EXHIBIT 10.1
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of June 11, 2004
among
SCHAWK, INC.,
as the Borrower,
THE ALTERNATE CURRENCY BORROWERS FROM TIME TO TIME PARTIES HERETO,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
and
BANK ONE, NA (MAIN OFFICE CHICAGO)
as Agent
================================================================================
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
================================================================================
SIDLEY XXXXXX XXXXX & XXXX LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I: DEFINITIONS............................................................................... 1
1.1. Certain Defined Terms..................................................................... 1
1.2. References................................................................................ 25
1.3. Supplemental Disclosure................................................................... 25
ARTICLE II: REVOLVING LOAN FACILITIES................................................................. 25
2.1. [Reserved]................................................................................ 25
2.2. Revolving Loans........................................................................... 25
2.3. Swing Line Loans.......................................................................... 27
2.4. Rate Options for all Advances; Maximum Interest Periods................................... 28
2.5. Optional Payments; Mandatory Prepayments.................................................. 29
2.6. Reduction of Commitments.................................................................. 31
2.7. Method of Borrowing....................................................................... 31
2.8. Method of Selecting Types and Interest Periods for Advances............................... 31
2.9. Minimum Amount of Each Advance............................................................ 32
2.10. Method of Selecting Types and Interest Periods for Conversion and Continuation
of Advances .............................................................................. 32
2.11. Default Rate.............................................................................. 33
2.12. Method of Payment......................................................................... 34
2.13. Evidence of Debt.......................................................................... 35
2.14. Telephonic Notices........................................................................ 35
2.15. Promise to Pay; Interest and Commitment Fees; Interest Payment Dates; Interest
and Fee Basis; Taxes; Loan and Control Accounts .......................................... 36
2.16. Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving
Loan Commitment Reductions ............................................................... 41
2.17. Lending Installations..................................................................... 41
2.18. Non-Receipt of Funds by the Agent......................................................... 41
2.19. Termination Date.......................................................................... 41
2.20. Replacement of Certain Lenders............................................................ 42
2.21. Alternate Currency Loans.................................................................. 42
2.22. Judgment Currency......................................................................... 45
2.23. Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of
Reimbursement Obligations ................................................................ 45
2.24. Payments to be Free and Clear............................................................. 46
2.25. Additional Alternate Currency Borrowers................................................... 47
2.26. Increase of Aggregate Revolving Loan Commitment........................................... 47
ARTICLE III: THE LETTER OF CREDIT FACILITY............................................................ 49
3.1. Obligation to Issue Letters of Credit..................................................... 49
3.2. Transitional Provision.................................................................... 49
3.3. Types and Amounts......................................................................... 49
3.4. Conditions................................................................................ 50
3.5. Procedure for Issuance of Letters of Credit............................................... 50
i
3.6. Letter of Credit Participation............................................................ 51
3.7. Reimbursement Obligation.................................................................. 51
3.8. Letter of Credit Fees..................................................................... 52
3.9. Issuing Bank Reporting Requirements....................................................... 52
3.10. Indemnification; Exoneration.............................................................. 52
3.11. Cash Collateral........................................................................... 53
ARTICLE IV: CHANGE IN CIRCUMSTANCES................................................................... 54
4.1. Yield Protection.......................................................................... 54
4.2. Changes in Capital Adequacy Regulations................................................... 55
4.3. Availability of Types of Advances......................................................... 55
4.4. Funding Indemnification................................................................... 55
4.5. Lender Statements; Survival of Indemnity.................................................. 56
ARTICLE V: CONDITIONS PRECEDENT....................................................................... 57
5.1. Initial Advances and Letters of Credit.................................................... 57
5.2. Each Advance and Letter of Credit......................................................... 58
5.3. Initial Advance to Each New Alternate Currency Borrower................................... 58
ARTICLE VI: REPRESENTATIONS AND WARRANTIES............................................................ 59
6.1. Organization; Corporate Powers............................................................ 59
6.2. Authority................................................................................. 60
6.3. No Conflict; Governmental Consents........................................................ 60
6.4. Financial Statements...................................................................... 61
6.5. No Material Adverse Change................................................................ 61
6.6. Taxes..................................................................................... 62
6.7. Litigation; Loss Contingencies and Violations............................................. 62
6.8. Subsidiaries.............................................................................. 62
6.9. ERISA..................................................................................... 63
6.10. Accuracy of Information................................................................... 64
6.11. Securities Activities..................................................................... 64
6.12. Material Agreements....................................................................... 64
6.13. Compliance with Laws...................................................................... 64
6.14. Assets and Properties..................................................................... 64
6.15. Statutory Indebtedness Restrictions....................................................... 65
6.16. Insurance................................................................................. 65
6.17. Labor Matters............................................................................. 65
6.18. No Default or Unmatured Default........................................................... 65
6.19. Environmental Matters..................................................................... 65
6.20. Solvency.................................................................................. 66
6.21. Representations and Warranties of each Alternate Currency Borrower........................ 66
ARTICLE VII: COVENANTS................................................................................ 68
7.1. Reporting................................................................................. 68
7.2. Affirmative Covenants..................................................................... 73
7.3. Negative Covenants........................................................................ 75
7.4. Financial Covenants....................................................................... 83
ii
ARTICLE VIII: DEFAULTS................................................................................ 84
8.1. Defaults.................................................................................. 84
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES........................ 87
9.1. Termination of Revolving Loan Commitments; Acceleration................................... 87
9.2. Defaulting Lender......................................................................... 88
9.3. Amendments................................................................................ 89
9.4. Preservation of Rights.................................................................... 90
ARTICLE X: GENERAL PROVISIONS......................................................................... 90
10.1. Survival of Representations............................................................... 91
10.2. Governmental Regulation................................................................... 91
10.3. Performance of Obligations................................................................ 91
10.4. Headings.................................................................................. 91
10.5. Entire Agreement.......................................................................... 91
10.6. Several Obligations; Benefits of this Agreement........................................... 92
10.7. Expenses; Indemnification................................................................. 92
10.8. Numbers of Documents...................................................................... 94
10.9. Accounting................................................................................ 94
10.10. Severability of Provisions................................................................ 94
10.11. Nonliability of Lenders................................................................... 94
10.12. GOVERNING LAW............................................................................. 94
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL................................... 94
10.14. USA Patriot Act Notification.............................................................. 95
ARTICLE XI: THE AGENT................................................................................. 96
11.1. Appointment; Nature of Relationship....................................................... 96
11.2. Powers.................................................................................... 96
11.3. General Immunity.......................................................................... 96
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.............................. 97
11.5. Action on Instructions of Lenders......................................................... 97
11.6. Employment of Agents and Counsel.......................................................... 97
11.7. Reliance on Documents; Counsel............................................................ 97
11.8. The Agent's and the Alternate Currency Bank's Reimbursement and Indemnification........... 97
11.9. Rights as a Lender........................................................................ 98
11.10. Lender Credit Decision.................................................................... 98
11.11. Successor Agent........................................................................... 98
ARTICLE XII: SETOFF; RATABLE PAYMENTS................................................................. 99
12.1. Setoff.................................................................................... 99
12.2. Ratable Payments.......................................................................... 99
12.3. Application of Payments................................................................... 99
12.4. Relations Among Lenders................................................................... 100
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS....................................... 100
13.1. Successors and Assigns.................................................................... 100
iii
13.2. Participations............................................................................ 101
13.3. Assignments............................................................................... 102
13.4. Confidentiality........................................................................... 104
13.5. Dissemination of Information.............................................................. 105
13.6. Tax Certifications........................................................................ 105
ARTICLE XIV: NOTICES.................................................................................. 105
14.1. Giving Notice............................................................................. 105
14.2. Change of Address......................................................................... 105
ARTICLE XV: COUNTERPARTS.............................................................................. 105
ARTICLE XVI: SCHEDULES................................................................................ 105
iv
EXHIBITS AND SCHEDULES
EXHIBITS*
EXHIBIT A = Revolving Loans (Definitions)
EXHIBIT A-1 = Eurocurrency Payment Offices
EXHIBIT B = Form of Borrowing/Conversion/Continuation Notice
(Section 2.3 and Section 2.8 and Section 2.10)
EXHIBIT C = Form of Request for Letter of Credit (Section 3.4)
EXHIBIT E = Form of Borrowers' US Counsel's Opinion and Form of
Borrowers' Foreign Counsel's Opinion (Section 5.1)
EXHIBIT F = List of Closing Documents
(Section 5.1)
EXHIBIT G = Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT H = Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I = Form of Subsidiary Guaranty
(Definitions)
EXHIBIT J = Forms of Alternate Currency Addenda
(Definitions)
EXHIBIT K = Form of Revolving Loan Note
(Section 2.13(D))
EXHIBIT L = Form of Commitment and Acceptance
(Section 2.26)
EXHIBIT M = Form of Assumption Letter
(Definitions)
*INTENTIONALLY OMITTED
v
SCHEDULES*
Schedule 1.1.1 = Permitted Existing Indebtedness (Definitions)
Schedule 1.1.2 = Permitted Existing Investments (Definitions)
Schedule 1.1.3 = Permitted Existing Liens (Definitions)
Schedule 1.1.4 = Permitted Existing Contingent Obligations
(Definitions)
Schedule 3.2 = Transitional Letters of Credit (Section 3.2)
Schedule 6.3 = Conflicts; Governmental Consents (Section 6.3)
Schedule 6.4 = Pro Forma Financial Statements (Section 6.4(A))
Schedule 6.7 = Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 = Subsidiaries (Section 6.8)
Schedule 6.9 = ERISA (Section 6.9)
Schedule 6.16 = Insurance (Sections 6.16 and 7.2(E))
Schedule 6.19 = Environmental Matters (Section 6.19)
*INTENTIONALLY OMITTED
vi
CREDIT AGREEMENT
This Credit Agreement dated as of June 11, 2004 is entered into
among SCHAWK, INC., a Delaware corporation (the "BORROWER"), one or more
Subsidiaries of the Borrower (whether now existing or hereafter formed and party
to an Alternate Currency Addendum, collectively referred to herein as the
"ALTERNATE CURRENCY BORROWERS"), the institutions from time to time parties
hereto as Lenders, whether by execution of this Agreement or an Assignment
Agreement pursuant to Section 13.3, and BANK ONE, NA (MAIN OFFICE CHICAGO), in
its capacity as contractual representative for itself and the other Lenders. The
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1. Certain Defined Terms. In addition to the terms defined above,
the following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of Eurocurrency Rate Advances and Alternate Currency Loans, in
the same currency and for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person is
the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934) of greater than nine and nine-tenths percent (9.90%) or more of any
class of voting securities (or other voting interests) of the controlled Person
or possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through
ownership of Capital Stock, by contract or otherwise.
1
"AGENT" means Bank One in its capacity as contractual representative
for itself and the Lenders pursuant to Article XI hereof and any successor Agent
appointed pursuant to Article XI hereof.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be increased or reduced
from time to time pursuant to the terms hereof. The initial Aggregate Revolving
Loan Commitment is Thirty Million and 00/100 Dollars ($30,000,000).
"AGREED CURRENCIES" means (i) Dollars and (ii) so long as such
currency remains an Eligible Currency, Canadian Dollars, and (iii) any other
Eligible Currency which the Borrower requests the Agent to include as an Agreed
Currency hereunder and which is acceptable to one-hundred percent (100%) of the
Lenders with a Revolving Loan Commitment; provided that the Agent shall promptly
notify each such Lender of each such request and each such Lender shall be
deemed not to have agreed to each such request unless its written consent
thereto has been received by the Agent within five (5) Business Days from the
date of such notification by the Agent to such Lender.
"AGREED LETTER OF CREDIT CURRENCIES" means (i) Dollars and (ii) any
other currency which the Borrower requests an Issuing Bank to include as an
Agreed Letter of Credit Currency and which is acceptable to such Issuing Bank.
"AGREEMENT" means this Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted
accounting principles as in effect in the United States as of the date of this
Agreement, applied in a manner consistent with that used in preparing the
financial statements of the Borrower referred to in Section 6.4(B)(1) hereof,
provided, however, that with respect to the calculation of financial ratios and
other financial tests required by this Agreement, "Agreement Accounting
Principles" means generally accepted accounting principles as in effect in the
United States as of the date of this Agreement, applied in a manner consistent
with that used in preparing the financial statements of the Borrower referred to
in Section 6.4(A) hereof; provided, further, however, all pro forma financial
statements reflecting Acquisitions shall be prepared in accordance with the
requirements established by the Commission for acquisition accounting for
reporting acquisitions by public companies (whether or not such Acquisitions are
required to be publicly reported); provided, further, that no change in
accounting principles shall be made from those used in preparing the financial
statements referred to in Section 6.4 hereof, including, without limitation,
with respect to the nature or classification of accounts, closing proceedings,
levels of reserves, or levels of accruals other than as a result of objective
changes in the underlying business; provided, further, that for purposes of the
preceding clauses, "changes in accounting principles" or "changes in Agreement
Accounting Principles" includes all changes in accounting principles, policies,
practices, procedures, or methodologies with respect to financial statements,
their classification, or their display, as well as all changes in practices,
methods, conventions, or assumptions used in making accounting estimates.
2
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"ALTERNATE CURRENCY" shall mean (i) only so long as such currency
remains an Eligible Currency, Canadian Dollars and (ii) any other Eligible
Currency which the applicable Borrower requests the Alternate Currency Bank to
include as an Alternate Currency hereunder and which is acceptable to the
Alternate Currency Bank and with respect to which an Alternate Currency Addendum
has been executed by an Alternate Currency Borrower and the Alternate Currency
Bank in connection therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the
form of Exhibit J with such modifications thereto as shall be approved by the
Alternate Currency Bank.
"ALTERNATE CURRENCY BANK" means Bank One (or any Affiliate, branch
or agency thereof) to the extent it is party to an Alternate Currency Addendum.
If any agency, branch or Affiliate of Bank One shall be a party to an Alternate
Currency Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of Bank One
hereunder; provided, however, that Bank One shall to the exclusion of such
agency, branch or Affiliate, continue to have all the voting rights vested in it
by the terms hereof.
"ALTERNATE CURRENCY BORROWER" means each of the Borrower's
Subsidiaries, whether now existing or hereafter formed, that is a party to an
Alternate Currency Addendum, which Subsidiary shall have delivered to the Agent
an Assumption Letter in accordance with Section 2.25 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns including a debtor-in-possession on behalf of
such Alternate Currency Borrower.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a
Loan made in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for the Alternate Currency
Bank for each Alternate Currency, the obligation of such Alternate Currency Bank
to make Alternate Currency Loans not exceeding the Dollar Amount set forth in
the applicable Alternate Currency Addendum, as such amount may be modified from
time to time pursuant to the terms of this Agreement and the applicable
Alternate Currency Addendum.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth on the applicable
Alternate Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by the Alternate Currency Bank to an Alternate Currency Borrower
pursuant to Section 2.21 and an Alternate Currency Addendum.
3
"ALTERNATE CURRENCY RATE" means, for any day for any Alternate
Currency Loan, the per annum rate of interest selected by the applicable
Alternate Currency Borrower under and as set forth in the applicable Alternate
Currency Addendum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with the
provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable to the letter of credit fee
under Section 3.8(a) hereof in accordance with the provisions of Section
2.15(D)(ii) hereof.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"APPROXIMATE EQUIVALENT AMOUNT" means any currency with respect to
any amount of Dollars shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars at such date, rounded up to the nearest amount
of such currency as determined by the Agent from time to time.
"ARRANGER" means Banc One Capital Markets, Inc., in its capacity as
the arranger for the loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 13.3 hereof in
substantially the form of Exhibit D.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
to any Person other than the Borrower or any of its wholly-owned Subsidiaries
other than (i) the sale of Inventory in the ordinary course of business, (ii)
the sale or other disposition of any obsolete, redundant, excess, damaged or
worn-out Equipment disposed of in the ordinary course of business and (iii)
leases of personal property (including leases or licenses of intellectual
property) and leases of surplus or redundant real property.
4
"ASSUMPTION LETTER" means a letter of any Subsidiary which is a
Foreign Incorporated Subsidiary addressed to the Lenders in substantially the
form of Exhibit M hereto pursuant to which such Subsidiary agrees to become an
Alternate Currency Borrower and agrees to be bound by the terms and conditions
hereof as if originally a party hereto.
"AUTHORIZED OFFICER" means any of the President, any Vice President
or Chief Financial Officer of the Borrower, acting singly.
"BANK ONE" means Bank One, NA, having its principal office in
Chicago, Illinois in its individual capacity, and its successors.
"BENEFIT PLAN" means a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the
Borrower or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"BORROWER" means Schawk, Inc., a Delaware corporation, together with
its successors and assigns, including a debtor-in-possession on behalf of the
Borrower, and "BORROWERS" shall mean, collectively, the Borrower and the
Alternate Currency Borrowers.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan
is made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in Section 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or
rate selection of Loans bearing interest at the Eurocurrency Rate, a day (other
than a Saturday or Sunday) on which banks are open for business in Chicago,
Illinois and New York, New York and on which dealings in Dollars and the other
Agreed Currencies are carried on in the London interbank market and (ii) for all
other purposes a day (other than a Saturday or Sunday) on which banks are open
for business in Chicago, Illinois and New York, New York.
"CANADIAN DOLLARS" means the lawful currency of Canada.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether or not paid in cash and including Capitalized Leases and
purchase money indebtedness) by the Borrower and its consolidated Subsidiaries
during that period that, in conformity with Agreement Accounting Principles, are
required to be included in or reflected by the property, plant, equipment or
similar fixed asset accounts reflected in the consolidated balance sheet of the
Borrower and its Subsidiaries; provided, however, that the term "Capital
Expenditures" shall not include (a) expenditures made in connection with the
replacement, substitution or restoration of assets (i) to the extent financed
from insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored or (ii) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced; (b) the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment to the extent that the gross amount of such purchase price
is reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time; (c) the purchase of plant,
5
property or equipment made within one year of the sale of any asset to the
extent purchased with the proceeds of such sale; (d) the portion of the purchase
price in connection with any acquisition that would otherwise be included as
additions to property, plant or equipment; and (e) expenditures made in
connection with any acquisition.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the governments of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and the investments of which are limited to investment
grade securities (i.e., securities rated at least Baa by Xxxxx'x Investors
Service, Inc. or at least BBB by Standard & Poor's Ratings Group); and (iv)
commercial paper of United States and foreign banks and bank holding companies
and their subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition, are rated A-1
(or better) by Standard & Poor's Ratings Group or P-1 (or better) by Xxxxx'x
Investors Services, Inc.; provided that the maturities of such Cash Equivalents
shall not exceed three hundred sixty-five (365) days from the date of
acquisition thereof.
"CHANGE" means (i) any change after the date of this Agreement in
the "Risk-Based Capital Guidelines" (as defined below) excluding, for the
avoidance of doubt, the effect of any phasing in of such Risk-Based Capital
Guidelines or any other capital requirements passed prior to the date hereof, or
(ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement and having general applicability to all banks and financial
institutions within the jurisdiction in which such Lender operates which affects
the amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender.
6
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the exchange Act of 1934), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act of 1934, provided that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of
thirty-five percent (35%) or more of the combined voting power of
the Borrower's outstanding Capital Stock ordinarily having the right
to vote at an election of directors; or
(b) the majority of the board of directors of the Borrower
fails to consist of Continuing Directors; or
(c) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all
of its property to any Person, or any corporation consolidates with
or merges into the Borrower, in either event pursuant to a
transaction in which the outstanding Capital Stock of the Borrower
is reclassified or changed into or exchanged for cash, securities or
other property; or
(d) the Borrower shall cease to own and control at least
eighty percent (80%) of the economic and voting rights associated
with all of the outstanding Capital Stock of its existing
Subsidiaries as of the Closing Date.
"CLOSING DATE" means June 11, 2004.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COMMISSION" means the Securities and Exchange Commission of the
United States of America and any Person succeeding to the functions thereof.
"COMMITMENT AND ACCEPTANCE" is defined in Section 2.26 hereof.
"COMMITMENT INCREASE NOTICE" is defined in Section 2.26 hereof.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts
which would be included under shareholders' equity on the consolidated balance
sheet for the Borrower and its consolidated Subsidiaries determined in
accordance with Agreement Accounting Principles, plus an amount equal to any
non-recurring expenses related to the reorganization, restructuring and
rationalization of the Borrower and its Subsidiaries when and as charged to
reduce net worth to the extent charged during the first three years following
any Permitted Acquisition up to amounts not to be in excess of $5,000,000, on a
pre-tax basis, with respect to any Permitted Acquisition, or $10,000,000, on a
pre-tax basis, in the aggregate.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets of the
Borrower and its Subsidiaries on a consolidated basis (determined in accordance
with Agreement Accounting
7
Principles), but excluding therefrom all items that are treated as intangibles
under Agreement Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the present value of the portion of the
obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any
date of determination, any member of the board of directors of such Person who
(a) was a member of such board of directors on the date of this Agreement, or
(b) was nominated for election or elected to such board of directors with the
approval of the Continuing Directors who were members of such board at the time
of such nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its properties
is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Borrower, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
8
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such
Person (i) ninety percent (90%) or more of the total Equity Interests or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more wholly-owned Subsidiaries of
such Person and (ii) of which such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies, whether
through the ownership of voting securities, by agreement or otherwise.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet
due or (if foreclosure, distrait, sale or other similar proceedings
shall not have been commenced or any such proceeding after being
commenced is stayed) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement
Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in
good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits or
to secure the performance of bids, tenders, sales, contracts (other
than for the repayment of borrowed money), surety, appeal and
performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's or
such Subsidiary's assets or property taken as a whole or materially
impair the use thereof in the operation of the businesses taken as a
whole, and (B) all Liens securing bonds to stay judgments or in
connection with appeals do not secure at any time an aggregate
amount exceeding $10,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value
of the property subject thereto or materially interfere with the
ordinary use or occupancy of the real property or with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the
Borrower or any of its Subsidiaries which do not constitute a
Default under Section 8.1(H) hereof; and
9
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Borrower or any
of its Subsidiaries in the ordinary course of business.
"DEFAULT" means an event described in Article VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the
amount of such currency if such currency is Dollars or (ii) the Equivalent
Amount of Dollars if such currency is any currency other than Dollars.
"DOMESTIC INCORPORATED SUBSIDIARY" means a Subsidiary of the
Borrower organized under the laws of a jurisdiction located in the United States
of America.
"EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (iv) depreciation expense to the extent deducted in computing Net Income,
plus (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (vi) other non-cash charges classified as long-term deferrals in
accordance with Agreement Accounting Principles to the extent deducted in
computing Net Income, plus (vii) other extraordinary non-cash charges to the
extent deducted in computing Net Income, minus (viii) other extraordinary
non-cash credits to the extent added in computing Net Income, plus (ix)
nonrecurring after-tax losses (or minus nonrecurring after-tax gains), plus (x)
an amount equal to the amount of any reduction of Net Income for such period
attributable to the adjustment to the value of assets made in connection with
any Permitted Acquisition, plus (xi) an amount equal to any non-cash write-down
of assets made as a result of integration and rationalization related to
acquisitions made at any time within the first three fiscal years after the
Closing Date plus (xii) any non-recurring expenses related to the
reorganization, restructuring and rationalization of the Borrower and its
Subsidiaries which are charged to operating expenses when and as charged during
the first three fiscal years following any Permitted Acquisition up to amounts
not to be in excess of $5,000,000, on a pre-tax basis, with respect to any
Permitted Acquisition, or $10,000,000, on a pre-tax basis, in the aggregate, to
the extent such charges are deducted in computing Net Income. EBITDA shall be
calculated on a pro forma basis giving effect to acquisitions and Asset Sales on
a last twelve (12) months' basis.
10
"ELIGIBLE CURRENCY" means any currency other than Dollars with
respect to which the Agent or the Borrower has not given notice in accordance
with Section 2.23 and that is readily available, freely traded, in which
deposits are customarily offered to banks in the London interbank market,
convertible into Dollars in the international interbank market available to the
Lenders in such market and as to which an Equivalent Amount may be readily
calculated. If, after the designation by the Lenders of any currency as an
Agreed Currency or Alternate Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with the
result that different types of such currency are introduced, such country's
currency is, in the determination of the Agent, no longer readily available or
freely traded or (ii) as to which, in the determination of the Agent, an
Equivalent Amount is not readily calculable (each of clause (i) and (ii), a
"DISQUALIFYING EVENT"), then the Agent shall promptly notify the Lenders and the
Borrower, and such country's currency shall no longer be an Agreed Currency or
Alternate Currency until such time as the Disqualifying Event(s) no longer
exist, but in any event within five (5) Business Days of receipt of such notice
from the Agent, the Borrower shall repay all Loans in such currency to which the
Disqualifying Event applies or convert such Loan into Loans in Dollars or
another Agreed Currency or Alternate Currency, subject to the other terms
contained in Articles II and IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., the Occupational Safety and Health Act of
1970, 29 U.S.C. Section 651 et seq., and the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Section 6901 et seq., in each case including any
amendments thereto, any successor statutes, and any regulations or guidance
promulgated thereunder, and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable
requirement of law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the closure of any property or the
transfer, sale or lease of any property or deed or title for any property for
environmental reasons, including, but not limited to, any so-called "Industrial
Site Recovery Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Borrower's present and future (i)
equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible
personal property (other than the Borrower's Inventory), and (iii) any and all
accessions, parts and appurtenances attached to any of the foregoing or used in
connection therewith, and any substitutions therefor and replacements, products
and proceeds thereof.
11
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Agent or Alternate Currency Bank, as applicable, in the
London interbank market (or other market where the Agent's or Alternate Currency
Bank's, as applicable, foreign exchange operations in respect of such currency
are then being conducted) for such other currency at or about 11:00 a.m. (local
time) two (2) Business Days prior to the date on which such amount is to be
determined, rounded up to the nearest amount of such currency as determined by
the Alternate Currency Bank from time to time; provided, however, that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, the Agent or Alternate Currency Bank's, as applicable, may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time including (unless the context otherwise requires)
any rules or regulations promulgated thereunder.
"EURO" means the Euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY BASE RATE" means, with respect to a Euromoney Rate
Advance for the relevant Interest Period, the applicable British Bankers'
Association LIBOR rate for deposits in the applicable Agreed Currency as
reported by any generally recognized financial information service as of 11:00
a.m. (London time) two (2) Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, adjusted for
Reserves; provided that, if no such British Bankers' Association LIBOR rate is
available to the Agent, the applicable Eurocurrency Base Rate for the relevant
Interest Period shall instead be the rate determined by the Agent to be the rate
at which Bank One or one of its affiliate banks offers to place deposits in such
Agreed Currency with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank One's relevant
Eurocurrency Rate Loan and having a maturity equal to such Interest Period.
"EUROCURRENCY PAYMENT OFFICE" of the Agent shall mean, for each of
the Agreed Currencies, any agency, branch or Affiliate of the Agent, specified
as the "Eurocurrency Payment Office" for such Agreed Currency in Exhibit A-1
hereto or such other agency, branch, Affiliate or correspondence bank of the
Agent, as it may from time to time specify to the Borrower and each Lender as
its Eurocurrency Payment Office.
12
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan
for the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period plus the then Applicable Eurocurrency Margin.
"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at
the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made on a fully syndicated
basis pursuant to Section 2.2, which bears interest at the Eurocurrency Rate.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FINANCING" means, with respect to any Person, the issuance or sale
by such Person of any Equity Interests of such Person or any Subordinated
Indebtedness.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum
equal to the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN INCORPORATED SUBSIDIARY" means a Subsidiary of the Borrower
which is not a Domestic Incorporated Subsidiary.
"FOREIGN SUBSIDIARY INVESTMENT" means the sum of (a) all
intercompany loans made on or after the Closing Date from either the Borrower or
any Domestic Incorporated Subsidiary to any Foreign Incorporated Subsidiary; (b)
all Investments made on or after the Closing Date by either the Borrower or any
Domestic Incorporated Subsidiary in any Foreign Incorporated Subsidiary; and (c)
an amount equal to the net benefit derived by the Foreign Incorporated
Subsidiaries resulting from any non-arms length transactions, or any other
transfer of assets conducted other than in the ordinary course of business,
between the Borrower and/or any Domestic Incorporated Subsidiary, on the one
hand, and such Foreign Incorporated Subsidiaries, on the other hand.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
13
"GOVERNMENTAL AUTHORITY" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
authority or functions of or pertaining to government, including any authority
or other quasi-governmental entity established to perform any of such functions.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted
with conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the term "gross negligence" is
used with respect to the Agent or any Lender or any indemnitee in any of the
other Loan Documents, it shall have the meaning set forth herein.
"GUARANTY" means each of (i) those certain Guaranties executed from
time to time by each of the Domestic Incorporated Subsidiaries of the Borrower
in favor of the Agent for the benefit of itself and the Holders of Obligations
and, (ii) the guaranty by the Borrower of all of the Obligations of the
Alternate Currency Borrowers pursuant to this Agreement and the Alternate
Currency Addenda, in each case as amended, restated, supplemented or otherwise
modified from time to time, in substantially the form of Exhibit I attached
hereto.
"HEDGING AGREEMENTS" is defined in Section 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from
time to time and shall include their respective successors, transferees and
assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights,
"phantom" stock plans, employment agreements, non-competition agreements,
subscription and stockholders agreements and other incentive and bonus plans and
similar arrangements made in connection with the retention of executives,
officers or employees of the Borrower.
"INDEBTEDNESS" of a person means, without duplication, such person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade and other than
earn-outs or other similar forms of contingent purchase prices), (iii)
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
person, (iv) obligations which are
14
evidenced by notes, acceptances, or other instruments, (v) Capitalized Lease
Obligations, (vi) outstanding principal balances (representing securitized but
unliquidated assets) under asset securitization agreements (including, without
limitation, the outstanding principal balance of accounts receivable under
receivables transactions) and (vii) the implied debt component of synthetic
leases of which such person is lessee or any other off-balance sheet financing
arrangements (including, without limitation, any such arrangements giving rise
to any Off-Balance Sheet Liabilities).
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INTEREST EXPENSE" means, for any period, the total interest expense
of the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit, the discount with respect to asset
securitization agreements and the implied interest component of synthetic
leases), all as determined in conformity with Agreement Accounting Principles.
Interest Expense shall not include any interest which in accordance with
Agreement Accounting Principals has been capitalized.
"INTEREST PERIOD" means, (i) any Alternate Currency Interest Period
and (ii) with respect to a Eurocurrency Rate Loan, a period of one (1) or two
(2) weeks or one (1), two (2), three (3) months, six (6) or nine (9) months,
and, to the extent available to all of the Lenders, upon request of the
Borrower, and only if the Lenders, in their discretion, shall agree, twelve (12)
months, commencing on a Business Day selected by the Borrower on which a
Eurocurrency Rate Advance is made to the Borrower pursuant to this Agreement.
Such Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months and, if applicable,
twelve months thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth and, if
applicable, twelfth succeeding month and, if applicable, twelfth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Borrower or any of its Subsidiaries, which are held
for sale or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of Borrower or any of its Subsidiaries, and shall include all
right, title and interest of the Borrower or any of its Subsidiaries in any
property the sale or other disposition of which has given rise to Receivables
and which has been returned to or repossessed or stopped in transit by the
Borrower or any of its Subsidiaries.
15
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding
to the functions thereof.
"ISSUING BANKS" means Bank One or any of its Affiliates in its
separate capacity as an issuer of Letters of Credit pursuant to Section 3.1. The
designation of any Lender as an Issuing Bank after the date hereof shall be
subject to the prior written consent of the Agent.
"LAST TWELVE-MONTH PERIOD" is defined in Section 7.4(A) hereof.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a
Letter of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in
Section 3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the Dollar Amount then available for drawing under
each of the Letters of Credit, (ii) the Dollar Amount equal to the face amount
of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C
Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate
outstanding Dollar Amount of all Reimbursement Obligations at such time and (iv)
the aggregate Dollar Amount equal to the face amount of all Letters of Credit
requested by the Borrower but not yet issued (unless the request for an unissued
Letter of Credit has been denied).
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"LENDER INCREASE NOTICE" is defined in Section 2.26 hereof.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means the letters of credit to be (a) issued by
the Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.
"LEVERAGE RATIO" is defined in Section 7.4(B) hereof.
16
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.2 hereof, as applicable, and in the case
of the Swing Line Bank, any Swing Line Loan made pursuant to Section 2.3 hereof,
and in the case of any Alternate Currency Loan, any Alternate Currency Loan made
pursuant to Section 2.21 and the applicable Alternate Currency Addendum, and
collectively, all Revolving Loans, Swing Line Loans and Alternate Currency
Loans.
"LOAN ACCOUNT" is defined in Section 2.13(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Assumption Letter, each
Alternate Currency Addendum, that certain Letter Agreement, dated as of April
29, 2004, by and among the Borrower, the Agent and the Arranger, the Guaranty
and all other documents, instruments, notes and agreements executed in
connection therewith or contemplated thereby, as the same may be amended,
restated or otherwise modified and in effect from time to time.
"MAINTENANCE CAPITAL EXPENDITURES" means, with respect to any
period, 50% of depreciation expense (to the extent such expense is deducted from
revenues in determining Net Income) during such period.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a)
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, or the Borrower and its Subsidiaries,
taken as a whole, (b) the collective ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under the Loan Documents in
any material respect, or (c) the ability of the Lenders or the Agent to enforce
in any material respect the Obligations.
"MAXIMUM EUROCURRENCY AMOUNT" means $15,000,000 or such other
greater amount as the Borrower may from time to time designate in writing to the
Agent provided such designated amount shall be agreed to by the Required
Lenders.
"MEASUREMENT PERIOD" is defined in Section 7.4(A) hereof.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any member of the
Controlled Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale or
Financing by any Person, (a) cash or Cash Equivalents (freely convertible into
Dollars) received by such Person or any Subsidiary of such Person from such
Asset Sale (including cash received as consideration for the assumption or
incurrence of liabilities incurred in connection with or in anticipation of such
17
Asset Sale) or Financing, after (i) provision for all income or other taxes
measured by or resulting from such Asset Sale or Financing, (ii) payment of all
brokerage commissions and other fees and expenses and commissions related to
such Asset Sale or Financing, (iii) repayment of Indebtedness (and any premium
or penalty thereon) secured by a Lien on any asset disposed of in such Asset
Sale or which is or may be required (by the express terms of the instrument
governing such Indebtedness or by applicable law) to be repaid in connection
with such Asset Sale (including payments made to obtain or avoid the need for
the consent of any holder of such Indebtedness), and (iv) deduction of
appropriate amounts to be provided by such Person or a Subsidiary of such Person
as a reserve, in accordance with Agreement Accounting Principles, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by such Person or a Subsidiary of such Person after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale; and (b) cash or Cash Equivalents payments in respect of any
other consideration received by such Person or any Subsidiary of such Person
from such Asset Sale or Financing upon receipt of such cash payments by such
Person or such Subsidiary.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Agent, any Lender, the Swing Line Bank, the Arranger,
any Affiliate of the Agent or any Lender, any Issuing Bank or any Indemnitee, of
any kind or nature, present or future, arising under this Agreement, the L/C
Documents, any Alternate Currency Addendum or any other Loan Document, whether
or not evidenced by any note, guaranty or other instrument, whether or not for
the payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, reasonable
attorneys' fees and disbursements, reasonable paralegals' fees (in each case
whether or not allowed), and any other sum chargeable to the Borrower or any of
its Subsidiaries under this Agreement or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such Person or any of its
Subsidiaries under any financing lease or so-called "synthetic" lease
transaction, or (d) any obligations of such Person or any of its Subsidiaries
arising with respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on
the consolidated balance sheets of such Person and its Subsidiaries.
18
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December and the Revolving Loan Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrower and its Subsidiaries identified as such on Schedule
1.1.4 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.1 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED FOREIGN SUBSIDIARY INVESTMENT AMOUNT" means the sum of
(i) $25,000,000 plus (ii) Investments in Foreign Incorporated Subsidiaries made
in compliance with Section 7.3(D)(xi).
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
7.3(A)(vii) hereof.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Borrower or to the
Lenders than those applicable to the Indebtedness being replaced, renewed,
refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
19
"PLAN" means an employee benefit plan defined in Section 3(3) of
ERISA, other than a Multiemployer Plan, in respect of which the Borrower or any
member of the Controlled Group is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Revolving Loan Commitment at such time
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement) by (y) the Aggregate Revolving Loan Commitment at such time;
provided, however, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, plus (B) such Lender's share of the obligations to purchase
participations in Swing Line Loans, Alternate Currency Loans and Letters of
Credit, by (y) the sum of (A) the aggregate outstanding amount of all Revolving
Loans, plus (B) the aggregate outstanding amount of all Swing Line Loans, all
Alternate Currency Loans and all Letters of Credit.
"PROPOSED NEW LENDER" is defined in Section 2.26 hereof.
"PURCHASERS" is defined in Section 13.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate or the Floating Rate or
the Alternate Currency Rate, as applicable.
"RECEIVABLE(S)" means and includes all of the Borrower's presently
existing and hereafter arising or acquired accounts, accounts receivable, and
all present and future rights of the Borrower to payment for goods sold or
leased or for services rendered (except those evidenced by instruments or
chattel paper), whether or not they have been earned by performance, and all
rights in any merchandise or goods which any of the same may represent, and all
rights, title, security and guaranties with respect to each of the foregoing,
including, without limitation, any right of stoppage in transit.
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
20
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of real or personal property that has an initial or
remaining non-cancelable lease term in excess of one year but does not include
any amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days after such event occurs, provided, however, that a failure to meet the
minimum funding standards of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUIRED LENDERS" means at least two Lenders whose Pro Rata Shares,
in the aggregate, are greater than fifty percent (50%); provided, however, that,
if any of the Lenders shall have failed to fund its Pro Rata Share of (i) any
Revolving Loan requested by the Borrower, (ii) any Revolving Loan required to be
made in connection with reimbursement for any L/C Obligations, (iii) any
participation in any Alternate Currency Loan pursuant to Section 2.21(E), or
(iv) any Swing Line Loan as requested by the Agent, which such Lenders are
obligated to fund under the terms of this Agreement, and any such failure has
not been cured, then for so long as such failure continues, "REQUIRED LENDERS"
means at least two Lenders (excluding all Lenders whose failure to fund their
respective Pro Rata Shares of such Revolving Loans or Swing Line Loans or
Alternate Currency Loans has not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of such
Lenders; provided further, however, that, if the Revolving Loan Commitments have
been terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are greater than fifty percent (50%); provided, further, however, that if any
Lender shall have a Pro Rata Share or aggregate ratable share (stated as a
percentage), as applicable, greater than fifty percent (50%), "REQUIRED LENDERS"
shall mean such Lender plus at least one additional Lender.
21
"REQUIREMENTS OF LAW" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Borrower now or
hereafter outstanding, except a dividend payable solely in the Borrower's
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to purchase such Capital Stock, (ii) any redemption, retirement, purchase
or other acquisition for value, direct or indirect, of any Equity Interests of
the Borrower or any of its Subsidiaries now or hereafter outstanding, other than
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any Equity Interests of the Borrower, or any of its
Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (x) the Aggregate Revolving Loan Commitment at such time exceeds
(y) the Dollar Amount of the Revolving Credit Obligations outstanding at such
time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the
sum of (i) the outstanding principal Dollar Amount of the Revolving Loans at
such time, plus (ii) the outstanding principal amount of the Swing Line Loans at
such time, plus (iii) the outstanding L/C Obligations at such time, plus (iv)
the Dollar Amount of the outstanding principal amount of the Alternate Currency
Loans at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
22
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make Revolving Loans and to purchase participations in Letters
of Credit and to participate in Swing Line Loans and Alternate Currency Loans
not exceeding the amount set forth on Exhibit A to this Agreement opposite its
name thereon under the heading "Revolving Loan Commitment" or the signature page
of the assignment and acceptance by which it became a Lender, as such amount may
be modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable assignment and acceptance.
"REVOLVING LOAN TERMINATION DATE" means June 11, 2009.
"RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or
any member of the Controlled Group for employees of the Borrower or any member
of the Controlled Group.
"SOLVENT" means, when used with respect to any Person, that at the
time of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the
total amount of its liabilities, including, without limitation,
contingent liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATED INDEBTEDNESS" of any Person means any Indebtedness of
such Person the payment of which is subordinated to the payment of the
Obligations to the written satisfaction of the Required Lenders.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and
23
one or more of its Subsidiaries, or (ii) any partnership, association, joint
venture or similar business organization more than fifty percent (50%) of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" means a Subsidiary of the Borrower.
"SWING LINE BANK" means Bank One or any other Lender as a successor
Swing Line Bank pursuant to the terms hereof.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank
to make Swing Line Loans up to a maximum principal amount of $15,000,000 at any
one time outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the
Swing Line Bank pursuant to Section 2.3 hereof.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.6 hereof or the Revolving Loan
Commitments pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating
Rate Loan or a Eurocurrency Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer
Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under all Single Employer Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plans, and (ii) in the case of
Multiemployer Plans, the withdrawal liability that would be incurred by the
Controlled Group if all members of the Controlled Group completely withdrew from
all Multiemployer Plans.
24
"UNMATURED DEFAULT" means an event which, but for the lapse of time
or the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WORKING CAPITAL" means, as at any date of determination and in
conformity with Agreement Accounting Principles, the excess, if any, of (i) the
Borrower's consolidated current assets, except cash and Cash Equivalents, over
(ii) the Borrower's consolidated current liabilities, except current maturities
of long-term Indebtedness and Revolving Credit Obligations as of such date and
all accrued interest as of such date.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2. References. Any references to Subsidiaries of the Borrower set
forth herein shall (i) with respect to representations and warranties which deal
with historical matters be deemed to include the Borrower and its Subsidiaries
shall not in any way be construed as consent by the Agent or any Lender to the
establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.3. Supplemental Disclosure. At any time at the request of the
Agent and at such additional times as the Borrower determines, the Borrower
shall supplement each schedule or representation herein or in the other Loan
Documents with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such schedule or as an exception to such representation or
which is necessary to correct any information in such schedule or representation
which has been rendered inaccurate thereby. Unless any such supplement to such
schedule or representation discloses the existence or occurrence of events,
facts or circumstances which are not prohibited by the terms of this Agreement
or any other Loan Documents, such supplement to such schedule or representation
shall not be deemed an amendment thereof unless expressly consented to in
writing by Agent and the Required Lenders, and no such amendments, except as the
same may be consented to in a writing which expressly includes a waiver, shall
be or be deemed a waiver by the Agent or any Lender of any Default disclosed
therein.
ARTICLE II: REVOLVING LOAN FACILITIES
2.1. [Reserved].
2.2. Revolving Loans.
25
(A) Upon the satisfaction of the conditions precedent set
forth in Sections 5.1 and 5.2, as applicable, from and including the
Closing Date and prior to the Termination Date, each Lender severally and
not jointly agrees, on the terms and conditions set forth in this
Agreement, to make revolving loans to the Borrower from time to time, in
Dollars or Eurocurrency Loans in any Agreed Currency, in a Dollar Amount
not to exceed such Lender's Pro Rata Share of Revolving Credit
Availability at such time (each individually, a "REVOLVING LOAN" and,
collectively, the "REVOLVING LOANS"); provided, however, at no time shall
the Dollar Amount of the Revolving Credit Obligations exceed the Aggregate
Revolving Loan Commitment; provided, further, however, that upon giving
effect to each Advance, the aggregate outstanding principal Dollar Amount
of all Eurocurrency Rate Advances in Agreed Currencies other than Dollars
and all L/C Obligations in Agreed Letter of Credit Currencies other than
Dollars and all Alternate Currency Loans shall not exceed the Maximum
Eurocurrency Amount at any time prior to the Termination Date; provided,
further, however, that upon giving effect to each Advance, the aggregate
outstanding principal Dollar Amount of all Alternate Currency Loans in
Canadian Dollars shall not exceed $5,000,000. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans at
any time prior to the Termination Date. The Revolving Loans made on the
Closing Date or on or before the third (3rd) Business Day thereafter shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurocurrency Rate Loans in the
manner provided in Section 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this Article II and set
forth in the definition of Interest Period. Revolving Loans made after the
third (3rd) Business Day after the Closing Date shall be, at the option of
the Borrower, selected in accordance with Section 2.10, either Floating
Rate Loans or Eurocurrency Rate Loans. On the Termination Date, the
Borrower shall repay in full the outstanding principal balance of the
Revolving Loans. Each Advance under this Section 2.2 shall consist of
Revolving Loans made by each Lender ratably in proportion to such Lender's
respective Pro Rata Share. Subject to the terms and conditions hereof,
during the term of this Agreement, the Alternate Currency Bank hereby
agrees to make Alternate Currency Loans to the Alternate Currency
Borrowers pursuant to the applicable Alternate Currency Addendum as the
applicable Alternate Currency Borrower may from time to time request
pursuant to Section 2.21 and the applicable Alternate Currency Addendum.
(B) Borrowing/Conversion/Continuation Notice. The Borrower
shall deliver to the Agent a Borrowing/Conversion/Continuation Notice,
signed by it, in accordance with the terms of Section 2.8. The Agent shall
promptly notify each Lender with a Revolving Loan Commitment greater than
zero of such request.
(C) Making of Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect of
Revolving Loans, the Agent shall notify each Lender with a Revolving Loan
Commitment greater than zero by telex or telecopy, or other similar form
of transmission, of the requested Revolving Loan. Each Lender with a
Revolving Loan Commitment greater than zero shall make available its
Revolving Loan in accordance with the terms of Section 2.7. The Agent will
promptly make the funds so received from the Lenders available to the
Borrower at the Agent's office in Chicago, Illinois on the applicable
Borrowing Date and shall disburse such proceeds in
26
accordance with the Borrower's disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to
deposit the amount described above with the Agent on the applicable
Borrowing Date shall not relieve any other Lender of its obligations
hereunder to make its Revolving Loan on such Borrowing Date.
2.3. Swing Line Loans.
(A) Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 5.1 and 5.2, as applicable, from
and including the Closing Date and prior to the Termination Date, the
Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make swing line loans to the Borrower from time to time, in
Dollars, in an amount not to exceed the Swing Line Commitment (each,
individually, a "SWING LINE LOAN" and collectively, the "SWING LINE
LOANS"); provided, however, at no time shall the Dollar Amount of the
Revolving Credit Obligations exceed the Aggregate Revolving Loan
Commitment; and provided, further, that at no time shall the sum of (a)
the Swing Line Lender's Pro Rata Share of the Swing Line Loans, plus (b)
the outstanding Dollar Amount of Revolving Loans made by the Swing Line
Bank pursuant to Section 2.2, exceed the Swing Line Bank's Revolving Loan
Commitment at such time. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any time prior
to the Termination Date.
(B) Borrowing/Conversion/Continuation Notice. The Borrower
shall deliver to the Agent and the Swing Line Bank a
Borrowing/Conversion/Continuation Notice, signed by it, not later than
2:00 p.m. (Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a
Business Day and which may be the same date as the date the
Borrowing/Conversion/Continuation Notice is given), and (ii) the aggregate
amount of the requested Swing Line Loan which shall be an amount not less
than $200,000. The Swing Line Loans shall at all times be Floating Rate
Loans.
(C) Making of Swing Line Loans. Promptly after receipt of
the Borrowing/Conversion/ Continuation Notice under Section 2.3(B) in
respect of Swing Line Loans, the Agent shall notify each Lender by telex
or telecopy, or other similar form of transmission, of the requested Swing
Line Loan. Not later than 3:00 p.m. (Chicago time) on the applicable
Borrowing Date, the Swing Line Bank shall make available its Swing Line
Loan, in funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIV. The Agent will promptly make
the funds so received from the Swing Line Bank available to the Borrower
on the Borrowing Date at the Agent's aforesaid address.
(D) Repayment of Swing Line Loans. Each Swing Line Loan
shall be paid in full by the Borrower on or before the fifth (5th)
Business Day after the Borrowing Date for such Swing Line Loan. The
Borrower may at any time pay, without penalty or premium, all outstanding
Swing Line Loans or, in a minimum amount of $200,000 and increments of
$100,000 in excess thereof, any portion of the outstanding Swing Line
Loans. In addition, the Agent (i) may at any time in its sole discretion
with respect to any outstanding Swing
27
Line Loan, or (ii) shall on the fifth (5th) Business Day after the
Borrowing Date of any Swing Line Loan, require each Lender (including the
Swing Line Bank) to make a Revolving Loan in the amount of such Lender's
Pro Rata Share of such Swing Line Loan, for the purpose of repaying such
Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the date of
any notice received pursuant to this Section 2.3(D), each Lender shall
make available its required Revolving Loan or Revolving Loans, in funds
immediately available in Chicago to the Agent at its address specified
pursuant to Article XIV. Revolving Loans made pursuant to this Section
2.3(D) shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurocurrency Rate Loans
in the manner provided in Section 2.10 and subject to the other conditions
and limitations therein set forth and set forth in this Article II. Unless
a Lender shall have notified the Swing Line Bank, prior to its making any
Swing Line Loan, that any applicable condition precedent set forth in
Sections 5.1 and 5.2, as applicable, had not then been satisfied, such
Lender's obligation to make Revolving Loans pursuant to this Section
2.3(D) to repay Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Agent, the
Swing Line Bank or any other Person, (b) the occurrence or continuance of
a Default or Unmatured Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Agent of any amount due under this Section 2.3(D), the
Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if
for any reason any Lender fails to make payment to the Agent of any amount
due under this Section 2.3(D), such Lender shall be deemed, at the option
of the Agent, to have unconditionally and irrevocably purchased from the
Swing Line Bank, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such
Revolving Loan, and such interest and participation may be recovered from
such Lender together with interest thereon at the Federal Funds Effective
Rate for each day during the period commencing on the date of demand and
ending on the date such amount is received. On the Termination Date, the
Borrower shall repay in full the outstanding principal balance of the
Swing Line Loans.
2.4. Rate Options for all Advances; Maximum Interest Periods. The
Swing Line Loans shall be Floating Rate Advances at all times. The Revolving
Loans may be Floating Rate Advances or Eurocurrency Rate Advances, or a
combination thereof, selected by the Borrower in accordance with Section 2.10.
The Borrower may select, in accordance with Section 2.10, Rate Options and
Interest Periods applicable to portions of the Revolving Loans and Alternate
Currency Loans; provided that there shall be no more than nine (9) Interest
Periods in effect with respect to all of the Loans at any time (unless otherwise
provided in the applicable Alternate Currency Addendum with respect to Alternate
Currency Loans). Each Alternate Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at the Alternate Currency Rate as set forth in the applicable Alternate
Currency Addendum.
28
2.5. Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrower may from time to time
and at any time upon at least one (1) Business Day's prior written notice
repay or prepay, without penalty or premium all or any part of outstanding
Floating Rate Advances in an aggregate minimum amount of $1,000,000 and in
integral multiples of $100,000 in excess thereof. Eurocurrency Rate
Advances may be voluntarily repaid or prepaid prior to the last day of the
applicable Interest Period, subject to the indemnification provisions
contained in Section 4.4, provided, that the Borrower may not so prepay
Eurocurrency Rate Advances unless it shall have provided at least five (5)
Business Days' prior written notice to the Agent of such prepayment. Each
Alternate Currency Borrower may, upon prior written notice to the Agent
and to the Alternate Currency Bank as prescribed in the applicable
Alternate Currency Addendum and specifying that it is prepaying all or a
portion of its Alternate Currency Loans, prepay its Alternate Currency
Loans in whole at any time, or from time to time in part in amounts
aggregating $1,000,000 or any larger multiple of $100,000 (or as otherwise
specified in the applicable Alternate Currency Addendum) by paying the
principal amount to be paid together with all accrued and unpaid interest
thereon to and including the date of payment provided any such payment
occurs on the last day of any Interest Period related to such Alternate
Currency Loan.
(B) Mandatory Prepayments of Revolving Loans.
(i) If at any time and for any reason (other than
fluctuations in currency exchange rates) the Dollar Amount of the
Revolving Credit Obligations are greater than the Aggregate
Revolving Loan Commitment, the Borrower shall immediately make a
mandatory prepayment of the Obligations in an amount equal to such
excess. In addition, if the Dollar Amount of the L/C Obligations
(calculated as of the last Business Day of each fiscal quarter, or,
at the Agent's option, as of the last Business Day of each calendar
month) outstanding at any time is greater than the lesser of (A) the
Aggregate Revolving Loan Commitment at such time minus the sum of
the outstanding principal Dollar Amount of the Revolving Loans at
such time and the outstanding principal amount of the Swing Line
Loans at such time and the outstanding principal Dollar Amount of
the Alternate Currency Loans at such time and (B) $15,750,000 (or
the Equivalent Amount in Dollars), the Borrower shall either repay
Revolving Loans or deposit cash collateral in a cash collateral
account established with the Agent, in either case, in an amount in
Dollars equal to such excess.
(ii) If on the last Business Day of any month:
(x) the Dollar Amount of the Revolving Credit
Obligations exceeds one hundred five percent
(105%) of the Aggregate Revolving Loan Commitment,
the Borrower for the ratable benefit of the
Lenders shall immediately prepay Loans (to be
applied to such Loans as the Borrower shall direct
at the time of such payment) in an aggregate
amount such that after giving effect thereto the
Dollar Amount of the Revolving Credit Obligations
is less than or equal to the Aggregate Revolving
Loan Commitment; or
29
(y) the Dollar Amount of all outstanding Alternate
Currency Loans under the Alternate Currency
Addenda exceeds one hundred five percent (105%) of
the aggregate Alternate Currency Commitments with
respect thereto, the Borrower shall on such date
prepay, or cause to be prepaid, Alternate Currency
Loans in an aggregate amount such that after
giving effect thereto the Dollar Amount of all
such Alternate Currency Loans is less than or
equal to the aggregate Alternate Currency
Commitments with respect thereto; or
(z) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans in
the same Alternate Currency exceeds the aggregate
Alternate Currency Commitments with respect
thereto, the applicable Borrowers shall on such
date prepay Alternate Currency Loans in such
Alternate Currency in an aggregate amount such
that after giving effect thereto the Dollar amount
of all Alternate Currency Loans is less than or
equal to the aggregate Alternate Currency
Commitments with respect thereto.
(iii) Upon the consummation of any Asset Sale by the
Borrower or any Subsidiary, within five (5) Business Days after the
Borrower's or any of its Subsidiaries' receipt of any Net Cash
Proceeds (or conversion to cash of non-cash proceeds (whether
principal or interest and including securities, release of escrow
arrangements)) received from any such Asset Sale, the Borrower shall
make a mandatory prepayment of the Loans, subject to the provisions
governing the application of payments set forth in Section
2.5(B)(v), in an amount equal to one hundred percent (100%) of such
Net Cash Proceeds.
(iv) Upon the consummation of any Financing by the
Borrower or any Subsidiary of the Borrower, within three (3)
Business Days after the Borrower's or any of its Subsidiaries'
receipt of any Net Cash Proceeds received from such Financing, the
Borrower shall make a mandatory prepayment of the Loans, subject to
the provisions governing the application of payments set forth in
Section 2.5(B)(v), in an amount equal to one hundred percent (100%)
of such Net Cash Proceeds.
(v) All of the mandatory prepayments made under this
Section 2.5(B) shall be applied first to Floating Rate Loans and
Alternate Currency Loans bearing a fluctuating Alternate Currency
Rate and to any Eurocurrency Rate Loans and Alternate Currency Loans
bearing a fixed Alternate Currency Rate maturing on such date and
then to subsequently maturing Eurocurrency Rate Loans and Alternate
Currency Loans bearing a fixed Alternate Currency Rate in order of
maturity. Prior to the occurrence of a Default and at the Borrower's
option, the Agent shall hold all mandatory prepayments to be applied
pursuant to Section 2.5(B)(iii) or Section 2.5(B)(iv) to a
Eurocurrency Rate Loan or an Alternate Currency Loan bearing a fixed
Alternate Currency Rate in escrow for the benefit of the Lenders and
shall release such amounts upon the expiration of the Interest
Periods applicable to any such Loans being prepaid (it being
understood and agreed that interest shall continue to accrue on all
such Obligations until such time as such prepayments are released
from escrow and applied to reduce such Obligations); provided,
however, that upon the occurrence of a Default, such escrowed
amounts may be applied as set forth in the first sentence of this
Section 2.5(B)(v) without regard to the expiration
30
of any Interest Period and the Borrower shall make all payments
under Section 4.4 hereof resulting therefrom. The parties hereto
acknowledge and agree that such prepayments shall not reduce the
Aggregate Revolving Loan Commitment.
2.6. Reduction of Commitments. The Borrower may permanently reduce
the Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $5,000,000 with respect thereto and
integral multiples of $1,000,000 in excess of that amount with respect thereto
(unless the Aggregate Revolving Loan Commitment is reduced in whole), upon at
least three (3) Business Day's prior written notice to the Agent, which notice
shall specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Revolving Loan Commitment may not be reduced below the
aggregate principal Dollar Amount of the outstanding Revolving Credit
Obligations. All accrued commitment fees shall be payable on the effective date
of any termination of the obligations of the Lenders to make Loans hereunder.
Each Alternate Currency Borrower may, upon three (3) Business Days prior written
notice to the Agent and to the Alternate Currency Bank, terminate entirely at
any time or reduce from time to time by an aggregate amount of $1,000,000 or any
larger multiple of $100,000, (or as set forth on the applicable Alternate
Currency Addendum) the unused portions of the applicable Alternate Currency
Commitment as specified by the applicable Alternate Currency Borrower in such
notice to the Agent and the Alternate Currency Bank; provided, however, that at
no time shall the Alternate Currency Commitments be reduced to a figure less
than the total of the outstanding principal amount of all Alternate Currency
Loans.
2.7. Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Agent at its address
specified pursuant to Article XIV, unless the Agent has notified the Lenders
that such Loan is to be made available to the Borrower at the Agent's
Eurocurrency Payment office, in which case each Lender shall make available its
Loan or Loans, in funds immediately available to the Agent at its Eurocurrency
Payment Office, not later than 1:00 p.m. (local time in the city of the Agent's
Eurocurrency Payment Office) in the Agreed Currency designated by the Agent. The
Agent will promptly make the funds so received from the Lenders available to the
Borrower at the Agent's aforesaid address.
2.8. Method of Selecting Types and Interest Periods for Advances.
The Borrower and the Alternate Currency Borrowers, as applicable, shall select
the Type of Advance and, in the case of each Alternate Currency Loan and
Eurocurrency Rate Advance, the Interest Period, Agreed Currency and Alternate
Currency applicable to each Advance from time to time. The Borrower shall give
the Agent irrevocable notice in substantially the form of Exhibit B hereto (a
"BORROWING/CONVERSION/ CONTINUATION NOTICE") not later than 10:00 a.m. (Chicago
time) (a) on or before the Borrowing Date of each Floating Rate Advance, and (b)
three (3) Business Days before the Borrowing Date for each Eurocurrency Rate
Advance to be made in Dollars, and (c) four (4) Business Days before the
Borrowing Date for each Eurocurrency Rate Advance to be made in any Agreed
Currency other than Dollars and (d) five (5) Business Days before the Borrowing
Date for each Alternate Currency Loan (or such other period as may be agreed to
by the Agent), and the applicable Alternate Currency Borrower shall give the
Alternate Currency Bank irrevocable notice by 10:00 a.m. (local time) two (2)
Business Days prior to the Borrowing Date for such Alternate Currency Loan (or
such other period as may specified in the applicable
31
Alternate Currency Addendum), specifying: (i) the Borrowing Date (which shall be
a Business Day) of such Advance; (ii) the aggregate amount of such Advance;
(iii) the Type of Advance selected; and (iv) in the case of each Eurocurrency
Rate Advance and Alternate Currency Loan, the Interest Period and Agreed
Currency or Alternate Currency applicable thereto. The Borrower shall select
Interest Periods so that, to the best of the Borrower's knowledge, it will not
be necessary to prepay all or any portion of any Eurocurrency Rate Advance or
Alternate Currency Loan prior to the last day of the applicable Interest Period
in order to make mandatory prepayments as required pursuant to the terms hereof.
Each Floating Rate Advance, each Alternate Currency Loan bearing a fluctuating
Alternate Currency Rate and all Obligations other than Loans shall bear interest
from and including the date of the making of such Advance, in the case of Loans,
and the date such Obligation is due and owing in the case of such other
Obligations, to (but not including) the date of repayment thereof at the
Floating Rate or Alternate Currency Rate, as applicable, changing when and as
such Floating Rate or Alternate Currency Rate, as applicable, changes. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Loan will take effect simultaneously with each change in the Alternate Base
Rate. Changes in the rate of interest on any portion of any Alternate Currency
Loan bearing a fluctuating Alternate Currency Rate will take effect
simultaneously with each change in such Alternate Currency Rate. Each
Eurocurrency Rate Advance and each Alternate Currency Loan bearing a fixed
Alternate Currency Rate shall bear interest from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance or Alternate Currency Loan, as applicable.
Notwithstanding anything contained herein to the contrary, during the
continuance of a Default, the Agent may (or shall at the direction of the
Required Lenders) declare that no Advance may be made as a Eurocurrency Rate
Advance.
2.9. Minimum Amount of Each Advance. Each Advance (other than an
Advance to repay Swing Line Loans or a Reimbursement Obligation) shall be in the
minimum amount of $500,000 (or the approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) and in multiples of
$100,000 (or the Approximate Equivalent amount of any Agreed Currency other than
Dollars or any Alternate Currency) if in excess thereof (or such other amounts
as may be specified in the applicable Alternate Currency Addendum), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Revolving Loan Commitment.
2.10. Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances.
(A) Right to Convert. The Borrower may elect from time to
time, subject to the provisions of Section 2.4 and this Section 2.10, to
convert all or any part of a Loan of any Type into any other Type or Types
of Loans; provided that any conversion of any Eurocurrency Rate Advance
and any Alternate Currency Loan shall be made on, and only on, the last
day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate
Loans shall continue as Floating Rate Loans unless and until such Floating
Rate Loans are converted into Eurocurrency Rate Loans. Eurocurrency Rate
Loans shall continue as Eurocurrency Rate
32
Loans until the end of the then applicable Interest Period therefor, at
which time such Eurocurrency Rate Loans shall be automatically converted
into Floating Rate Loans unless the Borrower shall have given the Agent
notice in accordance with Section 2.10(D) requesting that, at the end of
such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan. Unless a Borrowing/Conversion/Continuation Notice
shall have timely been given in accordance with the terms of this Section
2.10, Eurocurrency Rate Advances in an Agreed Currency other than Dollars
and Alternate Currency Loans shall automatically continue as Eurocurrency
Rate Advances in the same Agreed Currency or Alternate Currency Loans in
the same Alternate Currency, as applicable, with an Interest Period of one
(1)month.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or
Section 2.10(B), no Loan may be converted into or continued as a
Eurocurrency Rate Loan (except with the consent of the Required Lenders)
when any Default or Unmatured Default has occurred and is continuing.
(D) Borrowing/Conversion/Continuation Notice. The Borrower
shall give the Agent irrevocable notice of each conversion of a Floating
Rate Loan into a Eurocurrency Rate Loan or continuation of a Eurocurrency
Rate Loan not later than 10:00 a.m. (Chicago time) (x) three (3) Business
Days prior to the date of the requested conversion or continuation, with
respect to any Loan to be converted or continued as a Eurocurrency Rate
Loan in Dollars, (y) four (4) Business Days prior to the date of the
requested conversion or continuation with respect to any Loan to be
converted or continued as a Eurocurrency Rate Loan in an Agreed Currency
other than Dollars, and (z) five (5) Business Days before the date of the
requested conversion or continuation Borrowing Date with respect to the
conversion or continuation of any Alternate Currency Loan (or such other
period as may be agreed to by the Agent), and the applicable Alternate
Currency Borrower shall give the Alternate Currency Bank irrevocable
notice by 10:00 a.m. (local time) two (2) Business Days prior to the
conversion or continuation of such Alternate Currency Loan (or such other
period as may specified in the applicable Alternate Currency Addendum),
specifying: (1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Loan to be
converted or continued; and (3) the amount of Eurocurrency Rate Loan(s) or
Alternate Currency Loan(s), as applicable, into which such Loan is to be
converted or continued, the Agreed Currency or Alternate Currency, as
applicable, and the duration of the Interest Period applicable thereto.
(E) Notwithstanding anything herein to the contrary, (x)
Eurocurrency Rate Advances in an Agreed Currency may be converted and/or
continued as Eurocurrency Rate Advances only in the same Agreed Currency,
and (y) Alternate Currency Loans in an Alternate Currency may be converted
and/or continued as Alternate Currency Loans only in the same Alternate
Currency.
2.11. Default Rate. After the occurrence and during the continuance
of a Default, at the direction of the Required Lenders, the interest rate(s)
applicable to the Obligations and to the fees payable under Section 3.8 with
respect to Letters of Credit shall be equal to the then highest interest rate(s)
hereunder plus two percent (2.0%) per annum. After the occurrence of a Default,
33
the principal balance of, and, to the extent permitted by law, any overdue
interest on any Alternate Currency Loan shall bear interest, payable upon
demand, for each day until paid at the rate per annum equal to two percent
(2.00%) plus the interest rate applicable to such Alternate Currency Loan
immediately prior to the Default.
2.12. Method of Payment. All payments of principal, interest, fees,
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in Section 2.15(E)), in
immediately available funds to the Agent (i) at the Agent's address specified
pursuant to Article XIV with respect to Advances or other Obligations
denominated in Dollars and (ii) at the Agent's Eurocurrency Payment Office with
respect to any Advance or other Obligations denominated in an Agreed Currency
other than Dollars, or at any other Lending Installation of the Agent specified
in writing by the Agent to the Borrower, by 2:00 p.m. (Chicago time) on the date
when due and shall be made ratably among the Lenders (unless such amount is not
to be shared ratably in accordance with the terms hereof). Each Advance shall be
repaid or prepaid in the Agreed Currency in which it was made in the amount
borrowed and interest payable thereon shall also be paid in such currency. Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds which the Agent
received at its address specified pursuant to Article XIV or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Borrower authorizes the Agent to charge the account of the Borrower maintained
with Bank One for each payment of principal, interest, fees, commissions and L/C
Obligations as it becomes due hereunder. Each reference to the Agent in this
Section 2.12 shall also be deemed to refer, and shall apply equally, to each
Issuing Bank, in the case of payments required to be made by the Borrower to any
Issuing Bank pursuant to Article III.
All payments to be made by the Borrowers hereunder in respect of any
Alternate Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, at the office or branch from
which the Loan was made pursuant to Section 2.21 and the applicable Alternate
Currency Addendum not later than 3:00 p.m. (local time) on the date on which
such payment shall become due. Promptly upon receipt of any payment of principal
of the Alternate Currency Loans the Alternate Currency Bank shall give written
notice to the Agent by telex or telecopy of the receipt of such payment.
Notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such Agreed
Currency or Alternate Currency, as applicable, with the result that different
types of such Agreed Currency or Alternate Currency, as applicable, (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able to make
payment to the Agent for the account of the Lenders or Alternate Currency Bank,
as applicable, in such Original Currency, then all payments to be made by the
Borrowers hereunder in such currency shall be made to the Agent or Alternate
Currency Bank, as applicable, in such amount and such type of the New Currency
or Dollars as shall be equivalent to the amount of such payment otherwise due
hereunder in the Original Currency, it being the intention of the parties hereto
that the Borrowers take all risks of the imposition of any such currency control
or exchange regulations. In addition, notwithstanding the foregoing provisions
of this Section, if, after the making of any Advance in
34
any currency other than Dollars, the Borrower is not able to make payment to the
Agent for the account of the Lenders or the Alternate Currency Bank in the type
of currency in which such Advance was made because of the imposition of any such
currency control or exchange regulation, then such Advance shall instead be
repaid when due in Dollars in a principal amount equal to the Dollar Amount (as
of the date of repayment) of such Advance.
2.13. Evidence of Debt.
(A) Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "LOAN ACCOUNT") evidencing the
indebtedness of the Borrower to such Lender owing to such Lender from time
to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(B) The Register maintained by the Agent pursuant to Section
13.3(C) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date
and the amount of each Loan made hereunder, the Type thereof and the
Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
the Borrowers to each Lender hereunder, (iii) the effective date and
amount of each Assignment Agreement delivered to and accepted by it and
the parties thereto pursuant to Section 13.3, (iv) the amount of any sum
received by the Agent hereunder for the account of the Lenders and each
Lender's share thereof, and (v) all other appropriate debits and credits
as provided in this Agreement, including, without limitation, all fees,
charges, expenses and interest.
(C) The entries made in the Loan Account, the Register and
the other accounts maintained pursuant to subsections (A) or (B) of this
Section shall be conclusive and binding for all purposes, absent manifest
error, unless the applicable Borrower objects to information contained in
the Loan Accounts, the Register or the other accounts within thirty (30)
days of the applicable Borrower's receipt of such information; provided
that the failure of any Lender or the Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this
Agreement.
(D) Any Lender may request that the Revolving Loans made by
it each be evidenced by a promissory note in substantially the forms of
Exhibit K to evidence such Lender's Revolving Loans. In such event, the
applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note for such Loans payable to the order of such Lender and in
a form approved by the Agent and consistent with the terms of this
Agreement. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant
to Section 13.3) be represented by one or more promissory notes in such
form payable to the order of the payee named therein.
2.14. Telephonic Notices. The Borrowers authorize the Lenders and
the Agent to extend Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or persons the
Agent or any Lender in good faith believes to be acting on behalf of the
applicable Borrower. The Borrowers agree to deliver promptly to the
35
Agent a written confirmation, signed by an Authorized Officer, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice.
If the written confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent and the Lenders
shall govern absent manifest error. In case of disagreement concerning such
notices, if the Agent has recorded telephonic borrowing notices, such recordings
will be made available to the applicable Borrower upon the Borrower's request
therefor.
2.15. Promise to Pay; Interest and Commitment Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. The Borrower unconditionally promises to
pay when due the principal amount of each Loan and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each
Floating Rate Loan and each Alternate Currency Loan bearing a fluctuating
Alternate Currency Rate shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, upon any
prepayment whether by acceleration or otherwise, and at maturity (whether
by acceleration or otherwise). Interest accrued on each Eurocurrency Rate
Loan and each Alternate Currency Loan bearing a fixed Alternate Currency
Rate shall be payable on the last day of its applicable Interest Period,
on any date on which the Eurocurrency Rate Loan or Alternate Currency Loan
is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurocurrency Rate Loan and each Alternate
Currency Loan bearing a fixed Alternate Currency Rate having an Interest
Period longer than three months shall also be payable on the last day of
each three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears
(i) on the last day of each calendar month, commencing on the first such
day following the incurrence of such Obligation, (ii) upon repayment
thereof in full or in part, and (iii) if not theretofore paid in full, at
the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Commitment Fees.
(i) The Borrower shall pay to the Agent, for the
account of the Lenders in accordance with their Pro Rata Shares,
from and after the date of this Agreement until the date on which
the Aggregate Revolving Loan Commitment shall be terminated in
whole, a commitment fee accruing at the rate of the then Applicable
Commitment Fee Percentage, on the amount by which (A) the Aggregate
Revolving Loan Commitment in effect from time to time exceeds (B)
the Dollar Amount of the Revolving Credit Obligations (including the
outstanding principal amount of the Swing Line Loans) in effect from
time to time (as determined by the Agent in accordance with its
customary practices). All such commitment fees payable under this
clause (C) shall be payable quarterly in arrears on the last day of
each fiscal quarter of the Borrower occurring after the date of this
Agreement (with the first such payment being calculated for the
period
36
from the date of this Agreement and ending on June 30, 2004, and, in
addition, on the date on which the Aggregate Revolving Loan
Commitment shall be terminated in whole.
(ii) The Borrower agrees to pay to the Agent for the
sole account of the Agent and the Arranger (unless otherwise agreed
between the Agent and the Arranger and any Lender) the fees set
forth in the letter agreement between the Agent, the Arranger and
the Borrower dated April 29, 2004, payable at the times and in the
amounts set forth therein.
(iii) The applicable Borrower agrees to pay to the
Alternate Currency Bank, for its sole account, a fronting fee a
equal to 0.125% per annum on the average daily outstanding Dollar
Amount of all Alternate Currency Loans.
(D) Interest and Fee Basis; Applicable Floating Rate Margin,
Applicable Eurocurrency Margin, Applicable Commitment Fee Percentage and
Applicable L/C Fee Percentage.
(i) Interest on all Eurocurrency Rate Loans, all
Alternate Currency Loans (except as provided otherwise in the
applicable Alternate Currency Addendum) and on all fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
Interest on all Floating Rate Loans shall be calculated for actual
days elapsed on the basis of a 365-, or when appropriate 366-, day
year. Interest shall be payable for the day an Obligation is
incurred but not for the day of any payment on the amount paid if
payment is received prior to 2:00 p.m. (Chicago time) at the place
of payment. If any payment of principal of or interest on a Loan or
any payment of any other Obligations shall become due on a day which
is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment,
such extension of time shall be included in computing interest, fees
and commissions in connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin, Applicable Commitment Fee Percentage and
Applicable L/C Fee Percentage shall be determined on the basis of
the then applicable Leverage Ratio as described in this Section
2.15(D)(ii), from time to time by reference to the following table:
APPLICABLE APPLICABLE APPLICABLE
APPLICABLE FLOATING EUROCURRENCY COMMITMENT L/C
LEVERAGE RATIO RATE MARGIN MARGIN FEE PERCENTAGE FEE PERCENTAGE
------------------------- ------------------- ------------ -------------- --------------
Greater than 2.50 to 1.0 0.00% 1.25% 0.25% 1.25%
Greater than 2.00 to 1.0
and less than or equal to
2.50 to 1.0 0.00% 1.10% 0.20% 1.10%
Greater than 1.50 to 1.0
and less than or equal to
2.00 to 1.0 0.00% 0.95% 0.15% 0.95%
37
APPLICABLE APPLICABLE APPLICABLE
APPLICABLE FLOATING EUROCURRENCY COMMITMENT L/C
LEVERAGE RATIO RATE MARGIN MARGIN FEE PERCENTAGE FEE PERCENTAGE
------------------------- ------------------- ------------ -------------- --------------
Greater than 1.0 to 1.0
and less than or equal to
1.50 to 1.0 0.00% 0.75% 0.15% 0.75%
Greater than 0.50 to 1.0
and less than or equal to
1.0 to 1.0 0.00% 0.65% 0.125% 0.65%
Less than 0.50 to 1.0 0.00% 0.50% 0.10% 0.50%
For purposes of this Section 2.15(D)(ii), the Leverage Ratio shall
be calculated as provided in Section 7.4(B). Upon receipt of the
financial statements delivered pursuant to Sections 7.1(A)(i) and
(ii), as applicable, the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall
be adjusted, such adjustment being effective five (5) Business Days
following the Agent's receipt of such financial statements and the
compliance certificate required to be delivered in connection
therewith pursuant to Section 7.1(A)(iii); provided, that if the
Borrower shall not have timely delivered its financial statements in
accordance with Section 7.1(A)(i) or (ii), as applicable, and such
failure continues for five (5) days after notice from the Agent to
the Borrower, then, at the discretion of the Required Lenders,
commencing on the date upon which such financial statements should
have been delivered and continuing until such financial statements
are actually delivered, it shall be assumed for purposes of
determining the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin, Applicable L/C Fee Percentage and Applicable
Commitment Fee Percentage that the Leverage Ratio was greater than
2.5 to 1.0.
(iii)Notwithstanding anything herein to the contrary,
from the date of this Agreement to but not including the fifth (5th)
Business Day following receipt of the Borrower's financial
statements delivered pursuant to Section 7.1(A)(i) for the fiscal
quarter ending June 30, 2004, the Applicable Floating Rate Margin,
Applicable Eurocurrency Margin, Applicable L/C Fee Percentage and
Applicable Commitment Fee Percentage shall be determined based upon
a Leverage Ratio greater than 0.50 to 1.0 and less than or equal to
1.0 to 1.0.
38
(E) Taxes.
(i) Any and all payments by the Borrower hereunder
shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings or any liabilities with respect thereto imposed by any
Governmental Authority including those arising after the date hereof
as a result of the adoption of or any change in any law, treaty,
rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof
by a Governmental Authority but excluding, in the case of each
Lender and the Agent, (i) such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or
measured by such Lender's or Agent's, as the case may be, net income
or similar taxes imposed by the United States of America or any
Governmental Authority of the jurisdiction under the laws of which
such Lender or Agent, as the case may be, is organized or maintains
a Lending Installation (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which
the Agent or a Lender determines to be applicable to this Agreement,
the other Loan Documents, the Revolving Loan Commitments, the Loans
or the Letters of Credit being hereinafter referred to as "TAXES")
and (ii) if such Lender or the Agent is entitled at such time to a
total or partial exemption from withholding that is required to be
evidenced by an IRS Form 1001, 4224, W-8 or W-9 or, in each case,
any successor or additional form, taxes imposed by reason of any
failure of such Lender or the Agent to deliver to the Agent or
Borrower, from time to time as required by the Agent or Borrower,
such Form 1001, 4224, W-8 or W-9 (as applicable) or, in each case,
any successor or additional form, completed in a manner reasonably
satisfactory to the Agent and the Borrower. If the Borrower or the
Agent shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under the other Loan
Documents to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.15(E)) such Lender or the Agent (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 taxation authority or other
authority in accordance with applicable law. If any Tax, including,
without limitation, any withholding tax, of the United States of
America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by
the Borrower made to the Lending Installation or any other office
that a Lender may claim as its Lending Installation, or (z) after
such Lender's selection and designation of any other Lending
Installation, to such payments made to such other Lending
Installation, such Lender shall use reasonable efforts to make, fund
and maintain its Loans through another Lending Installation of such
Lender in another jurisdiction so as to reduce the Borrower's
liability hereunder, if the making, funding or maintenance of such
Loans through such other Lending Installation of such Lender does
not, in the reasonable judgment of such Lender, otherwise adversely
and materially affect such Loans, or obligations under the Revolving
Loan Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes, charges, or similar levies which
39
arise from any payment made hereunder, from the issuance of Letters
of Credit hereunder, or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the other Loan
Documents, the Revolving Loan Commitments, the Loans or the Letters
of Credit (hereinafter referred to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.15(E)) paid by
such Lender or the Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made
within thirty (30) days after the date such Lender or the Agent (as
the case may be) makes written demand therefor. A certificate as to
any additional amount payable to any Lender or the Agent under this
Section 2.15(E) submitted to the Borrower and the Agent (if a Lender
is so submitting) by such Lender or the Agent shall show in
reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to such
deduction or withholding for or on account of any Taxes and to
confirm that all such Taxes have been paid to the appropriate
Governmental Authorities, the Borrower shall promptly (and in any
event not later than thirty (30) days after receipt) furnish to each
Lender and the Agent such certificates, receipts and other documents
as may be required (in the judgment of such Lender or the Agent) to
establish any tax credit to which such Lender or the Agent may be
entitled.
(iv) Within thirty (30) days after the date of any
payment of Taxes or Other Taxes by the Borrower, the Borrower shall
furnish to the Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations
of the Borrower contained in this Section 2.15(E) shall survive the
payment in full of principal and interest hereunder, the termination
of the Letters of Credit and the termination of this Agreement.
(vi) Each Lender that is not created or organized under
the laws of the United States of America or a political subdivision
thereof shall deliver to the Borrower and the Agent on or before the
Closing Date, or, if later, the date on which such Lender becomes a
Lender pursuant to Section 13.3, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender,
in a form satisfactory to the Borrower and the Agent, to the effect
that such Lender is eligible under the provisions of an applicable
tax treaty concluded by the United States of America (in which case
the certificate shall be accompanied by two (2) executed copies of
Form 1001 of the IRS or successor applicable form) or under Section
1442 of the Code (in which case the certificate shall be accompanied
by two copies of Form 4224 of the IRS or successor applicable form)
or, if such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, two complete copies of IRS Form W-8 or W-9
or successor applicable form to receive payments of interest
hereunder without deduction or withholding of United States federal
40
income tax. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of
such Lender substantially in a form satisfactory to the Borrower and
the Agent, before or promptly upon the occurrence of any event
requiring a change in the most recent certificate previously
delivered by it to the Borrower and the Agent pursuant to this
Section 2.15(E)(vi).
2.16. Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Agent will notify each Lender of the contents of each Aggregate Revolving
Loan Commitment reduction notice, Borrowing/Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Agent will notify each Lender of
the interest rate and Agreed Currency applicable to each Eurocurrency Rate Loan
promptly upon determination of such interest rate and Agreed Currency and will
give each Lender prompt notice of each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans or
Letters of Credit at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation. Each Lender may, by written or
facsimile notice to the Agent and the Borrower, designate a Lending Installation
through which Loans will be made by it and for whose account Loan payments
and/or payments of L/C Obligations are to be made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.19. Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement, until (A)
all of the Obligations (other than contingent indemnity obligations) shall have
been fully and indefeasibly paid and satisfied, (B) all financing arrangements
among the Borrower and the Lenders shall have been terminated (other than under
Hedging Agreements or other agreements with respect to Hedging Obligations) and
(C) all of the Letters of Credit shall have expired, been canceled or terminated
(collectively, the "TERMINATION CONDITIONS"), all of the rights and remedies
under this Agreement and the other Loan Documents shall survive. Upon
satisfaction of the Termination Conditions, the Agent shall execute and deliver
to the Borrower and the Subsidiaries of the Borrower all Uniform Commercial Code
termination statements, mortgage assignments or satisfactions and
41
similar documents which the Borrower and the Subsidiaries of the Borrower shall
reasonably request to evidence such termination.
2.20. Replacement of Certain Lenders. In the event a Lender
("AFFECTED LENDER") shall have: (i) failed to fund its Pro Rata Share of any
Advance requested by the Borrower, or to fund a Revolving Loan in order to repay
Swing Line Loans pursuant to Section 2.3(D), or to make payment in respect of
any Alternate Currency Loan purchased by such Lender pursuant to Section
2.21(E), which such Lender is obligated to fund under the terms of this
Agreement and which failure has not been cured, (ii) requested compensation from
the Borrower under Sections 2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or
other additional costs incurred by such Lender which are not being incurred
generally by the other Lenders, (iii) delivered a notice pursuant to Section 4.3
claiming that such Lender is unable to extend Eurocurrency Rate Loans to the
Borrower for reasons not generally applicable to the other Lenders or (iv) has
invoked Section 10.2, then, in any such case, the Borrower or the Agent may make
written demand on such Affected Lender (with a copy to the Agent in the case of
a demand by the Borrower and a copy to the Borrower in the case of a demand by
the Agent) for the Affected Lender to assign, and such Affected Lender shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment Agreements five (5) Business Days after the date of such demand, to
one or more financial institutions that comply with the provisions of Section
13.3(A) which the Borrower or the Agent, as the case may be, shall have engaged
for such purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights
and obligations under this Agreement and the other Loan Documents (including,
without limitation, its Revolving Loan Commitment, all Loans owing to it, all of
its participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit and Swing Line Loans and Alternate
Currency Loans hereunder) in accordance with Section 13.3. The Agent agrees,
upon the occurrence of such events with respect to an Affected Lender and upon
the written request of the Borrower, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Agent is authorized to execute one or more of such assignment
agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
Further, with respect to such assignment the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation, the
aggregate outstanding principal amount of the Loans owed to such Lender,
together with accrued interest thereon through the date of such assignment,
amounts payable under Sections 2.15(E), 4.1, and 4.2 with respect to such
Affected Lender and compensation payable under Section 2.15(D) in the event of
any replacement of any Affected Lender under clause (ii) or clause (iii) of this
Section 2.20; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 10.7, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 11.8. Upon the replacement of any
Affected Lender pursuant to this Section 2.20, the provisions of Section 9.2
shall continue to apply with respect to Loans which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and which
failure has not been cured.
2.21. Alternate Currency Loans.
42
(A) Upon the satisfaction of the conditions precedent set
forth in Article V hereof and set forth in the applicable Alternate
Currency Addendum, from and including the later of the date of this
Agreement and the date of execution of the applicable Alternate Currency
Addendum and prior to Termination Date (unless an earlier termination date
shall be specified in or pursuant to the applicable Alternate Currency
Addendum), the Alternate Currency Bank agrees, on the terms and conditions
set forth in this Agreement and in the applicable Alternate Currency
Addendum, to make Alternate Currency Loans under such Alternate Currency
Addendum to the applicable Alternate Currency Borrower party to such
Alternate Currency Addendum from time to time in the applicable Alternate
Currency, in an amount not to exceed each such Alternate Currency Bank's
applicable Alternate Currency Commitment; provided, however, at no time
shall the Dollar Amount of the outstanding principal amount of the
Alternate Currency Loans for all Alternate Currencies exceed the Maximum
Eurocurrency Amount other than as a result of currency fluctuations and
then only to the extent permitted in Section 2.5(B)(ii); provided,
further, at no time shall the Dollar Amount of the Alternate Currency
Loans for any specific Alternate Currency exceed the maximum amount
specified as the maximum amount for such Alternate Currency in the
applicable Alternate Currency Addendum other than as a result of currency
fluctuations and then only to the extent permitted in Section 2.5(B)(ii).
Subject to the terms of this Agreement and the applicable Alternate
Currency Addendum, the applicable Alternate Currency Borrowers may borrow,
repay and reborrow Alternate Currency Loans at any time prior to the
Termination Date (unless an earlier termination date shall be specified in
or pursuant to the applicable Alternate Currency Addendum). On the
Termination Date (unless an earlier termination date shall be specified in
or pursuant to the applicable Alternate Currency Addendum), the
outstanding principal balance of the Alternate Currency Loans shall be
paid in full by the applicable Alternate Currency Borrower and prior to
Termination Date (unless an earlier termination date shall be specified in
or pursuant to the applicable Alternate Currency Addendum) prepayments of
the Alternate Currency Loans shall be made by the applicable Alternate
Currency Borrower if and to the extent required in Section 2.5(B)(ii).
(B) Borrowing Notice. When the applicable Alternate Currency
Borrower desires to borrow under this Section 2.21, the applicable
Alternate Currency Borrower shall deliver to the Alternate Currency Bank
and the Agent a Borrowing/Conversion/Continuation Notice, signed by it, as
provided in Section 2.8 specifying that the Alternate Currency Borrower is
requesting an Alternate Currency Loan pursuant to this Section 2.21. Any
Borrowing/Conversion/Continuation Notice given pursuant to this Section
2.21 shall be irrevocable.
(C) Termination. Except as otherwise required by applicable
law, in no event shall the Alternate Currency Bank have the right to
accelerate the Alternate Currency Loans outstanding under any Alternate
Currency Addendum or to terminate its commitments (if any) thereunder to
make Alternate Currency Loans prior to the stated termination date in
respect thereof, except that the Alternate Currency Bank shall have such
rights upon an acceleration of the Loans and a termination of the
Revolving Credit Commitments pursuant to Article IX.
43
(D) Statements. The Alternate Currency Bank shall furnish to
the Agent not less frequently than monthly, and at any other time at the
reasonable request of the Agent, a statement setting forth the outstanding
Alternate Currency Loans made and repaid during the period since the last
such report under such Alternate Currency Addendum.
(E) Risk Participation. Immediately and automatically upon
the occurrence of an Event of Default under Sections 8.1(A), (F) or (G),
each Lender shall be deemed to have unconditionally and irrevocably
purchased from the Alternate Currency Bank, without recourse or warranty,
an undivided interest in and participation in each Alternate Currency Loan
ratably in accordance with such Lender's Pro Rata Share of the amount of
such Loan, and immediately and automatically all Alternate Currency Loans
shall be converted to and redenominated in Dollars equal to the Dollar
Amount of each such Alternate Currency Loan determined as of the date of
such conversion; provided, that to the extent such conversion shall occur
other than at the end of an Interest Period, the applicable Borrower shall
pay to the Alternate Currency Bank, all losses and breakage costs related
thereto in accordance with Section 4.4. Each of the Lenders shall pay to
the Alternate Currency Bank not later than two (2) Business Days following
a request for payment from such Alternate Currency Bank, in Dollars, an
amount equal to the undivided interest in and participation in the
Alternate Currency Loan purchased by such Lender pursuant to this Section
2.21(E). In the event that any Lender fails to make payment to the
Alternate Currency Bank of any amount due under this Section 2.21(E), the
Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives from such Lender an amount sufficient
to discharge such Lender's payment obligation as prescribed in this
Section 2.21(E) together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of
demand by the Alternate Currency Bank and ending on the date such
obligation is fully satisfied. The Agent will promptly remit all payments
received as provided above to the Alternate Currency Bank. In
consideration of the risk participations prescribed in this Section
2.21(E), each Lender shall receive, from the accrued interest paid by the
applicable Borrower on each Alternate Currency Loan, a fee equal to such
Lender's Pro Rata Share of a portion of the interest accrued on such Loan
at the Applicable Eurocurrency Margin or Applicable Floating Rate Margin,
as applicable, minus 0.25% as in effect from time to time during the
period such interest accrued. Such portion of the interest paid by the
applicable Borrower on Alternate Currency Loans to the applicable
Alternate Currency Bank shall be paid as promptly as possible by such
Alternate Currency Bank to the Agent, and the Agent shall as promptly as
possible convert such amount into Dollars at the spot rate of exchange in
accordance with its normal banking practices and apply such resulting
amount ratably among the Lenders (including the Alternate Currency Banks)
in proportion to their Pro Rata Share.
(F) Other Provisions Applicable to Alternate Currency Loans.
The specification of payment of Alternate Currency Loans in the related
Alternate Currency at a specific place pursuant to this Agreement is of
the essence. Such Alternate Currency shall be the currency of account and
payment of such Loans under this Agreement and the applicable Alternate
Currency Addendum. Notwithstanding anything in this Agreement, the
obligation of the applicable Alternate Currency Borrower in respect of
such Loans shall not be discharged by an amount paid in any other currency
or at another place, whether pursuant to a judgment or
44
otherwise, to the extent the amount so paid, on prompt conversion into the
applicable Alternate Currency and transfer to such Lender under normal
banking procedure, does not yield the amount of such Alternate Currency
due under this Agreement, the applicable Alternate Currency Addendum. In
the event that any payment, whether pursuant to a judgment or otherwise,
upon conversion and transfer, does not result in payment of the amount of
such Alternate Currency due under this Agreement or the applicable
Alternate Currency Addendum, such Lender shall have an independent cause
of action against each of the Borrowers for the currency deficit.
2.22. Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due from any Borrower hereunder
in the currency expressed to be payable herein (the "SPECIFIED CURRENCY") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main office in Chicago,
Illinois on the Business Day preceding that on which the final, non-appealable
judgment is given. The obligations of each Borrower in respect of any sum due to
any Lender or the Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the Agent (as the
case may be) of any sum adjudged to be so due in such other currency such Lender
or the Agent (as the case may be) may in accordance with normal, reasonable
banking procedures purchase the specified currency with such other currency. If
the amount of the specified currency so purchased is less than the sum
originally due to such Lender or the Agent, as the case may be, in the specified
currency, each Borrower agrees, to the fullest extent that it may effectively do
so, as a separate obligation and notwithstanding any such judgment, to indemnify
such Lender or the Agent, as the case may be, against such loss, and if the
amount of the specified currency so purchased exceeds (a) the sum originally due
to any Lender or the Agent, as the case may be, in the specified currency and
(b) any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 12.2, such
Lender or the Agent, as the case may be, agrees to remit such excess to such
Borrower.
2.23. Market Disruption; Denomination of Amounts in Dollars; Dollar
Equivalent of Reimbursement Obligations.
(A) Notwithstanding the satisfaction of all conditions
referred to in this Article II with respect to any Advance in any Agreed
Currency other than Dollars or Alternate Currency, as applicable, if there
shall occur on or prior to the date of such Advance any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which would in the reasonable opinion
of the Borrower, any Alternate Currency Borrower, the Alternate Currency
Bank, Agent or the Required Lenders make it impracticable for the
Eurocurrency Rate Loans or Alternate Currency Loans comprising such
Advance to be denominated in the Agreed Currency or Alternate Currency, as
applicable, specified by the applicable Borrower, then the Agent shall
forthwith give notice thereof to such Borrower , the Alternate Currency
Bank and the Lenders, or the Borrower shall give notice to the Agent, the
Alternate Currency Bank and the Lenders, as the case may be, and such
Eurocurrency Rate Loans or Alternate Currency Loans shall not be
45
denominated in such currency but shall be made on such Borrowing Date in
Dollars, in an aggregate principal amount equal to the Dollar Amount of
the aggregate principal amount specified in the related Borrowing Notice,
as Floating Rate Loans, unless the Borrower notifies the Agent at least
one (1) Business Day before such date that (i) it elects not to borrow on
such date or (ii) it elects to borrow on such date in a different Agreed
Currency or Alternate Currency, as the case may be, in which the
denomination of such Loans would in the opinion of the Agent, the
Alternate Currency Bank, if applicable, and the Required Lenders be
practicable and in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related
Borrowing Notice.
(B) Except as set forth below, all amounts referenced in
this Article II shall be calculated using the Dollar Amount determined
based upon the Equivalent Amount in effect as of the date of any
determination thereof; provided, however, that payment by the Borrower of
any Advance denominated in an currency other than Dollars, shall be in
Dollars using the Dollar Amount of the Advance (calculated based upon the
Equivalent Amount in effect on the date of payment thereof) and in the
event that the Borrower does not reimburse the Agent and the Lenders are
required to fund a purchase of a participation in such Advance, such
purchase shall be made in Dollars in an amount equal to the Dollar Amount
of such Advance (calculated based upon the Equivalent Amount in effect on
the date of payment thereof). Notwithstanding anything herein to the
contrary, the full risk of currency fluctuations shall be borne by the
Borrower and the Borrower agrees to indemnify and hold harmless each
Issuing Bank, the Agent and the Lenders from and against any loss
resulting from any borrowing denominated in a currency other than in
Dollars and for which the Lenders are not reimbursed on the day of such
borrowing.
2.24. Payments to be Free and Clear.
(A) All sums payable by each Borrower hereunder, whether in
respect of principal, interest, fees or otherwise, shall be paid without
deduction for any present and future taxes, levies, imposts, deductions,
charges or withholdings imposed by any government or any political
subdivision or taxing authority thereof (other than any tax on or measured
by the net income, profits or gains of any Lender) and all interest,
penalties or similar liabilities with respect thereto (collectively,
"TAXES"), which amounts shall be paid by the applicable Borrower as
provided in this Section 2.24.
(B) Grossing-up of Payments. If: (a) any Borrower or any
other Person is required by law to make any deduction or withholding on
account of any such taxes from any sum paid or expressed to be payable by
the applicable Borrower to any Lender under this Agreement; or (b) any
party to this Agreement (or any Person on its behalf) other than any
Borrower is required by law to make any deduction or withholding from, or
any payment on or calculated by reference to the amount of, any such sum
received or receivable (other than on account of any excluded taxes) by
any Lender under this Agreement then:
(i) the applicable party shall notify the Agent and,
if such party is not the applicable Borrower, the Agent will notify
the applicable Borrower of any such
46
requirement or any change in any such requirement as soon as such
party becomes aware of it;
(ii) the applicable Borrower shall pay any such taxes
before the later of (i) the date on which penalties attached thereto
become due and payable or (ii) fifteen (15) days after the date of
receipt by the applicable Borrower of such written notification
provided by the Agent in accordance with paragraph (i) if such
applicable party is not the applicable Borrower, such payment to be
made (if the liability to pay is imposed on such Borrower) for its
own account or (if that liability is imposed on any party to this
Agreement) on behalf of and in the name of that party; and
(iii) the sum payable by the applicable Borrower in
respect of which the relevant deduction, withholding or payment is
required shall (except, in the case of any such payment, to the
extent that the amount thereof is not ascertainable when that sum is
paid) be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, that party
receives on the due date and retains (free from any liability in
respect of any such deduction, withholding or payment) a sum equal
to that which it would have received and so retained had no such
deduction, withholding or payment been required or made.
2.25. Additional Alternate Currency Borrowers. The Borrower may at
any time or from time to time, with the consent of the Agent, add as a party to
this Agreement any Subsidiary to be an Alternate Currency Borrower hereunder by
the execution and delivery to the Agent and the Lenders of (a) a duly completed
Assumption Letter by such Subsidiary, with the written consent of the Borrower
at the foot thereof and (b) such other guaranty and subordinated intercompany
indebtedness documents as may be reasonably required by the Agent and the
Required Lenders. Upon such execution, delivery and consent, such Subsidiary
shall for all purposes be a party hereto as an Alternate Currency Borrower as
fully as if it had executed and delivered this Agreement. So long as the
principal of and interest on any Advances made to any Alternate Currency
Borrower under this Agreement shall have been repaid or paid in full and all
other obligations of such Alternate Currency Borrower under this Agreement shall
have been fully performed, the Borrower may, by not less than five (5) Business
Days' prior notice to the Agent (which shall promptly notify the Lenders
thereof), terminate such Subsidiary's status as an "Alternate Currency
Borrower".
2.26. Increase of Aggregate Revolving Loan Commitment.
(A) At any time, the Borrower may request (in consultation
with the Agent) that the Aggregate Revolving Loan Commitment be increased
by an aggregate amount of up to $20,000,000 without the prior written
consent of the Required Lenders, provided, that, the Aggregate Revolving
Loan Commitment shall at no time exceed $50,000,000. Such request shall be
made in a written notice given to the Agent and the Lenders by the
Borrower not less than twenty (20) Business Days prior to the proposed
effective date of such increase, which notice (a "COMMITMENT INCREASE
NOTICE") shall specify the amount of the proposed increase in the
Aggregate Revolving Loan Commitment and the proposed effective date of
such increase. In the event of such a Commitment Increase Notice, each of
the Lenders shall be
47
given the opportunity to participate in the requested increase ratably in
proportions that their respective Revolving Loan Commitments bear to the
Aggregate Revolving Loan Commitment. No Lender shall have any obligation
to increase its Revolving Loan Commitment pursuant to a Commitment
Increase Notice.
(B) On or prior to the date that is ten (10) Business Days
after receipt of the Commitment Increase Notice, each Lender shall submit
to the Agent a notice indicating the maximum amount by which it is willing
to increase its Revolving Loan Commitment in connection with such
Commitment Increase Notice (any such notice, a "LENDER INCREASE NOTICE").
Any Lender which does not submit a Lender Increase Notice to the Agent
prior to the expiration of such ten (10) Business Day period shall be
deemed to have denied any increase in its Revolving Loan Commitment. In
the event that the increases of Revolving Loan Commitments set forth in
the Lender Increase Notices exceed the amount requested by the Borrower in
the Commitment Increase Notice, the Agent and the Arranger shall have the
right, in consultation with the Borrower, to allocate the amount of
increases necessary to meet the Borrower's Commitment Increase Notice. In
the event that the Lender Increase Notices are less than the amount
requested by the Borrower, not later than three (3) Business Days prior to
the proposed effective date the Borrower may notify the Agent of any
financial institution that shall have agreed to become a "Lender" party
hereto (a "PROPOSED NEW LENDER") in connection with the Commitment
Increase Notice. Any Proposed New Lender shall be subject to the consent
of the Agent (which consent shall not be unreasonably withheld). If the
Borrower shall not have arranged any Proposed New Lender(s) to commit to
the shortfall from the Lender Increase Notices, then the Borrower shall be
deemed to have reduced the amount of its Commitment Increase Notice to the
aggregate amount set forth in the Lender Increase Notices. Based upon the
Lender Increase Notices, any allocations made in connection therewith and
any notice regarding any Proposed New Lender, if applicable, the Agent
shall notify the Borrower and the Lenders on or before the Business Day
immediately prior to the proposed effective date of the amount of each
Lender's and Proposed New Lender's Revolving Loan Commitment (the
"EFFECTIVE COMMITMENT AMOUNT") and the amount of the Aggregate Revolving
Loan Commitment, which amount shall be effective on the following Business
Day.
(C) Any increase in the Aggregate Revolving Loan Commitment
shall be subject to the following conditions precedent: (i) the Borrower
shall have obtained the consent thereto of each Domestic Incorporated
Subsidiary of the Borrower party to the Guaranty and its reaffirmation of
any Loan Documents executed by it, which consent and reaffirmation shall
be in writing and in form and substance reasonably satisfactory to the
Agent, (ii) as of the date of the Commitment Increase Notice and as of the
proposed effective date of the increase in the Aggregate Revolving Loan
Commitment, all representations and warranties set forth in Article VI
hereof shall be true and correct as though made on such date (unless any
such representation and warranty is made as of a specific date, in which
case, such representation and warranty shall be true and correct as of
such date) and no Default or Unmatured Default shall have occurred and
then be continuing, (iii) the Borrower, the Agent and each Proposed New
Lender or Lender that shall have agreed to provide a "Revolving Loan
Commitment" in support of such increase in the Aggregate Revolving Loan
Commitment shall have executed and delivered a Commitment and Acceptance
48
("COMMITMENT AND ACCEPTANCE") substantially in the form of Exhibit L
hereto and (iv) the Borrower, each Alternate Currency Borrower and any
Proposed New Lender shall otherwise have executed and delivered such other
instruments, documents and agreements as the Agent shall have reasonably
requested in connection with such increase. If any fee shall be charged by
the Lenders in connection with any such increase, such fee shall be in
accordance with then prevailing market condition. Upon satisfaction of the
conditions precedent to any increase in the Aggregate Revolving Loan
Commitment, the Agent shall promptly advise the Borrower and each Lender
of the effective date of such increase. Upon the effective date of any
increase in the Aggregate Revolving Loan Commitment that is provided by a
Proposed New Lender, such Proposed New Lender shall be a party to this
Agreement as a Lender and shall have the rights and obligations of a
Lender hereunder. Nothing contained herein shall constitute, or otherwise
be deemed to be, a commitment on the part of any Lender to increase its
Revolving Loan Commitment hereunder at any time.
(D) Upon the execution and delivery of such Commitment and
Acceptance, the Agent shall reallocate any outstanding Loans and L/C
Obligations ratably among the Lenders after giving effect to each such
increase in the Aggregate Commitment; provided, that the Borrower hereby
agrees to compensate each Lender for all losses, expenses and liabilities
incurred by such Lender in connection with the sale and assignment of any
Eurocurrency Rate Loans hereunder on the terms and in the manner as set
forth in Article IV.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1. Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Borrower through such Issuing
Bank's branches as it and the Borrower may jointly agree, one or more Letters of
Credit denominated in Dollars or an Agreed Letter of Credit Currency in
accordance with this Article III, from time to time during the period,
commencing on the Closing Date and ending on the Business Day prior to the
Termination Date.
3.2. Transitional Provision. Schedule 3.2 contains a schedule of
certain letters of credit issued for the account of the Borrower prior to the
Closing Date. Subject to the satisfaction of the conditions contained in
Sections 5.1 and 5.2, from and after the Closing Date such letters of credit
shall be deemed to be Letters of Credit issued pursuant to this Article III.
3.3. Types and Amounts. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the Letter of
Credit requested hereunder, (i) the Dollar Amount of the Revolving Credit
Obligations at such time would exceed the lesser of the Aggregate
Revolving Loan Commitment at such time, or (ii) the aggregate outstanding
Dollar Amount of the L/C Obligations would exceed $15,000,000, or (iii)
the Dollar Amount of all Eurocurrency Rate Loans and Letters of Credit in
Agreed Currencies other than Dollars would exceed the Maximum Eurocurrency
Amount; or
49
(B) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is the earlier of (x) one (1)
year after the date of issuance thereof or (y) five (5) Business Days
immediately preceding the Termination Date; provided that any Letter of
Credit with a one-year term may provide for additional one-year periods
(which in no event shall extend beyond the date referred to in the
preceding clause (y).
3.4. Conditions. In addition to being subject to the satisfaction of
the conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(A) the Borrower shall have delivered to the applicable
Issuing Bank at such times and in such manner as such Issuing Bank may
reasonably prescribe, a request for issuance of such Letter of Credit in
substantially the form of Exhibit C hereto (each such request a "REQUEST
FOR LETTER OF CREDIT"), duly executed applications for such Letter of
Credit, and such other documents, instructions and agreements as may be
required pursuant to the terms thereof (all such applications, documents,
instructions, and agreements being referred to herein as the "L/C
DOCUMENTS"), and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and
(B) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain the applicable Issuing Bank from issuing such
Letter of Credit and no law, rule or regulation applicable to such Issuing
Bank and no request or directive (whether or not having the force of law)
from a Governmental Authority with jurisdiction over such Issuing Bank
shall prohibit or request that such Issuing Bank refrain from the issuance
of Letters of Credit generally or the issuance of that Letter of Credit.
3.5. Procedure for Issuance of Letters of Credit.
(A) Subject to the terms and conditions of this Article III
and provided that the applicable conditions set forth in Sections 5.1 and
5.2 hereof have been satisfied, the applicable Issuing Bank shall, on the
requested date, issue a Letter of Credit on behalf of the Borrower in
accordance with such Issuing Bank's usual and customary business practices
and, in this connection, such Issuing Bank may assume that the applicable
conditions set forth in Section 5.2 hereof have been satisfied unless it
shall have received notice to the contrary from the Agent or a Lender or
has knowledge that the applicable conditions have not been met.
(B) The applicable Issuing Bank shall give the Agent written
or telex notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance of a Letter of Credit, provided, however, that
the failure to provide such notice shall not result in any liability on
the part of such Issuing Bank.
(C) No Issuing Bank shall extend or amend any Letter of
Credit unless the requirements of this Section 3.5 are met as though a new
Letter of Credit was being requested and issued.
50
3.6. Letter of Credit Participation. On the date of this Agreement,
with respect to the Letters of Credit identified on Schedule 3.2, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
with a Pro Rata Share shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
Issuing Bank thereunder (collectively, an "L/C INTEREST") in an amount equal to
the Dollar Amount available for drawing under such Letter of Credit multiplied
by such Lender's Pro Rata Share. Each Issuing Bank will notify each Lender
promptly upon presentation to it of an L/C Draft or upon any other draw under a
Letter of Credit. On or before the Business Day on which an Issuing Bank makes
payment of each such L/C Draft or, in the case of any other draw on a Letter of
Credit, on demand by the Agent or the applicable Issuing Bank, each Lender shall
make payment to the Agent, for the account of the applicable Issuing Bank, in
immediately available funds in the Agreed Currency in an amount equal to such
Lender's Pro Rata Share of the Dollar Amount of such payment or draw. The
obligation of each Lender to reimburse the Issuing Banks under this Section 3.6
shall be unconditional, continuing, irrevocable and absolute. In the event that
any Lender fails to make payment to the Agent of any amount due under this
Section 3.6, the Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied; provided, however, that nothing
contained in this sentence shall relieve such Lender of its obligation to
reimburse the applicable Issuing Bank for such amount in accordance with this
Section 3.6.
3.7. Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Agent, for the account of
the Lenders, the amount of each advance drawn under or pursuant to a Letter of
Credit or an L/C Draft related thereto (such obligation of the Borrower to
reimburse the Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect to
such Letter of Credit or L/C Draft), each such reimbursement to be made by the
Borrower no later than the Business Day on which the applicable Issuing Bank
makes payment of each such L/C Draft or, if the Borrower shall have received
notice of a Reimbursement Obligation later than 12:00 p.m. (Chicago time), on
any Business Day or on a day which is not a Business Day, no later than 12:00
p.m. (Chicago time), on the immediately following Business Day or, in the case
of any other draw on a Letter of Credit, the date specified in the demand of
such Issuing Bank. If the Borrower at any time fails to repay a Reimbursement
Obligation pursuant to this Section 3.7, the Borrower shall be deemed to have
elected to borrow Revolving Loans from the Lenders, as of the date of the
advance giving rise to the Reimbursement Obligation, equal in amount to the
Dollar Amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Revolving Loans.
Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, the Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
51
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance.
3.8. Letter of Credit Fees. The Borrower agrees to pay:
(A) quarterly, in arrears, to the Agent for the ratable
benefit of the Lenders, except as set forth in Section 9.2, a letter of
credit fee at a rate per annum equal to the Applicable L/C Fee Percentage
on the average daily outstanding Dollar Amount available for drawing under
all Letters of Credit;
(B) quarterly, in arrears, to the applicable Issuing Bank, a
letter of credit fronting fee equal to 0.0625% per annum on the average
daily outstanding face amount available for drawing under all Letters of
Credit issued by such Issuing Bank; and
(C) to the applicable Issuing Bank, all customary fees and
other issuance, amendment, document examination, negotiation and
presentment expenses and related charges in connection with the issuance,
amendment, presentation of L/C Drafts, and the like customarily charged by
such Issuing Banks with respect to standby and commercial Letters of
Credit, including, without limitation, standard commissions with respect
to commercial Letters of Credit, payable at the time of invoice of such
amounts.
3.9. Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(C), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the Agent,
upon the Agent's request, schedules, in form and substance reasonably
satisfactory to the Agent, showing the date of issue, account party, Agreed
Currency and amount in such Agreed Currency, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount payable by the Borrower during such month. In
addition, upon the request of the Agent, each Issuing Bank shall furnish to the
Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the Agent. Upon
the request of any Lender, the Agent will provide to such Lender information
concerning such Letters of Credit.
3.10. Indemnification; Exoneration.
(A) In addition to amounts payable as elsewhere provided in
this Article III, the Borrower hereby agrees to protect, indemnify, pay
and save harmless the Agent, each Issuing Bank and each Lender from and
against any and all liabilities and costs which the Agent, such Issuing
Bank or such Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit other than, in the
case of the applicable Issuing Bank, as a result of its Gross Negligence
or willful misconduct, as determined by the final judgment of a court of
competent jurisdiction, or (ii) the failure of the applicable Issuing Bank
to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure
or de facto Governmental Authority (all such acts or omissions herein
called "GOVERNMENTAL ACTS").
52
(B) As among the Borrower, the Lenders, the Agent and the
Issuing Banks, the Borrower assumes all risks of the acts and omissions
of, or misuse of such Letter of Credit by, the beneficiary of any Letters
of Credit. In furtherance and not in limitation of the foregoing, subject
to the provisions of the Letter of Credit applications and Letter of
Credit reimbursement agreements executed by the Borrower at the time of
request for any Letter of Credit, neither the Agent, any Issuing Bank nor
any Lender shall be responsible (in the absence of Gross Negligence or
willful misconduct in connection therewith, as determined by the final
judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of the Letters of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly
with conditions required in order to draw upon such Letter of Credit; (iv)
for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex, or other similar form
of teletransmission or otherwise; (v) for errors in interpretation of
technical trade terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit or of the proceeds thereof; (vii) for the misapplication
by the beneficiary of a Letter of Credit of the proceeds of any drawing
under such Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agent, the Issuing Banks and the Lenders,
including, without limitation, any Governmental Acts. None of the above
shall affect, impair, or prevent the vesting of any Issuing Bank's rights
or powers under this Section 3.10.
(C) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by any Issuing Bank under or in connection with the Letters of
Credit or any related certificates shall not, in the absence of Gross
Negligence or willful misconduct, as determined by the final judgment of a
court of competent jurisdiction, put the applicable Issuing Bank, the
Agent or any Lender under any resulting liability to the Borrower or
relieve the Borrower of any of its obligations hereunder to any such
Person.
(D) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.10 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement.
3.11. Cash Collateral. Notwithstanding anything to the contrary
herein or in any application for a Letter of Credit, upon payout or termination
of this Agreement in full in cash, the Borrower shall, on the Business Day that
it receives Agent's demand, deliver to the Agent for the benefit of the Lenders
and the Issuing Banks, cash, or other collateral of a type satisfactory to the
Required Lenders, having a value, as determined by such Lenders, equal to one
hundred five percent (105%) of the aggregate Dollar Amount of the outstanding
L/C Obligations. In addition, if the Revolving Credit Availability is at any
time less than the Dollar Amount of all contingent
53
L/C Obligations outstanding at any time, the Borrower shall deposit cash
collateral with the Agent in Dollars in an amount equal to one-hundred five
percent (105%) of the Dollar Amount by which such L/C Obligations exceed such
Revolving Credit Availability. Any such collateral shall be held by the Agent in
a separate account appropriately designated as a cash collateral account in
relation to this Agreement and the Letters of Credit and retained by the Agent
for the benefit of the Lenders and the Issuing Banks as collateral security for
the Borrower's obligations in respect of this Agreement and each of the Letters
of Credit and L/C Drafts. Such amounts shall be applied to reimburse the Issuing
Banks for drawings or payments under or pursuant to Letters of Credit or L/C
Drafts, or if no such reimbursement is required, to payment of such of the other
Obligations as the Agent shall determine. If no Default shall be continuing,
amounts remaining in any cash collateral account established pursuant to this
Section 3.11 which are not to be applied to reimburse an Issuing Bank for
amounts actually paid or to be paid by such Issuing Bank in respect of a Letter
of Credit or L/C Draft, shall be returned to the Borrower within one (1)
Business Day (after deduction of the Agent's expenses incurred in connection
with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(A) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from payments
due from the Borrower (excluding taxation of the overall net income of any
Lender or taxation of a similar basis, which are governed by Section
2.15(E)), or changes the basis of taxation of payments to any Lender in
respect of its Loans, its L/C Interests, the Letters of Credit or other
amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurocurrency Rate Loans) with respect to its Loans, L/C
Interests or the Letters of Credit, or
(C) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining the Loans, the L/C Interests or the Letters
of Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with Loans or Letters of Credit, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Loans or L/C Interests
held or interest received by it or by reference to the Letters of Credit,
by an amount deemed material by such Lender;
54
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests, or Letters of Credit
or to reduce any amount received under this Agreement, then, within fifteen (15)
days after receipt by the Borrower of written demand by such Lender pursuant to
Section 4.5, the Borrower shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender determines
is attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment.
4.2. Changes in Capital Adequacy Regulations. If a Lender determines
(i) the amount of capital required or expected to be maintained by such Lender,
any Lending Installation of such Lender or any corporation controlling such
Lender is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Loans, L/C Interests, the Letters of Credit or its obligation to
make Loans hereunder, then, within fifteen (15) days after receipt by the
Borrower of written demand by such Lender pursuant to Section 4.5, the Borrower
shall pay such Lender the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans, its L/C Interests, the
Letters of Credit or its obligation to make Loans hereunder (after taking into
account such Lender's policies as to capital adequacy).
4.3. Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency or maturity appropriate to match fund
Eurocurrency Rate Advances are not available or (y) the interest rate applicable
to a Eurocurrency Rate Advance or Alternate Currency Advance does not accurately
reflect the cost of making or maintaining such an Advance, then the Agent shall
suspend the availability of the affected Type of Advance and, in the case of any
occurrence set forth in clause (i), require any Advances of the affected Type to
be repaid or converted into another Type.
4.4. Funding Indemnification. Subject to Sections 2.5(B)(i), (ii),
and (iii), if any payment of a Eurocurrency Rate Advance occurs on a date which
is not the last day of the applicable Interest Period, whether because of
acceleration, prepayment, or otherwise, or a Eurocurrency Rate Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower indemnifies each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurocurrency
Rate Advance. In connection with any assignment by any Lender of any portion of
the Loans made pursuant to Section 13.3, and if, notwithstanding the provisions
of Section 2.4, the Borrower has requested and the Agent has consented to the
use of the Eurocurrency Rate, the Borrower shall be deemed to have repaid all
outstanding Eurocurrency Rate Advances as of the effective date of such
assignment and reborrowed such amount as a Floating Rate Advance and/or
Eurocurrency Rate Advance (chosen in accordance with the provisions of Section
2.4) and the indemnification provisions under this Section 4.4 shall apply.
55
4.5. Lender Statements; Survival of Indemnity. If reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Rate Loans to reduce any liability of the Borrower
to such Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a
Type of Advance under Section 4.3, so long as such designation is not
disadvantageous to such Lender. Each Lender requiring compensation pursuant to
Section 2.15(E) or to this Article IV shall use its reasonable efforts to notify
the Borrower and the Agent in writing of any Change, law, policy, rule,
guideline or directive giving rise to such demand for compensation not later
than ninety (90) days following the date upon which the responsible account
officer of such Lender knows or should have known of such Change, law, policy,
rule, guideline or directive. Any demand for compensation pursuant to this
Article IV shall be in writing and shall state the amount due, if any, under
Section 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Eurocurrency Rate Loan shall be
calculated as though each Lender funded its Eurocurrency Rate Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurocurrency Rate applicable to
such Loan, whether in fact that is the case or not. The obligations of the
Borrower under Sections 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
56
ARTICLE V: CONDITIONS PRECEDENT
5.1. Initial Advances and Letters of Credit. The Revolving Loan
Commitments of the Lenders shall not become effective unless and until the
Borrower has furnished, on or before the Closing Date, to the Agent each of the
following, with (if applicable) sufficient copies for the Lenders, all in form
and substance satisfactory to the Agent and the Lenders:
(1) Copies of the Certificate of Incorporation of the
Borrower, together with all amendments and a certificate of good standing,
both certified by the appropriate governmental officer in its jurisdiction
of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its By-Laws and of its Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed necessary by counsel
for any Lender) authorizing the execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signature of the officers of the Borrower authorized to
sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower;
(4) A certificate, in form and substance satisfactory to the
Agent, signed by the chief financial officer of the Borrower, stating that
on the date of this Agreement all the representations in this Agreement
are true and correct in all material respects (unless such representation
and warranty is made as of a specific date, in which case, such
representation and warranty shall be true in all material respects as of
such date) and no Default or Unmatured Default has occurred and is
continuing;
(5) The written opinions of each opinion of the Borrower's US
counsel, addressed to the Agent and the Lenders, in substantially the form
attached hereto as Exhibit E;
(6) Evidence reasonably satisfactory to the Agent that there
exists no injunction or temporary restraining order which, in the
reasonable judgment of the Agent, would prohibit the making of the Loans
and the other transactions contemplated by the Loan Documents or any
litigation seeking such an injunction or restraining order;
(7) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested, including, without limitation, all
of the documents reflected on the List of Closing Documents attached as
Exhibit F to this Agreement;
(8) The Agent shall have received opinions of value, solvency
and other appropriate factual information and advice in form and substance
reasonably satisfactory to it and from the chief financial officer of the
Borrower supporting the conclusions that after giving effect to the
transactions contemplated herein, the Borrower and its Subsidiaries on a
consolidated basis is Solvent and will be Solvent subsequent to
57
incurring the indebtedness contemplated under the Loan Documents, will be
able to pay its debts and liabilities as they become due and will not be
left with unreasonably small working capital for general corporate
purposes; and
(9) Evidence satisfactory to the Agent that the Borrower has
paid to the Agent and the Arranger the fees agreed to in the fee letter
dated April 29, 2004, among the Agent, the Arranger and the Borrower.
5.2. Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(A) There exists no Default or Unmatured Default;
(B) The representations and warranties contained in Article
VI are true and correct in all material respects as of such Borrowing Date
(unless such representation and warranty is made as of a specific date, in
which case, such representation and warranty shall be true in all material
respects as of such date) except for changes in the Schedules to this
Agreement reflecting transactions permitted by or not in violation of this
Agreement or reflecting changes made on or prior to the Closing Date that
are not reasonably expected to evidence a Material Adverse Effect; and
(C) (i) The Revolving Credit Obligations do not, and after
making such proposed Advance or issuing such Letter of Credit would not,
exceed the Aggregate Revolving Loan Commitment, (ii) the aggregate
outstanding principal Dollar Amount of all Eurocurrency Rate Advances in
Agreed Currencies other than Dollars and all L/C Obligations in Agreed
Letter of Credit Currencies other than Dollars and all Alternate Currency
Loans does not and would not exceed the Maximum Eurocurrency Amount and
(iii) the aggregate outstanding Dollar Amount of all L/C Obligations does
not and would not exceed $15,000,000.
Each Borrowing/Conversion/Continuation Notice with respect to each
such Advance and the letter of credit application with respect to each Letter of
Credit shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 5.2(A), (B) and (C) have been satisfied. Any
Lender may require a duly completed officer's certificate in substantially the
form of Exhibit G hereto and/or a duly completed compliance certificate in
substantially the form of Exhibit H hereto as a condition to making an Advance.
5.3. Initial Advance to Each New Alternate Currency Borrower. No
Alternate Currency Bank shall be required to make any Alternate Currency Loans,
in each case, to a new Alternate Currency Borrower added after the Closing Date
unless the Borrower has furnished or caused to be furnished to the Agent with
sufficient copies for the Lenders:
(a) The Assumption Letter executed and delivered by such
Alternate Currency Borrower and containing the written consent of the
Borrower thereon, as contemplated by Article II;
58
(b) Copies of the Certificate of Incorporation (or other
comparable constituent document) of the Alternate Currency Borrower,
together with all amendments and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction of
organization;
(c) Copies, certified by the Secretary or Assistant Secretary
of the Alternate Currency Borrower, of its regulations (or other
comparable governing document) and of its Board of Directors' (or
comparable governing body's) resolutions (and resolutions of other bodies,
if any are deemed necessary by the Agent) approving the Assumption Letter;
(d) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Authorized Officer of the Alternate
Currency Borrower, which shall identify by name and title and bear the
signature of the officers of such Alternate Currency Borrower authorized
to sign the Assumption Letter and the other documents to be executed and
delivered by such Alternate Currency Borrower hereunder, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower;
(e) An opinion of counsel to such Alternate Currency Borrower,
in a form reasonably acceptable to the Agent and its counsel; and
(f) Such other instruments, documents or agreements as the
Agent or its counsel may reasonably request, all in form and substance
reasonably satisfactory to the Agent and its counsel.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into
this Agreement and t o make the Loans and the other financial accommodations to
the Borrower and to issue the Letters of Credit described herein, the Borrower
represents and warrants as follows to each Lender and the Agent as of the date
of this Agreement and on the Closing Date, giving effect to the consummation of
the transactions contemplated by the Loan Documents on the Closing Date, and
thereafter on each date as required by Section 5.2:
6.1. Organization; Corporate Powers. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) except in
respect to the failure of Chromart Corporation and Designer's Atelier, Inc. to
be qualified to do business in the state of New York, is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing could not
reasonably be expected to have a Material Adverse Effect, and (iii) has all
requisite corporate power and authority to own, operate and encumber its
property and to conduct its business as presently conducted and as proposed to
be conducted.
59
6.2. Authority.
(A) The Borrower and each of its Subsidiaries has the
requisite corporate power and authority to execute, deliver and perform
each of the Loan Documents which have been executed by it as required by
this Agreement and the other Loan Documents on or prior to Closing Date
and (ii) to file the Loan Documents which have been filed by it as
required by this Agreement, the other Loan Documents or otherwise on or
prior to the Closing Date with any Governmental Authority.
(B) The execution, delivery, performance and filing, as the
case may be, of each of the Loan Documents which have been executed or
filed as required by this Agreement, the other Loan Documents or otherwise
on or prior to the Closing Date and to which the Borrower or any of its
Subsidiaries is party, and the consummation of the transactions
contemplated thereby, have been duly approved by the respective boards of
directors and, if necessary, the shareholders of the Borrower and its
Subsidiaries, and such approvals have not been rescinded. No other
corporate action or proceedings on the part of the Borrower or its
Subsidiaries are necessary to consummate such transactions.
(C) Each of the Loan Documents to which the Borrower or any
of its Subsidiaries is a party has been duly executed, delivered or filed,
as the case may be, by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally), is in full
force and effect and no material term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the
Loan Documents delivered to the Agent pursuant to Section 5.1 without the
prior written consent of the Agent, and the Borrower and its Subsidiaries
have, and, to the best of the Borrower's and its Subsidiaries' knowledge,
all other parties thereto have, performed and complied with all the terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by such parties on or before the Closing Date,
and no unmatured default, default or breach of any covenant by any such
party exists thereunder.
6.3. No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or
articles of incorporation or by-laws of the Borrower or any such Subsidiary,
(ii) constitute a tortious interference with any Contractual Obligation of any
Person or conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any Requirement of Law
(including, without limitation, any Environmental Property Transfer Act) or
Contractual Obligation of the Borrower or any such Subsidiary, or
60
require termination of any Contractual Obligation, except such interference,
breach, default or termination which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect, (iii) with respect to
the Loan Documents, constitute a tortious interference with any Contractual
Obligation of any Person or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law (including, without limitation, any Environmental Property
Transfer Act) or Contractual Obligation of the Borrower or any such Subsidiary,
or require termination of any Contractual Obligation, except such interference,
breach, default or termination which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect, (iv) result in or
require the creation or imposition of any Lien whatsoever upon any of the
property or assets of the Borrower or any such Subsidiary, other than Liens
permitted or created by the Loan Documents, or (v) require any approval of the
Borrower's or any such Subsidiary's Board of Directors or shareholders except
such as have been obtained. Except as set forth on Schedule 6.3 to this
Agreement, the execution, delivery and performance of each of the Loan Documents
to which the Borrower or any of its Subsidiaries is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given,
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
6.4. Financial Statements.
(A) The combined pro forma balance sheet, income statements
and statements of cash flow of the Borrower and its Subsidiaries, copies
of which are attached hereto as Schedule 6.4 to this Agreement, present on
a pro forma basis the financial condition of the Borrower and such
Subsidiaries as of such date, and reflect on a pro forma basis those
liabilities reflected in the notes thereto and resulting from consummation
of the transactions contemplated by this Agreement, and the payment or
accrual of all transaction costs payable on the Closing Date with respect
to any of the foregoing and demonstrate that the Borrower and its
Subsidiaries can repay their debt and satisfy their other obligations as
and when due, and can comply with the requirements of this Agreement. The
projections and assumptions expressed in the pro forma financials
referenced in this Section 6.4(A) were prepared in good faith and
represent management's opinion based on the information available to the
Borrower at the time so furnished and, since the preparation thereof and
up to the Closing Date, there has occurred no change in the business,
financial condition, operations, or prospects of the Borrower or any of
its Subsidiaries, or the Borrower and its Subsidiaries taken as a whole
which has had or could reasonably be expected to have a Material Adverse
Effect.
(B) Complete and accurate copies of the audited financial
statements and the audit report related thereto of the Borrower and its
Subsidiaries as at December 31, 2003 and December 31, 2002 have been
delivered to the Agent.
6.5. No Material Adverse Change
(A) Since December 31, 2003 up to the Closing Date, there
has occurred no change in the business, properties, condition (financial
or otherwise), performance or results of operations of the Borrower, or
the Borrower and its Subsidiaries taken as a whole or any other event
which has had or could reasonably be expected to have a Material Adverse
Effect.
(B) Since the Closing Date, there has occurred no change in
the business, properties, condition (financial or otherwise), performance
or results of operations of the
61
Borrower or the Borrower and its Subsidiaries taken as a whole or any
other event which has had or could reasonably be expected to have a
Material Adverse Effect.
6.6. Taxes.
(A) Tax Examinations. All material deficiencies which have
been asserted against the Borrower or any of the Borrower's Subsidiaries
as a result of any federal, state, local or foreign tax examination for
each taxable year in respect of which an examination has been conducted
have been fully paid or finally settled or are being contested in good
faith, and as of the Closing Date no issue has been raised by any taxing
authority in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion by such
taxing authority of a material deficiency for any other year not so
examined which has not been reserved for in the Borrower's consolidated
financial statements to the extent, if any, required by Agreement
Accounting Principles. Except as permitted pursuant to Section 7.2(D),
neither the Borrower nor any of the Borrower's Subsidiaries anticipates
any material tax liability with respect to the years which have not been
closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of the
Borrower and its Subsidiaries required to be filed have been timely filed,
and all material taxes, assessments, fees and other governmental charges
thereupon and upon their respective property, assets, income and
franchises which are shown in such returns or reports to be due and
payable have been paid except those items which are being contested in
good faith and have been reserved for in accordance with Agreement
Accounting Principles. The Borrower has no knowledge of any proposed tax
assessment against the Borrower or any of its Subsidiaries that will have
or could reasonably be expected to have a Material Adverse Effect.
6.7. Litigation; Loss Contingencies and Violations. Except as set
forth in Schedule 6.7 to this Agreement, there is no action, suit, proceeding,
arbitration or (to the Borrower's knowledge) investigation before or by any
Governmental Authority or private arbitrator pending or, to the Borrower's
knowledge, threatened against the Borrower or any of its Subsidiaries or any
property of any of them (i) challenging the validity or the enforceability of
any material provision of the Loan Documents or (ii) which will have or could
reasonably be expected to have a Material Adverse Effect. There is no material
loss contingency within the meaning of Agreement Accounting Principles which has
not been reflected in the consolidated financial statements of the Borrower
prepared and delivered pursuant to Section 7.1(A) for the fiscal period during
which such material loss contingency was incurred. Neither the Borrower nor any
of its Subsidiaries is (A) in violation of any applicable Requirements of Law
which violation will have or could reasonably be expected to have a Material
Adverse Effect, or (B) subject to or in default with respect to any final
judgment, writ, injunction, restraining order or order of any nature, decree,
rule or regulation of any court or Governmental Authority which will have or
could reasonably be expected to have a Material Adverse Effect.
6.8. Subsidiaries. Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of the Borrower, its Subsidiaries and any
other Person in which the Borrower or any of its Subsidiaries holds an Equity
Interest; and (ii) accurately sets forth (A) the correct legal name, the
jurisdiction of incorporation and the jurisdictions in which each of the
Borrower
62
and the direct and indirect Subsidiaries of the Borrower are qualified to
transact business as a foreign corporation, (B) the authorized, issued and
outstanding shares of each class of Capital Stock of the Borrower and each of
its Subsidiaries and the owners of such shares (both as of the Closing Date and
on a fully-diluted basis), and (C) a summary of the direct and indirect
partnership, joint venture, or other Equity Interests, if any, of the Borrower
and each Subsidiary of the Borrower in any Person that is not a corporation.
Except as disclosed on Schedule 6.8, none of the issued and outstanding Capital
Stock of the Borrower or any of the Borrower's Subsidiaries is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options outstanding with respect to such Capital Stock. The outstanding Capital
Stock of the Borrower and each of the Borrower's Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and is not Margin
Stock.
6.9. ERISA. Except as disclosed on Schedule 6.9, no Benefit Plan has
incurred any accumulated funding deficiency (as defined in Sections 302(a)(2) of
ERISA and 412(a) of the Code) whether or not waived. Neither the Borrower nor
any member of the Controlled Group has incurred any material liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
and furnished to the Lenders is complete and accurate. Since the date of each
such Schedule B, there has been no material adverse change in the funding status
or financial condition of the Benefit Plan relating to such Schedule B. Neither
the Borrower nor any member of the Controlled Group has (i) failed to make a
required contribution or payment to a Multiemployer Plan or (ii) made a complete
or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer
Plan. Neither the Borrower nor any member of the Controlled Group has failed to
make a required installment or any other required payment under Section 412 of
the Code on or before the due date for such installment or other payment.
Neither the Borrower nor any member of the Controlled Group is required to
provide security to a Benefit Plan under Section 401(a)(29) of the Code due to a
Plan amendment that results in an increase in current liability for the plan
year. Except as set forth on Schedule 6.9, neither the Borrower nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA which provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
Each Plan which is intended to be qualified under Section 401(a) of the Code as
currently in effect is so qualified in all material respects, and each trust
related to any such Plan is exempt from federal income tax under Section 501(a)
of the Code as currently in effect. The Borrower and all Subsidiaries are in
compliance in all material respects with the responsibilities, obligations and
duties imposed on them by ERISA and the Code with respect to all Plans. Neither
the Borrower nor any of its Subsidiaries nor any fiduciary of any Plan has
engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA
or 4975 of the Code which could reasonably be expected to subject the Borrower
to liability in excess of $5,000,000. Neither the Borrower nor any member of the
Controlled Group has taken or failed to take any action which would constitute
or result in a Termination Event, which action or inaction could reasonably be
expected to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $5,000,000. Neither the Borrower
nor any Subsidiary is subject to any liability under Sections 4063, 4064, 4069,
4204 or 4212(c) of ERISA and no other member of the Controlled Group is subject
to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA which
could reasonably be expected to
63
subject the Borrower or any of its Subsidiaries to liability, individually or in
the aggregate, in excess of $5,000,000 (other than liabilities of any ERISA
affiliate which could not, by operation of law or otherwise, become a liability
of the Borrower or any Subsidiary). Except as set forth on Schedule 6.9, neither
the Borrower nor any of its Subsidiaries has, by reason of the transactions
contemplated hereby, any obligation to make any payment to any employee pursuant
to any Plan or existing contract or arrangement.
6.10. Accuracy of Information. To the knowledge of the Borrower, the
information, exhibits and reports furnished by or on behalf of the Borrower and
any of its Subsidiaries to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents, the representations and
warranties of the Borrower and its Subsidiaries contained in the Loan Documents,
and all certificates and documents delivered to the Agent and the Lenders
pursuant to the terms thereof, taken as a whole, do not contain as of the date
thereof any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading in any material
respect.
6.11. Securities Activities. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12. Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any Contractual Obligation which, as of the Closing Date or as of
the date on which such Contractual Obligation was incurred individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect.
Neither Borrower nor any Subsidiary is subject to any charter or other corporate
restriction which individually or in the aggregate has had or could reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of
its Subsidiaries has received written notice that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
6.13. Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14. Assets and Properties. The Borrower and each of its
Subsidiaries has good and marketable title to all of its assets and properties
(tangible and intangible, real or personal) owned by it or a valid leasehold
interest in all of its leased assets (except insofar as marketability may be
limited by any laws or regulations of any Governmental Authority affecting such
assets), and all such assets and property are free and clear of all Liens,
except Liens permitted under Section 7.3(C). Substantially all of the assets and
properties owned by, leased to or used by the Borrower and/or each such
Subsidiary of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted. Neither this Agreement nor any other Loan
Document,
64
nor any transaction contemplated under any such agreement, will affect any
right, title or interest of the Borrower or such Subsidiary in and to any of
such assets in a manner that could reasonably be expected to have a Material
Adverse Effect.
6.15. Statutory Indebtedness Restrictions. Neither the Borrower nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
or the Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16. Insurance. Schedule 6.16 to this Agreement accurately sets
forth as of the Closing Date all insurance policies and programs currently in
effect with respect to the respective properties and assets and business of the
Borrower and its Subsidiaries, specifying, for each such policy and program, (i)
the amount thereof, (ii) the risks insured against thereby, (iii) the name of
the insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, (v) the expiration date thereof, (vi) the annual
premium with respect thereto, and (vii) any reserves relating to any
self-insurance program that is in effect. Such insurance policies and programs
reflect coverage that is reasonably consistent with prudent industry practice.
6.17. Labor Matters.
As of the Closing Date, no attempt to organize the employees of the
Borrower, and no labor disputes, strikes or walkouts affecting the operations of
the Borrower or any of its Subsidiaries, is pending, or, to the Borrower's
knowledge, threatened, planned or contemplated which could reasonably be
expected to have a Material Adverse Effect.
6.18. No Default or Unmatured Default. No Default or Unmatured
Default has occurred and is continuing.
6.19. Environmental Matters.
(A) Except as disclosed on Schedule 6.19 to this Agreement
(i) the operations of the Borrower and its
Subsidiaries comply in all material respects with Environmental,
Health or Safety Requirements of Law;
(ii) the Borrower and its Subsidiaries have all
permits, licenses or other authorizations required under
Environmental, Health or Safety Requirements of Law and are in
material compliance with such permits;
(iii) neither the Borrower, any of its Subsidiaries nor
any of their respective present property or operations, or, to the
Borrower's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the
subject of, any investigation known to the Borrower or any of its
Subsidiaries, any judicial or administrative proceeding, order,
judgment, decree, settlement or other agreement respecting: (A) any
material violation of Environmental, Health or Safety
65
Requirements of Law; (B) any remedial action; or (C) any material
claims or liabilities arising from the Release or threatened Release
of a Contaminant into the environment;
(iv) there is not now, nor to the Borrower's or any of
its Subsidiaries' knowledge has there ever been, on or in the
property of the Borrower or any of its Subsidiaries any landfill,
waste pile, underground storage tanks, aboveground storage tanks,
surface impoundment or hazardous waste storage facility of any kind,
any PCBs used in hydraulic oils, electric transformers or other
equipment, or any asbestos containing material; and
(v) to the knowledge of the Borrower or any of its
Subsidiaries, neither the Borrower nor any of its Subsidiaries has
any material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(B) For purposes of this Section 6.19 "material" means any
noncompliance or basis for liability which could reasonably be likely to
subject the Borrower or any of its Subsidiaries to liability, individually
or in the aggregate, in excess of $5,000,000.
6.20. Solvency. After giving effect to (i) the Loans to be made on
the Closing Date or such other date as Loans requested hereunder are made, (ii)
the other transactions contemplated by this Agreement and the other Loan
Documents and (iii) the payment and accrual of all transaction costs with
respect to the foregoing, the Borrower and its Subsidiaries taken as a whole are
Solvent.
6.21. Representations and Warranties of each Alternate Currency
Borrower. Each Alternate Currency Borrower represents and warrants to the
Lenders that:
(A) Organization and Corporate Powers. Such Alternate
Currency Borrower (i) is a company duly formed and validly existing and in
good standing under the laws of the state or country of its organization
(such jurisdiction being hereinafter referred to as the "HOME COUNTRY");
(ii) has the requisite power and authority to own its property and assets
and to carry on its business substantially as now conducted except where
the failure to have such requisite authority would not have a material
adverse effect on such Alternate Currency Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver the
Alternate Currency Addendum to which it is a party and each other Loan
Document to which it is a party and the performance by it of its
obligations thereunder have been duly authorized by proper corporate
proceedings.
(B) Binding Effect. The Alternate Currency Addendum and each
other Loan Document executed by such Alternate Currency Borrower is the
legal, valid and binding obligations of such Alternate Currency Borrower
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and general
equitable principles.
66
(C) No Conflict; Government Consent. Neither the execution
and delivery by such Alternate Currency Borrower of the Loan Documents to
which it is a party, nor the consummation by it of the transactions
therein contemplated to be consummated by it, nor compliance by such
Alternate Currency Borrower with the provisions thereof will violate any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on such Alternate Currency Borrower or any of its Subsidiaries or
such Alternate Currency Borrower's or any of its Subsidiaries' memoranda
or articles of association or the provisions of any indenture, instrument
or agreement to which such Alternate Currency Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in
the creation or imposition of any lien in, of or on the property of such
Alternate Currency Borrower or any of its Subsidiaries pursuant to the
terms of any such indenture, instrument or agreement in any such case
which violation, conflict, default, creation or imposition could
reasonably be expected to have a material adverse effect on such Alternate
Currency Borrower. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
any governmental agency is required to authorize, or is required in
connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
(D) Filing. To ensure the enforceability or admissibility in
evidence of this Agreement, the Alternate Currency Addendum to which such
Alternate Currency Borrower is a party and each other Loan Document to
which such Alternate Currency Borrower is a party in its Home Country, it
is not necessary that this Agreement, such Alternate Currency Addendum, or
any other Loan Document to which such Alternate Currency Borrower is a
party or any other document be filed or recorded with any court or other
authority in its Home Country or that any stamp or similar tax be paid to
or in respect of this Agreement, such Alternate Currency Addendum or any
other Loan Document of such Alternate Currency Borrower. The qualification
by any Lender or the Agent for admission to do business under the laws of
such Alternate Currency Borrower's Home Country does not constitute a
condition to, and the failure to so qualify does not affect, the exercise
by any Lender or the Agent of any right, privilege, or remedy afforded to
any Lender or the Agent in connection with the Loan Documents to which
such Alternate Currency Borrower is a party or the enforcement of any such
right, privilege, or remedy against Alternate Currency Borrower. The
performance by any Lender or the Agent of any action required or permitted
under the Loan Documents will not (i) violate any law or regulation of
such Alternate Currency Borrower's Home Country or any political
subdivision thereof, (ii) result in any tax or other monetary liability to
such party pursuant to the laws of such Alternate Currency Borrower's Home
Country or political subdivision or taxing authority thereof (provided
that, should any such action result in any such tax or other monetary
liability to the Lender or the Agent, the Borrower hereby agrees to
indemnify such Lender or the Agent, as the case may be, against (x) any
such tax or other monetary liability and (y) any increase in any tax or
other monetary liability which results from such action by such Lender or
the Agent and, to the extent the Borrower makes such indemnification, the
incurrence of such liability by the Agent or any Lender will not
constitute a Default) or (iii) violate any rule or regulation of any
federation or organization or similar entity of which the such Alternate
Currency Borrower's Home Country is a member.
67
(E) No Immunity. Neither such Alternate Currency Borrower
nor any of its assets is entitled to immunity from suit, execution,
attachment or other legal process. Such Alternate Currency Borrower's
execution and delivery of the Loan Documents to which it is a party
constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(F) Application of Representations and Warranties. It is
understood and agreed by the parties hereto that the representations and
warranties of each Alternate Currency Borrower in this Section 6.22 shall
only be applicable to such Alternate Currency Borrower on and after the
date of its execution of an Assumption Letter and any applicable Alternate
Currency Addendum.
ARTICLE VII: COVENANTS
The Borrower covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1. Reporting. The Borrower shall:
(A) Financial Reporting. Furnish to the Agent (with
sufficient copies for each of the Lenders):
(i) Quarterly Reports. As soon as practicable, and in
any event within fifty (50) days after the end of the first three
fiscal quarters, the consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such period and
the related consolidated and consolidating statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, certified by the
chief financial officer of the Borrower on behalf of the Borrower as
fairly presenting in all material respects the consolidated and
consolidating financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the periods indicated in accordance
with Agreement Accounting Principles, subject to normal year-end
audit adjustments.
(ii) Annual Reports. As soon as practicable, and in any
event within ninety-five (95) days after the end of each fiscal
year, (a) the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash
flows of the Borrower and its Subsidiaries for such fiscal year, and
in comparative form the corresponding figures for the previous
fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section
7.4, and (b) an audit report on the items listed in clause (a)
hereof (other than the consolidating schedules) of independent
certified public accountants of recognized national standing,
68
which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial
position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the
periods indicated in conformity with Agreement Accounting Principles
and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards. The deliveries made pursuant
to this clause (ii) shall be accompanied by (x) any management
letter prepared by the above-referenced accountants, and (y) a
certificate of such accountants that, in the course of their
examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or
if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(iii) Officer's Certificate. Together with each delivery
of any financial statement (a) pursuant to clauses (i) and (ii) of
this Section 7.1(A), an Officer's Certificate of the Borrower,
substantially in the form of Exhibit G attached hereto and made a
part hereof, stating that (x) the representations and warranties of
the Borrower contained in Article VI hereof shall have been true and
correct in all material respects (unless such representation or
warranty is made as of a specific date, in which case, such
representation and warranty shall be true in all material respects
as of such date) at all times during the period covered by such
financial statements and as of the date of such Officer's
Certificate and (y) as of the date of such Officer's Certificate no
Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof and (b)
pursuant to clauses (i) and (ii) of this Section 7.1(A), a
compliance certificate, substantially in the form of Exhibit H
attached hereto and made a part hereof, signed by the Borrower's
chief financial officer, setting forth calculations for the period
then ended for Section 2.5(B), if applicable, which demonstrate
compliance, when applicable, with the provisions of Sections 7.3(A)
through (G) and Section 7.4, and which calculate the Leverage Ratio
for purposes of determining the then Applicable Floating Rate
Margin, Applicable Eurocurrency Margin, Applicable L/C Fee
Percentage and Applicable Commitment Fee Percentage.
(B) Notice of Default. Promptly upon any of the chief
executive officer, chief operating officer, chief financial officer,
treasurer or controller of the Borrower obtaining actual knowledge (i) of
any condition or event which constitutes a Default or Unmatured Default,
or becoming aware that any Lender or Agent has given any written notice to
any Authorized Officer with respect to a claimed Default or Unmatured
Default under this Agreement, or (ii) that any Person has given any
written notice to any Authorized Officer of the Borrower or any Subsidiary
of the Borrower or taken any other action with respect to a claimed
default or event or condition of the type referred to in Section 8.1(E),
the Borrower shall deliver to the Agent and the Lenders an Officer's
Certificate specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the
notice given or action taken by such Person in connection therewith, and
(c) what action the Borrower has taken, is taking and proposes to take
with respect thereto.
69
(C) Lawsuits. (i) Promptly upon the Borrower obtaining
actual knowledge of the institution of, or written threat of, any action,
suit, proceeding, governmental investigation or arbitration, by or before
any Governmental Authority, against or affecting the Borrower or any of
its Subsidiaries or any property of the Borrower or any of its
Subsidiaries not previously disclosed pursuant to Section 6.7, which
action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Borrower's
reasonable judgment, the Borrower or any of its Subsidiaries to liability
in an amount aggregating $5,000,000 or more (exclusive of claims covered
by insurance policies of the Borrower or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right
to disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Borrower
or any of its Subsidiaries unless the indemnitor has disclaimed or
reserved the right to disclaim coverage thereof), give written notice
thereof to the Agent and the Lenders and provide such other information as
may be reasonably available to enable each Lender and the Agent and its
counsel to evaluate such matters; and (ii) in addition to the requirements
set forth in clause (i) of this Section 7.1(C), upon request of the Agent
or the Required Lenders, promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration
covered by a report delivered pursuant to clause (i) above and provide
such other information as may be reasonably available to it that would not
jeopardize any attorney-client privilege by disclosure to the Lenders to
enable each Lender and the Agent and its counsel to evaluate such matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Agent and the Lenders, at the Borrower's expense, the following
information and notices as soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the
Borrower obtains knowledge that a Termination Event has occurred, a
written statement of the chief financial officer of the Borrower
describing such Termination Event and the action, if any, which the
Borrower has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS,
DOL or PBGC with respect thereto and (b) within ten (10) Business
Days after any member of the Controlled Group obtains knowledge that
a Termination Event has occurred which could reasonably be expected
to subject the Borrower to liability in excess of $5,000,000, a
written statement of the chief financial officer of the Borrower
describing such Termination Event and the action, if any, which the
member of the Controlled Group has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Borrower
or any of its Subsidiaries obtains knowledge that a prohibited
transaction (defined in Sections 406 of ERISA and Section 4975 of
the Code) has occurred, a statement of the chief financial officer
of the Borrower describing such transaction and the action which the
Borrower or such Subsidiary has taken, is taking or proposes to take
with respect thereto;
70
(iii) within ten (10) Business Days after the material
increase in the benefits of any existing Benefit Plan or the
establishment of any new Benefit Plan or the commencement of, or
obligation to commence, material contributions to any Benefit Plan
or Multiemployer Plan to which the Borrower or any member of the
Controlled Group was not previously contributing, notification of
such increase, establishment, commencement or obligation to commence
and the amount of such contributions;
(iv) within ten (10) Business Days after the Borrower
or any of its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Code, copies of each such letter;
(v) within ten (10) Business Days after the
establishment of any material foreign employee benefit plan (other
than the establishment of a defined contribution plan under English
law within one hundred eighty (180) days of the Closing Date) or the
commencement of, or obligation to commence, material contributions
to any foreign employee benefit plan to which the Borrower or any
Subsidiary was not previously contributing, notification of such
establishment, commencement or obligation to commence and the amount
of such contributions;
(vi) within ten (10) Business Days after the filing
thereof with the DOL, IRS or PBGC, copies of each annual report
(form 5500 series), including Schedule B thereto, filed with respect
to each Benefit Plan;
(vii) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of each actuarial
report for any Benefit Plan or Multiemployer Plan and each annual
report for any Multiemployer Plan, copies of each such report;
(viii) within ten (10) Business Days after the filing
thereof with the IRS, a copy of each funding waiver request filed
with respect to any Benefit Plan and all communications received by
the Borrower or a member of the Controlled Group with respect to
such request;
(ix) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of the PBGC's
intention to terminate a Benefit Plan or to have a trustee appointed
to administer a Benefit Plan, copies of each such notice;
(x) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
(xi) within ten (10) Business Days after the Borrower
or any member of the Controlled Group fails to make a required
installment or any other required payment under Section 412 of the
Code on or before the due date for such installment or payment, a
notification of such failure; and
71
(xii) within ten (10) Business Days after the Borrower
or any member of the Controlled Group knows or has reason to know
that (a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate
a Multiemployer Plan.
For purposes of this Section 7.1(D), the Borrower, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan of which the Borrower or any member of the
Controlled Group or such Subsidiary is the plan sponsor. In addition, for
purposes of this Section 7.1(D), "material" means any noncompliance or basis for
liability which could reasonably be likely to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of
$5,000,000.
(E) Labor Matters. Notify the Agent and the Lenders in
writing, promptly upon an Authorized Officer of the Borrower learning of
(i) any material labor dispute to which the Borrower or any of its
Subsidiaries may become a party, including, without limitation, any
strikes, lockouts or other disputes relating to such Persons' plants and
other facilities which could reasonably be expected to have a Material
Adverse Effect and (ii) any Worker Adjustment and Retraining Notification
Act liability incurred with respect to the closing of any plant or other
facility of the Borrower or any of its Subsidiaries.
(F) Other Indebtedness. Deliver to the Agent (i) a copy of
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by
or on behalf of the Borrower to the holders of funded Indebtedness with an
aggregate outstanding principal amount in excess of $5,000,000 pursuant to
the terms of the agreements governing such Indebtedness, such delivery to
be made at the same time and by the same means as such notice of default
is delivered to such holders, and (ii) a copy of each notice or other
communication received by the Borrower from the from the holders of funded
Indebtedness with an aggregate outstanding principal amount in excess of
$5,000,000 regarding potential or actual defaults pursuant to the terms of
such Indebtedness, such delivery to be made promptly after such notice or
other communication is received by the Borrower.
(G) Other Reports. Deliver or cause to be delivered to the
Agent and the Lenders copies of (i) all financial statements, reports and
notices, if any, sent or made available generally by the Borrower to its
securities holders or filed with the Commission by the Borrower, and (ii)
all notifications received from the Commission by the Borrower or its
Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules
promulgated thereunder. Borrower shall include the Agent and the Lenders
on its standard distribution lists for all press releases made available
generally by the Borrower or any of the Borrower's Subsidiaries to the
public concerning material developments in the business of the Borrower or
any such Subsidiary.
(H) Environmental Notices. As soon as possible and in any
event within twenty (20) days after receipt by the Borrower, a copy of (i)
any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the
72
Release by the Borrower, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any
violation of any Environmental, Health or Safety Requirements of Law by
the Borrower or any of its Subsidiaries if, in either case, such notice or
claim relates to an event which could reasonably be expected to subject
the Borrower and each of its Subsidiaries to liability individually or in
the aggregate in excess of $5,000,000.
(I) Other Information. Promptly upon receiving a request
therefor from the Agent, prepare and deliver to the Agent and the Lenders
such other information with respect to the Borrower, any of its
Subsidiaries, including, without limitation, schedules identifying any
Asset Sale or Financing (and the use of the Net Cash Proceeds thereof), as
from time to time may be reasonably requested by the Agent.
7.2. Affirmative Covenants.
(A) Corporate Existence, Etc. Except as permitted pursuant
to Section 7.3(I), the Borrower shall, and shall cause each of its
Subsidiaries to, at all times maintain its corporate existence and
preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses.
(B) Corporate Powers; Conduct of Business. The Borrower
shall, and shall cause each of its Subsidiaries to, qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified and where the failure to be so
qualified will have or could reasonably be expected to have a Material
Adverse Effect. Borrower shall cause Chromart Corporation and Designer's
Atelier, Inc. to become qualified to do business in the state of New York
as promptly as commercially practical. The Borrower will, and will cause
each Subsidiary to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is
presently conducted.
(C) Compliance with Laws, Etc. The Borrower shall, and shall
cause its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, properties,
assets or operations of such Person, and (b) obtain as needed all permits
necessary for its operations and maintain such permits in good standing
unless failure to comply or obtain such permits could not reasonably be
expected to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The
Borrower shall pay, and cause each of its Subsidiaries to pay, (i) all
material taxes, assessments and other governmental charges imposed upon it
or on any of its properties or assets or in respect of any of its
franchises, business, income or property before any penalty or interest
accrues thereon, and (ii) all claims (including, without limitation,
claims for labor, services, materials and supplies) for sums which have
become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 7.3(C)) upon any of the Borrower's or
such Subsidiary's property or assets, prior to the time when any penalty
or fine shall be incurred with respect thereto; provided, however, that no
such taxes, assessments and
73
governmental charges referred to in clause (i) above or claims referred to
in clause (ii) above (and interest, penalties or fines relating thereto)
need be paid if being contested in good faith by appropriate proceedings
diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with
Agreement Accounting Principles shall have been made therefor.
(E) Insurance. The Borrower shall maintain for itself and
its Subsidiaries, or shall cause each of its Subsidiaries to maintain in
full force and effect, the insurance policies and programs listed on
Schedule 6.16 to this Agreement or substantially similar policies and
programs or other policies and programs as reflect coverage that is
reasonably consistent with prudent industry practice for companies
operating in the same or similar locations. The Borrowers shall deliver to
the Agent endorsements (x) to all "All Risk" physical damage insurance
policies on all of the Borrowers' tangible real and personal property and
assets and business interruption insurance policies naming the Agent loss
payee, and (y) to all general liability and other liability policies
naming the Agent an additional insured. In the event the Borrower or any
of its Subsidiaries at any time or times hereafter shall fail to obtain or
maintain any of the policies or insurance required herein or to pay any
premium in whole or in part relating thereto, then the Agent, without
waiving or releasing any obligations or resulting Default hereunder, may
at any time or times thereafter (but shall be under no obligation to do
so) obtain and maintain such policies of insurance and pay such premiums
and take any other action with respect thereto which the Agent reasonably
deems advisable. All sums so disbursed by the Agent shall constitute part
of the Obligations, payable as provided in this Agreement.
(F) Inspection of Property; Books and Records; Discussions.
The Borrower shall permit and cause each of the Borrower's Subsidiaries to
permit, any authorized representative(s) designated by either the Agent or
any Lender to visit and inspect any of the properties of the Borrower or
any of its Subsidiaries, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers, all upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested. The
Borrower shall keep and maintain, and cause each of the Borrower's
Subsidiaries to keep and maintain, in all material respects, proper books
of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in
relation to their respective businesses and activities. If a Default has
occurred and is continuing, the Borrower, upon the Agent's request, shall
provide copies of such records to the Agent or its representatives.
(G) ERISA Compliance. The Borrower shall, and shall cause
each of the Borrower's Subsidiaries to, establish, maintain and operate
all Plans to comply in all material respects with the provisions of ERISA,
the Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the
governing documents for such Plans.
74
(H) Maintenance of Property. The Borrower shall cause all
property used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however,
that nothing in this Section 7.2(H) shall prevent the Borrower from
discontinuing the operation or maintenance of any of such property if such
discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Agent or the Lenders.
(I) Environmental Compliance. The Borrower and its
Subsidiaries shall comply with all Environmental, Health or Safety
Requirements of Law, except where noncompliance will not have or is not
reasonably likely to subject the Borrower or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $5,000,000.
(J) Use of Proceeds. The Borrower shall use the proceeds of
the Revolving Loans to provide funds for the additional working capital
needs and other general corporate purposes of the Borrower and its
Subsidiaries. The Borrower will not, nor will it permit any Subsidiary to,
use any of the proceeds of the Loans to purchase or carry any Margin Stock
or to make any Acquisition, other than a Permitted Acquisition pursuant to
Section 7.3(G).
(K) Subsidiary Guarantees. The Borrower will (a) cause each
material Domestic Incorporated Subsidiary to execute the Guaranty (and
from and after the Closing Date cause each Domestic Incorporated
Subsidiary to execute and deliver to the Agent, within twenty (20) days
after becoming a Subsidiary of the Borrower, an assumption agreement
pursuant to which it agrees to be bound by the terms and provisions of the
Subsidiary Guaranty (whereupon such Subsidiary shall become a "Guarantor"
under this Agreement)), and (b) deliver and cause such Subsidiaries to
deliver corporate resolutions, opinions of counsel, and such other
corporate documentation as the Agent may reasonably request, all in form
and substance reasonably satisfactory to the Agent.
7.3. Negative Covenants.
(A) Indebtedness. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to
any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted
Refinancing Indebtedness;
(iii) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
75
(iv) Indebtedness constituting Contingent Obligations
permitted by Section 7.3(E);
(v) Indebtedness arising from intercompany loans and
advances (a) from any Subsidiary to the Borrower or any wholly-owned
Subsidiary or (b) from the Borrower to any wholly-owned Domestic
Incorporated Subsidiary or (c) from the Borrower to any wholly-owned
Foreign Incorporated Subsidiary; provided, that if the Borrower is
the obligor on such Indebtedness, such Indebtedness shall be
expressly subordinate to the payment in full in cash of the
Obligations; provided, further, that the aggregate of all Foreign
Subsidiary Investments does not exceed the Permitted Foreign
Subsidiary Investment Amount at any time;
(vi) Indebtedness in respect of Hedging Obligations
permitted under Section 7.3(P);
(vii) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by the Borrower or any of
its Subsidiaries after the Closing Date to finance the acquisition
of fixed assets or in conjunction with a Permitted Acquisition, if
(1) at the time of such incurrence, no Default or Unmatured default
has occurred and is continuing or would result from such incurrence,
(2) such Indebtedness has a scheduled maturity and is not due on
demand, (3) such Indebtedness does not exceed the lower of the fair
market value or the cost of the applicable fixed assets on the date
acquired, (4) such Indebtedness does not exceed $30,000,000 in the
aggregate outstanding at any time, and (5) any Lien securing such
Indebtedness is permitted under Section 7.3(C) (such Indebtedness
being referred to herein as "PERMITTED PURCHASE MONEY
INDEBTEDNESS");
(viii) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(ix) Indebtedness incurred by the Borrower to the
seller in any Permitted Acquisition as part of the consideration
therefor, provided that such Indebtedness is unsecured and, if in
excess of $15,000,000 in the aggregate, is subordinated to the
Obligations, on terms reasonably acceptable to the Agent; and
(x) additional unsecured Indebtedness in an aggregate
amount at any time outstanding not exceeding $25,000,000.
(B) Sales of Assets. Neither the Borrower nor any of its
Subsidiaries shall consummate any Asset Sale, except:
(i) licenses or sublicenses by the Borrower or its
Subsidiaries of software, customer lists, trademarks, service marks,
patents, trade names and copyrights and other intellectual property
in the ordinary course of business; provided, that such licenses or
sublicenses shall not interfere with the business of the Borrower or
any such Subsidiary;
(ii) transfers of assets between the Borrower and any
wholly-owned Subsidiary of the Borrower or between wholly-owned
Subsidiaries of the Borrower not
76
otherwise prohibited by this Agreement; provided, that the aggregate
of all Foreign Subsidiary Investments does not exceed the Permitted
Foreign Subsidiary Investment Amount at any time; and
(iii) sales, assignments, transfers, leases, conveyances
or other dispositions of other assets if such transaction (a) is for
not less than fair market value (as determined in good faith by the
Borrower's board of directors), and (b) when combined with all such
other transactions (each such transaction being valued at book
value) (i) during the immediately preceding twelve-month period,
represents the disposition of not greater than ten percent (10%) of
the Borrower's Consolidated Tangible Assets at the end of the fiscal
year immediately preceding that in which such transaction is
proposed to be entered into, and (ii) during the period from the
Closing Date to the date of such proposed transaction, represents
the disposition of not greater than twenty-five percent (25%) of the
Borrower's Consolidated Tangible Assets at the end of the fiscal
year immediately preceding that in which such transaction is
proposed to be entered into; and
(iv) sales in connection with the reorganization,
restructuring and rationalization of the Borrower and its
Subsidiaries; provided, that the non-recurring expenses arising from
such reorganization, restructuring and rationalization which are
charged to operating expenses are charged during the first three (3)
fiscal years following any Permitted Acquisition and do not exceed
$5,000,000, on a pre-tax basis, with respect to any Permitted
Acquisition, or $10,000,000, on a pre-tax basis, in the aggregate.
(C) Liens. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or permit to exist any
Lien on or with respect to any of their respective property or assets
except:
(i) Liens created by the Loan Documents or otherwise
securing the Obligations;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens; and
(iv) purchase money Liens (including the interest of a
lessor under a Capitalized Lease and Liens to which any property is
subject at the time of the Borrower's acquisition thereof) securing
Permitted Purchase Money Indebtedness; provided that such Liens
shall not apply to any property of the Borrower or its Subsidiaries
other than that purchased or subject to such Capitalized Lease.
(v) Liens with respect to property acquired by the
Borrower or any of its Subsidiaries after the Closing Date (and not
created in contemplation of such acquisition) pursuant to a
Permitted Acquisition; provided, that such Liens shall extend only
to the property so acquired; and
(vi) other Liens securing Indebtedness not to exceed
$5,000,000 in the aggregate.
77
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Agent for the benefit of itself and the Holders of
Obligations, as collateral for the Obligations; provided that any agreement,
note, indenture or other instrument in connection with Permitted Purchase Money
Indebtedness (including Capitalized Leases) may prohibit the creation of a Lien
in favor of the Agent for the benefit of itself and the Holders of Obligations
on the items of property obtained with the proceeds of such Permitted Purchase
Money Indebtedness.
(D) Investments. Except to the extent permitted pursuant to
paragraph (G) below, neither the Borrower nor any of its Subsidiaries
shall directly or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not
greater than the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary
course of business;
(iv) Investments consisting of deposit accounts
maintained by the Borrower;
(v) Investments consisting of non-cash consideration
from a sale, assignment, transfer, lease, conveyance or other
disposition of property permitted by Section 7.3(B);
(vi) Investments consisting of (a) intercompany loans
from any Subsidiary of the Borrower to the Borrower or any other
Subsidiary permitted by Section 7.3(A)(v) and (b) intercompany loans
from the Borrower to its Subsidiaries; provided, that the aggregate
of all Foreign Subsidiary Investments made pursuant to this Section
7.3(D)(vi) shall not exceed $25,000,000 at any time;
(vii) Investments constituting Permitted Acquisitions;
(viii) Investments constituting Indebtedness permitted
by Section 7.3(A) or Contingent Obligations permitted by Section
7.3(E) or Restricted Payments permitted by Section 7.3(F) or Capital
Expenditures permitted by Section 7.4(E);
(ix) Investments consisting of loans or advances made
by any party to the Loan Documents to employees and officers of the
Borrower or any of the Borrower's wholly-owned Domestic Incorporated
Subsidiaries for travel, entertainment and relocation expenses in
the ordinary course of business in an aggregate principal amount
outstanding at any one time not to exceed $2,000,000;
78
(x) Investments consisting of any right of the
Borrower or its wholly-owned Domestic Incorporated Subsidiaries to
payment for goods sold or for services rendered, whether or not it
has been earned by performance; and
(xi) Investments in addition to those referred to
elsewhere in this Section 7.3(D) in an amount not to exceed
$15,000,000 in the aggregate at any time outstanding;
provided, however, that the Investments described in clause (vii) above shall
not be permitted to be made at a time when either a Default or an Unmatured
Default which is not in the process of being cured shall have occurred and be
continuing or would result therefrom.
(E) Contingent Obligations. Neither the Borrower nor any of
its Subsidiaries shall directly or indirectly create or become or be
liable with respect to any Contingent Obligation, except: (i) recourse
obligations resulting from endorsement of negotiable instruments for
collection in the ordinary course of business; (ii) Permitted Existing
Contingent Obligations; (iii) obligations, warranties, guaranties and
indemnities, not relating to Indebtedness of any Person, which have been
or are undertaken or made in the ordinary course of business and not for
the benefit of or in favor of an Affiliate of the Borrower or such
Subsidiary; (iv) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the
ordinary course of business, (v) Contingent Obligations of the
Subsidiaries of the Borrower under the Guaranty to which they are a party,
(vi) obligations arising under or related to the Loan Documents, and (vii)
Contingent Obligations in respect to earn-outs or other similar forms of
contingent purchase price payable in respect of Permitted Acquisitions,
and (viii) Contingent Obligations in respect of representations and
warranties customarily given in respect of Asset Sales otherwise permitted
hereunder.
(F) Restricted Payments. The Borrower shall not declare or
make any Restricted Payment, except Restricted Payments in an amount not
to exceed $15,000,000 in the aggregate during any twelve-month period and
except Restricted Payments by a Subsidiary to the Borrower or another
Subsidiary; provided, however, that in no event shall any Restricted
Payments (other than Restricted Payments to Borrower) be declared or made
if either a Default or an Unmatured Default shall have occurred and be
continuing at the date of declaration or payment thereof or would result
therefrom.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither
the Borrower nor any of its Subsidiaries shall engage in any business
other than the businesses engaged in by the Borrower on the date hereof
and any business or activities which are substantially similar, related or
incidental thereto or logical extensions thereof. The Borrower shall not
create, acquire or capitalize any Subsidiary after the date hereof unless
(i) no Default or Unmatured Default which is not being cured shall have
occurred and be continuing or would result therefor; (ii) after such
creation, acquisition or capitalization, all of the representations and
warranties contained herein shall be true and correct in all material
respects (unless such representation and warranty is made as of a specific
date, in which case, such representation or warranty shall be true in all
material respects as of such date); and (iii) after such creation,
acquisition or capitalization the Borrower shall be in compliance with the
terms of Section 7.2(K). The Borrower shall not make any Acquisitions,
other than Acquisitions meeting the
79
following requirements or otherwise approved by the Required Lenders (each
such Acquisition constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have
occurred and be continuing or would result from such Acquisition or
the incurrence of any Indebtedness in connection therewith;
(ii) after giving effect to such transaction, the
aggregate of all Foreign Subsidiary Investments would not exceed the
Permitted Foreign Subsidiary Investment Amount;
(iii) in the case of an Acquisition of Equity Interests
of an entity, the Acquisition shall be of at least thirty-three and
one-third percent (33 1/3%) of the Equity Interests of such entity,
and such acquired entity shall be (x) merged with and into the
Borrower immediately following such Acquisition, with the Borrower
being the surviving corporation following such merger or (y) the
results of operations of such entity shall be reported on a
consolidated basis with the Borrower and its consolidated
Subsidiaries;
(iv) the purchase is consummated pursuant to a
negotiated acquisition agreement on a non-hostile basis;
(v) if the purchase price payable in respect to any
such acquisition exceeds $15,000,000, the acquisition documents
shall be reasonably satisfactory to the Agent (including, without
limitation, in respect of representations, indemnities and opinions)
and the results of due diligence in respect of such purchase shall
be reasonably satisfactory to the Agent and prior to each such
Acquisition, the Borrower shall deliver to the Agent and the Lenders
a certificate from one of the Authorized Officers, demonstrating to
the satisfaction of the Agent that after giving effect to such
Acquisition and the incurrence of any Indebtedness permitted by
Section 7.3(A) in connection therewith, on a pro forma basis using
historical audited or reviewed unaudited financial statements
obtained from the seller(s) in respect of each such Acquisition as
if the Acquisition and such incurrence of Indebtedness had occurred
on the first day of the twelve-month period ending on the last day
of the Borrower's most recently completed fiscal quarter, the
Borrower would have been in compliance with the financial covenants
in Section 7.4 and not otherwise in Default;
(vi) the purchase price for the Acquisition shall not
exceed without the prior written consent of the Required Lenders an
amount equal to $25,000,000 (including the incurrence or assumption
of any Indebtedness in connection therewith); and
(vii) the businesses being acquired shall be
substantially similar, related or incidental to, or a logical
extension of, the businesses or activities engaged in by the
Borrower on the Closing Date.
80
(H) Transactions with Shareholders and Affiliates. Neither
the Borrower nor any of its Subsidiaries shall directly or indirectly (i)
enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder or holders of any of the Equity
Interests of the Borrower, or with any Affiliate of the Borrower which is
not its Subsidiary, on terms that are less favorable to the Borrower or
any of its Subsidiaries, as applicable, than those that might be obtained
in an arm's length transaction at the time from Persons who are not such a
holder or Affiliate, except for Restricted Payments permitted by Section
7.3(F) and Investments permitted by Section 7.3(D) or (ii) enter into or
permit to exist any such non-arm's length transaction between either the
Borrower or any Domestic Incorporated Subsidiary, on the one hand, and any
Foreign Incorporated Subsidiary, on the other hand, if as a result thereof
the aggregate of all Foreign Subsidiary Investments would at any time
exceed the Permitted Foreign Subsidiary Investment Amount. Agent and
Lenders acknowledge and consent to the transactions between the Borrower
and its Affiliates described in the Borrower's public filings as of the
date hereof.
(I) Restriction on Fundamental Changes. Neither the Borrower
nor any of its Subsidiaries shall enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in
one transaction or series of transactions, all or substantially all of the
Borrower's consolidated business or property, whether now or hereafter
acquired, except (i) transactions permitted under Sections 7.3(B), 7.3(D)
or 7.3(G) and, (ii) a Subsidiary of the Borrower may be merged into or
consolidated with the Borrower (in which case the Borrower shall be the
surviving corporation) or any wholly-owned Subsidiary of the Borrower, and
(iii) any liquidation of any Subsidiary of the Borrower into the Borrower
or another Subsidiary of the Borrower, as applicable.
(J) Sales and Leasebacks. Neither the Borrower nor any of
its Subsidiaries shall become liable, directly, by assumption or by
Contingent Obligation, with respect to any lease, whether an operating
lease or a Capitalized Lease, of any property (whether real or personal or
mixed), (i) which it or one of its Subsidiaries sold or transferred or is
to sell or transfer to any other Person, or (ii) which it or one of its
Subsidiaries intends to use for substantially the same purposes as any
other property which has been or is to be sold or transferred by it or one
of its Subsidiaries to any other Person in connection with such lease,
unless in either case the sale involved is not prohibited under Section
7.3(B) and the lease involved is not prohibited under Section 7.3(A) and
any related Investment is not prohibited under Section 7.3(D).
(K) Margin Regulations. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA.
(a) The Borrower shall not
81
(i) engage, or permit any of its Subsidiaries to
engage, in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Code for which a statutory or class exemption
is not available or a private exemption has not been previously
obtained from the DOL;
(ii) permit to exist any material accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the
Code), with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to
fail, to pay timely required material contributions or annual
installments due with respect to any waived funding deficiency to
any Benefit Plan;
(iv) terminate, or permit any Controlled Group member
to terminate, any Benefit Plan which would result in any material
liability of the Borrower or any Controlled Group member under Title
IV of ERISA;
(v) fail to make any material contribution or payment
to any Multiemployer Plan which the Borrower or any Controlled Group
member may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to
fail, to pay any required material installment or any other payment
required under Section 412 of the Code on or before the due date for
such installment or other payment; or
(vii) amend, or permit any Controlled Group member to
amend, a Plan resulting in a material increase in current liability
for the plan year such that the Borrower or any Controlled Group
member is required to provide security to such Plan under Section
401(a)(29) of the Code.
(b) For purposes of this Section 7.3(L), "material"
means any noncompliance or basis for liability which could
reasonably be likely to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate, in
excess of $5,000,000.
(M) Corporate Documents. Neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect
on the date hereof in any manner materially adverse to the interests of
the Lenders, without the prior written consent of the Required Lenders,
except in connection with a Permitted Acquisition.
(N) Fiscal Year. Neither the Borrower nor any of its
consolidated Subsidiaries shall change its fiscal year for accounting or
tax purposes from a period consisting of the 12-month period ending on the
last day of December of each year, except as required by Agreement
Accounting Principles (including fiscal year end changes required as a
result of the Transactions) or by law and disclosed to the Lenders and the
Agent.
82
(O) Subsidiary Covenants. The Borrower will not, and will
not permit any Subsidiary to, create or otherwise cause to become
effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to pay dividends or make any other distribution
on its stock, or make any other Restricted Payment, pay any Indebtedness
or other Obligation owed to the Borrower or any other Subsidiary, make
loans or advances or other Investments in the Borrower or any other
Subsidiary, or sell, transfer or otherwise convey any of its property to
the Borrower or any other Subsidiary.
(P) Hedging Obligations. The Borrower shall not and shall
not permit any of its Subsidiaries to enter into any interest rate,
commodity or foreign currency exchange, swap, collar, cap or similar
agreements evidencing Hedging Obligations, other than interest rate,
foreign currency or commodity exchange, swap, collar, cap or similar
agreements entered into by the Borrower pursuant to which the Borrower has
hedged its actual interest rate, foreign currency or commodity exposure.
Such permitted hedging agreements entered into by the Borrower and any
Lender or any affiliate of any Lender are sometimes referred to herein as
"HEDGING AGREEMENTS."
(Q) Issuance of Disqualified Stock. From and after the
Closing Date, neither the Borrower, nor any of its Subsidiaries shall
issue any Disqualified Stock. All issued and outstanding Disqualified
Stock shall be treated as Indebtedness for all purposes of this Agreement
(and as funded Indebtedness for purposes of Section 7.1(F)), and the
amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
7.4. Financial Covenants. The Borrower shall comply with the
following:
(A) Minimum Fixed Charge Coverage Ratio. The Borrower and
its consolidated Subsidiaries shall maintain a ratio ("FIXED CHARGE
COVERAGE RATIO") of:
(i) the sum of (a) EBITDA during such period plus (b)
Rentals during such period minus (c) Maintenance Capital
Expenditures, to
(ii) the sum of the amounts of (a) Interest Expense
during such period (net of interest income) plus (b) Rentals during
such period plus (c) scheduled principal payments of Indebtedness,
plus (d) scheduled dividend payments on Borrower's preferred stock,
which shall not be less than 1.25 to 1.0 for each four (4) fiscal quarter period
beginning with the four (4) fiscal quarter period ending on March 31, 2004. In
each case, the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four (4) fiscal quarter period ending on such
day (the "LAST TWELVE-MONTH PERIOD"), provided, that the Fixed Charge Coverage
Ratio shall be calculated, with respect to Permitted Acquisitions, on a pro
forma basis using historical audited and reviewed unaudited financial statements
obtained from the seller(s) in such Permitted Acquisition, broken down by fiscal
quarter as if such Permitted Acquisition (including the uses and applications of
proceeds in respect thereof and the Indebtedness incurred in conjunction
therewith) had occurred on the first day of the Last Twelve-
83
Month Period (the "MEASUREMENT PERIOD") (including cost savings actually
realized during such prior period, as though such costs savings had been
realized from the first day of the Measurement Period in the Borrower's
reasonable judgment), provided such pro forma statements and such costs savings
shall be substantiated by supporting information reasonably acceptable to the
Agent. Interest Expense shall be calculated for the purpose of clause (ii) by
excluding the effect of amortization of deferred financing fees, to the extent
it is an Interest Expense.
(B) Maximum Leverage Ratio. The Borrower and its
consolidated Subsidiaries shall not permit the ratio (the "LEVERAGE
RATIO") of (i) Indebtedness (net of cash and Cash Equivalents of the
Borrower and its consolidated Subsidiaries) to (ii) EBITDA to be greater
than 3.25 to 1.0 for each four (4) fiscal quarter period beginning with
the fiscal quarter ending March 31, 2004 and thereafter.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (a) for Indebtedness, Indebtedness as of
the last day of each such fiscal quarter; and (b) for EBITDA, the actual amount
for Last Twelve-Month Period, provided, that the Leverage Ratio shall be
calculated, with respect to Permitted Acquisitions, on a pro forma basis using
historical audited and reviewed unaudited financial statements obtained from the
seller(s) in such Permitted Acquisition, broken down by fiscal quarter in the
Borrower's reasonable judgment as if such Permitted Acquisition (including the
uses and applications of proceeds in respect thereof and the Indebtedness
incurred in conjunction therewith) had occurred on the first day of the
Measurement Period (including cost savings actually realized during such prior
period, as though such costs savings had been realized from the first day of the
Measurement Period in the Borrower's reasonable judgment), provided such pro
forma statements and such costs savings shall be substantiated by supporting
information reasonably acceptable to the Agent.
(C) Minimum Consolidated Net Worth. The Borrower shall not
permit its Consolidated Net Worth at any time to be less than the sum of
(a) $85,000,000 plus (b) fifty percent (50%) of Net Income (if positive)
calculated separately for each fiscal quarter commencing with the fiscal
quarter ending on March 31, 2004, plus (c) one hundred percent (100%) of
the net cash proceeds resulting from the issuance by the Borrower of any
Capital Stock other than shares of Capital Stock issued pursuant to
employee stock option or ownership plans.
(D) Maximum Capital Expenditures. The Borrower will not, nor
will it permit any Subsidiary to, expend, or be committed to expend, in
excess of an aggregate of $25,000,000, for Capital Expenditures of the
Borrower and its Subsidiaries during any fiscal year of the Borrower.
ARTICLE VIII: DEFAULTS
8.1. Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
84
(A) Failure to Make Payments When Due. The Borrower or any
Alternate Currency Borrower shall (i) fail to pay when due any of the
Obligations consisting of principal with respect to the Loans or (ii)
shall fail to pay within five (5) Business Days of the date when due any
of the other Obligations under this Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Borrower shall fail
duly and punctually to perform or observe any agreement, covenant or
obligation binding on the Borrower under:
(i) Sections 7.1, 7.2, 7.3(C), 7.3(E), 7.3(L) or
7.3(O) and such failure shall continue unremedied for fifteen (15)
Business Days, or if such failure is not capable of being cured
within such fifteen (15) day period, forty-five (45) days if the
Borrower at all times during such forty-five (45) day period is
promptly and diligently attempting to effect such cure; or
(ii) Sections 7.3 (other than Sections 7.3(C), 7.3(E),
7.3(L) and 7.3(O)) or 7.4.
(C) Breach of Representation or Warranty. Any representation
or warranty made or deemed made by the Borrower to the Agent or any Lender
herein or by the Borrower or any Alternate Currency Borrower or any of
their Subsidiaries in any of the other Loan Documents or in any statement
or certificate at any time given by any such Person pursuant to any of the
Loan Documents shall be false or misleading in any material respect on the
date as of which made (or deemed made).
(D) Other Defaults. The Borrower shall default in the
performance of or compliance with any term contained in this Agreement
(other than as covered by paragraphs (A) or (B) of this Section 8.1), or
the Borrower or any Alternate Currency Borrower or any of their
Subsidiaries shall default in the performance of or compliance with any
term contained in any of the other Loan Documents, and such default shall
continue for thirty (30) days after the occurrence thereof.
(E) Default as to Other Indebtedness. The Borrower or any of
its Subsidiaries shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) with respect to any Indebtedness (other than Indebtedness
hereunder, but including, without limitation, Disqualified Stock), beyond
any period of grace provided with respect thereto, which individually or
together with other such Indebtedness as to which any such failure exists
has an aggregate outstanding principal amount in excess of $5,000,000; or
any breach, default or event of default shall occur, or any other
condition shall exist under any instrument, agreement or indenture
pertaining to any such Indebtedness having such aggregate outstanding
principal amount, beyond any period of grace, if any, provided with
respect thereto, if the effect thereof is to cause an acceleration,
mandatory redemption, a requirement that the Borrower offer to purchase
such Indebtedness or other required repurchase of such Indebtedness, or
permit the holder(s) of such Indebtedness to accelerate the maturity of
any such Indebtedness or require a redemption or other repurchase of such
Indebtedness; or any such Indebtedness shall be otherwise declared to be
due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or
85
otherwise repurchased by the Borrower or any of its Subsidiaries (other
than by a regularly scheduled required prepayment) prior to the stated
maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Borrower or any of the Borrower's Subsidiaries and the petition
shall not be dismissed, stayed, bonded or discharged within sixty
(60) days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for
relief in respect of the Borrower or any of the Borrower's
Subsidiaries in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction
in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over the Borrower or any of the Borrower's Subsidiaries or
over all or a substantial part of the property of the Borrower or
any of the Borrower's Subsidiaries shall be entered; or an interim
receiver, trustee or other custodian of the Borrower or any of the
Borrower's Subsidiaries or of all or a substantial part of the
property of the Borrower or any of the Borrower's Subsidiaries shall
be appointed or a warrant of attachment, execution or similar
process against any substantial part of the property of the Borrower
or any of the Borrower's Subsidiaries shall be issued and any such
event shall not be stayed, dismissed, bonded or discharged within
sixty (60) days after entry, appointment or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Borrower or any of the Borrower's Subsidiaries shall (i) commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, (iii) consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property, (iv) make any
assignment for the benefit of creditors or (v) take any corporate action
to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other
than a money judgment covered by insurance as to which the applicable
insurance company has not disclaimed or reserved the right to disclaim
coverage), writ or warrant of attachment, or similar process against the
Borrower or any of its Subsidiaries or any of their respective assets
involving in any single case or in the aggregate an amount in excess of
$5,000,000 is or are entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later
than fifteen (15) days prior to the date of any proposed sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be
entered against the Borrower decreeing its involuntary dissolution or
split up and such order shall remain
86
undischarged and unstayed for a period in excess of sixty (60) days; or
the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan
Document as a whole that materially affects the ability of the Agent, or
any of the Lenders to enforce the Obligations or ceases to be in full
force and effect or the Borrower or any of the Borrower's Subsidiaries
party thereto seeks to repudiate its obligations thereunder.
(K) Termination Event. Any Termination Event occurs which
the Required Lenders believe is reasonably likely to subject the Borrower
to liability in excess of $5,000,000.
(L) Waiver of Minimum Funding Standard. If the plan
administrator of any Plan applies under Section 412(d) of the Code for a
waiver of the minimum funding standards of Section 412(a) of the Code and
any Lender believes the substantial business hardship upon which the
application for the waiver is based could reasonably be expected to
subject either the Borrower or any Controlled Group member to liability in
excess of $5,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Hedging Agreements. Nonpayment by the Borrower of any
obligation in excess of $2,500,000 under any Hedging Agreement which
remains unpaid for sixty (60) days or the breach by the Borrower of any
term, provision or condition contained in any such Hedging Agreement.
(O) Environmental Matters. The Borrower or any of its
Subsidiaries shall be the subject of any proceeding or investigation
pertaining to (i) the Release by the Borrower or any of its Subsidiaries
of any Contaminant into the environment, (ii) the liability of the
Borrower or any of its Subsidiaries arising from the Release by any other
Person of any Contaminant into the environment, or (iii) any violation of
any Environmental, Health or Safety Requirements of Law which by the
Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject the Borrower to liability in excess of
$5,000,000.
(P) Guarantor Revocation. Any guarantor of the Obligations
shall terminate or revoke any of its obligations under the applicable
Guaranty or breach any of the material terms of such Guaranty.
A Default shall be deemed "continuing" until cured or until waived
in writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1. Termination of Revolving Loan Commitments; Acceleration. If any
Default described in Section 8.1(F) or 8.1(G) occurs with respect to the
Borrower, the obligations of the Lenders to make Loans (including, without
limitation, Alternate Currency Loans) hereunder and the obligation of any
Issuing Banks to issue Letters of Credit hereunder shall automatically terminate
87
and the Obligations shall immediately become due and payable without any
election or action on the part of the Agent or any Lender. If any other Default
occurs, the Required Lenders may terminate or suspend the obligations of the
Lenders to make Loans (including, without limitation, Alternate Currency Loans)
hereunder and the obligation of the Issuing Banks to issue Letters of Credit
hereunder, or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower expressly
waives.
9.2. Defaulting Lender. In the event that any Lender fails to fund
its Pro Rata Share of any Advance requested or deemed requested by the Borrower,
which such Lender is obligated to fund under the terms of this Agreement (the
funded portion of such Advance being hereinafter referred to as a "NON PRO RATA
LOAN"), until the earlier of such Lender's cure of such failure and the
termination of the Revolving Loan Commitments, the proceeds of all amounts
thereafter repaid to the Agent by the Borrower and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower by the Agent on behalf of such
Lender to cure, in full or in part, such failure by such Lender, but shall
nevertheless be deemed to have been paid to such Lender in satisfaction of such
other Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply
only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to
Section 2.10;
(ii) any such Lender shall be deemed to have cured its
failure to fund its Pro Rata Share, of any Advance at such time as
an amount equal to such Lender's original Pro Rata Share of the
requested principal portion of such Advance is fully funded to the
Borrower, whether made by such Lender itself or by operation of the
terms of this Section 9.2, and whether or not the Non Pro Rata Loan
with respect thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Advance ("CURE LOANS") shall bear interest at the rate applicable to
Floating Rate Loans in effect from time to time, and for all other
purposes of this Agreement shall be treated as if they were Floating
Rate Loans;
(iv) regardless of whether or not a Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower
as to its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied
to the outstanding Floating Rate Loans shall be applied first,
ratably to all Floating Rate Loans constituting Non Pro Rata Loans,
second, ratably to Floating Rate Loans other than those constituting
Non Pro Rata Loans or Cure Loans and, third, ratably to Floating
Rate Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such
Lender's cure of the failure to fund its Pro Rata Share of any
Advance and the termination of the Revolving Loan Commitments, the
term "Required Lenders" for purposes of this Agreement shall mean
88
Lenders (excluding all Lenders whose failure to fund their
respective Pro Rata Share of such Advance have not been so cured)
whose Pro Rata Shares represent greater than fifty percent (50%) of
the aggregate Pro Rata Shares of such Lenders; provided, that if any
Lender (other than a Lender whose failure to find its Pro Rata Share
of such Advance has not been so cured) shall have a Pro Rata Share
greater than fifty percent (50%), "REQUIRED LENDERS" shall mean such
Lender plus at least one additional Lender (other than a Lender
whose failure to find its Pro Rata Share of such Advance has not
been cured); and
(vi) for so long as and until any such Lender's failure to
fund its Pro Rata Share of any Advance is cured in accordance with
Section 9.2(ii), (A) such Lender shall not be entitled to any
commitment fees with respect to its Revolving Loan Commitment and
(B) such Lender shall not be entitled to any letter of credit fees,
which commitment fees and letter of credit fees shall accrue in
favor of the Lenders which have funded their respective Pro Rata
Share of such requested Advance, shall be allocated among such
performing Lenders ratably based upon their relative Revolving Loan
Commitments, and shall be calculated based upon the average amount
by which the aggregate Revolving Loan Commitments of such performing
Lenders exceeds the sum of (I) the outstanding principal amount of
the Loans owing to such performing Lenders, plus (II) the
outstanding Reimbursement Obligations owing to such performing
Lenders, plus (III) the aggregate participation interests of such
performing Lenders arising pursuant to Section 3.6 with respect to
undrawn and outstanding Letters of Credit.
9.3. Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender (which is not a defaulting Lender under the
provisions of Section 9.2) affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date
or any other date fixed for any payment of principal of, or interest
on, the Loans, the Reimbursement Obligations or any fees or other
amounts payable to such Lender (except with respect to (a) any
modifications of the provisions relating to prepayments of Loans and
other Obligations and (b) a waiver of the application of the default
rate of interest pursuant to Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be
the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders" or "Pro Rata
Share".
89
(iv) Except as permitted by Section 2.26, increase the amount
of the Revolving Loan Commitment of any Lender hereunder or increase
any Lender's Pro Rata Share.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) other than pursuant to a transaction permitted by the
terms of this Agreement, release any guarantor from its obligations
under the Guaranty.
(vii) Amend Section 7.4 (or any of the definitions of the
terms utilized therein) or this Section 9.3.
No amendment of any provision of this Agreement relating to (a) the Agent shall
be effective without the written consent of the Agent, (b) Swing Line Loans
shall be effective without the written consent of the Swing Line Bank and (c)
any Issuing Bank shall be effective without the written consent of such Issuing
Bank. The Agent may waive payment of the fee required under Section 13.3(B)
without obtaining the consent of any of the Lenders. Notwithstanding anything
herein to the contrary, the Agent (acting reasonably and after consultation with
other parties hereto) may by reasonable prior notice to the other parties hereto
amend this Agreement after consultation with the Borrower unilaterally for the
exclusive purpose of effectuating changes hereto which are necessary to the
integration of the issuance of Letters of Credit hereunder in euro and only in a
manner which shall not result in a deterioration of the position of any Agent or
Lender from its respective position as of the date of this Agreement.
The Agent may notify the other parties to this Agreement of any
amendments to this Agreement which the Agent reasonably determines to be
necessary as a result of the commencement of the third stage of the European
Economic and Monetary Union. Notwithstanding anything to the contrary contained
herein, any amendments so notified shall take effect in accordance with the
terms of the relevant notification; provided, however, that if and to the extent
that the Agent determines it is not possible to put all parties into such
position, the Agent may give priority to putting the Agent, the Arranger and the
Lenders into that position.
9.4. Preservation of Rights. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or an acquiescence therein, and
the making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 9.3, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GENERAL PROVISIONS
90
10.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
this Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and payable under any
Loan Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
10.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. Performance of Obligations. The Borrower agrees that the Agent
may, but shall have no obligation to (i) at any time, pay or discharge taxes,
liens, security interests or other encumbrances levied or placed on or
threatened against any property of the Borrower to the extent the Borrower is
required by the terms hereof to pay any such amount, but has not done so and
(ii), after the occurrence and during the continuance of a Default, to make any
other payment or perform any act required of the Borrower under any Loan
Document or take any other action which the Agent in its discretion deems
necessary or desirable to protect or preserve such property of the Borrower. The
Agent shall use its reasonable efforts to give the Borrower notice of any action
taken under this Section 10.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
Borrower's obligations in respect thereof. The Borrower agrees to pay the Agent,
upon demand, the principal amount of all funds advanced by the Agent under this
Section 10.3, together with interest thereon at the rate from time to time
applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the Borrower fails to
make payment in respect of any such advance under this Section 10.3 within one
(1) Business Day after the date the Borrower receives written demand therefor
from the Agent, the Agent shall promptly notify each Lender and each Lender
agrees that it shall thereupon make available to the Agent, in Dollars in
immediately available funds, the amount equal to such Lender's Pro Rata Share of
such advance. If such funds are not made available to the Agent by such Lender
within one (1) Business Day after the Agent's demand therefor, the Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such unreimbursed advance under this Section 10.3 shall neither
relieve any other Lender of its obligation hereunder to make available to the
Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Agent.
10.4. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent and the Lenders and
supersede all prior
91
agreements and understandings among the Borrower, the Agent and the Lenders
relating to the subject matter thereof.
10.6. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other Lender (except to the extent
to which the Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
10.7. Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Agent, the
Alternate Currency Bank and the Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Agent, which attorneys and paralegals may be employees
of the Agent) paid or incurred by the Agent, the Alternate Currency Bank
or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to
reimburse the Agent, the Alternate Currency Bank and the Arranger and the
Lenders for any costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Agent, the Alternate Currency Bank and
the Arranger and the Lenders, which attorneys and paralegals may be
employees of the Agent, the Alternate Currency Bank or the Arranger or the
Lenders) paid or incurred by the Agent or the Arranger, the Alternate
Currency Bank or any Lender in connection with the collection of the
Obligations and enforcement of the Loan Documents. In addition to expenses
set forth above, the Borrower agrees to reimburse the Agent, promptly
after the Agent's request therefor, for each audit, or other business
analysis performed by or for the benefit of the Lenders in connection with
this Agreement or the other Loan Documents in an amount equal to the
Agent's then customary charges for each person employed to perform such
audit or analysis, plus all reasonable costs and expenses (including
without limitation, travel expenses) incurred by the Agent in the
performance of such audit or analysis. The foregoing notwithstanding, the
Borrower shall not be required to reimburse the Agent for its audit or
business analysis in amounts in excess of $10,000 per annum unless a
Default has occurred and is continuing. Agent shall provide the Borrower
with a detailed statement of all reimbursements requested under this
Section 10.7(A).
(B) Indemnity. The Borrower further agrees to defend,
protect, indemnify, and hold harmless the Agent, the Arranger, the
Alternate Currency Bank and each and all of the Lenders and each of their
respective Affiliates, and each of such Agent's, Arranger's, the Alternate
Currency Bank's, Lender's, or Affiliate's respective officers, directors,
trustees, investment advisors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in Article V)
(collectively, the "INDEMNITEES") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs,
92
expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding, whether or
not such Indemnitees shall be designated a party thereto), imposed on,
incurred by, or asserted against such Indemnitees in any manner relating
to or arising out of:
(i) this Agreement or any of the other Loan Documents,
or any act, event or transaction related or attendant thereto or to
the making of the Loans, and the issuance of and participation in
Letters of Credit hereunder, the management of such Loans or Letters
of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions
contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities,
losses, damages, personal injury, death, punitive damages, economic
damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural
resources or public health or welfare, costs and expenses
(including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or remedial action studies),
fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or
future relating to violation of any Environmental, Health or Safety
Requirements of Law arising from or in connection with the past,
present or future operations of the Borrower, its Subsidiaries or
any of their respective predecessors in interest, or, the past,
present or future environmental, health or safety condition of any
respective property of the Borrower or its Subsidiaries, the
presence of asbestos-containing materials at any respective property
of the Borrower or its Subsidiaries or the Release or threatened
Release of any Contaminant into the environment (collectively, the
"INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee with
respect to the Loan Documents, as determined by the final non-appealed judgment
of a court of competent jurisdiction. If the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. The
Borrower further agrees to assert no claim against any of the Indemnitees
on any theory of liability seeking consequential, special, indirect,
exemplary or punitive damages. No settlement shall be entered into by the
Borrower or any if its Subsidiaries with respect to any claim, litigation,
arbitration or other proceeding relating to or arising out of the
transactions evidenced by this Agreement, the other Loan Documents unless
such settlement releases all Indemnitees from any and all liability with
respect thereto.
(D) Survival of Agreements. The obligations and agreements
of the Borrower under this Section 10.7 shall survive the termination of
this Agreement.
93
10.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
10.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
10.10. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11. Nonliability of Lenders. The relationship between the
Borrower and the Lenders and the Agent shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
10.12. GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT
THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, ANY LENDER OR ANY OTHER
HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION
(B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY,
OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS
LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
94
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT,
ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER
OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH
PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH
ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH
OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENT TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY,
THE PROVISIONS OF SECTION 10.7 AND THIS SECTION 10.13, WITH ITS COUNSEL.
10.14. USA Patriot Act Notification. The following notification is
provided to the Borrowers pursuant to Section 326 of the USA Patriot Act of
2001, 31 U.S.C. Section 5318:
95
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To
help the government of the United States of America 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 that opens an account, including any deposit account, treasury management
account, loan, other extension of credit, or other financial services product.
Accordingly, when any Borrower opens an account, the Agent and the Lenders will
ask for such Borrower's name, tax identification number, business address, and
other information that will allow the Agent and the Lenders to identify such
Borrower. The Agent and the Lenders may also ask to see such Borrower's legal
organizational documents or other identifying documents.
ARTICLE XI: THE AGENT
11.1. Appointment; Nature of Relationship. Bank One is appointed by
the Lenders as the Agent hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
XI. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Holder of Obligations by reason of this Agreement and
that the Agent is merely acting as the representative of the Lenders with only
those duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the Agent
(i) does not assume any fiduciary duties to any of the Holders of Obligations,
(ii) is a "representative" of the Holders of Obligations within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders, for itself and on behalf of its affiliates as Holders of Obligations,
agrees to assert no claim against the Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Holder of Obligations waives.
11.2. Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties or fiduciary duties to the Lenders, or
any obligation to the Lenders to take any action hereunder or under any of the
other Loan Documents except any action specifically provided by the Loan
Documents required to be taken by the Agent.
11.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen solely from the Gross Negligence or
willful misconduct of such Person.
96
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into, or verify (i)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered solely to the Agent; (iv) the existence or possible
existence of any Default or (v) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith. The Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or in any of the other Loan
Documents, or for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Borrower or any of its Subsidiaries.
11.5. Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders (or all of the Lenders in the event that and to the extent
that this Agreement expressly requires such), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all owners of Loans and on all Holders of Obligations. The Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
11.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as the Agent hereunder and under any other Loan Document by or
through employees, agents, and attorney-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
11.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8. The Agent's and the Alternate Currency Bank's Reimbursement
and Indemnification. The Lenders agree to reimburse and indemnify the Agent and
the Alternate Currency Bank ratably in proportion to their respective Pro Rata
Shares (i) for any amounts not reimbursed by the Borrower for which the Agent
and the Alternate Currency Bank is entitled to reimbursement by the Borrower
under the Loan Documents, (ii) for any other expenses incurred by the Agent or
the Alternate Currency Bank on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents and (iii) for any
97
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent or the Alternate Currency
Bank in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have arisen solely from the Gross Negligence
or willful misconduct of the Agent or the Alternate Currency Bank.
11.9. Rights as a Lender. With respect to its Revolving Loan
Commitment, Loans made by it, and Letters of Credit issued by it, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender or Issuing Bank and may exercise the same as though it
were not the Agent, and the term "Lender" or "Lenders", "Issuing Bank" or
"Issuing Banks" shall, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which such Person is not
prohibited hereby from engaging with any other Person.
11.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
11.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty days after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor Agent
shall be subject to approval by the Borrower, which approval shall not be
unreasonably withheld. Such successor Agent shall be a commercial bank having
capital and retained earnings of at least $500,000,000. Upon the acceptance of
any appointment as the Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder and under the other Loan Documents.
98
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Default occurs and is continuing,
any Indebtedness from any Lender to the Borrower (including all account
balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
12.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Sections 4.1, 4.2 or 4.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligation or such amounts which
may be subject to setoff, such Lender agrees, promptly upon demand, to take such
action necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to the obligations owing to them. In case any such payment
is disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
12.3. Application of Payments. Subject to the provisions of Section
9.2, the Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this Section 12.3, apply all payments and prepayments in respect of any
Obligations in the following order:
(A) first, to pay interest on and then principal of any
portion of the Loans which the Agent may have advanced on behalf of any
Lender for which the Agent has not then been reimbursed by such Lender or
the Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 10.3 for which the Agent has not then been paid
by the Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and the
issuer(s) of Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line
Loans;
(F) sixth, to pay interest due in respect of Loans (other
than Swing Line Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of
principal outstanding on Swing Line Loans;
99
(H) eighth, to the ratable payment or prepayment of
principal outstanding on Loans (other than Swing Line Loans),
Reimbursement Obligations and Hedging Obligations under Hedging Agreements
in such order as the Agent may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required
pursuant to Section 3.11 and
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurocurrency Rate
Loans with those Eurocurrency Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Agent, the Lenders, the Swing Line Bank and the issuer(s) of Letters of
Credit as among themselves. The order of priority set forth in clauses (D)
through (J) of this Section 12.3 may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person; provided, that the order of
priority of payments in respect of Swing Line Loans may be changed only with the
prior written consent of the Swing Line Bank. The order of priority set forth in
clauses (A) through (C) of this Section 12.3 may be changed only with the prior
written consent of the Agent.
12.4. Relations Among Lenders.
(A) Except with respect to the exercise of set-off rights of
any Lender in accordance with Section 12.1, the proceeds of which are
applied in accordance with this Agreement, and except as set forth in the
following sentence, each Lender agrees that it will not take any action,
nor institute any actions or proceedings, against the Borrower or any
other obligor hereunder or with respect to any Loan Document, without the
prior written consent of the Required Lenders or, as may be provided in
this Agreement or the other Loan Documents, at the direction of the Agent.
(B) The Lenders are not partners or co-venturers, and no
Lender shall be liable for the acts or omissions of, or (except as
otherwise set forth herein in case of the Agent) authorized to act for,
any other Lender. The Agent shall have the exclusive right on behalf of
the Lenders to enforce on the payment of the principal of and interest on
any Loan after the date such principal or interest has become due and
payable pursuant to the terms of this Agreement.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1.Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers, the
Agent and the Lenders and their respective successors and assigns permitted
hereby, except that (i) no Borrower shall have the
100
right to assign its rights or obligations under the Loan Documents without the
prior written consent of all of the Lenders, (ii) any assignment by any Lender
must be made in compliance with Section 13.3, and (iii) any transfer by
Participants must be made in compliance with Section 13.2. Any attempted
assignment or transfer by any party not made in compliance with this Section
13.1 shall be null and void, unless such attempted assignment or transfer is
treated as a participation in accordance with Section 13.3. The parties to this
Agreement acknowledge that clause (ii) of this Section 13.1 relates only to
absolute assignments and this Section 13.1 does not prohibit assignments
creating security interests, including, without limitation, (x) any pledge or
assignment by any Lender of all or any portion of its rights under this
Agreement and any promissory note issued hereunder to a Federal Reserve Bank,
(y) in the case of a Lender which is a fund or commingled investment vehicle
that invests in commercial loans in the ordinary course of business may at any
time, without the consent of any Borrower or the Agent, any pledge or assignment
of all or any portion of its rights under this Agreement and any promissory note
issued hereunder to its trustee or other representative of holders of
obligations owed or securities issued by such Lender as collateral to secure
such obligations or (z) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any promissory note issued
hereunder to direct or indirect contractual counterparties in swap agreements
relating to the Loans; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 13.3. The Agent may treat each Lender as the owner of
the Loans made by such Lender hereunder for all purposes hereof unless and until
such Lender complies with Section 13.3; provided, however, that the Agent may in
its discretion (but shall not be required to) follow instructions from the
Lender which made any Loan or which holds any promissory note issued hereunder
to direct payments relating to such Loan or promissory note issued hereunder to
another Person. Any assignee or transferee of the rights to a Loan, Revolving
Loan Commitment, L/C Interest or any other interest of a Lender under the Loan
Documents agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of any Loan, shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Loan.
13.2. Participations.
(A) Permitted Participants; Effect. Subject to the terms set
forth in this Section 13.2, any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("PARTICIPANTS") participating interests in
any Obligations or Loans owing to such Lender, any promissory note issued
hereunder held by such Lender, any Revolving Loan Commitment of such
Lender any L/C Interest of such Lender or any other interest of such
Lender under the Loan Documents on a pro rata or non-pro rata basis.
Notice of such participation to the Borrower and the Agent shall be
required prior to any participation becoming effective with respect to a
Participant which is not a Lender or an Affiliate thereof. In the event of
any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the
owner of the Obligations or Loans owing to such Lender and the holder of
any promissory note issued
101
to it hereunder in evidence thereof for all purposes under the Loan
Documents, all amounts payable by the Borrowers under this Agreement shall
be determined as if such Lender had not sold such participating interests,
and the Borrowers and the Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under the Loan Documents, except that, for purposes of Article IV hereof,
the Participants shall be entitled to the same rights as if they were
Lenders.
(B) Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan, Letter of
Credit or Revolving Loan Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the
interest rate or fees payable pursuant to the terms of this Agreement with
respect to any such Loan or Revolving Loan Commitment, postpones any date
fixed for any regularly-scheduled payment of principal of, or interest or
fees on, any such Loan or Revolving Loan Commitment.
(C) Benefit of Certain Provisions. Each Borrower agrees that
each Participant shall be deemed to have the right of setoff provided in
Section 12.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 12.1 with respect to the amount of participating
interests sold to each Participant except to the extent such Participant
exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 12.2 as if each Participant were a
Lender. Each Borrower further agrees that each Participant shall be
entitled to the benefits of Article IV to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section
13.3, provided that (i) a Participant shall not be entitled to receive any
greater payment under Article IV than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrower and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of Article IV to the same extent as if it were a Lender.
13.3. Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("PURCHASERS") all or a
portion of its rights and obligations under the Loan Documents. Such
assignment shall be evidenced by an agreement substantially in the form of
Exhibit D or in such other form as may be agreed to by the parties thereto
(each such agreement, an "ASSIGNMENT AGREEMENT"). Each such assignment
with respect to a Purchaser which is not a Lender, an Affiliate of a
Lender or an Approved Fund shall, unless otherwise consented to in writing
by the Agent and, so long as no Default has occurred and is
102
continuing, the Borrower, either be in an Revolving Loan Commitment of,
and Obligations owing to, the assigning Lender or (unless each of the
Borrower and the Agent otherwise consents) be in an aggregate amount equal
to the lesser of (i) the entire applicable Revolving Loan Commitment and
Obligations held by such Lender hereunder and (ii) $5,000,000. The amount
of the assignment shall be based on the Revolving Loan Commitment and
Obligations subject to the assignment, determined as of the date of such
assignment or as of the "Trade Date," if the "Trade Date" is specified in
the Assignment Agreement.
(B) Consents. The consent of the Borrower shall be required
prior to an assignment becoming effective unless the Purchaser is a
Lender, an Affiliate of a Lender or an Approved Fund, provided that the
consent of the Borrower shall not be required if (i) if a Default or
Unmatured Default has occurred and is continuing, (ii) in connection with
any pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank or (iii) if
such assignment is in connection with the physical settlement of any
Lender's obligations to direct or indirect contractual counterparties in
swap agreements relating to the Loans and/or Letters of Credit. The
consent of the Agent shall be required prior to an assignment becoming
effective unless the Purchaser is a Lender, an Affiliate of a Lender or an
Approved Fund. Any consent required under this Section 13.3(B) shall not
be unreasonably withheld or delayed.
(C) Effect; Effective Date. Upon (i) delivery to the Agent
and the Alternate Currency Bank of an Assignment Agreement, together with
any consents required by Sections 13.3(A) and 13.3(B), and (ii) payment of
a $3,500 fee by the assignee or the assignor (as agreed) to the Agent for
processing such assignment (unless such fee is waived by the Agent or
unless such assignment is made to such assigning Lender's Affiliate), such
assignment shall become effective on the effective date specified in such
assignment. The Assignment Agreement shall contain a representation and
warranty by the Purchaser to the effect that none of the funds, money,
assets or other consideration used to make the purchase and assumption of
the applicable Commitment and Obligations under the applicable Assignment
Agreement constitutes "plan assets" as defined under ERISA and that the
rights, benefits and interests of the Purchaser, if not already a Lender,
in and under the Loan Documents will not be "plan assets" under ERISA. On
and after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and shall have all the
rights, benefits and obligations of a Lender under the Loan Documents, to
the same extent as if it were an original party thereto, and the
transferor Lender shall be released with respect to the applicable
Revolving Loan Commitment and Obligations assigned to such Purchaser
without any further consent or action by the Borrowers, the Alternate
Currency Bank, the Lenders or the Agent. In the case of an assignment
covering all of the assigning Lender's rights, benefits and obligations
under this Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which survive
payment of the Obligations and termination of the Loan Documents. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 13.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 13.2. Upon the
consummation of any assignment to a
103
Purchaser pursuant to this Section 13.3(C), the transferor Lender, the
Agent and the Borrowers shall, if the transferor Lender or the Purchaser
desires that its Loans be evidenced by promissory notes, make appropriate
arrangements so that, upon cancellation and surrender to the Borrowers of
the previously issued promissory notes (if any) held by the transferor
Lender, new promissory notes issued hereunder or, as appropriate,
replacement promissory notes are issued to such transferor Lender, if
applicable, and new promissory notes or, as appropriate, replacement
promissory notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Revolving Loan Commitments (or, if the
Revolving Loan Termination Date has occurred, their respective
Obligations), as adjusted pursuant to such assignment. Notwithstanding
anything to the contrary herein, no Borrower shall, at any time, be
obligated to make payments under Section 2.15(E) to any Lender that is an
assignee or transferee any sum in excess of the sum which such Borrower
would have been obligated to pay to the Lender that is an assignor or
transferor had such assignment or transfer not been effected.
(D) The Register. The Agent, acting solely for this purpose
as an Agent of the Borrowers (and the Borrowers hereby designate the Agent
to act in such capacity), shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment Agreement delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses
of the Lenders, and the Revolving Loan Commitment of, and principal
amounts of and interest on the Loans owing to, each Lender pursuant to the
terms hereof from time to time and whether such Lender is an original
Lender or the assignee of another Lender pursuant to an assignment under
this Section 13.3. The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, each of
its Subsidiaries, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the
Borrower or any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
13.4. Confidentiality. Subject to Section 13.5, the Agent and the
Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Borrower in accordance with such Person's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound commercial lending or investment practices and in
any event may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or any securities exchange or similar
self-regulatory organization or representative thereof or pursuant to a
regulatory examination or legal process, or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor, and shall require any such Transferee to agree (and
require any of its Transferees to agree) to comply with this Section 13.4. In no
event shall the Agent or any Lender be obligated or required to return any
materials furnished by the Borrower; provided, however, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Borrower in connection with this Agreement.
104
13.5. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 13.4 the confidentiality of any confidential information described
therein.
13.6. Tax Certifications. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 2.15(E) and Article IV.
ARTICLE XIV: NOTICES
14.1. Giving Notice. Except as otherwise permitted by Section 2.14
with respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answer back
confirmed in the case of telexes).
14.2. Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
ARTICLE XVI: SCHEDULES
If as after date of this Agreement, Borrower has not furnished to
Agent and Lenders any schedule required by the terms hereof, Borrower shall
furnish any such schedule to Agent and Lenders as promptly as practical, but in
any event at least five (5) days prior to the Closing Date.
[Remainder of This Page Intentionally Blank]
105
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
SCHAWK, INC., as the Borrower
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
Address: 000 Xxxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.:
Facsimile No.:
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent, as Swing Line Lender, as Issuing
Bank and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: First Vice President
Address:
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
Mail Code IL1-2508
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.:
Facsimile No.:
THE NORTHERN TRUST COMPANY,
AS A LENDER
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.:
Facsimile No.:
BANK OF AMERICA, N.A.,
AS A LENDER
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
Address: 000 X. XxXxxxx Xx.
XX0-000-0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Telephone No.:
Facsimile No.:
