amounts properly attributable to Minority
Interests, if any, in the stock and surplus of Subsidiaries. For purposes of
calculating the Consolidated Net Worth the value of all accounts comprising
"Other Comprehensive Income" (as determined in accordance with GAAP) shall
be
excluded.
"Consolidated
Tangible Net Worth"
means,
as of the date of determination, (a) the sum of (i) the par value (or value
stated on the books of the Company) of the capital stock (but excluding treasury
stock and capital stock subscribed and unissued) of the Company and its
Subsidiaries plus
(ii) the
amount of the paid-in capital and retained earnings of the Company and its
Subsidiaries, in each case as such amounts would be shown on a consolidated
balance sheet of the Company and its Subsidiaries as of such date prepared
in
accordance with GAAP, minus
(b) to
the extent included in clause (a), (i) all amounts properly attributable to
Minority Interests, if any, in the stock and surplus of Subsidiaries, and (ii)
the sum of the following (without duplication of deductions in respect of items
already deducted in arriving at surplus and retained earnings): cost of treasury
shares, the book value of all assets which should be classified as intangibles,
but in any event including goodwill, research and development costs, customer
relationships, trademarks, trade names, copyrights, patents and franchises,
unamortized debt discount and any write-up in the book value of assets resulting
from a revaluation thereof (other than any such write-up made in connection
with
the acquisition of an asset from Person which is not an Affiliate of a Credit
Party and so long as such a write-up is made in accordance with GAAP and is
based on the fair market value of the asset).
"Consolidated
Total Assets"
means,
as of the date of determination, the total assets of the Borrowers and their
Subsidiaries, determined on a consolidated basis in conformity with
GAAP.
"Control"
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "Controlling"
and
"Controlled"
have
meanings correlative thereto.
"Credit
Party"
means
each Borrower, each Guarantor, and each Person who is required to become a
party
to the Subordination Agreement pursuant to Section 5.09.
"Default"
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
"Distribution"
means
in respect of any corporation, association or other business entity: (a)
dividends or other distributions or payments on capital stock or other equity
interest of such corporation, association or other business entity (except
distributions in such stock or other equity interest); and (b) the redemption
or
acquisition of such stock or other equity interests or of warrants, rights
or
other options to purchase such stock or other equity interests (except when
solely in exchange for such stock or other equity interests) unless made,
contemporaneously, from the net proceeds of a sale of such stock or other equity
interests (but excluding the acquisition through repurchase programs by the
Company of its common stock to be held as treasury stock).
"Documentation
Agent"
means
Xxxxx Fargo Bank, N.A., in its capacity as documentation agent for the Lenders
hereunder.
"dollars"
or
"$"
refers
to lawful money of the United States of America.
"EBITDA"
means,
for any period in issue, the sum of, without duplication, income before income
taxes plus Consolidated Interest Expense, depreciation, amortization of tangible
or intangible assets, plus any non-cash charges relating to the impairment
of
goodwill and non-cash expenses in connection with stock-based compensation,
extraordinary gains (or losses) and any gains (or losses) from the sale or
disposition of assets other than in the ordinary course of business; all on
a
consolidated basis for the Company and its Subsidiaries and all calculated
in
accordance with GAAP; and a charge recorded in the fiscal quarter of the Company
ending December 31, 2008 of up to $2,500,000 for certain executive
post-employment severance charges.
"Environmental
Laws"
means
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety
matters.
"Environmental
Liability"
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of any
Credit Party or any Subsidiary thereof directly or indirectly resulting from
or
based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity
Interests"
means
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.
"ERISA
Affiliate"
means
any trade or business (whether or not incorporated) that, together with any
Credit Party, is treated as a single employer under Section 414(b) or (c)
of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of
the Code, is treated as a single employer under Section 414 of the
Code.
"ERISA
Event"
means
(a) any "reportable event", as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect
to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by any Credit
Party or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by any
Credit Party or any ERISA Affiliate from the PBGC or a plan administrator of
any
notice relating to an intention to terminate any Plan or Plans or to appoint
a
trustee to administer any Plan; (f) the incurrence by any Credit Party or any
of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any
Credit Party or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Credit Party or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar",
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Adjusted LIBOR Rate.
"Event
of Default"
has the
meaning given to such term in Article VII.
"Excluded
Taxes"
means,
with respect to the Administrative Agent, any Lender, the Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation
of
a Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by)
its net income by the United States of America, or by the jurisdiction under
the
laws of which such recipient is organized or in which its principal office
is
located or, in the case of any Lender, in which its applicable lending office
is
located, (b) any branch profits taxes imposed by the United States of America
or
any similar tax imposed by any other jurisdiction in which a Borrower is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to
a
request by the Borrowers under Section 2.17(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office)
or
is attributable to such Foreign Lender's failure to comply with Section 2.15(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to
receive additional amounts from a Borrower with respect to such withholding
tax
pursuant to Section 2.15(a).
"Existing
Credit Agreement"
means
the Amended and Restated Credit Agreement dated as of February 11, 2005 to
which
the Borrowers, JPMorgan Chase Bank as administrative agent and certain lenders
were parties, as amended through the date immediately preceding the Restatement
Effective Date. All interest, fees or other amounts accrued and unpaid by the
Borrowers as of the Restatement Effective Date shall continue to be owing under
this Agreement.
"Existing
Letters of Credit"
means
the Letters of Credit described on Schedule
1.01-3
and
issued under the Existing Credit Agreement.
"Fair
Market Value"
means
at any time and with respect to any property, the sale value of such property
that would reasonably be estimated to be realized in an arm's-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"Financial
Officer"
means
the chief financial officer, principal accounting officer, treasurer or
controller of the Company.
"Foreign
Lender"
means
any Lender that is organized under the laws of a jurisdiction other than that
in
which the Borrowers are located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
"GAAP"
means
generally accepted accounting principles in the United States of America as
promulgated by the Financial Accounting Standards Board ("FASB") or other
accounting standards setting entity accepted by the SEC.
"Governmental
Authority"
means
the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee"
of or
by any Person (the "guarantor")
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any
other Person (the "primary
obligor")
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any security
for
the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation;
provided,
that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business.
"Guarantor"
means
each of (i) the Company, (ii) each Person listed on Schedule
1.01-2
hereto,
and (iii) each Person who is required to become a Guarantor pursuant to Section
5.09.
"Guarantee
Agreement"
has the
meaning given to such term in Section 4.01(a).
"Hazardous
Materials"
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
"Hedging
Agreement"
means
any interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate
or commodity price hedging arrangement.
"Hedging
Exposure Amount"
means
the maximum aggregate amount (giving effect to any netting agreements) that
the
Borrowers or any of them would be required to pay at any time if all of its
or
their Hedging Agreements were terminated at such time.
"Inactive
Subsidiary"
means,
with respect to any Person, a Subsidiary of such Person (i) that conducts
no business activities on the Restatement Effective Date hereof nor on any
date
thereafter, (ii) the assets of which Subsidiary have a fair market value
less than the smaller of (x) $50,000 or (y) one-half of one percent
(0.50%) of the consolidated assets of such Person and its Subsidiaries; and
(iii) the total liabilities of which are less than $25,000; provided that
if the assets of all such Subsidiaries that meet the conditions of clauses
(i),
(ii) and (iii) (each, a "Specified Subsidiary"), in the aggregate, exceed either
of the thresholds of clause (ii), then there shall be excluded from the term
"Inactive Subsidiary" the Specified Subsidiary having the greatest assets,
and,
if necessary, the Specified Subsidiary having the next greatest assets, and
so
on, until the assets of the remaining Specified Subsidiaries, in the aggregate,
no longer exceed either of such thresholds of clause (ii) (such remaining
Specified Subsidiaries constituting the Inactive Subsidiaries); provided
further, that no Credit Party shall be an Inactive Subsidiary.
"Indebtedness"
of any
Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether
or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees
by such Person of Indebtedness of others, (g) all Capital Lease Obligations
of such Person (and excluding from the definition of Indebtedness leases of
real
or personal property which are not Capital Leases), (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty (other than performance guaranties)
and (i) all obligations, contingent or otherwise, of such Person in respect
of
bankers' acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person
is
not liable therefor.
"Indemnified
Taxes"
means
Taxes other than Excluded Taxes.
"Intercreditor
Agreement"
means
the Amended and Restated Intercreditor Agreement dated as of the Restatement
Effective Date between the Administrative Agent and certain of the Lenders
and
the Trustee for the holders of Senior Notes and the holders of the Senior Notes
and any amendments, supplements or replacements thereof. Any Lender not a party
thereto shall be deemed to become a party upon becoming a Lender
hereunder.
"Interest
Election Request"
means a
request by a Borrower to convert or continue a Borrowing in accordance with
Section 2.06.
"Interest
Payment Date"
means
(a) with respect to any CB Floating Rate Loan, the last day of each March,
June, September and December, and (b) with respect to any Eurodollar Loan,
the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period
of
more than three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months' duration after the
first day of such Interest Period.
"Interest
Period"
means,
with respect to any Eurodollar Borrowing, the period commencing on the date
of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three, six or twelve months thereafter (or that is
for a
one week period (for which a three day prior request shall be required)), as
the
Borrower thereof may elect, provided,
that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
(in
the case of Eurodollar Borrowing only) such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on
the next preceding Business Day, and (ii) any Interest Period pertaining to
a
Eurodollar Borrowing that commences on the last Business Day of a calendar
month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day
of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made
and,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Interest
Rate Protection Merchant"
shall
mean a Lender or other financial institution which provides Hedging Agreements
to the Borrowers or either of them for interest rate protection.
"Interest
Rate Hedging Exposure Amount"
means
the Hedging Exposure Amount attributable to Interest Rate Hedging Agreements.
"Interest
Rate Hedging Agreement"
shall
mean a Hedging Agreement between a Borrower and an Interest Rate Protection
Merchant which provides for interest rate protection. Interest Rate Hedging
Agreements shall not be required hereunder to have participation by more than
one Lender.
"Issuing
Bank"
means
JPMorgan Chase Bank, N.A., in its capacity as the issuer of a Letter of Credit
and its successor as provided in Section 2.04(i). The Issuing Bank may, in
its
discretion arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Kinro"
means
Kinro, Inc., an Ohio corporation.
"LC
Disbursement"
means a
payment made by the Issuing Bank pursuant to a Letter of Credit.
"LC
Exposure"
means,
at any time, the sum of (a) the undrawn amount of each Letter of Credit at
such
time plus (b) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time. The LC Exposure
of
any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"Lenders"
means
the Persons listed on Schedule 2.01
and any
other Person that shall have become a party hereto pursuant to an Assignment
and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter
of Credit"
means
(individually and collectively) each letter of credit issued pursuant to this
Agreement whether outstanding on the Restatement Effective Date (including
the
Existing Letters of Credit) or at any time thereafter and any renewal,
extension, amendment or modification thereof.
“LIBOR
Rate”
means,
with respect to any Eurodollar Loan for any Interest Period, the interest rate
determined by JPMorgan Chase Bank, N.A. by reference the Page to be the rate
at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of the applicable Interest Period, for dollar deposits with a
maturity equal to such Interest Period. If no LIBOR Rate is available to
JPMorgan Chase, Bank, N.A., the applicable LIBOR Rate for the relevant Interest
Period shall instead be the rate determined by JPMorgan Chase Bank, N.A. to
be
the rate at which JPMorgan Chase Bank, N.A. offers to place U.S. dollar deposits
having a maturity equal to such Interest Period with first-class banks in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the first day of such Interest Period.
"Lien"
means,
with respect to any asset,(a) any mortgage, pledge or hypothecation of, or
any
lien, encumbrance, charge, or security interest in such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, title retention
agreement or Capital Lease (or any financing lease having substantially the
same
economic effect as any of the foregoing) relating to such asset, and (c) in
the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Xxxxxxx"
means
Xxxxxxx Components, Inc., a Delaware corporation.
"Loan
Documents"
means
this Agreement, the Notes or any other promissory notes delivered pursuant
hereto, the Security Documents, the Guarantee Agreements, the Subordination
Agreement, and any applications heretofore or hereafter made in respect of
the
Letter of Credit, and any instruments or agreements executed and delivered
pursuant to any of the foregoing, in each case as supplemented, amended or
modified from time to time, and any document, instrument, or agreement
supplementing, amending, or modifying, or waiving any provision of, any of
the
foregoing.
"Loans"
means
the revolving loans made by the Lenders pursuant to Section 2.03 of this
Agreement.
"Mandatory
Lenders"
means,
at any time, Lenders having Revolving Credit Exposures and unused Revolving
Credit Commitments representing more than 75% of the sum of the aggregate
Revolving Credit Exposures and unused Revolving Credit Commitments hereunder
at
such time.
"Material"
means
material in relation to the business, operations, affairs, financial condition,
assets, properties, or prospects of the Company and its Subsidiaries taken
as a
whole (unless the context otherwise requires).
"Material
Adverse Effect"
means a
Material adverse effect on (a) the business, operations, affairs, financial
condition, assets, properties or prospects of the Company and its Subsidiaries,
taken as a whole, (b) the ability of any Borrower to perform its obligations
under this Agreement or any of the Notes, (c) the ability of the Company to
perform its obligations under the Company Guarantee, (d) the ability of the
Company and its Subsidiaries, taken as a whole, to perform their obligations
under any of the other Loan Documents, (e) the validity or enforceability of
this Agreement or any of the other Loan Documents, or (f) the security interests
taken as a whole granted by the Pledge Agreements.
"Maturity
Date"
means
December 1, 2011.
"Maximum
Leverage Ratio"
means
on the relevant date the ratio of Consolidated Indebtedness as of such date
to
EBITDA for the relevant period, each as determined on a Pro Forma
Basis.
"Minimum
Debt Service Ratio"
means
(i) EBITDA less (A) Capital Expenditures made, and (B) Restricted Payments,
divided by (ii) the current portion of Consolidated Indebtedness (as determined
as of the last day of the period in issue) plus the Consolidated Interest
Expense for the period in issue, each as determined on a Pro Forma
Basis.
"Minority
Interests"
means
any shares of stock of any class of a Subsidiary of any Person (other than
directors' qualifying shares as required by law) that are not owned by such
Person and/or one or more of such Person's Subsidiaries. Minority Interests
shall be valued by valuing "Minority Interests" consisting of preferred stock
at
the voluntary or involuntary liquidation value of such preferred stock,
whichever is greater, and by valuing "Minority Interests" consisting of common
stock at the book value of capital and surplus applicable thereto adjusted,
if
necessary, to reflect any changes from the book value of such common stock
required by the foregoing method of valuing "Minority Interests" in preferred
stock.
"Xxxxx'x"
means
Xxxxx'x Investors Service, Inc.
"Multiemployer
Plan"
means a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Note"
means a
Revolving Credit Note.
"Obligations"
means,
without duplication, all obligations defined as "Obligations" in the Pledge
Agreement.
"Other
Taxes"
means
any and all present or future stamp or documentary taxes or any excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, otherwise with
respect to this Agreement.
“Page”
means
Reuters Screen LIBOR01, formerly knows as Page 3750 of the Moneyline Telerate
Service (together with any success or substitute, the “Service”)
or any
successor or substitute page of the Service providing rate quotations comparable
to those currently provided on such page of the Service, as determined by
JPMorgan Chase Bank N.A. from time to time for purposes of providing quotations
on interest rates applicable to dollar deposits in the London interbank
market.
"Participant"
has the
meaning set forth in Section 9.04.
"PBGC"
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and
any successor entity performing similar functions.
"Permitted
Liens"
shall
include the following: (i) Liens listed on Schedule
3.05(a)
to the
Agreement, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof, provided that
any such
Lien shall secure only those obligations which it secured as of the Restatement
Effective Date (except that any such Liens on properties constructed, improved
or acquired with the proceeds of industrial revenue or development bond issues
representing Indebtedness of a Credit Party owing directly or indirectly to
GE
Capital Finance, Inc., and which Liens secure only such issues, whether such
issues are outstanding as of the Restatement Effective Date or which are
thereafter outstanding, may secure other such issues representing Indebtedness
so owing to such obligee the proceeds of which have been used by a Credit Party
to construct, improve or acquire other property, so long as such Liens do not
extend to any property of a Credit Party not so financed and secure only
Indebtedness represented by such issues); (ii) Liens (other than Liens on any
"Inventory" or "Accounts" or any "Proceeds" thereof, as such terms are defined
in Section 9-102 of the New York Uniform Commercial Code) on fixed or capital
assets acquired, constructed or improved; provided
that (x)
such security interests secure Indebtedness permitted hereunder, (y) such
security interests and the Indebtedness secured thereby are incurred prior
to or
within 180 days (and in the case of industrial revenue bonds, 360 days) after
such acquisition, the completion of such construction or improvement or the
placing in service, as the case may be of the asset which is subject to the
security interest, (z) the Indebtedness secured thereby does not exceed 85%
(in
the case of real property and the improvements thereon) or 100% (in the case
of
personal property (other than fixtures)) of the cost of acquiring, constructing
or improving such fixed or capital assets, and (aa) such security interest
shall
not apply to any other property or assets of any Credit Party or any Subsidiary
thereof; (iii) carriers', warehousemen's, mechanics', repairmen's and other
like
Liens imposed by law in an aggregate amount not exceeding $1,500,000 arising
in
the ordinary course of business and securing obligations that are not overdue
by
more than 30 days or are being contested in good faith by appropriate
proceedings and for which adequate reserves have been established therefor
in
accordance with GAAP on the books of such Credit Party or Subsidiary and as
to
which the failure to make payment during such contest could not reasonably
be
expected to have a Material Adverse Effect; (iv) pledges and deposits made
in
the ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations in respect
of which adequate reserves shall have been established; (v) deposits to secure
the performance of bids, trade contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature,
in
each case in the ordinary course of business; (vi) easements, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed
by
law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of any
Credit Party or any Subsidiary thereof; (vii) Liens (other than Liens on any
Inventory or Accounts or any Proceeds thereof) securing indebtedness of one
Credit Party to another Credit Party; provided that (x) such Indebtedness is
permitted under Sections 6.04 or 6.07 hereof (as applicable), (y) all of the
outstanding capital stock or other equity interests of each such Credit Party
shall be owned 100% directly or indirectly by the Company, (z) each of such
Credit Parties to or by whom such Indebtedness is owed, or who owns (directly
or
indirectly) any stock referred to in the preceding clause (y), shall have become
party to the Subsidiary Guarantee and (aa) such indebtedness shall not be
assigned or transferred by the obligee thereof to any Person other than another
Credit Party such that after giving effect to such assignment and transfer
all
of the foregoing conditions are satisfied; (viii) Liens securing Indebtedness
outstanding under the Prudential Shelf Agreement and/or the Prudential Notes
so
long as (a) the Obligations are secured equally and ratably therewith pursuant
to such documents, instruments and agreements as shall be required by the
Collateral Agent, including without limitation an intercreditor agreement by
and
among the Lenders and the holders of the Prudential Notes in form satisfactory
to the Collateral Agent and (b) the Lenders shall have received an opinion
of
counsel, selected by the Borrowers and substantially in the form of Exhibit
B;
(ix)
other Liens (other than Liens on any Inventory or Accounts or any Proceeds
thereof), provided that the aggregate amount of all Indebtedness secured by
such
Liens shall not at any time exceed 15% of Consolidated Net Worth; and (x) Liens
that extend, renew or replace Liens permitted by clauses (i) through (viii);
provided, however, that in no event shall Indebtedness secured by Liens
described in clauses (i), (iv) and (ix) exceed 55 percent of Total
Capitalization of the Company and its Subsidiaries. In no event shall any Lien
on any Inventory or Accounts or any Proceeds thereof be a Permitted
Lien.
"Permitted
Loans and Investments"
means
(i) subject to Section 6.04(f) hereof, investments, loans and advances by any
Credit Party and any of its Subsidiaries in and to Wholly-Owned Subsidiaries;
(ii) subject to compliance with Section 6.11(a) hereof, capital stock of the
Company; (iii) investments in commercial paper and loan participations maturing
within 270 days from the date of acquisition thereof having, at such date of
acquisition, a rating of A-1 or P-1 or better from Standard & Poor's
Corporation, Xxxxx'x Investors Service, Inc. or by another nationally recognized
credit rating agency; (iv) direct obligations of, or obligations the principal
of or 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) (or by any other
foreign government of equal or better credit quality), in each case maturing
within one year from the date of acquisition thereof; (v) investments in
certificates of deposit, banker's acceptances and time deposits maturing within
one year from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank which is (x) on the Federal Reserve Board's list
of the top 50 bankholding companies (or is a subsidiary thereof) or (y) to
the
extent not within (x), Citizens Bank (Michigan); (vi) fully collateralized
repurchase agreements, having terms of less than 90 days, for government
obligations of the type specified in (iii) above with a commercial bank or
trust
company meeting the requirements of (iv) above; and (vii) investments in
addition to those permitted by clauses (i) through (v) including acquisitions
of
the assets or stock or other securities of any Person, provided, however,
that
the amount paid for any acquisition of the assets or stock or other securities
of any one Person and its affiliates and subsidiary shall not exceed $30,000,000
(and any such acquisition which shall be in an amount of $20,000,000 or greater
shall require the submission by the Borrowers, as a further condition of its
being a part of the Permitted Loans and Investments, the Submission to the
Administrative Agent of a pro forma compliance certificate not less than
fourteen days prior to the closing thereof) and the aggregate amount paid for
any such acquisitions from all Persons on after the Restatement Effective Date
shall not exceed $100,000,000, and any acquisitions not satisfying this proviso
all or in part shall be deemed in their entirety not to be Permitted Loans
and
Investments.
"Person"
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
"Plan"
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which any Credit Party or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge
Agreement"
has the
meaning given to such term in Section 4.01(a).
"Preferred
Stock"
means
any class of capital stock of a corporation that is preferred over any other
class of capital stock of such corporation as to the payment of dividends or
the
payment of any amount upon liquidation or dissolution of such
corporation.
"Prime
Rate"
means
the rate of interest per annum announced from time to time by JPMorgan Chase
Bank, N.A. as its prime rate. The Prime Rate is a variable rate and each change
in the Prime Rate is effective from and including the date such change is
publicly announced as being effective. THE PRIME RATE IS A REFERENCE RATE AND
MAY NOT BE THE LOWEST RATE OF JPMORGAN CHASE BANK, N.A.
"Priority
Debt"
means,
as of any date, the sum (without duplication) of all outstanding secured
Indebtedness of the Company or any Subsidiary of the Company, other than (a)
secured Indebtedness of such Subsidiary owing solely to Company or any
Wholly-Owned Subsidiary of the Company, and (b) Indebtedness of any Credit
Party
under the facility evidenced hereby and the Prudential Debt.
"Pro
Forma Basis"
shall
mean, for the determination of "EBITDA", "Consolidated Indebtedness", "Capital
Expenditures", "Consolidated Interest Expense," and "Total Senior Debt" for
any
period of four consecutive fiscal quarters or twelve calendar months of the
Company or as of the relevant reporting date, as the case may be, for purposes
of calculating the Maximum Leverage Ratio, the Debt Coverage Ratio and the
Minimum Debt Service Ratio, that such determinations shall be made on the
assumptions that (a) each Wholly-Owned Subsidiary that was acquired by a Credit
Party during such period from a Person that was not an Affiliate of a Credit
Party and each disposition during such period of any Person that ceases to
be a
Wholly-Owned Subsidiary upon such disposition, occurred on the first day of
such
period, and (b) all Indebtedness incurred or paid (or to be incurred or paid)
by
all such Persons in connection with all such transactions (x) was incurred
or
paid on the first day of such period, as the case may be, and (y) if incurred,
was outstanding in full at all times during such period and had in effect at
all
times during such period (or any portion of such period during which such
Indebtedness was not actually outstanding) an interest rate equal to the
interest rate in effect on the date of the actual incurrence thereof (regardless
of whether such interest rate is a floating rate or would otherwise change
over
time by reference to a formula or for any other reason).
"Prudential"
means
Prudential Investment Management, Inc.
"Prudential
Company Guarantee"
has the
meaning given to such term in Section 4.01(e).
"Prudential
Debt"
means
the Prudential Notes and any other indebtedness arising on or after the
Restatement Effective Date under or pursuant to the Prudential Shelf Agreement.
The Notes and the Loans are not subordinated to or otherwise subject to the
Prudential Debt.
"Prudential
Intercreditor Agreement"
shall
have the meaning given to such term in Section 4.01(e).
"Prudential
Notes"
shall
mean any promissory notes issued to or to be issued subject to the Prudential
Shelf Agreement.
"Prudential
Pledge and Security Agreement"
has the
meaning given to such term in Section 4.01(e).
"Prudential
Security Documents"
means
the Prudential Company Guarantee, the Prudential Subsidiary Guarantee,
Prudential Pledge and Security Agreement and the Prudential Subordination
Agreement.
"Prudential
Shelf Agreement"
has the
meaning given to such term in Section 4.01(e).
"Prudential
Subordination Agreement"
has the
meaning given to such term in Section 4.01(e).
"Prudential
Subsidiary Guarantee"
has the
meaning give to such term in Section 4.01(e).
"Prudential
Subordination Agreement"
has the
meaning given to such term in Section 4.01(e).
"Register"
has the
meaning given to such term in Section 9.04.
"Related
Parties"
means,
with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.
“Regulation
D”
means
Regulation D of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor thereto or other regulations or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Required
Lenders"
means,
at any time, Lenders having Revolving Credit Exposures and unused Revolving
Credit Commitments representing more than 75% of the sum of the aggregate
Revolving Credit Exposures and aggregate unused Revolving Credit Commitments
hereunder at such time.
“Reserve
Requirement”
means
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves), which is imposed under Regulation D.
"Restatement
Effective Date"
means
November 25, 2008.
"Restricted
Payment"
means:
(i) any Distribution in respect of a Credit Party or any Subsidiary of a Credit
Party, including, without limitation, any Distribution resulting in the
acquisition by a Credit Party of securities which would constitute treasury
stock, and (ii) any payment, repayment, redemption, retirement, repurchase
or
other acquisition, direct, or indirect, by a Credit Party or any Subsidiary
thereof, on account of, or in respect of, the principal of any Subordinated
Debt
(or any installment thereof) prior to the regularly scheduled maturity date
thereof (as in effect on the date such Subordinated Debt was originally
incurred) other than in respect of Subordinated Debt of one Credit Party to
another Credit Party provided that no Event of Default exists or would exist
after such prepayment.
For
purposes of this Agreement, the amount of any Restricted Payment made in
property shall be the greater of (x) the Fair Market Value of such property
(as
determined in good faith by the board of directors (or equivalent governing
body) of the Person making such Restricted Payment) and (y) the net book value
thereof on the books of such Person, in each case determined as of the date
on
which such Restricted Payment is made.
"Revolving
Credit Commitment"
means,
with respect to each Lender, the commitment of each Lender to make Loans
hereunder as set forth in Section 2.01 (as the same may be increased pursuant
to
Section 2.06A), and to acquire participations in the Letters of Credit as set
forth in Section 2.04 as the same may be (a) reduced from time to time pursuant
to Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of
each Lender's Revolving Credit Commitment is set forth on Schedule
2.01
(as the
same may be increased pursuant to Section 2.06A), or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving Credit
Commitments, as applicable and ending on the day immediately preceding the
Maturity Date (and thereafter further reducing to zero) in the aggregate (which
amount shall include the undrawn amounts of the Letters of Credit).
"Revolving
Credit Exposure"
means,
with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender's Loans and its LC Exposure at such time.
"Revolving
Credit Note"
has the
meaning given to such term in Section 4.01(d).
"SEC"
means
the United States Securities and Exchange Commission.
"S&P"
means
Standard & Poor's.
"Secured
Parties"
means
the Lenders, the Administrative Agent, the Collateral Agent, the Issuing Bank
and any Interest Rate Protection Merchant.
"Security
Documents"
means
each of the agreements, instruments, and documents referred to in the last
sentence of Section 4.01(a) and any instruments or agreements executed and
delivered pursuant to any of the foregoing, in each case as supplemented,
amended or modified from time to time, and any document, instrument or agreement
supplementing, amending or modifying, or waiving any provision of, any of the
foregoing.
"Subordinated
Debt"
means
any Indebtedness that is in any manner subordinated in right of payment or
security in any respect to the Obligations.
"Subordination
Agreement"
has the
meaning given to such term in Section 4.01(a).
"Subsidiary"
means,
with respect to any Person (the "parent")
at any
date, any corporation, limited liability company, partnership, association
or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise Controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary
Guarantee"
has the
meaning given to such term in Section 4.01(a).
"Taxes"
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
"Total
Capitalization"
means
the sum of (i) Consolidated Indebtedness and (ii) Consolidated Tangible Net
Worth, each as of the most recently ended fiscal quarter.
"Total
Senior Debt"
shall
mean on any date the aggregate unpaid principal amount of institutional
Indebtedness of the Credit Parties, whether recourse or non-recourse, joint
or
several, or secured or unsecured.
"Transactions"
means
the execution, delivery and performance by each Credit Party on the Restatement
Effective Date, of this Agreement and each other Loan Document to which such
Credit Party is a party, the creation of the security interests contemplated
by
the Security Documents, the borrowing of Loans (in the case of the Borrowers),
the use of the proceeds of Loans and the other transactions contemplated by
the
Loan Documents, and (ii) on the Restatement Effective Date, of this Agreement
as
amended and restated as of such date.
"Trustee"
shall
mean the trustee for the Prudential Shelf Agreement and the Prudential
Notes.
"Type",
when
used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBOR Rate or the CB Floating Rate.
"Wholly-Owned
Subsidiary"
means,
at any time, any Subsidiary one hundred percent (100%) of all of the equity
interests (except directors' qualifying shares) and voting interests of which
are owned by any one or more of the Company or a Borrower and the Company's
or
Borrower's other Wholly-Owned Subsidiaries at such time.
"Withdrawal
Liability"
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification
of Loans and Borrowings.
For
purposes of this Agreement, Loans may be classified and referred to by Type
(e.g.,
a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g.,
a
"Eurodollar Borrowing").
SECTION
1.03. Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the
same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof,
(d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to,
this Agreement and (e) the words "asset" and "property" shall be construed
to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION
1.04. Accounting
Terms; GAAP.
Except
as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided
that, if
the Borrowers notify the Administrative Agent that the Borrowers request an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrowers that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
ARTICLE
II
The
Revolving Credits
SECTION
2.01. Revolving
Credit Commitments.
Subject
to the terms and conditions set forth herein, each Lender agrees to make Loans
to the Borrowers or any of them from time to time during the Availability Period
in an aggregate principal amount that will not result in (a) such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment
or
(b) the sum of the total Revolving Credit Exposures exceeding the aggregate
Revolving Credit Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Loans.
SECTION
2.02. Loans
and Borrowings.
(a) Each
Loan
shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their respective Revolving Credit Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided
that the
Revolving Credit Commitments of the Lenders are several and no Lender shall
be
responsible for any other Lender's failure to make Loans as
required.
(b) Subject
to Section 2.12, each Borrowing shall be comprised entirely of CB Floating
Rate Loans or Eurodollar Loans as the Borrower thereof may request in accordance
herewith. Each Lender at its option may make any Eurodollar Loan by causing
any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided
that any
exercise of such option shall not affect the obligation of the Borrowers to
repay such Loan in accordance with the terms of this Agreement.
(c) At
the
commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000 and not less than $500,000. At the time that each CB Floating Rate
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $25,000 and not less than $100,000; provided
that a
CB Floating Rate Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Credit Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated
by
Section 2.04(e). Borrowings of more than one Type may be outstanding at the
same
time; provided
that
there shall not at any time be more than a total of fifteen (15) Eurodollar
Borrowings outstanding.
(d) Notwithstanding
any other provision of this Agreement, Borrower shall be entitled to request,
or
to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION
2.03. Requests
for Borrowings.
To
request a Borrowing, the Borrower thereof shall notify the Administrative Agent
of such request by telephone or other generally accepted electronic means (a)
in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed
Borrowing, or (b) in the case of an CB Floating Rate Borrowing, not
later than 11:00 a.m. New York City time, on the date of the proposed Borrowing;
provided
that any
such notice of a CB Floating Rate Borrowing to finance the reimbursement of
an
LC Disbursement as contemplated by Section 2.04(e) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed Borrowing.
Each
such telephonic or other such electronic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower thereunder. Each such telephonic
or other such electronic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be a CB Floating Rate Borrowing or a Eurodollar
Borrowing;
(iv) in
the
case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated for such a Borrowing by the
definition of the term "Interest Period"; and
(v) the
location and number of the Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of Section
2.05.
If
no
election as to the Type of Borrowing is specified, then the requested Borrowing
shall be a CB Floating Rate Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower thereof shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of
the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION
2.04. Letters
of Credit.
(a) General.
Subject
to the terms and conditions set forth herein, the Borrowers may request the
issuance of Letters of Credit for their own account (or for the account of
another Credit Party (other than a foreign Credit Party) in which case the
Borrowers shall also be jointly and severally liable in respect of such Letters
of Credit as if they were the account party thereof), in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrowers (or any other Credit Party) to, or entered into
by
any of the Borrowers with, the Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control. Notwithstanding
anything in this Agreement to the contrary, the aggregate face amount of undrawn
Letters of Credit shall at no time exceed $20,000,000.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrowers shall hand deliver
or telecopy (or transmit by other generally accepted electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to
be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of
the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Borrowers also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit.
A
Letter of Credit shall be issued, amended, renewed or extended only if (and
upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrowers
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension the sum of the total Revolving Credit
Exposures shall not exceed the total Revolving Credit Commitments.
(c) Expiration
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date one year after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days prior
to
the Maturity Date.
(d) Participations.
(i) By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of
the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender,
and
each Lender hereby acquires from the Issuing Bank, a participation in each
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration
and
in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account
of
the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Borrowers on the date due
as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to a Borrower for any reason. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of a Letter of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension (if permitted hereunder) of a Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(ii) Each
of
the Lenders agrees that its participation hereunder in each Letter of Credit
(including the Existing Letters of Credit and each Loan outstanding as of the
Restatement Effective Date) shall be in accordance with its pro rata share
of
the aggregate Revolving Credit Commitments set forth on Schedule
2.01
for the
Lenders and each of the Lenders which shall, as of the Restatement Effective
Date, have a share in any such Letter of Credit or Loan (before giving effect
to
this Section 2.04(d)(2)) which is in excess of its pro rata share of the
aggregate Revolving Credit Commitment as set forth in Schedule
2.01
shall be
deemed, as of such date, to make an assignment (without recourse or warranty)
to
the other Lender or Lenders, the pro rata share of which in such outstanding
Loans and Letters of Credit, shall (before giving effect to this Section
2.04(d)) be less than its or their pro rata share of the aggregate Revolving
Credit Commitments as set forth in Schedule
2.01
(which
Lender or Lenders shall be deemed to have purchased the same and which shall
make any appropriate payments to the selling Lender or Lenders on the
Restatement Effective Date) of its excess participation share in any of such
outstanding Letters of Credit and Loans, so that each of the Lenders shall
after
such deemed assignments and purchases participate in its pro rata share of
each
such Loan and Letter of Credit in accordance with its pro rata share of the
aggregate Revolving Credit Commitments as set forth in such Schedule
2.01.
(e) Reimbursement.
If the
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
the Borrowers shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made,
if the Borrowers shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrowers prior to such time on such date, then not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrowers
receive such notice, if such notice is received prior to 10:00 a.m., New York
City time, on the day of receipt, or (ii) the Business Day immediately following
the day that the Borrowers receive such notice, if such notice is not received
prior to such time on the day of receipt; provided
that, if
such LC Disbursement is not less than $100,000, the Borrowers may, subject
to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 that such payment be financed with a CB Floating Rate Borrowing in an
equivalent amount and, to the extent so financed, the Borrowers' obligation
to
make such payment shall be discharged and replaced by the resulting CB Floating
Rate Borrowing. If the Borrowers fail to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Borrowers in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrowers, in the same manner as provided in
Section 2.05 with respect to Loans made by such Lender (and
Section 2.05 shall apply, mutatis mutandis,
to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrowers
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of CB Floating Rate Loans as contemplated above) shall
not constitute a Loan and shall not relieve the Borrowers of their obligation
to
reimburse such LC Disbursement.
(f) Obligations
Absolute.
The
obligation of the Borrowers to reimburse LC Disbursements as provided in
paragraph (d) of this Section is the joint and several obligation of each
Borrower, shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any
and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of the relevant Letter of Credit or this Agreement, or any term
or provision therein, (ii) any draft or other document presented under the
relevant Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the Issuing Bank under such Letter of Credit against
presentation of a draft or other document that does not comply with the terms
of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, either Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any
of
their Related Parties, shall have any liability or responsibility by reason
of
or in connection with the issuance or transfer of a Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice
or
other communication under or relating to a Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of
technical terms or any consequence arising from causes beyond the control of
the
Issuing Bank; provided
that the
foregoing shall not be construed to excuse the Issuing Bank from liability
to
the Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each Borrower to the
extent permitted by applicable law) suffered by the Borrowers that are caused
by
the Issuing Bank's failure to exercise care when determining whether drafts
and
other documents presented under the relevant Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such
Letter of Credit.
(g) Disbursement
Procedures.
The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly notify the Administrative Agent and the
Borrowers by telephone or other generally accepted electronic means (confirmed
by telecopy) of such demand for payment and whether the Issuing Bank has made
or
will make an LC Disbursement thereunder; provided
that any
failure to give or delay in giving such notice shall not relieve the Borrowers
of their obligation hereunder or otherwise to reimburse the Issuing Bank and
the
Lenders with respect to any such LC Disbursement.
(h) Interim
Interest.
If the
Issuing Bank shall make any LC Disbursement, then, unless the Borrowers shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the
Borrowers reimburse such LC Disbursement, at the rate per annum then applicable
to CB Floating Rate Loans; provided
that, if
the Borrowers fail to reimburse such LC Disbursement when due pursuant to
paragraph (f) of this Section, then Section 2.11(e) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing
Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall
be
for the account of such Lender to the extent of such payment.
(i) Replacement
of the Issuing Bank.
The
Issuing Bank may be replaced at any time by written agreement among the
Borrowers, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become
effective, the Borrowers shall pay all unpaid fees accrued for the account
of
the replaced Issuing Bank pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term "Issuing Bank" shall be deemed to refer to such successor
or
to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
(j) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, on the Business Day that the
Borrowers receive notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposures representing greater than 75% of the total LC Exposure) demanding
the
deposit of cash collateral pursuant to this paragraph, the Borrowers shall
deposit in an account with the Collateral Agent, in the name of the Collateral
Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon;
provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default described
in clause (h) or (i) of Article VII. Such deposit shall be held by the
Collateral Agent as collateral for the payment and performance of the
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than
any
interest earned on the investment of such deposits, which investments shall
be
made at the option and sole discretion of the Collateral Agent and at the
Borrowers' risk and expense, such deposits shall not bear interest. Interest
or
profits, if any, on such investments shall accumulate in such account. Moneys
in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the LC Exposure at such time
or,
if the maturity of the Loans has been accelerated (but subject to the consent
of
Lenders with LC Exposure representing greater than 75% of the total LC
Exposure), be applied to satisfy other Obligations. If the Borrowers are
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to either Borrower within three Business Days
after
all Events of Default have been cured or waived.
SECTION
2.05. Funding
of Borrowings.
(a) Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower thereof by promptly crediting the
amounts so received, in like funds, to an account of the Borrower thereof
maintained with the Administrative Agent in New York City and designated by
such
Borrower in the applicable Borrowing Request; provided
that CB
Floating Rate Loans made to finance the reimbursement of an LC Disbursement
as
provided in Section 2.04(f) shall be remitted by the Administrative Agent to
the
Issuing Bank.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower thereof a corresponding amount.
In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the Borrowers (jointly
and
severally) and the applicable Lender (severally) agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower thereof to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii)
in
the case of the Borrowers, the interest rate applicable to CB Floating Rate
Loans. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION
2.06. Interest
Elections.
(a) Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
thereof may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower thereof may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To
make
an election pursuant to this Section, the appropriate Borrower shall notify
the
Administrative Agent of such election by telephone or by other generally
accepted electronic means by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic or other such electronic Interest Election Request shall
be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the appropriate Borrower.
(c) Each
telephonic or other such electronic and written Interest Election Request shall
specify the following information in compliance with
Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be
specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an CB Floating Rate Borrowing or a Eurodollar
Borrowing; and
(iv) if
the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated for such a Borrowing by the definition of the term "Interest
Period".
If
any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower thereof shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion
of
each resulting Borrowing.
(e) If
the
Borrower thereof fails to deliver a timely Interest Election Request in
accordance herewith with respect to a Eurodollar Borrowing prior to the end
of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to a CB Floating Rate Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing, then,
(i) no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to a CB Floating Rate Borrowing at the end of the Interest Period applicable
thereto.
SECTION
2.06A Increase
in Revolving Credit Commitments.
At
any
time, during the Availability Period immediately following the Restatement
Effective Date and so long as no Event of Default has occurred and is
continuing, the Borrowers shall have the right, exercisable from time to time,
to request an increase in the aggregate amount of the Revolving Credit
Commitments by an amount not to be less than $5,000,000 (or, if less, the
aggregate increase remaining available under this Section 2.06A) (and which
requested increase, when aggregated with any other increases in the Revolving
Credit Commitments theretofore granted under this Section, shall not exceed
$20,000,000) by providing written notice to the Administrative Agent at least
45
days prior to the proposed effective date of such increase, which notice shall
be irrevocable once given. The Administrative Agent shall promptly notify each
Lender of any such request and each Lender shall have a right, exercisable
within 5 Business Days after receipt of such notice by notice to the
Administrative Agent to subscribe to such part of the requested increase as
shall equal its then percentage of the aggregate Revolving Commitments. If
the
Lenders shall not so subscribe within such period for the full amount of the
requested increase, the Administrative Agent shall notify the Lenders and the
Lenders shall have an additional 5 Business Day period to elect to subscribe
for
such additional portion of the requested increase, as they shall agree and
give
notice thereof to the Administrative Agent. No Lender shall be obligated in
any
way whatsoever to increase its Revolving Credit Commitment. If the existing
Lenders do not subscribe for the full amount of a requested increase, the
Borrowers may introduce a new Lender with the written consent of the Required
Lenders provided that such consent shall not be required for a new Lender which
is (x) on the Federal Reserve Board's list of the top 50 bankholding companies
(or is a subsidiary thereof) or (y) to the extent not within (x), Citizens
Bank
(Michigan) or (z) another institutional lender acceptable to the Required
Lenders, such acceptance not to be unreasonably withheld. If a new Lender
becomes a party to this Agreement, or if any existing Lender agrees to increase
its Revolving Credit Commitment , such Lender shall on the date it becomes
a
Lender hereunder (or in the case of an existing Lender, increases its Revolving
Credit Commitment) (and as a condition thereto) purchase from the other Lenders
its Revolving Commitment Percentage (determined with respect to the Lender’s
relative Revolving Credit Commitments and after giving effect to the increase
of
the Revolving Credit Commitments) of any outstanding Loans or Letters of Credit,
by making available to the Administrative Agent for the account of such other
Lenders, in same day funds, an amount equal to the sum of (A) the portion of
the
outstanding principal amount of such Loans to be purchased by such Lender plus
(B) interest accrued and unpaid to and as of such date on such portion of the
outstanding principal amount of such Loans. The Borrowers shall pay to the
Lenders amounts payable, if any, to such Lenders under Section 2.14 as a result
of the prepayment of any such Loans. An increase of the aggregate amount of
the
Revolving Credit Commitments may not be effected under this Section if (x)
the
Requisite Lenders have not notified the Administrative Agent in writing on
or
prior to the date which is 30 days subsequent to the date on which the Borrowers
request such increase that they consent to such increase (if such consent is
required hereunder), (y) a Default or Event of Default shall be in existence
on
the effective date of such increase or (z) any representation or warranty made
or deemed made by the Borrowers or any other Credit Party in any Loan Document
to which such Credit Party is a party is not (or would not be) true or correct
on the effective date of such increase except to the extent that such
representations and warranties shall have been true and accurate on and as
of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted hereunder. In connection with an increase in the
aggregate amount of the Revolving Credit Commitment pursuant to this Section
(a)
any Lender becoming a party hereto shall execute such documents and agreements
as the Administrative Agent may reasonably request and (b) the Borrowers shall
make appropriate arrangements so that each new Lender, and any existing Lender
increasing its Revolving Credit Commitment, receives a new or replacement Note,
as appropriate, in the amount of such Lender’s Revolving Credit Commitment at
the time of the effectiveness of the increase in the aggregate amount of
Revolving Credit Commitments.
SECTION
2.07. Termination
and Reduction of Revolving Commitments.
(a) Unless
previously terminated, the Revolving Credit Commitments shall terminate on
the
Maturity Date.
(b) The
Borrowers may at any time terminate, or from time to time reduce, the Revolving
Credit Commitments; provided
that (i)
each reduction of the Revolving Credit Commitments shall be in an amount that
is
an integral multiple of $100,000 and not less than $100,000, and (ii) the
Borrowers shall not terminate or reduce the Revolving Credit Commitments if,
after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with Section 2.09, the sum of the Revolving Credit Exposures would
exceed the aggregate Revolving Credit Commitments.
(c) The
Borrowers shall notify the Administrative Agent of any election to terminate
or
reduce the Revolving Credit Commitments under paragraph (b) of this Section
at least three Business Days prior to the effective date of such termination
or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant
to this Section shall be irrevocable. Any termination or reduction of the
Revolving Credit Commitments shall be permanent. Each reduction of the Revolving
Credit Commitments shall be made ratably among the Lenders in accordance with
their respective Revolving Credit Commitments.
(d) Concurrently
with any reduction of the Revolving Credit Commitments, the Borrowers shall
pay
such amount of the outstanding Loans (together with accrued interest on the
principal amount to be repaid) if any, as may be necessary so that after the
payment thereof the aggregate unpaid principal amount of the Loans and the
LC
Exposures does not exceed the amount of the Revolving Credit Commitments as
so
reduced. Any prepayments of Eurodollar Loans required to comply with this
Section 2.07(d) shall be subject to Section 2.14. Without limiting the
foregoing, Section 2.09(d) shall apply with equal force to payments under this
Section 2.07(d).
SECTION
2.08. Repayment of
Loans; Evidence of Debt.
(a) (i) The
Borrowers hereby, jointly and severally, unconditionally promise to pay to
the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan, together with any accrued but unpaid interest thereon,
on
the Maturity Date; such promise of each Borrower to repay each Loan shall apply
unconditionally to each Loan irrespective of which Borrower was the Borrower
of
such Loan.
(ii) To
effectuate any payment due hereunder or under any of the Notes, the Borrowers
hereby authorize the Administrative Agent to initiate debit entries to any
deposit account of the Borrowers or either of them maintained with the
Administrative Agent and to debit the same to such account. This authorization
to initiate debit entries shall remain in full force and effect until the
Administrative Agent has received written notification of its termination in
such time and in such manner as to afford the Administrative Agent a reasonable
opportunity to act on it. The Borrowers acknowledge (1) that such debit entries
may cause an overdraft of any such account which may result in the
Administrative Agent’s refusal to honor items drawn on any such account until
adequate deposits are made to any such account; (2) that the Administrative
Agent is under no duty or obligation to initiate any debit entry for any
purpose; and (3) that if a debit is not made because any such account does
not
have a sufficient available balance, or otherwise, the payment may be late
or
past due.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to
each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein absent manifest
error; 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 (joint and several)
obligation of the Borrowers to repay the Loans in accordance with the terms
of
this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory note.
In
such event, the Borrowers shall prepare, execute and deliver to such Lender
a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant
to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note
is
a registered note, to such payee and its registered assigns).
SECTION
2.09. Prepayment
of Loans.
The
Borrowers shall have the right at any time and from time to time to prepay
any
Borrowing in whole or in part, without premium or penalty, subject to the other
applicable terms and provisions hereof, including, without limitation, Section
2.14. The Borrowers shall notify the Administrative Agent by telephone or other
generally accepted electronic means (confirmed by telecopy) of any such
prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing,
not later than 11:00 A.M., New York City time, three Business Days before the
date of prepayment, or (ii) in the case of prepayment of a CB Floating Rate
Borrowing, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the Borrower
of such Borrowing, the prepayment date, and the respective principal amounts
of
each such Borrowing (or portion thereof) to be prepaid. Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of
any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02. Each such
prepayment of a Borrowing shall be applied ratably to the Loans included in
the
prepaid Borrowing, shall be applied first to CB Floating Rate Loans outstanding,
and then to outstanding Eurodollar Loans, subject to Section 2.14. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.11.
SECTION
2.10. Fees.
(a) The
Borrowers agree, jointly and severally, to pay to the Administrative Agent
for
the account of each Lender a facility fee, which shall accrue at the rate of
0.375% per annum on the daily unused amount of the Revolving Credit Commitment
of such Lender during the period from and including the Restatement Effective
Date to but excluding the date on which such Revolving Credit Commitment
terminates. Accrued facility fees shall be payable in arrears on the last day
of
March, June, September and December of each year and on the date on which the
Revolving Credit Commitments terminate, commencing on the first such date to
occur after the date hereof. All facility fees shall be computed on the basis
of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The
Borrowers agree, jointly and severally, to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in the Letter of Credit, which shall accrue, at a rate per annum
equal to the Applicable Rate Margin for Eurodollar Loans, on the average daily
amount of such Lender's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Restatement Effective Date to but excluding the later of the date on which
such
Lender's Revolving Credit Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank the Issuing
Bank's standard fees with respect to the amendment, renewal or extension of
the
Letter of Credit or processing of drawings thereunder. Participation fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such
last day, commencing on the first such date to occur after the Effective Date;
provided
that all
such fees shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving
Credit Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees shall be computed on the basis of a year
of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The
Borrowers agree, jointly and severally to pay to the Administrative Agent for
the account of the Lenders on the Restatement Effective Date a non-refundable
amendment fee of $100,000, which the Lenders shall share in proportion to their
respective shares of the aggregate Revolving Credit Commitments on such
date.
(d) All
fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of
fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders. Fees paid shall not be refundable under
any
circumstances.
SECTION
2.11. Interest.
(a) The
Loans
comprising each CB Floating Rate Borrowing shall bear interest at the CB
Floating Rate plus the Applicable Rate Margin.
(b) The
Loans
comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBOR
Rate for the Interest Period in effect for such Borrowing.
(c) Notwithstanding
the foregoing, (x) if any principal of or interest on any Loan or any fee or
other amount payable by the Borrowers hereunder is not paid when due, whether
at
stated maturity, upon acceleration or otherwise, such overdue amount shall
bear
interest, after as well as before judgment, at a rate per annum equal to (i)
in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (ii)
in
the case of any other amount, 2% plus the rate applicable to CB Floating Rate
Loans as provided in paragraph (a) of this Section, and (y) during the
continuance of any Event of Default (and prior to the acceleration of any Loans)
any such Loans shall bear additional interest as provided in clause (x) of
this
Section 2.11(c) as if such Loans were overdue.
(d) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan and upon termination of the Revolving Credit Commitments;
provided
that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable
on
demand, (ii) in the event of any repayment or prepayment of any Loan (other
than
a prepayment of an CB Floating Rate Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event
of
any conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the CB Floating Rate at times when the
CB
Floating Rate is based on the Prime Rate shall be computed on the basis of
a
year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding
the
last day). The applicable CB Floating Rate, or Adjusted One Month LIBOR Rate
or
Adjusted LIBOR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION
2.12. Alternate
Rate of Interest.
If
prior
to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted One Month LIBOR Rate or the Adjusted LIBOR Rate, as applicable,
for
such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted One
Month LIBOR Rate or the Adjusted LIBOR Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Borrowers and the Lenders
by telephone, telecopy or other generally accepted electronic means as promptly
as practicable thereafter and, until the Administrative Agent notifies the
Borrowers and the Lenders that the circumstances giving rise to such notice
no
longer exist, (i) any Interest Election Request that requests the conversion
of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as a CB Floating Rate
Borrowing.
SECTION
2.13. Increased
Costs.
(a) If
any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in the Adjusted One
Month LIBOR Rate) or the Issuing Bank; or
(ii) impose
on
any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender
or
any Letter of Credit or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or, in the case of Eurodollar Loans,
of maintaining its obligation to make any such Loan) or to increase the cost
to
such Lender or the Issuing Bank of participating in, issuing or maintaining
any
Letter of Credit or to reduce the amount of any sum received or receivable
by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrowers will pay to such Lender or the Issuing Bank,
as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If
any
Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender's or the Issuing Bank's capital or on the capital of such Lender's or
the
Issuing Bank's holding company, if any, as a consequence of this Agreement
or
the Loans made by, or participations in a Letter of Credit held by, such Lender,
or a Letter of Credit issued by the Issuing Bank, to a level below that which
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies and the policies
of
such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrowers will pay to such Lender or
the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrowers and shall be conclusive absent manifest
error. The Borrowers shall pay such Lender or the Issuing Bank, as the case
may
be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's or
the
Issuing Bank's right to demand such compensation; provided
that the
Borrowers shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further
that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION
2.14. Break
Funding Payments.
In
the
event of (a) the payment of any principal of any Eurodollar Loan other than
on
the last day of an Interest Period applicable thereto (including as a result
of
an Event of Default), (b) the conversion of any Eurodollar Loan other than
on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto, or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrowers pursuant to Section 2.17, then, in any such
event, the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost
or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would
have
accrued on the principal amount of such Loan had such event not occurred, at
the
Adjusted One Month LIBOR Rate that would have been applicable to such Loan,
for
the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal
amount for such period at the interest rate which such Lender would bid were
it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market. A certificate
of
any Lender setting forth any amount or amounts that such Lender is entitled
to
receive pursuant to this Section shall be delivered to the Borrowers and shall
be conclusive absent manifest error. The Borrowers shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION
2.15. Taxes.
(a) Any
and
all payments by or on account of any obligation of the Borrowers hereunder
shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided
that if
any of the Borrowers shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal
to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In
addition, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrowers shall indemnify the Administrative Agent, each Lender and the Issuing
Bank, within 10 days after written demand therefor, for the full amount of
any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment
by or
on account of any obligation of the Borrowers hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrowers by a Lender or the Issuing Bank, or by
the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by a
Borrower to a Governmental Authority, the Borrowers shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, and a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrowers are located, or
any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrowers (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrowers as will permit such payments to be made without
withholding or at a reduced rate.
(f) If
the
Administrative Agent or a Lender determines, in its sole discretion, that it
has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have paid
additional amounts pursuant to this Section 2.15, it shall pay over such refund
to the Borrowers (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.15 with respect
to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect
to
such refund); provided, that the Borrowers, upon the request of the
Administrative Agent or such Lender, agree to repay the amount paid over to
the
Borrowers (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to
such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrowers or any other Person.
SECTION
2.16. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each
Borrower shall make each payment required to be made by it hereunder (whether
of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.13, 2.14, or 2.15, or otherwise) and under any other
Loan Document prior to 12:00 p.m., New York City time, on the date when due,
in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 00 X. Xxxxxxxx,
Xxxxxxx, XX 00000 except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.13,
2.14, or 2.15, and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it
for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not
a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC
Disbursements then due to such parties.
(c) If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise
(including by virtue of any security), obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender's receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC
Disbursements and accrued interest thereon than the proportion received by
any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Loans and participations in
LC
Disbursements of other Lenders to the extent necessary so that the benefit
of
all such payments shall be shared by the Lenders ratably in accordance with
the
aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements; provided
that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by a Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for
the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to a Borrower
or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees,
to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrowers prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the Issuing Bank hereunder that the Borrowers will not make
such payment, the Administrative Agent may assume that the Borrowers have made
such payment on such date in accordance herewith and may, in reliance upon
such
assumption, distribute to the Lenders or the Issuing Bank, as the case may
be,
the amount due. In such event, if the Borrowers have not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon,
for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation.
(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(e) or (f), 2.05(b), or paragraph (d) of this Section, or Section
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are
fully
paid.
SECTION
2.17. Mitigation
Obligations; Replacement of Lenders.
(a) If
any
Lender requests compensation under Section 2.13, or if the Borrowers
are required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office
for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree, jointly and severally, to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
(b) If
any
Lender requests compensation under Section 2.13, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrowers
may, at their sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may
be another Lender, if a Lender accepts such assignment); provided
that (i)
the Borrowers shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Credit Commitment is being assigned,
the Issuing Bank), which consent shall not unreasonably be withheld (provided
that such consent may not be required or shall be subject to special rules
to
the extent Section 2.06A shall be applicable to any assignment), (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest
and
fees) or the Borrowers (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under
Section 2.13 or payments required to be made pursuant to Section 2.15,
such assignment will result in a reduction in such compensation or payments.
A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.
ARTICLE
III
Representations
and Warranties
The
Borrowers jointly and severally represent and warrant to the Lenders that:
SECTION
3.01. Organization;
Powers.
Each
Credit Party and its Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect in respect of
the
Company and its Subsidiaries, taken as a whole, is qualified to do business
in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION
3.02. Authorization;
Enforceability.
The
Transactions are within the corporate or partnership (as applicable) powers
of
the Credit Parties and have been duly authorized by all necessary corporate,
partnership (if applicable), and, if required, stockholder or partner action.
This Agreement (as amended and restated as of the Restatement Effective Date)
and each other Loan Document has been duly executed and delivered by each Credit
Party that is a party thereto and constitutes a legal, valid and binding
obligation of such Credit Party, enforceable in accordance with its respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION
3.03. Governmental
Approvals; No Conflicts; No Defaults.
The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such
as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws, certificate
of
limited partnership, agreement of limited partnership, or other organizational
documents of any Credit Party or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Credit Party or any
of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by any Credit Party or any of its Subsidiaries, and
(d)
will not result in the creation or imposition of any Lien (except in favor
of
the Collateral Agent) on any asset now owned or hereafter acquired of any Credit
Party or any of its Subsidiaries. No Credit Party is in default in any manner
under any provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is
a
party or by which it or any of its properties or assets are or may be
bound.
SECTION
3.04. Financial
Condition; No Material Adverse Change.
(a) The
Company has heretofore furnished to the Lenders (i) its consolidated balance
sheet and statements of income, stockholders equity and cash flows as of and
for
the fiscal year ended December 31, 2007, reported on by KPMG LLP, independent
public accountants, and (ii) consolidating balance sheets of the Company and
its
Subsidiaries setting forth such information separately for the Company and
each
Subsidiary thereof and related consolidating statements of operations for the
Company and its Subsidiaries setting forth such information separately for
the
Company and each Subsidiary thereof as of and for the fiscal year ending
December 31, 2007, and including in comparative form the figures for the
preceding fiscal year, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position
and
results of operations and cash flows of the Company and of its Subsidiaries
as
of such dates and for such periods in accordance with GAAP. The Company has
also
heretofore furnished to the Lenders its monthly Board of Directors Memoranda
through September 2008, its Form 10-Q as of and for the period ended September
30, 2008 and its interim internal financial statements for the nine months
through September 2008.
(b) Except
as
disclosed in any of the materials referred to in Section 3.04(a), since December
31, 2007, there has been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of any Credit Party.
Except as disclosed on Schedules
3.04
or
6.04
annexed
hereto and as complete and correct as of the Restatement Effective Date, the
Credit Parties have no liabilities, contingent or otherwise, not disclosed
on
the financial statements or other disclosure materials referred to in Section
3.04(a), other than in respect of goods and services arising in the ordinary
course of business.
SECTION
3.05. Properties.
(a) Each
Credit Party and its Subsidiaries has good and marketable title (free of Liens
except such as are set forth on Schedule
3.05(a)
annexed
hereto (and as complete and correct as of the Restatement Effective Date) or
are
otherwise Permitted Liens) to, or valid leasehold interests in, all its real
and
personal property material to its business, except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes. No Credit
Party is a party to any contract, agreement, lease or instrument (other than
the
Loan Documents) the performance of which, either unconditionally or upon the
happening of any event, will result in or require the creation of a Lien that
is
not a Permitted Lien (except in favor of the Collateral Agent) on any of its
property or assets (now owned or hereafter acquired) or otherwise result in
a
violation of any Loan Documents.
(b) Except
as
disclosed in Schedule
3.05(b)
annexed
hereto (as complete and correct as of the Restatement Effective Date), each
Credit Party owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by such Credit Party and its Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect
SECTION
3.06. Litigation
and Environmental Matters.
(a) Except
as
disclosed on Schedule
3.06
annexed
hereto (as complete and correct as of the Restatement Effective Date), there
are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Borrower, threatened
against or affecting any Credit Party or any of its Subsidiaries (i) which,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except
as
set forth in Schedule
3.06
(as
complete and correct as of the Restatement Effective Date), and except with
respect to any other matters that, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect, neither any
Credit Party nor any of its Subsidiaries (i) to the best of the Borrowers'
knowledge has failed to comply with any Environmental Law or to obtain, maintain
or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since
the
latest date of the materials referred to in Section 3.04(a), there has been
no
change in the status of the matters disclosed on Schedule
3.06
that,
individually or in the aggregate, has resulted in, or materially increased
the
likelihood of, a Material Adverse Effect.
SECTION
3.07. Compliance
with Laws and Agreements.
Each
Credit Party and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION
3.08. Investment
and Holding Company Status; Margin Regulations.
No
Credit
Party nor any of its Subsidiaries is an "investment company" as defined in,
or
subject to regulation under, the Investment Company Act of 1940. No Credit
Party
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any margin stock
(within the meaning of Regulation U of the Board). No part of the proceeds
of
any Loan or of a Letter of Credit will be used, directly or indirectly and
whether immediately, incidentally or ultimately, for any purpose which entails
a
violation of or which is inconsistent with, the provisions of the regulations
of
the Board, including, without limitation, Regulation G, T, U or X
thereof.
SECTION
3.09. Taxes.
Each
Credit Party and its Subsidiaries has timely filed or caused to be filed all
Tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes shown thereon and believed by it to be required to have been
paid
by it, except Taxes (i) the amount of which is in the aggregate not Material,
(ii) that are being contested in good faith by appropriate proceedings and
for
which such Credit Party or such Subsidiary, as applicable, has set aside on
its
books adequate reserves, or (iii) the failure to file a return for, or the
failure to pay such Taxes, would not have a Material Adverse Effect on the
Credit Parties.
SECTION
3.10. ERISA.
No
ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected
to
occur, could reasonably be expected to result in a Material Adverse Effect.
The
present value of all accumulated benefit obligations under each Plan (based
on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value
of
the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed
by
more than $350,000 the fair market value of the assets of all such underfunded
Plans.
SECTION
3.11. Subsidiaries.
The
direct and indirect Subsidiaries of the Company, including, without limitation,
all Subsidiaries of each Borrower, and their respective business forms,
jurisdictions of organization, addresses, and respective equity owners, are
set
forth on Schedule
3.11A
(as
complete and correct as of the Restatement Effective Date). Except as so
disclosed on Schedule
3.11A,
no
Credit Party has any direct or indirect Subsidiaries or investments in, or
joint
ventures or partnerships with, any Person as of the Effective Date. As of the
Restatement Effective Date, the Persons listed on Schedule
3.11B
hereto
(as complete and correct as of the Restatement Effective Date) are the only
Subsidiaries of the Company other than the Borrowers and Inactive
Subsidiaries.
SECTION
3.12. SEC
Matters.
The
Company is current in all required disclosure and otherwise in compliance in
all
respects with applicable federal and state securities laws and/or rules and
regulations of the Securities and Exchange Commission, and with applicable
state
securities laws and/or rules and regulations of state securities authorities
and
of any stock exchanges or other self regulatory organizations having
jurisdiction of the Company and/or its securities.
SECTION
3.13. Labor
Matters.
Except
as
set forth on Schedule
3.13
(as
complete and correct as of the Restatement Effective Date), there are no strikes
or other material labor disputes or grievances pending or, to the knowledge
of
either Borrower, threatened, against any Credit Party. Except as set forth
on
Schedule
3.13
hereto,
no Credit Party is a party to any collective bargaining agreement.
SECTION
3.14. Solvency.
On
the
Restatement Effective Date, including with respect to any Credit Party which
is
a Guarantor any rights of contribution of such Credit Party, (i) the fair
saleable value of the assets of the Credit Parties and their Subsidiaries,
in
the aggregate, will exceed the amount that will be required to be paid on or
in
respect of the existing debts and other liabilities (including contingent
liabilities) of the Credit Parties and their Subsidiaries as they mature, (ii)
the assets of each Credit Party and its Subsidiaries will not constitute
unreasonably small capital to carry out their businesses as conducted or as
proposed to be conducted, including the capital needs of such Credit Party
and
its Subsidiaries (taking into account the particular capital requirements of
the
businesses conducted by such entities and the projected capital requirements
and
capital availability of such businesses) and (iii) the Credit Parties do not
intend to, or intend to permit any of their Subsidiaries to, and do not believe
that they or any of their Subsidiaries will, incur debts beyond their ability
to
pay such debts as they mature (taking into account the timing and amounts of
cash to be received by them and the amounts to be payable on or in respect
of
their obligations).
SECTION
3.15. Security
Documents.
The
Pledge Agreement, upon execution and delivery by the parties thereto, will
create (and continue) in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties (as such term is defined in the Pledge Agreement), a
legal, valid and enforceable security interest in the Collateral (as such term
is defined in the Pledge Agreement) and, when (i) such Collateral consisting
of
corporate stock is delivered to the Collateral Agent (or to the extent it has
heretofore been delivered under the Existing Credit Agreement) together with
duly executed, undated instruments of transfer, and (ii) financing statements
in
appropriate form in respect of limited partnership interests constituting
Collateral thereunder are (or have heretofore been) filed in the offices
specified therein, the Pledge Agreement and the Lien created (and continued)
thereunder will continue to constitute a fully perfected first priority Lien
on,
and security interest in such Collateral, in each case prior and superior in
right to any other Person except for the Lien of Prudential under the Prudential
Pledge and Security Agreement.
SECTION
3.16. Restrictive
Agreements.
No
Credit
Party nor any Subsidiary thereof is a party to any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of such Credit Party or Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets, or (b) the ability of any Credit
Party or Subsidiary to pay dividends or other distributions with respect to
any
shares of its capital stock or other equity interests; other than (i)
restrictions and conditions imposed by law or by this Agreement and (ii)
restrictions and conditions existing on the date hereof identified on
Schedule
3.16
annexed
hereto (as complete and correct as of the Restatement Effective
Date).
SECTION
3.17. Disclosure.
The
Borrowers have disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which each Credit Party or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the reports, financial statements, certificates or
other
information furnished by or on behalf of the Borrowers or any other Credit
Party
to the Administrative Agent or any Lender in connection with the negotiation
of
this Agreement or any other Loan Document (or the restatement and amendment
of
this Agreement as of the Restatement Effective Date) or delivered hereunder
or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading.
ARTICLE
IV
Conditions
SECTION
4.01. Restatement
Effective Date.
The
obligations of the Lenders to make Loans hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) The
Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that
such party has signed a counterpart of this Agreement. The Administrative Agent
shall have received (i) from each person listed on Schedule
1.01-2
hereto,
a duly executed counterpart of the Second Amended and Restated Guarantee
Agreement in the form of Exhibit
4.01-1
hereto
(as it may be supplemented, amended or modified from time to time, a "Subsidiary
Guarantee"); (ii) from the Company, a duly executed Second Amended and Restated
Guarantee Agreement in the form of Exhibit
4.01-2
hereto
(as it may be supplemented, amended, or modified from time to time, the "Company
Guarantee"; together with each Subsidiary Guarantee, a "Guarantee Agreement");
and (iii) from each Credit Party, a duly executed counterpart of the Second
Amended and Restated Subordination Agreement in the form of Exhibit
4.01-3
hereto
(as it may be supplemented, amended or modified from time to time, the
"Subordination Agreement"). The Collateral Agent shall have received from each
Credit Party other than those that are limited partnerships or limited liability
companies, the duly executed Second Amended and Restated Pledge and Security
Agreement in the form of Exhibit
4.01-4
hereto
(as it may be supplemented, amended, or modified from time to time, the "Pledge
Agreement") together with (x) certificates representing the corporate securities
pledged thereunder together with related undated stock powers endorsed in blank,
(y) Form UCC-1 financing statements in respect of all partnership interests
and
limited liability company interests in which a security interest is granted
thereunder, and (z) instruments of consent, waiver, and recognition (or
amendment and restatements thereof) in the form of Exhibit
2.01
to the
Pledge Agreement duly executed by each Credit Party that is (A) a partnership
and by each partner therein and (B) a limited liability company and by each
member thereof.
(b) The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent, the Collateral Agent, and the Lenders and dated
the
Restatement Effective Date) of Xxxxxx Xxxxxx, Esq., internal counsel for the
Credit Parties, substantially in the form of Exhibit
B,
covering such matters relating to the Credit Parties, this Agreement, the other
Loan Documents or the Transactions as the Required Lenders shall reasonably
request. The Borrowers hereby request such counsel to deliver such
opinion.
(c) The
Administrative Agent shall have received (i) a certification from the Secretary
or Assistant Secretary of the Company that the certificate of incorporation,
including all amendments thereto, and by-laws of each Credit Party that is
a
corporation, the certificate of limited partnership and the limited partnership
agreement of each Credit Party that is a limited partnership, and the
certificate of formation and operating agreement of each Credit Party that
is a
limited liability company has not been amended since the date of the Existing
Credit Agreement in any material respect, except as disclosed in such
certification; (ii) a certificate as to the good standing of each Credit Party
as of a recent date, from the Secretary of State of the state of its
organization; (iii) a certificate of the Secretary or Assistant Secretary of
each Borrower and each Guarantor, or of the managing general partner of each
Guarantor that is a limited partnership or limited liability company, as the
case may be, dated the Restatement Effective Date and certifying (A) that
attached thereto is a true and complete copy of resolutions duly adopted by
the
Board of Directors of such Borrower or such Guarantor (or, in the case of a
Guarantor that is (x) a limited partnership, by the Board of Directors of its
managing general partner or (B) a limited liability company, by its managing
member), authorizing the execution, delivery and performance of the Loan
Documents and (in the case of each Borrower) the borrowings hereunder, and
that
such resolutions have not been modified, rescinded or amended and are in full
force and effect as of the Restatement Effective Date, and (B) as to the
incumbency and specimen signature of each officer executing any Loan Document
or
any other document delivered in connection herewith on behalf of such Borrower
or such Guarantor (or the managing general partner of such Guarantor which
is a
limited partnership or the managing member of such Guarantor that is a limited
liability company); (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the Lenders
or their counsel or counsel for the Administrative Agent and the Collateral
Agent may reasonably request.
(d) Each
Lender requesting the same shall have received a duly executed Revolving Credit
Note (or an amendment and restatement thereof) (each, a "Revolving Credit Note",
which term shall also include all amendments and replacements thereof or
substitutions therefor), in the form of Exhibit
4.01-5
hereto.
(e) Concurrently
with the consummation of the transactions contemplated hereby on the Restatement
Effective Date:
(i) (x)
the
Amended and Restated Note Purchase and Private Shelf Agreement between
Prudential (and Prudential affiliates, as defined therein, which become bound
by
the provisions thereof) and the Borrowers (the “Prudential Shelf Agreement”)
shall have closed, and (y) the Administrative Agent shall have received a copy
of the Amended and Restated Prudential Shelf Agreement and of (A) the Company
guaranty of the Amended and Restated Prudential Shelf Agreement (the “Prudential
Company Guaranty”), (B) the guaranty by the Company’s Subsidiaries (other than
the Borrowers) of the Amended and Restated Prudential Shelf Agreement (the
Prudential Subsidiary Guaranty”), (C) the pledge and security agreement by the
Company and certain of the Credit Parties securing the Amended and Restated
Prudential Shelf Agreement (the “Prudential Pledge and Security Agreement”) and
(D) the amended and restated subordination agreement in favor of Prudential
by
the Credit Parties (the “Prudential Subordination Agreement”) or agreements or
any of them referred to therein, certified as true, correct and complete by
the
President, a Vice President or a Financial Officer of the Company;
and
(ii) the
Amended and Restated Intercreditor agreement between Prudential, the Trustee,
the Administrative Agent, the Collateral Agent and the Lenders (the “Prudential
Intercreditor Agreement”) shall have been executed and delivered by all parties
thereto.
(f) After
giving effect to the Transactions, on the Restatement Effective Date, the Credit
Parties shall have no Indebtedness other than (i) Indebtedness under the Loan
Documents and (ii) Indebtedness permitted under Section 6.04.
(g) On
the
Restatement Effective Date, the Administrative Agent shall have received a
certificate of the chief executive officer of the Company containing a
description, satisfactory to the Administrative Agent in its discretion, of
the
structure of ownership and voting relationships among the Company, the
Borrowers, and each other Credit Party.
(h) On
the
Restatement Effective Date, immediately prior to the effectiveness hereof,
there
shall be no Default or Event of Default (as such terms are used in the Existing
Credit Agreement) under the Existing Credit Agreement, and the respective chief
executive officers of the Company and of each Borrower shall have delivered
to
the Bank certificates to such effect.
(i) All
legal
matters incident to this Agreement and the Borrowing hereunder shall be
satisfactory to the Lenders and their counsel and to counsel for the
Administrative Agent, and the Collateral Agent on the Restatement Effective
Date.
(j) The
Administrative Agent shall have received a certificate, dated the Restatement
Effective Date and signed by the President, a Vice President or a Financial
Officer of each Borrower, confirming compliance with the conditions set forth
in
paragraphs (a) and (b) of Section 4.02.
(k) The
Lenders shall be satisfied that the consummation of the Transactions will not
(i) violate any applicable law, statute, rule or regulation or (ii) conflict
with, or result in a default or event of default under any material agreement
of
any Credit Party or Subsidiary thereof.
(l) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Effective Date, including, to the extent
invoiced, reimbursement or payment of all expenses required to be reimbursed
or
paid by the Borrowers hereunder.
The
Administrative Agent shall notify the Borrowers and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions
is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New
York City time, on November __, 2008 (and, in the event such conditions are
not
so satisfied or waived, the Revolving Credit Commitments shall terminate at
such
time).
SECTION
4.02. Each
Credit Event.
The
obligation of each Lender to make a Loan on the occasion of any Borrowing,
or to
continue or convert any Loan, is subject to the satisfaction of the following
conditions:
(a) The
representations and warranties of the Borrowers set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date
of
such continuation or conversion, as applicable.
(b) At
the
time of and immediately after giving effect to such Borrowing or such
continuation or conversion, as applicable, no Default shall have occurred and
be
continuing.
Each
Borrowing and each continuation or conversion of any Loan shall be deemed to
constitute a representation and warranty by the Borrowers on the date thereof
as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE
V
Affirmative
Covenants
Until
the
Revolving Credit Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been
paid
in full and the Letter of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrowers covenant and agree,
jointly and severally, with the Lenders that:
SECTION
5.01. Financial
Statements and Other Information.
The
Borrowers will furnish to the Administrative Agent and each Lender:
(a) within
the earlier of 120 days after the end of each fiscal year of the Company or
10
days after filing with the SEC, (i) its audited consolidated balance sheet
and
related statements of operations, stockholders' equity and cash flows as of
the
end of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by KPMG LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, and (ii) consolidating balance sheets setting forth such information
separately for the Company and for each Borrower as of the end of such fiscal
year and consolidating statements of operations setting forth such information
separately for the Company and for each Borrower for such fiscal year, such
consolidating balance sheet and consolidating statements of operations to be
certified by the chief financial officer of the Company as fairly presenting
the
financial condition and results of operations of the Company and each Borrower
as of the end of, and for, such fiscal period in accordance with
GAAP;
(b) within
the earlier of 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company or 10 days after filing with the
SEC, (i) its consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such fiscal quarter
(except in the case of the statements of stockholders' equity and cash flows)
and the then elapsed portion of the fiscal year, setting forth in each case
(except in the case of stockholders' equity) in comparative form the figures
for
the corresponding period or periods of (or, in the case of the balance sheet,
as
of the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Company and its consolidated Subsidiaries
on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes, and (ii)
consolidating balance sheets of the Company and of each Borrower setting forth
such information separately for the Company and for each Borrower and related
consolidating statements of operations of the Company and of each Borrower
setting forth such information separately for the Company and each Borrower
as
of the end of and for such quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or in the case of the balance sheets, as
of
the end of) the previous fiscal year, all of which shall be certified by the
chief financial officer of the Company as fairly presenting the financial
condition and results of operations therein shown in accordance with GAAP
consistently applied subject to normal year-end adjustments and the absence
of
footnotes;
(c) concurrently
with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Company
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to
be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.03, 6.04, 6.06, 6.07,
6.08, 6.10A and 6.11 and (iii) stating whether any change in the
application of GAAP in respect of the audited financial statements referred
to
in Section 3.04 has occurred and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently
with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination
of such financial statements of any Default (which certificate may be limited
to
the extent required by accounting rules or guidelines), and promptly after
receipt by the Company, a copy of each management letter (if prepared) of such
accounting firm (together with any response thereto prepared by the Company);
(e) promptly
(i) after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any
Subsidiary thereof with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Company to its shareholders generally, as the case may be; and (ii) copies
of
any documents and information furnished to any other government agency (except
if in the ordinary course of business), including the Internal Revenue
Service;
(f) promptly,
a copy of any amendment or waiver of any provision of any agreement or
instrument referred to in Section 6.12;
(g) promptly,
a copy of any promissory notes issued under the Prudential Shelf Agreement
(or a
summary of any extension of credit thereunder or pursuant thereto not evidenced
by a promissory note) and a copy of any certificate or notice given by any
Credit Party to Prudential or to the holders of any Prudential Notes or other
Prudential Debt, or received by any Credit Party from Prudential or any holder
of a Prudential Note or other Prudential Debt; and
(h) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of each Credit Party or any Subsidiary
thereof, or compliance with the terms of this Agreement or the other Loan
Documents, as the Administrative Agent, the Collateral Agent, or any Lender
may
reasonably request.
SECTION
5.02. Notices
of Certain Events.
The
Borrowers will furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting any Credit Party
or
any Affiliate thereof that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of any Credit Party and its Subsidiaries in an aggregate amount exceeding
$250,000; and
(d) any
other
development within or directly involving any Credit Party that results in,
or
could reasonably be expected to result in, a Material Adverse
Effect.
Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of the Company or of a Borrower
setting forth the details of the event or development requiring such notice
and
any action taken or proposed to be taken with respect thereto.
SECTION
5.03. Existence;
Conduct of Business.
Except
where the failure to do so would not have a Material Adverse Effect, each Credit
Party will, and will cause each of its Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided
that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.02.
SECTION
5.04. Payment
of Obligations.
Except
where the failure to do so would not have a Material Adverse Effect, each Credit
Party will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect before the same shall become delinquent or in default, unless (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) such Credit Party or such Subsidiary has set aside on its
books
adequate reserves with respect thereto in accordance with GAAP, or (c) the
same shall be paid or discharged or fully and adequately bonded before it might
become a Lien upon any property or asset of such Credit Party or
Subsidiary.
SECTION
5.05. Maintenance
of Properties; Insurance.
Each
Credit Party will, and will cause each of its Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations, including, without limitation, insurance against fire, and public
liability insurance against such risks and in such amounts, and having such
deductible amounts as are customary, with companies in the same or similar
businesses and which is no less than may be required by law.
SECTION
5.06. Books
and Records; Inspection Rights.
Each
Credit Party will, and will cause each of its Subsidiaries to, keep proper
books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Each
Credit Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent, the Collateral Agent, or
any Lender, upon reasonable prior notice, to visit and inspect its properties,
to examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
and to verify the status of any Collateral, all at such reasonable times and
as
often as reasonably requested.
SECTION
5.07. Compliance
with Laws; Environmental Laws.
(a) Each
Credit Party will, and will cause each of its Subsidiaries to, comply with
all
laws, rules, regulations and orders of any Governmental Authority applicable
to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) Without
limiting the preceding paragraph, each Credit Party will, and will cause each
of
its Subsidiaries to (i) comply in all material respects with, and use reasonable
best efforts to ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws; and (ii) conduct
and complete (or cause to be conducted and completed) all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and in a timely fashion comply in all material
respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse
Effect;
SECTION
5.08. Use
of
Proceeds and Letters of Credit.
The
proceeds of the Revolving Loans will be used to repay the indebtedness of the
Borrowers under the Existing Credit Agreement, for permitted capital
expenditures, for permitted acquisitions, for working capital purposes, for
Restricted Payments and without limiting the generality of the foregoing, for
general corporate purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
any
of the Regulations of the Board, including Regulations G, U and X. The
Letters of Credit will be used only to support payment (and/or guarantee)
obligations of the Borrowers to the beneficiaries thereof.
SECTION
5.09. Additional
Guarantors; Additional Collateral; Additional Parties to Subordination
Agreement.
If
any
Person (a) after the Restatement Effective Date becomes (whether upon its
formation, by acquisition of stock or other interests therein, or otherwise)
a
Subsidiary of any Credit Party (a "New Subsidiary"), or (b) that was an
Inactive Subsidiary of a Credit Party ceases to be an Inactive Subsidiary of
a
Credit Party but continues to be a Subsidiary thereof, the Borrowers shall
promptly furnish notice in writing of such facts to the Administrative Agent
and, if the Administrative Agent and the Required Lenders, shall so elect (but
provided that if the Trustee or any of the holders of the Senior Notes
or
Prudential or any of the holders of any Prudential Notes or other Prudential
Debt shall
receive any guaranty or security in respect of such New Subsidiary the
Administrative Agent and the Required Lenders, shall be deemed to have so
elected) (i) cause such New Subsidiary or formerly Inactive Subsidiary to
become a Guarantor pursuant to an instrument in form, scope, and substance
satisfactory to the Administrative Agent, (ii) deliver or cause to be
delivered, or assign, to the Collateral Agent (x) subject to the Lien in
favor of the Collateral Agent under the Pledge Agreement, the certificates
representing shares of stock or other interests of the New Subsidiary or
formerly Inactive Subsidiary owned by a Credit Party (or Subsidiary thereof),
together with appropriate instruments of transfer required under the Pledge
Agreement, and (y) an amendment to the Pledge Agreement, reflecting the
foregoing in the form thereof prescribed under the Pledge Agreement; and (iii)
cause such New Subsidiary or formerly Inactive Subsidiary to become a party
to
the Security Documents pursuant to one or more instruments or agreements
satisfactory in form and substance to the Collateral Agent, the effect of which
shall be to secure the Obligations by a first priority Lien on and security
interest in (which Lien and security interest may be pari passu
with a
like Lien and security interest in the Trustee for the holders of any Prudential
Notes or other Prudential Debt) the
capital stock of such New Subsidiary or formerly Inactive Subsidiary,
provided,
however,
that in
any event, prior to the time that any New Subsidiary or formerly Inactive
Subsidiary receives the proceeds of, or makes, any loan or advance or other
extension of credit, from or to, or otherwise becomes the obligor or obligee
in
respect of any Indebtedness of, any Credit Party or Subsidiary thereof, the
Borrowers shall (A) cause to be taken, in respect of any such obligor, the
action referred to in the preceding clauses (i), (ii), and (iii), and (B) in
the
case of any such obligee, cause such obligee to become a party to the
Subordination Agreement pursuant to one or more instruments or agreements
satisfactory in form and substance to the Administrative Agent.
SECTION
5.10. Further
Assurances.
(a) Each
Credit Party will, and will cause its Subsidiaries to, execute any and all
further documents, financing statements, agreements and instruments, and take
all further action (including, without limitation, filing Uniform Commercial
Code and other financing statements and the establishment of and deposit of
Collateral into custody accounts) that may be required under applicable law,
or
that the Required Lenders, the Administrative Agent, or the Collateral Agent,
may request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity
and
first priority of the security interests created or intended to be created
by
the Security Documents, it being understood that it is the intent of the parties
that the Obligations shall be secured by, among other things, all the interests
of each Borrower in each Subsidiary or Affiliate and of each Guarantor (other
than the Company) in each Subsidiary or Affiliate, including any such interests
acquired subsequent to the Restatement Effective Date. Such security interests
and Liens will be created under the Security Documents and other security
agreements, and other instruments and documents in form and substance
satisfactory to the Required Lenders, and the Borrowers shall deliver or cause
to be delivered to the Lenders all such instruments and documents (including
legal opinions, and lien searches) as the Required Lenders shall reasonably
request to evidence compliance with this Section 5.10. The Borrowers agree
to
provide such evidence as the Required Lenders shall reasonably request as to
the
perfection and priority status of each such security interest and Lien (which
Lien and security interest may be coordinate with a like Lien in Prudential
for
the benefit of the Prudential Notes or any other Prudential
Debt).
SECTION
5.11. Succession
Plan.
The
Company shall at all times have and keep in effect a succession plan for its
principal officers which has been approved by its Board of Directors and shall
furnish to the Administrative Agent upon request from time to time for delivery
to the Lenders a copy of the same, provided that such plan shall be kept
confidential by the Administrative Agent and the Lenders in accordance with
Section 9.12 hereof.
ARTICLE
VI
Negative
Covenants
Until
the
Revolving Credit Commitments have expired or terminated and the principal of
and
interest on each Loan and all fees payable hereunder have been paid in full
and
the Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrowers covenant and agree, jointly and
severally, with the Lenders that:
SECTION
6.01. Transactions
with Affiliates.
Except
as
set forth on Schedule
6.01
annexed
hereto (as complete and correct as of the Restatement Effective Date), each
Borrower shall not, and shall not permit any other Credit Party or any of its
or
their Subsidiaries to, enter into, directly or indirectly, any transaction
or
Material group of related transactions (including, without limitation, the
purchase, lease, sale or exchange of assets of any kind or the rendering of
any
service) with any Affiliate (other than another Credit Party or a Wholly-Owned
Subsidiary), except in the ordinary course and pursuant to the reasonable
requirements of such Borrower's or such other Credit Party's business and upon
fair and reasonable terms no less favorable to such Borrower or such other
Credit Party than would be obtainable in a comparable arm's-length transaction
with a Person not an Affiliate.
SECTION
6.02. Merger,
Consolidation, etc.
Each
Borrower shall not, and shall not permit any other Credit Party or any of its
or
their Subsidiaries to, consolidate with or merge with any other corporation
or
convey, transfer or lease substantially all of its assets in a single
transaction or series of transactions to any Person unless: (i) such merger,
consolidation, conveyance, transfer, or lease is with or to another Credit
Party, provided,
that
neither
the Company nor any Borrower may sell or otherwise transfer substantially all
of
its assets to any Person or fail to survive any such merger or consolidation
related to it; (ii) (a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance, transfer
or
lease substantially all of the assets of any Credit Party or any of its
Subsidiaries, as the case may be, shall be a solvent corporation organized
and
existing under the laws of the United States or any State thereof (including
the
District of Columbia), and, if such Credit Party or such Subsidiary is not
such
corporation, (b) such corporation shall have executed and delivered to the
Administrative Agent its assumption of the obligations due and punctual
performance and observance of each covenant and condition of this Agreement
and
the other Loan Documents, and (c) shall have caused to be delivered to the
Administrative Agent an opinion of nationally recognized independent counsel,
or
other independent counsel reasonably satisfactory to the Administrative Agent,
to the effect that all agreements or instruments effecting such assumption
are
enforceable in accordance with their terms and comply with the terms hereof;
(iii) immediately prior to such transaction and after giving effect thereto,
no
Default or Event of Default shall have occurred and be continuing; and (iv)
immediately prior to such transaction and after giving effect thereto, each
Borrower would be permitted by the provisions of Section 6.04(d) hereof to
incur
at least $1.00 of additional Indebtedness.
No
such
conveyance, transfer or lease of substantially all of the assets of any Credit
Party or any of its Subsidiaries shall have the effect of releasing such Credit
Party or its Subsidiaries or any successor corporation that shall theretofore
have become such in the manner prescribed in this Section 6.02 from its
liability under this Agreement, the Notes, or the other Loan Documents to which
it is a party.
No
such
conveyance, transfer or lease otherwise permitted under this Section 6.02 shall
be permissible if it would result in a violation of Article VII (m)
hereof.
SECTION
6.03. Liens.
No
Borrower shall, nor shall it permit any other Credit Party or any of its or
their Subsidiaries to, incur, assume or suffer to exist any Lien upon any of
its
assets now or hereafter owned, or upon the income or profits thereof, other
than
Permitted Liens. In any case wherein any such assets are subjected or become
subject to a Lien in violation of this Section 6.03, the Borrowers will make
or
cause to be made provision whereby the Obligations will be secured equally
and
ratably with all obligations secured by such Lien, and in any case the Notes
shall have the benefit, to the full extent that, and with such priority as
the
holders may be entitled under applicable law, of an equitable Lien on such
assets securing (in the manner as aforesaid) the Notes and such other
obligations; provided,
however,
that
any Lien created, incurred or suffered to exist in violation of this Section
6.03 shall constitute an Event of Default hereunder, whether or not any such
provision is made pursuant to this Section 6.03. In no event shall a Lien be
granted by any Credit Party in respect of any of its property to the Trustee
for
the benefit of any holders of the Prudential Notes or any other Prudential
Debt
unless concurrently therewith a Lien of equal priority (and on the same
property) is granted to the Collateral Agent for the benefit of the Lenders.
SECTION
6.04. Indebtedness.
The
Company and the Borrowers will not, nor will the Company or any of the Borrowers
permit, any of its or their direct or indirect Subsidiaries, directly or
indirectly, to create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness
created hereunder or under the other Loan Documents;
(b) Indebtedness
of a Credit Party in respect of any of the Prudential Notes or any other
Prudential Debt or otherwise pursuant to the Prudential Shelf Agreement not
in
excess of $125,000,000; provided, however,
that
any borrowing thereunder shall not be less than $5,000,000 and for a term of
less than one-year;
(c) Indebtedness
existing on the Restatement Effective Date and set forth in Schedule 6.04
annexed
hereto as complete and correct as of the Restatement Effective
Date;
(d) All
renewals, extensions, substitutions, refinancings, or replacements, in an amount
not to exceed the amount so refinanced, of any outstanding Indebtedness
(excluding from this Section 6.04(d) the Indebtedness referred to in Section
6.04(b)) provided that
the
terms, covenants and restrictions in respect of such renewals, extensions,
substitutions, refundings or replacements are note more materially onerous
than
the existing terms, covenants and restrictions of such Indebtedness;
(e) Interest
Rate Hedging Exposure Amount to Interest Rate Protection Merchants not exceeding
$5,000,000 in the aggregate;
(f) Indebtedness
of one Credit Party to another Credit Party (other than the Company); provided
the (i) there is adequate consideration for such Indebtedness and there is
evidence of such Indebtedness on each Credit Party's books, (ii) all of the
outstanding capital stock or other equity interests of each such Credit Party
shall be owned 100% directly or indirectly by the Company and a Borrower, (iii)
each of such Credit Parties to or by whom such Indebtedness is owned, or who
owns (directly or indirectly) any stock referred to in the preceding clause
(ii), shall have become a party to a Guarantee Agreement, to the Subordination
Agreement, and/or the Pledge Agreement (or to all of them) as contemplated
by
Section 5.09 hereof, (iv) such Indebtedness shall at all times be subject to
the
provisions of the Subordination Agreement as Subordinated Debt as defined in
the
Subordination Agreement, and (v) such Indebtedness shall not be assigned or
transferred by the obligee thereof to any Person other than another Credit
Party
such that after giving effect to such assignment or transfer all the conditions
of this proviso are met; and
(g) to
the
extent not included above in this Section 6.04, other Indebtedness incurred
by
the Company or any Borrower or any of its or their Subsidiaries; provided that,
at the
time of incurrence thereof and after giving effect thereto and to the
application of the proceeds thereof, Consolidated Indebtedness shall not exceed
55% of Total Capitalization of the Company and its
Subsidiaries.
SECTION
6.05. Restrictive
Agreements.
Each
Borrower shall not, and shall not permit any other Credit Party or any of its
or
their Subsidiaries to, directly or indirectly, enter into, incur or permit
to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon the ability of any Credit Party or any Subsidiary thereof,
(i) to create incur or permit to exist any Lien upon any of its property or
assets or revenues, whether now or hereafter acquired, (ii) to pay dividends
or
make other distributions to the Company or any Borrower with respect to any
shares of its capital stock or other equity interests, (iii) to pay any
Indebtedness owed to the Company or any Borrower, (iv) to make or permit to
exist loans or advances to the Company or any Borrower, or (v) to sell transfer,
lease or otherwise dispose of any of its properties or assets to the Company
or
any Borrower; provided that
(x) the
foregoing shall not apply to restrictions and conditions imposed by law or
by
this Agreement or the Prudential Shelf Agreement, and (y) such Credit Party
or
Subsidiary may enter into or permit to exist such an agreement in connection
with any Permitted Lien, so long as such prohibition or limitation is by its
terms effective only against the property, assets or revenues subject to such
Lien.
SECTION
6.06. Limitation
on Subsidiary Indebtedness and Issuance of Preferred Stock.
None
of
the Borrowers shall permit any of its Subsidiaries to, at any time, directly
or
indirectly, incur, create, assume, guarantee or become or be liable in any
manner with respect to any Indebtedness or issue any preferred stock
except:
(i) Indebtedness
of such Subsidiary outstanding as of the Restatement Effective Date and set
forth on Schedule
6.06
(as
correct and complete as of the Restatement Effective Date) annexed hereto or
any
refinancing, extension, renewal or refunding of any such Indebtedness in an
amount not to exceed the amount so refinanced of such Indebtedness; provided that
the
terms, covenants and restrictions in respect of such refinancing, extension,
renewal or refunding are not materially more onerous than the existing terms,
covenants and restrictions of such Indebtedness;
(ii) Indebtedness
of such Subsidiary in respect of guaranties delivered pursuant to the Prudential
Shelf Agreement;
(iii) preferred
stock of such Subsidiary issued on or prior to the Effective Date;
(iv) subject
to Section 6.04(f) hereof, Indebtedness of, or preferred stock issued by, such
Subsidiary to a Borrower or a Subsidiary of a Borrower; and
(v) other
Indebtedness or preferred stock of such Subsidiary, provided that such
Indebtedness and preferred stock together with the aggregate amount of
outstanding Indebtedness and the aggregate liquidation value of preferred stock
of such Subsidiary previously incurred and outstanding under this Section 6.06
(other than Indebtedness incurred under (iii) hereof), does not at any time
exceed 25% of Consolidated Net Worth and provided further that the aggregate
Indebtedness of such Subsidiary and all of other Subsidiaries not secured by
a
Lien does not at any time exceed 15% of Consolidated Net Worth.
SECTION
6.07. Limitation
on Restricted Payments.
No
Credit
Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, declare, make or pay, or agree to declare, make or pay or incur
any
liability to make or pay, or cause or permit to be declared, made or paid,
or
set aside any sum or property to declare, make or pay any Restricted Payment,
other than (a) cash dividends (or distributions, in the case of partnerships)
from Subsidiaries of the Company to the Company, (b) acquisitions or purchases
by the Company or any of its Subsidiaries of capital stock of any Subsidiary
or
capital contributions made by the Company or any of its Subsidiaries to a
Subsidiary and (c) to the extent not covered by the foregoing clauses (a) and
(b), any other Restricted Payments made by the Company provided that
each of
the following conditions is satisfied at the time of making such Restricted
Payment and after giving effect thereto:
(i) no
Default of Event of Default has occurred and is continuing; and
(ii) without
limiting the generality of (i), the Company and its Subsidiaries are and would
continue to be in compliance with Section 6.11(c) hereof.
SECTION
6.08. Sale
of Assets.
Subject
to the provisions of Section 6.02 hereof, no Credit Party shall, nor shall
it
permit any of its Subsidiaries to, directly or indirectly, in a single
transaction or a series of transactions, sell, lease, transfer, abandon or
other-wise dispose of or suffer to be sold, leased, transferred, abandoned
or
otherwise disposed of (collectively, "Transfer") assets in excess of 10% of
Consolidated Total Assets (as determined as of the end of the fiscal quarter
of
the Company ending on or immediately before the determination date)
("Substantial Assets") other than in the ordinary course of business (including
without limitation the disposal of obsolete assets not used or useful in such
Credit Party's business) in any fiscal year, and provided that
such
Transfer of Substantial Assets in the aggregate shall not exceed 25% of
Consolidated Total Assets measured as of the Restatement Effective Date, except
that:
(i) any
Credit Party or any of its Subsidiaries may Transfer its assets to any Credit
Party or any other Wholly-Owned Subsidiary; and
(ii) any
Credit Party or any of its Subsidiaries may Transfer its assets in excess of
the
limitations set forth above (such assets collectively the "Excess Assets")
only
if the proceeds of such sales of Excess Assets are used to purchase other
property of a similar nature of at least equivalent value (such property the
"Excess Replacement Assets") within one year of such sale, provided,
however,
that
there shall be no Lien on any of the Excess Replacement Assets.
SECTION
6.09. Limitation
on Investments.
No
Credit
Party shall, nor shall it permit any of its Subsidiaries to, purchase, hold
or
acquire (including pursuant to any merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, guarantee (except pursuant to this Agreement or the Prudential
Shelf Agreement) any obligations of, or make or permit to exist any investment
or any other interest in, any other Person, or purchase or otherwise acquire
(in
one transaction or a series of transactions) any assets of any other Person
constituting a business unit, except Permitted Loans and
Investments.
SECTION
6.10. Hedging
Agreements.
No
Credit
Party shall, nor shall it permit any of its Subsidiaries to, enter into any
Hedging Agreement for purposes of speculation or investment, or otherwise
outside of the ordinary course of the business of such Credit
Party.
SECTION
6.10A Limitation
on Priority Debt.
Notwithstanding
anything set forth in the definition of Permitted Liens or Section 6.06, the
Borrowers will not permit Priority Debt to exceed 15% of the Consolidated Net
Worth determined as of the last day of the most recently ended fiscal quarter
of
the Company.
SECTION
6.11. Certain
Financial Covenants.
(a) The
Company and its Subsidiaries, on a consolidated basis, shall have, at the end
of
each fiscal quarter commencing with the fiscal quarter ended June 30, 2008,
a
minimum Consolidated Tangible Net Worth of not less than $135,000,000 Dollars,
plus fifty (50%) percent of the sum of the Consolidated Net Income for each
fiscal quarter (but taking into account the Consolidated Net Income for a fiscal
quarter only if it is a positive number) ending after June 30, 2008 (and
including the fiscal quarter for which the Consolidated Tangible Net Worth
is to
be calculated).
(b) The
Company and its Subsidiaries, on a consolidated basis, shall maintain a Maximum
Leverage Ratio of not more than 2.50:1.00 at the conclusion of each consecutive
twelve month period ending on the last day of each fiscal quarter ending on
or
after June 30, 2008, provided, however, that if EBITDA as determined on a Pro
Forma Basis for any such twelve month period shall be less than $50,000,000,
the
Maximum Leverage Ratio shall decrease to 1.25:1.00 as of the last day of the
fiscal quarter of such period until the last day of a fiscal quarter for which
EBITDA for the twelve consecutive month period ending on the last day of such
fiscal quarter shall be greater than $50,000,000, on which date immediately
following the last day of such fiscal quarter the Maximum Leverage Ratio shall
revert to 2.50:1.00, subject to subsequent decrease to 1.25:1.00 and/or increase
to 2.50:1:00 as provided in this Section 6.11(b) based on the presence or
absence of not less than $50,000,000 of EBITDA as determined under this Section
6.11(b) for any twelve month period.
(c) The
Company and its Subsidiaries, on a consolidated basis, shall have, a Minimum
Debt Service Ratio at the conclusion of each twelve month period ending on
the
last day of each fiscal quarter commencing after June 30, 2008 of not less
than
1.75 to 1.00.
SECTION
6.12. Amendment
of Certain Documents.
No
Credit
Party shall, nor will it permit any of its Subsidiaries to:
(a) Permit
the termination of, or any amendment, waiver or modification to, the Certificate
of Incorporation or By-Laws, or Certificate of Limited Partnership, Certificate
of Formation, Agreement of Limited Partnership, or Operating Agreement as the
case may be, of any Credit Party or Subsidiary thereof, except (i) as permitted
under Section 6.02, (ii) for amendments, modifications or waivers that are
not
adverse in any respect to the Lenders, the Administrative Agent, the Collateral
Agent, or the Issuing Bank, or (iii) dissolution of any Credit Party having
de
minimus assets, provided that Borrowers shall provide the Administrative Agent
with prompt written notice of the dissolution of any Credit Party or Subsidiary
and of the Credit Party or Subsidiary to which any assets of such dissolved
entity have been transferred.
(b) Amend
in
any material respect the Prudential Shelf Agreement,
or
the
Prudential Notes or
any
other Prudential Debt
or
any other agreement entered into in connection therewith without the prior
written consent of the Required Lenders.
SECTION
6.13. Government
Regulation.
Neither
the Borrowers nor any other Credit Parties shall (i) be or become subject at
any
time to any law, regulation, or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list) that
prohibits or limits the Administrative Agent or any Lender from making any
advance or extension of credit to the Borrowers, or (ii) fail to provide
documentary and other evidence of the identity of the Borrowers or any other
Credit Party as may be requested by the Administrative Agent at any time to
enable it or any Lender to verify the identity of any Credit Party or to comply
with any applicable law or regulation, including, without limitation, Section
326 of the USA Patriot Act of 2001, 31 U.S.C. § 5318.
ARTICLE
VII
Events
of Default
If
any of
the following events ("Events
of Default")
shall
occur:
(a) the
Borrowers shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrowers shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become due and
payable;
(c) any
representation or warranty made or deemed made by or on behalf of any Credit
Party or any Subsidiary thereof in or in connection with this Agreement or
any
other Loan Document, or in any report, certificate, financial statement or
other
document furnished pursuant to or in connection with this Agreement or any
other
Loan Document, shall prove to have been incorrect in any material respect when
made or deemed made;
(d) the
Credit Parties shall fail to observe or perform in any material respect any
covenant, condition or agreement contained in Sections 5.01(a), (b) or (c)
or in
Article VI hereof, or in any Guarantee Agreement, the Subordination
Agreement or in any Security Document;
(e) the
Credit Parties shall fail to observe or perform any other covenant, condition
or
agreement contained in this Agreement (other than those specified in clause
(a),
(b) or (d) of this Article), and such failure shall continue unremedied for
a
period of 30 days after notice thereof from the Administrative Agent to the
Borrowers (which notice will be given at the request of any
Lender);
(f) (i)
The
Borrowers shall fail to make a payment of any principal of, or premium or
interest in respect of any Prudential Notes or any other Prudential Debt that
is
outstanding beyond any period of grace provided with respect thereto (unless
waived in writing by Prudential (and any other Persons a waiver from which
is
required) (and only so long as such waiver shall continue in effect by its
terms)); (ii) any Credit Party or any of its Subsidiaries is in default (as
principal or as guarantor or other surety) in the payment of any principal
of or
premium or interest on any Indebtedness (excluding the Indebtedness issued
under
or pursuant to the Prudential Shelf Agreement) that is outstanding in a
principal amount of at least $3,000,000 individually or $5,000,000 in the
aggregate beyond any period of grace provided with respect thereto, or (iii)
any
Credit Party or any of its Subsidiaries is in default in the performance of
or
compliance with any term of (x) the Prudential Notes or
the
Prudential Shelf Agreement or
any
guaranty or pledge agreement securing the Prudential Notes or any other
Prudential Debt or (y) any evidence of any Indebtedness (excluding the
Indebtedness evidenced by the Prudential Notes or any other instrument
evidencing any Prudential Debt) in principal amount of at least $3,000,000
individually or $5,000,000 in the aggregate, or of any mortgage, indenture
or
other agreement relating thereto, or (iv) as a consequence of the occurrence
or
continuation of any event or condition (other than the passage of time or the
right of the holder of Indebtedness to convert such Indebtedness into equity
interest), (x) any Credit Party has become obligated to purchase (A) or repay
any of the Prudential Notes or any other Prudential Debt before their regular
maturity or before their regularly scheduled dates of repayment, or (B) any
other Indebtedness before its regular maturity or before its regularly scheduled
dates of payment in a principal amount of at least $3,000,000 individually
or
$5,000,000 in the aggregate, or (y) one or more Persons have the right to
require any such Credit Party to purchase or repay any such Indebtedness
referred to in (A) or (B) (provided, however, that for the purposes of this
paragraph (f) the "principal amount" of the obligations of any Credit Party
or
Subsidiary in respect of any Hedging Agreements at any time shall be treated
as
Indebtedness in an amount which shall be equal to the maximum aggregate amount
(giving effect to any netting agreements) that any such Person would be required
to pay if such Hedging Agreement were terminated at such time);
(g) [intentionally
omitted];
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i) liquidation, reorganization or other relief in respect of
any Credit Party or any Subsidiary thereof or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Credit Party or for any Subsidiary thereof or for
a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) any
Credit Party or any Subsidiary thereof shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for such Credit Party or any Subsidiary thereof
or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the
foregoing;
(j) any
Credit Party or any Subsidiary thereof shall become unable, admit in writing
or
fail generally to pay its debts as they become due;
(k) one
or
more judgments for the payment of money in an aggregate amount in excess of
$1,000,000 shall be rendered against any Credit Party and/or any Subsidiary
thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of any Credit Party or any Subsidiary thereof to enforce any
such judgment;
(l) an
ERISA
Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably
be expected to result in liability of any Credit Party in an aggregate amount
exceeding (i) $150,000 in any year or (ii) $350,000 for all periods;
or
(m) a
Change
in Control shall occur; or
(n) (i) any
security interest in favor of the Collateral Agent created or purported to
be
created under the Pledge Agreement, or under any other Security Document, shall,
in any such case, no longer provide the lien or priority contemplated by such
Security Document or any party having granted any such security interests (or
any successor thereto or representative thereof) shall make any claim or
assertion to such effect, or (ii) any Credit Party (or any successor
thereto or representative thereof) shall claim or assert that this Agreement
or
any Guarantee Agreement or any right or remedy of the Administrative Agent,
the
Collateral Agent, the Issuing Bank or any Lender hereunder shall not be
enforceable in accordance with its terms, or any Credit Party shall claim or
assert that any other Loan Document or any right or remedy of the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender thereunder shall
not
be enforceable in accordance with its terms; then, and in every such event
(other than an event described in clause (h) or (i) of this Article), and at
any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrowers, take any of the following actions, at the same or different
times: (i) terminate the Revolving Credit Commitments, and
thereupon the Revolving Credit Commitments (including, but not limited to any
right to increase the same under Section 2.06A) shall terminate immediately,
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable
may
thereafter be declared to be due and payable), and thereupon the principal
of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers,
(iii) require cash collateral as contemplated by Section 2.04(j), and (iv)
enforce rights or cause the enforcement of rights or exercise or cause the
exercise of any remedies available under any Loan Document or otherwise; and
in
case of any event described in clause (h) or (i) of this Article, the Revolving
Credit Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become
due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
ARTICLE
VIII
The
Agents
Each
of
the Lenders and the Issuing Bank hereby irrevocably appoints (i) JPMorgan Chase
Bank, N.A. as Administrative Agent, (ii) JPMorgan Chase Bank, N.A. as Collateral
Agent, and (iii) Xxxxx Fargo Bank, N.A., as Documentation Agent, (the
Administrative Agent, the Collateral Agent and the Documentation Agent, for
purposes of this Article being referred to individually as an "Agent" and
collectively as the "Agents"), and authorizes the Agents to take such actions
on
its behalf and to exercise such powers as are delegated to such Agent by the
terms of this Agreement or by the terms of any other Loan Documents, together
with such actions and powers as are reasonably incidental thereto.
Notwithstanding the foregoing, the Documentation Agent shall undertake such
responsibilities with respect to the credits extended under this Agreement
as
agreed to from time to time between the Administrative Agent and the
Documentation Agent. The Documentation Agent shall not have any other right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to each Lender as a lender.
Each
bank
serving as an Agent shall have the same rights and powers in its capacity as
a
Lender as any other Lender and may exercise the same as though it were not
an
Agent, and such bank and its Affiliates may accept deposits from, lend money
to
and generally engage in any kind of business with any Credit Party or any
Subsidiary or other Affiliate thereof as if it were not an
Agent.
None
of
the Agents shall have any duties or obligations except those expressly set
forth
herein or in the other Loan Documents. Without limiting the generality of the
foregoing, (a) the Agents shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that such Agent
is
required to exercise in writing by the Required Lenders (or such other number
or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, no
Agent shall have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to any Credit Party or any of its
Subsidiaries that is communicated to or obtained by such Agent or any of its
Affiliates in any capacity; provided, however, that Agents shall give Lenders
immediate written notice of any action taken or notice received or given by
any
of them pursuant to the Intercreditor Agreement. No Agent shall be liable for
any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall
be
necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to such Agent by the Borrowers or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document. The Administrative Agent shall not be responsible for or have any
duty
to ascertain or inquire into the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Each Agent also may rely upon any statement made
to it orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. Each Agent may consult
with legal counsel (who may be counsel for any Credit Party), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
Each
Agent may perform any and all of its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by it including, without
limitation, its duties, rights and powers under any Loan Documents in respect
of
the Collateral or any portion thereof. Each Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of
each
Agent and any such sub-agent, and shall apply to their respective activities
in
connection with the syndication of the credit facilities provided for herein
as
well as activities as an Agent.
Subject
to the foregoing, each Agent (including but not limited to the Administrative
Agent) acting under or in respect of the Collateral, shall act for the ratable
benefit of the Lenders and the Issuing Bank as appropriate hereunder (unless
otherwise provided herein or in any other Loan Documents) and shall be entitled
to the exculpations, privileges, indemnities and other protections provided
for
the benefit of the Agent herein or therein.
Subject
to the appointment and acceptance of a successor Agent as provided in this
paragraph, any Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrowers, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Agent gives notice of its resignation, then the retiring Agent may, on behalf
of
the Lenders and the Issuing Bank, appoint a successor Agent which shall be
a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as an Agent by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as such. The fees payable by the
Borrowers to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.
After any Agent's resignation, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while it was acting as
Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it
has
deemed appropriate, made its own credit analysis and decision to enter into
this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices.
Except
in
the case of notices and other communications expressly permitted to be given
by
telephone, all notices and other communications provided for herein shall be
in
writing and shall be delivered by hand or overnight courier service, mailed
by
certified or registered mail or sent by telecopy or other generally accepted
electronic means, as follows:
(a) if
to the
Borrowers or to any of the Borrowers, to the Borrowers c/o the Company at 000
Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxx X. Xxxx
(Telecopy No. 914-428-4581);
(b) if
to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Bank
Services Group, 00 X. Xxxxxxxx, Xxxxxxx, XX 00000, Attention of Xxxxx Xxxxxx
(Telecopy No. (000) 000-0000), with copies to JPMorgan Chase Bank, N.A., 000
Xxxxxxxxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxx X.
Xxxxxxxxx (Telecopy No. (000) 000-0000);
(c) if
to the
Issuing Bank, to JPMorgan Chase Bank, N.A., 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxx X. Xxxxxxxxx (Telecopy No. (000)
000-0000);
(d) if
to the
Documentation Agent, to Xxxxx Fargo Bank, N.A., 00 Xxxxx Xxxxxxxx, Xxxxx 000,
Xxxxx Xxxxxx, XX 00000, Attention of Xxxxxxx X. Xxxx (Telecopy No. (000)
000-0000); and
(e) if
to any
other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices
and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION
9.02. Waivers;
Amendments.
(a) No
failure or delay by the Administrative Agent, the Collateral Agent, the Issuing
Bank, the Documentation Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Collateral Agent, the Issuing Bank, the Documentation Agent and the Lenders
hereunder or under any other Loan Document are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Document or consent to any
departure by the Borrowers or any other Credit Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as
a
waiver of any Default, regardless of whether the Administrative Agent, the
Collateral Agent, the Documentation Agent, any Lender or the Issuing Bank may
have had notice or knowledge of such Default at the time.
(b) Neither
this Agreement or any of the other Loan Documents nor any provision hereof
or
thereof may be waived, amended or modified except (a) in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
the
Borrowers and the Required Lenders or by the Borrowers and the Administrative
Agent with the consent of the Required Lenders, and (b) in the case of any
Security Document, pursuant to an agreement entered into by the parties thereto
and consented to by the Required Lenders; provided
that no
such agreement shall (i) increase the Revolving Credit Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount
of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount
of
any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Revolving Credit Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.16(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) release any
material Collateral under any Security Document or release any guarantor under
any Guarantee Agreement except as expressly permitted thereby or hereby, without
the prior consent of each Lender, (vi) waive, amend, or modify any provision
of
Section 6.09 or 6.11 without the prior written consent of the Mandatory Lenders;
or (vii) change any of the provisions of this Section or the definition of
"Required Lenders" or "Mandatory Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or under any other Loan Document or make any
determination or grant any consent hereunder or thereunder, without the written
consent of each Lender; provided
further
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Documentation Agent hereunder or thereunder without the prior written consent
of
the Administrative Agent, the Collateral Agent, the Issuing Bank, or the
Documentation Agent, as the case may be.
SECTION
9.03. Expenses;
Indemnity; Damage Waiver.
(a) The
Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by each
of the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Documentation Agent and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for such Persons, in connection
with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement and the other Loan Documents, or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the amendment, renewal or extension of the Letter of
Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Collateral Agent,
the Issuing Bank, the Documentation Agent or any Lender, in connection with
the
enforcement or protection of its rights against any Credit Party in connection
with this Agreement or the other Loan Documents, including its rights against
any Credit Party under this Section, or against any Credit Party in connection
with the Loans made hereunder or the Letters of Credit, or any Collateral,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit,
or
Collateral.
(b) The
Borrowers shall indemnify the Administrative Agent, the Collateral Agent, the
Issuing Bank, the Documentation Agent and each Lender, and each Related Party
of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document,
or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto or thereto of their respective obligations hereunder
or
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby or thereby (other than in connection with disputes between
parties hereto other than Credit Parties regarding obligations of such other
parties), (ii) any Loan or the Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under the Letter of Credit if the documents presented in connection
with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by and Credit Party or any of its
Subsidiaries, or any Environmental Liability related in any way to any Credit
Party or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses are determined
by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnity;
and
provided
further
that such indemnity obligation of the Borrowers shall not extend to any losses,
claims, damages, liabilities and related expenses of a Lender directly
attributable to the acts or omissions of another Lender (provided
further,
however, that (i) no Lender shall be liable to the Borrowers or any other Credit
Party for the acts or omissions of another Lender (and this Section 9.03(b)
shall not be interpreted or construed to create any liability of a Lender,
Administrative Agent, Collateral Agent, the Documentation Agent or Issuing
Bank
to any Credit Party), and (ii) Borrowers shall in all events remain fully liable
for all advances by any Lender whether for itself or on behalf of another
Lender, and all interest and fees now or hereafter hereunder).
(c) To
the
extent that the Borrowers fail to pay any amount required to be paid to the
Administrative Agent, the Collateral Agent, , the Documentation Agent or the
Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent, the Collateral Agent, , the
Documentation Agent or the Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Collateral Agent, , the Documentation Agent or the
Issuing Bank in its capacity as such; and provided
further
that the action of the Collateral Agent, , the Documentation Agent or the
Issuing Bank giving rise to the same did not constitute gross negligence or
willful misconduct by such Person.
(d) To
the
extent permitted by applicable law, the Borrowers shall not assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document, or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or the Letters of
Credit or the use of the proceeds thereof.
(e) All
amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION
9.04. Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby
(including an Affiliate of the Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of their
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrowers without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its
rights or obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon
any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Collateral Agent, the Documentation
Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy
or
claim under or by reason of this Agreement.
(b) (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to
one or more assignees all or a portion of its rights and obligations under
this
Agreement and the other Loan Documents (including all or a portion of its
Revolving Credit Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld)
of:
(A) the
Borrowers, provided
that no
consent of the Borrowers shall be required for an assignment to a Lender or
an
affiliate of a Lender, or if an Event of Default has occurred and is continuing,
any other assignee;
(B) the
Administrative Agent, provided
that no
consent of the Administrative Agent shall be required for an assignment of
any
Revolving Credit Commitment to an assignee that is a Lender with a Revolving
Credit Commitment immediately prior to giving effect to such assignment;
and
(C) the
Issuing Bank.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Revolving
Credit Commitment or Loans of any Type, the amount of the Revolving Credit
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrowers and the Administrative Agent otherwise
consent, provided
that no
such consent of the Borrowers shall be required if an Event of Default has
occurred and is continuing;
(B) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender's rights and obligations under this Agreement and the
other
Loan Documents;
(C) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
Section 9.04 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
paragraph (c) of this Section.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time
to
time (the "Register").
The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Bank 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 and the other Loan Documents,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon
its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register; provided
that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.05(b), 2.06(d) or (e),
2.16(d) or 9.03(c), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c)
(i)
Any Lender may, without the consent of the Borrowers, the Administrative
Agent,
the Issuing Bank, sell participations to one or more banks or other entities
(a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents (including
all or
a portion of its Revolving Credit Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the
other
parties hereto for the performance of such obligations and (C) the Borrowers
and
the other Credit Parties, the Administrative Agent, the Issuing Bank, the
Documentation Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and
the
other Loan Documents and to approve any amendment, modification or waiver
of any
provision of this Agreement and the other Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and
2.15 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
by
law, each Participant also shall be entitled to the benefits of Section 9.08
as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.16(c) as though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under Section
2.13 or 2.15 than the applicable Lender would have been entitled to receive
with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers’ prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.15 unless the Borrowers are
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 2.15(e) as
though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement and the Revolving Credit Note issued
to it to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or assignee for
such
Lender as a party hereto.
SECTION
9.05. Survival.
All
covenants, agreements, representations and warranties made by the Borrowers
herein and by the Borrowers and the other Credit Parties in the other Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Documents shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Collateral Agent,
the Issuing Bank, the Documentation Agent or any Lender may have had notice
or
knowledge of any Default or incorrect representation or warranty at the time
any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or
any
other amount payable under this Agreement is outstanding and unpaid or the
Letter of Credit is outstanding and so long as the Revolving Credit Commitments
have not expired or terminated. The provisions of Sections 2.13, 2.14, 2.15
and
9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Revolving Credit Commitments or the termination of this Agreement or
any
provision hereof.
SECTION
9.06. Counterparts;
Integration; Effectiveness.
This
Agreement may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire contract among
the parties thereto relating to the subject matter hereof and supersede any
and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this
Agreement.
SECTION
9.07. Severability.
Any
provision of this Agreement or any other Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction,
be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff.
If
an
Event of Default shall have occurred and be continuing, each Lender and each
of
its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of a Borrower against any of and all the obligations
of
the Borrowers now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under
this
Section are in addition to other rights and remedies (including other rights
of
setoff) which such Lender may have.
SECTION
9.09. GOVERNING
LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF, OR CONFLICT OF LAWS
PRINCIPLES.
(b) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York sitting in New York County and of the United States District Court
of
the Southern District of New York, and any appellate court from any thereof,
in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall
affect any right that the Administrative Agent, the Collateral Agent, the
Issuing Bank, the Documentation Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against either Borrower
or
its properties in the courts of any jurisdiction.
(c) Each
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement or the other Loan Documents in any court referred
to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION
9.10. WAIVER
OF JURY TRIAL; WAIVER OF SPECIAL DAMAGES.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
EACH
OF
THE BORROWERS AND THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
DOCUMENTATION AGENT, THE LENDERS AND ANY ISSUING BANK WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER
FROM ANY OTHER PARTY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
SECTION
9.11. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality.
Each
of
the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject
to an
agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any
other Loan Document or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to a Borrower and
its
obligations, (g) with the consent of the Borrowers or (h) to the extent
such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrowers. For the purposes of this Section,
"Information"
means
all information received from the Borrowers relating to the Borrowers or their
businesses, other than any such information that is available to the
Administrative Agent, the Collateral Agent, the Documentation Agent the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrowers; provided
that, in
the case of information received from the Borrowers after the date hereof,
such
information is clearly identified at the time of delivery as confidential.
Any
Person required to maintain the confidentiality of Information as provided
in
this Section shall be considered to have complied with its obligation to do
so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION
9.13. Interest
Rate Limitation.
Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable
to
any Loan, together with all fees, charges and other amounts which are treated
as
interest on such Loan under applicable law (collectively the "Charges"),
shall
exceed the maximum lawful rate (the "Maximum
Rate")
which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
XXXXXXX
0.00. XXX
Xxxxxxx Xxx.
(a) Each
Lender that is subject to the requirements of the USA Patriot Act (Title III
of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), hereby notifies
the Borrowers that pursuant to the requirements of the Act, it is required
to
obtain, verify and record information that identifies the Borrowers, which
information includes the names and addresses of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance
with the Act.
(b) The
following notification is provided to the Borrowers pursuant to Section 326
of
the USA Patriot Act of 2001, 31 U.S.C. § 5318:
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit
or
other financial services product. What this means for Borrowers: When Borrowers
open an account, if any of the Borrowers is an individual, the Administrative
Agent will ask for Borrower’s name, taxpayer identification number, residential
address, date of birth, and other information that will allow the Administrative
Agent (or Lender) to identify Borrower, and if Borrower is not an individual,
the Administrative Agent (or Lender) will ask for Borrower’s name, taxpayer
identification number, business address, and other information that will allow
the Administrative Agent (or Lender) to identify Borrower. The Administrative
Agent (or Lender) may also ask, if Borrower is an individual, to see Borrower’s
driver’s license or other identifying documents, and if Borrower is not an
individual, to see Borrower’s legal organizational documents or other
identifying documents.
ARTICLE
X
The
Borrowers
Each
Borrower agrees that the representations and warranties made by, and the
liabilities, obligations, and covenants of and applicable to any of, any two
of,
or all of the Borrowers under this Agreement, shall in every case (whether
or
not specifically so stated in each such case herein) be joint and several.
Every
notice by or to any Borrower shall be deemed also to constitute notice by and
to
the other Borrowers, every act or omission by any Borrower also shall be binding
upon the other Borrowers, and the Administrative Agent, the Collateral Agent,
the Issuing Bank, , the Documentation Agent and the Lenders are fully authorized
by each Borrower to act and rely also upon the representations and warranties,
covenants, notices, acts, and omissions of the other Borrowers.
[Balance
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
KINRO,
INC.
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By:
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Name:
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Title:
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XXXXXXX
COMPONENTS, INC.
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A. individually and
as
Administrative Agent,
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By:
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Name:
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Title:
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XXXXX
FARGO BANK, N.A., individually and as
Documentation
Agent
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By:
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Name:
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Title:
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