[CONFORMED COPY]
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CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 2003
AMONG
AMCOL INTERNATIONAL CORPORATION,
THE GUARANTORS FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
AND
XXXXXX TRUST AND SAVINGS BANK
as Administrative Agent
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XXXXX FARGO BANK N.A.,
as Documentation Agent
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. THE CREDIT FACILITIES...................................1
Section 1.1. Revolving Credit Commitments............................1
Section 1.2. Letters of Credit.......................................1
Section 1.3. Applicable Interest Rates...............................4
Section 1.4. Minimum Borrowing Amounts; Maximum Eurocurrency
Loans.................................................6
Section 1.5. Manner of Borrowing Loans and Designating
Applicable Interest Rates.............................6
Section 1.6. Interest Periods........................................8
Section 1.7. Maturity of Loans.......................................9
Section 1.8. Prepayments.............................................9
Section 1.9. Default Rate...........................................10
Section 1.10. The Notes..............................................11
Section 1.11. Funding Indemnity......................................11
Section 1.12. Revolving Credit Commitment Terminations..............12
Section 1.13. Substitution of Lenders................................12
Section 1.14. Swing Loans............................................13
Section 1.15. Increase in Revolving Credit Commitments...............14
SECTION 2. FEES...................................................15
Section 2.1. Fees ..................................................15
SECTION 3. PLACE AND APPLICATION OF PAYMENTS......................15
Section 3.1. Place and Application of Payments......................15
Section 3.2. Account Debit..........................................17
SECTION 4. GUARANTIES.............................................17
Section 4.1. Guaranties.............................................17
Section 4.2. Further Assurances.....................................17
SECTION 5. DEFINITIONS; INTERPRETATION............................18
Section 5.1. Definitions............................................18
Section 5.2. Interpretation.........................................31
Section 5.3. Change in Accounting Principles........................31
SECTION 6. REPRESENTATIONS AND WARRANTIES.........................32
Section 6.1. Organization and Qualification.........................32
Section 6.2. Subsidiaries...........................................32
Section 6.3. Authority and Validity of Obligations..................33
Section 6.4. Use of Proceeds; Margin Stock..........................33
Section 6.5. Financial Reports......................................33
Section 6.6. No Material Adverse Change.............................34
Section 6.7. Full Disclosure........................................34
Section 6.8. Trademarks, Franchises, and Licenses...................34
Section 6.9. Governmental Authority and Licensing...................34
Section 6.10. Good Title.............................................34
Section 6.11. Litigation and Other Controversies.....................35
Section 6.12. Taxes..................................................35
Section 6.13. Approvals..............................................35
Section 6.14. Affiliate Transactions.................................35
Section 6.15. Investment Company; Public Utility Holding Company.....35
Section 6.16. ERISA..................................................35
Section 6.17. Compliance with Laws...................................35
Section 6.18. Other Agreements.......................................36
Section 6.19. Solvency...............................................36
Section 6.20. No Default.............................................37
SECTION 7. CONDITIONS PRECEDENT...................................37
Section 7.1. All Credit Events......................................37
Section 7.2. Initial Credit Event...................................37
SECTION 8. COVENANTS..............................................39
Section 8.1. Maintenance of Business................................39
Section 8.2. Maintenance of Properties..............................39
Section 8.3. Taxes and Assessments..................................39
Section 8.4. Insurance..............................................39
Section 8.5. Financial Reports......................................40
Section 8.6. Inspection.............................................42
Section 8.7. Limitations on Indebtedness............................42
Section 8.8. Limitation on Liens....................................42
Section 8.9. Investments, Acquisitions, Loans and Advances..........43
Section 8.10. Mergers, Consolidations and Sales......................45
Section 8.11. Dividends and Certain Other Restricted Payments........46
Section 8.12. ERISA..................................................46
Section 8.13. Compliance with Laws...................................47
Section 8.14. Burdensome Contracts With Affiliates...................48
Section 8.15. No Changes in Fiscal Year..............................48
Section 8.16. Formation of Subsidiaries..............................48
Section 8.17. Change in the Nature of Business.......................48
Section 8.18. Use of Loan Proceeds...................................48
Section 8.19. No Restrictions........................................48
Section 8.20. Subordinated Debt......................................48
Section 8.21. Financial Covenants....................................49
Section 8.22. Contingent Obligations.................................49
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SECTION 9. EVENTS OF DEFAULT AND REMEDIES.........................49
Section 9.1. Events of Default......................................49
Section 9.2. Non-Bankruptcy Defaults................................51
Section 9.3. Bankruptcy Defaults....................................52
Section 9.4. Collateral for Undrawn Letters of Credit...............52
Section 9.5. Notice of Default......................................53
Section 9.6. Expenses...............................................53
SECTION 10. CHANGE IN CIRCUMSTANCES................................53
Section 10.1. Change of Law..........................................53
Section 10.2. Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR..................53
Section 10.3. Increased Cost and Reduced Return......................54
Section 10.4. Lending Offices........................................55
Section 10.5. Discretion of Lender as to Manner of Funding...........55
SECTION 11. THE ADMINISTRATIVE AGENT...............................55
Section 11.1. Appointment and Authorization of Administrative
Agent................................................55
Section 11.2. Administrative Agent and its Affiliates................56
Section 11.3. Action by Administrative Agent.........................56
Section 11.4. Consultation with Experts..............................56
Section 11.5. Liability of Administrative Agent; Credit Decision.....56
Section 11.6. Indemnity..............................................57
Section 11.7. Resignation and Removal of Administrative Agent
and Successor Administrative Agent..................57
Section 11.8. L/C Issuer.............................................58
Section 11.9. Hedging Liability and Funds Transfer and Deposit
Account Liability Arrangements.......................58
Section 11.10. Designation of Additional Agents.......................59
SECTION 12. THE GUARANTEES.........................................59
Section 12.1. The Guarantees.........................................59
Section 12.2. Guarantee Unconditional................................59
Section 12.3. Discharge Only upon Payment in Full; Reinstatement
in Certain Circumstances.............................60
Section 12.4. Subrogation............................................60
Section 12.5. Waivers................................................61
Section 12.6. Limit on Recovery......................................61
Section 12.7. Stay of Acceleration...................................61
Section 12.8. Benefit to Guarantors..................................61
Section 12.9. Guarantor Covenants....................................61
SECTION 13. MISCELLANEOUS..........................................62
Section 13.1. Withholding Taxes......................................62
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Section 13.2. No Waiver, Cumulative Remedies.........................63
Section 13.3. Non-Business Days......................................63
Section 13.4. Documentary Taxes......................................63
Section 13.5. Survival of Representations............................63
Section 13.6. Survival of Indemnities................................63
Section 13.7. Sharing of Set-Off.....................................64
Section 13.8. Notices................................................64
Section 13.9. Counterparts...........................................65
Section 13.10. Successors and Assigns.................................65
Section 13.11. Participants...........................................65
Section 13.12. Assignments............................................65
Section 13.13. Amendments.............................................66
Section 13.14. Headings...............................................67
Section 13.15. Costs and Expenses; Indemnification....................67
Section 13.16. Set-off................................................67
Section 13.17. Entire Agreement.......................................68
Section 13.18. Governing Law..........................................68
Section 13.19. Severability of Provisions.............................68
Section 13.20. Excess Interest........................................68
Section 13.21. Construction...........................................69
Section 13.22. Lender's Obligations Several...........................69
Section 13.23. Submission to Jurisdiction; Waiver of Jury Trial.......69
Section 13.24. Currency...............................................69
Signature Page...............................................................S-1
EXHIBIT A -- Notice of Payment Request
EXHIBIT B -- Notice of Borrowing
EXHIBIT C -- Notice of Continuation/Conversion
EXHIBIT D-1 -- Revolving Note
EXHIBIT D-2 -- Swing Note
EXHIBIT E -- Form of Commitment Amount Increase Request
EXHIBIT F -- Compliance Certificate
EXHIBIT G -- Additional Guarantor Supplement
EXHIBIT H -- Assignment and Acceptance
SCHEDULE 1 -- Commitments
SCHEDULE 1.2 -- Existing Letters of Credit
SCHEDULE 6.2 -- Subsidiaries
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CREDIT AGREEMENT
This Credit Agreement is entered into as of October 31, 2003, by and among
AMCOL International Corporation, a Delaware corporation (the "Borrower"), the
direct and indirect Subsidiaries of the Borrower from time to time party to this
Agreement, as Guarantors, the several financial institutions from time to time
party to this Agreement, as Lenders, and Xxxxxx Trust and Savings Bank, as
Administrative Agent as provided herein. All capitalized terms used herein
without definition shall have the same meanings herein as such terms are defined
in Section 5.1 hereof.
PRELIMINARY STATEMENT
The Borrower has requested, and the Lenders have agreed to extend, certain
credit facilities on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. THE CREDIT FACILITIES.
Section 1.1. Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Lender, by its acceptance hereof, severally agrees to
make a loan or loans (individually a "Revolving Loan" and collectively the
"Revolving Loans") in U.S. Dollars and Alternative Currencies to the Borrower
from time to time on a revolving basis in an aggregate outstanding Original
Dollar Amount up to the amount of such Lender's Revolving Credit Commitment,
subject to any reductions thereof pursuant to the terms hereof, before the
Revolving Credit Termination Date. The sum of the aggregate Original Dollar
Amount of Revolving Loans, Swing Loans, and L/C Obligations at any time
outstanding shall not exceed the Revolving Credit Commitments in effect at such
time. The sum of the aggregate Original Dollar Amount of all Loans denominated
in an Alternative Currency shall not exceed $25,000,000. Each Borrowing of
Revolving Loans shall be made ratably by the Lenders in proportion to their
respective Percentages. As provided in Section 1.5(a) hereof, the Borrower may
elect that each Borrowing of Revolving Loans denominated in U.S. Dollars be
either Base Rate Loans or Eurocurrency Loans. All Revolving Loans denominated in
an Alternative Currency shall be Eurocurrency Loans. Revolving Loans may be
repaid and the principal amount thereof reborrowed before the Revolving Credit
Termination Date, subject to the terms and conditions hereof.
Section 1.2. Letters of Credit. (a) General Terms. Subject to the terms
and conditions hereof, as part of the Revolving Credit, the L/C Issuer shall
issue standby letters of credit (each a "Letter of Credit") for the account of
Borrower or for the account of the Borrower in an aggregate undrawn face amount
up to the L/C Sublimit. Notwithstanding anything herein to the contrary, those
certain letters of credit issued for the account of the Borrower by Xxxxxx Trust
and Savings Bank and listed on Schedule 1.2 hereof (the "Existing Letters of
Credit") shall each constitutes a "Letter of Credit" herein for all purposes of
this Agreement with the Borrower as
the applicant therefor, to the same extent, and with the same force and effect
as if the Existing Letters of Credit had been issued under this Agreement at the
request of the Borrower. Each Letter of Credit shall be issued by the L/C
Issuer, but each Lender shall be obligated to reimburse the L/C Issuer for such
Lender's Percentage of the amount of each drawing thereunder and, accordingly,
each Letter of Credit shall constitute usage of the Revolving Credit Commitment
of each Lender pro rata in an amount equal to its Percentage of the L/C
Obligations then outstanding.
(b) Applications. At any time before the Revolving Credit Termination
Date, the L/C Issuer shall, at the request of the Borrower, issue one or more
Letters of Credit in U.S. Dollars, in a form satisfactory to the L/C Issuer,
with expiration dates no later than the earlier of 12 months from the date of
issuance (or which are cancelable not later than 12 months from the date of
issuance and each renewal) or five (5) days prior to the Revolving Credit
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of an application duly executed by the Borrower for the relevant Letter
of Credit in the form then customarily prescribed by the L/C Issuer for the
Letter of Credit requested (each an "Application"). Notwithstanding anything
contained in any Application to the contrary: (i) the Borrower shall pay fees in
connection with each Letter of Credit as set forth in Section 2.1 hereof, (ii)
except as otherwise provided in Section 1.9 hereof, before the occurrence of an
Event of Default, the L/C Issuer will not call for the funding by the Borrower
of any amount under a Letter of Credit before being presented with a drawing
thereunder, and (iii) if the L/C Issuer is not timely reimbursed for the amount
of any drawing under a Letter of Credit on the date such drawing is paid, the
Borrower's obligation to reimburse the L/C Issuer for the amount of such drawing
shall bear interest (which the Borrower hereby promises to pay) from and after
the date such drawing is paid at a rate per annum equal to the sum of the
Applicable Margin plus the Base Rate from time to time in effect (computed on
the basis of a year of 360 days, and the actual number of days elapsed). If the
L/C Issuer issues any Letter of Credit with an expiration date that is
automatically extended unless the L/C Issuer gives notice that the expiration
date will not so extend beyond its then scheduled expiration date, unless the
Required Lenders instruct the L/C Issuer otherwise, the L/C Issuer will give
such notice of non-renewal before the time necessary to prevent such automatic
extension if before such required notice date: (i) the expiration date of such
Letter of Credit if so extended would be after the Revolving Credit Termination
Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) a
Default or an Event of Default exists and the Administrative Agent, at the
request or with the consent of the Required Lenders, has given the L/C Issuer
instructions not to so permit the extension of the expiration date of such
Letter of Credit. The L/C Issuer agrees to issue amendments to the Letter(s) of
Credit increasing the amount, or extending the expiration date, thereof at the
request of the Borrower subject to the conditions of Section 7 hereof and the
other terms of this Section 1.2.
(c) The Reimbursement Obligations. Subject to Section 1.2(b) hereof, the
obligation of the Borrower to reimburse the L/C Issuer for all drawings under a
Letter of Credit (a "Reimbursement Obligation") shall be governed by the
Application related to such Letter of Credit, except that reimbursement shall be
made by no later than 12:00 Noon (Chicago time) on the date when each drawing is
to be paid in immediately available funds at the Administrative Agent's
principal office in Chicago, Illinois or such other office as the Administrative
Agent may designate in writing to the Borrower (who shall thereafter cause to be
distributed to the L/C
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Issuer such amount(s) in like funds). If the Borrower does not make any such
reimbursement payment on the date due and the Participating Lenders fund their
participations therein in the manner set forth in Section 1.2(d) below, then all
payments thereafter received by the Administrative Agent in discharge of any of
the relevant Reimbursement Obligations shall be distributed in accordance with
Section 1.2(d) below.
(d) The Participating Interests. Each Lender (other than the Lender acting
as L/C Issuer in issuing the relevant Letter of Credit), by its acceptance
hereof, severally agrees to purchase from the L/C Issuer, and the L/C Issuer
hereby agrees to sell to each such Lender (a "Participating Lender"), an
undivided percentage participating interest (a "Participating Interest"), to the
extent of its Percentage, in each Letter of Credit issued by, and each
Reimbursement Obligation owed to, the L/C Issuer. Upon any failure by the
Borrower to pay any Reimbursement Obligation at the time required on the date
the related drawing is to be paid, as set forth in Section 1.2(c) above, or if
the L/C Issuer is required at any time to return to the Borrower or to a
trustee, receiver, liquidator, custodian or other Person any portion of any
payment of any Reimbursement Obligation, each Participating Lender shall, not
later than the Business Day it receives a certificate in the form of Exhibit A
hereto from the L/C Issuer (with a copy to the Administrative Agent) to such
effect, if such certificate is received before 1:00 p.m. (Chicago time), or not
later than 1:00 p.m. (Chicago time) the following Business Day, if such
certificate is received after such time, pay to the Administrative Agent for the
account of the L/C Issuer an amount equal to such Participating Lender's
Percentage of such unpaid or recaptured Reimbursement Obligation together with
interest on such amount accrued from the date the related payment was made by
the L/C Issuer to the date of such payment by such Participating Lender at a
rate per annum equal to: (i) from the date the related payment was made by the
L/C Issuer to the date two (2) Business Days after payment by such Participating
Lender is due hereunder, the Federal Funds Rate for each such day and (ii) from
the date two (2) Business Days after the date such payment is due from such
Participating Lender to the date such payment is made by such Participating
Lender, the Base Rate in effect for each such day. Each such Participating
Lender shall thereafter be entitled to receive its Percentage of each payment
received in respect of the relevant Reimbursement Obligation and of interest
paid thereon, with the L/C Issuer retaining its Percentage thereof as a Lender
hereunder. The several obligations of the Participating Lenders to the L/C
Issuer under this Section 1.3 shall be absolute, irrevocable, and unconditional
under any and all circumstances whatsoever and shall not be subject to any
set-off, counterclaim or defense to payment which any Participating Lender may
have or have had against the Borrower, the L/C Issuer, the Administrative Agent,
any Lender or any other Person whatsoever. Without limiting the generality of
the foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of any Revolving Credit Commitment of
any Lender, and each payment by a Participating Lender under this Section 1.2
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Indemnification. The Participating Lenders shall, to the extent of
their respective Percentages, indemnify the L/C Issuer (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the L/C Issuer's gross negligence or willful
misconduct) that the L/C Issuer may suffer or incur in connection with any
Letter of Credit issued by it. The
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obligations of the Participating Lenders under this Section 1.2(e) and all other
parts of this Section 1.2 shall survive termination of this Agreement and of all
Applications, Letters of Credit, and all drafts and other documents presented in
connection with drawings thereunder.
(f) Manner of Requesting a Letter of Credit. The Borrower shall provide at
least five (5) Business Days' advance written notice to the Administrative Agent
of each request for the issuance of a Letter of Credit, such notice in each case
to be accompanied by an Application for such Letter of Credit properly completed
and executed by the Borrower and, in the case of an extension or an increase in
the amount of a Letter of Credit, a written request therefor, in a form
acceptable to the Administrative Agent and the L/C Issuer, in each case,
together with the fees called for by this Agreement. The Administrative Agent
shall promptly notify the L/C Issuer of the Administrative Agent's receipt of
each such notice and the L/C Issuer shall promptly notify the Administrative
Agent and the Lenders of the issuance of the Letter of Credit so requested.
Section 1.3. Applicable Interest Rates. (a) Base Rate Loans. Each Base
Rate Loan made or maintained by a Lender shall bear interest during each
Interest Period it is outstanding (computed on the basis of a year of 360 days
and the actual days elapsed) on the unpaid principal amount thereof from the
date such Loan is advanced or continued, or created by conversion from a
Eurocurrency Loan, until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of the Applicable Margin plus the Base Rate from
time to time in effect, payable on the last day of its Interest Period and at
maturity (whether by acceleration or otherwise).
"Base Rate" means for any day the greater of: (i) the rate of interest
announced or otherwise established by the Administrative Agent from time to time
as its prime commercial rate as in effect on such day, with any change in the
Base Rate resulting from a change in said prime commercial rate to be effective
as of the date of the relevant change in said prime commercial rate (it being
acknowledged and agreed that such rate may not be the Administrative Agent's
best or lowest rate) and (ii) the sum of (x) the rate determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the rates per annum quoted to the Administrative
Agent at approximately 10:00 a.m. (Chicago time) (or as soon thereafter as is
practicable) on such day (or, if such day is not a Business Day, on the
immediately preceding Business Day) by two or more Federal funds brokers
selected by the Administrative Agent for sale to the Administrative Agent at
face value of Federal funds in the secondary market in an amount equal or
comparable to the principal amount owed to the Administrative Agent for which
such rate is being determined, plus (y) 1/2 of 1%.
(b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by a
Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced or
continued, or created by conversion from a Base Rate Loan, until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum of
the Applicable Margin plus the Adjusted LIBOR applicable for such Interest
Period, payable on the last day of the Interest Period and at maturity (whether
by acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the
commencement of such Interest Period.
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"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a rate
per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
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1 - Eurocurrency Reserve Percentage
"Eurocurrency Reserve Percentage" means, for any Borrowing of Eurocurrency
Loans, the daily average for the applicable Interest Period of the maximum rate,
expressed as a decimal, at which reserves (including, without limitation, any
supplemental, marginal, and emergency reserves) are imposed during such Interest
Period by the Board of Governors of the Federal Reserve System (or any
successor) on "eurocurrency liabilities", as defined in such Board's Regulation
D (or in respect of any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Loans is determined or any
category of extensions of credit or other assets that include loans by
non-United States offices of any Lender to United States residents), subject to
any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this
definition, the Eurocurrency Loans shall be deemed to be "eurocurrency
liabilities" as defined in Regulation D without benefit or credit for any
prorations, exemptions or offsets under Regulation D.
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic
average of the rates of interest per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) at which deposits in U.S. Dollars or the relevant
Alternative Currency, as appropriate, in immediately available funds are offered
to the Administrative Agent at 11:00 a.m. (London, England time) two (2)
Business Days before the beginning of such Interest Period by three (3) or more
major banks in the interbank eurodollar market selected by the Administrative
Agent for delivery on the first day of and for a period equal to such Interest
Period and in an amount equal or comparable to the principal amount of the
Eurocurrency Loan scheduled to be made by the Administrative Agent as part of
such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the appropriate Telerate Page for such
currency as of 11:00 a.m. (London, England time) on the day two (2) Business
Days before the commencement of such Interest Period.
"Telerate Page" means the display designated on the Telerate Service (or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for the applicable currency).
(c) Rate Determinations. The Administrative Agent shall determine each
interest rate applicable to the Loans and the Reimbursement Obligations
hereunder, and its determination thereof shall be conclusive and binding except
in the case of manifest error. The Original Dollar
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Amount of each Eurocurrency Loan denominated in an Alternative Currency shall be
determined or redetermined, as applicable, effective as of the first day of each
Interest Period applicable to such Loan.
Section 1.4. Minimum Borrowing Amounts; Maximum Eurocurrency Loans. Each
Borrowing of Base Rate Loans shall be in an amount not less than $500,000 and in
integral multiples of $100,000. Each Borrowing of Eurocurrency Loans advanced,
continued or converted shall be in an amount not less than an Original Dollar
Amount of $1,000,000 and in integral multiples of 100,000 units of the relevant
currency as would have the Original Dollar Amount most closely approximately
$100,000 or an integral multiple thereof. Without the Administrative Agent's
consent, there shall not be more than eight (8) Borrowings of Eurocurrency Loans
outstanding at any one time.
Section 1.5. Manner of Borrowing Loans and Designating Applicable Interest
Rates. (a) Notice to the Administrative Agent. The Borrower shall give notice to
the Administrative Agent by no later than 10:00 a.m. (Chicago time): (i) at
least four (4) Business Days before the date the Borrower requests the Lenders
to advance a Borrowing of Eurocurrency Loans denominated in an Alternative
Currency, (ii) at least three (3) Business Days before the date on which the
Borrower requests the Lenders to advance a Borrowing of Eurocurrency Loans and
(iii) on the date the Borrower requests the Lenders to advance a Borrowing of
Base Rate Loans. The Loans included in each Borrowing shall bear interest
initially at the type of rate specified in such notice of a new Borrowing.
Thereafter, subject to the terms and conditions hereof, the Borrower may from
time to time elect to change or continue the type of interest rate borne by each
Borrowing or, subject to the minimum amount requirement for each outstanding
Borrowing contained in Section 1.4, a portion thereof, as follows: (i) if such
Borrowing is of Eurocurrency Loans, on the last day of the Interest Period
applicable thereto, the Borrower may continue part or all of such Borrowing as
Eurocurrency Loans or, if such Eurocurrency Loan is denominated in U.S. Dollars,
convert part or all of such Borrowing into Base Rate Loans or (ii) if such
Borrowing is of Base Rate Loans, on any Business Day, the Borrower may convert
all or part of such Borrowing into Eurocurrency Loans denominated in U.S.
Dollars for an Interest Period or Interest Periods specified by the Borrower.
The Borrower shall give all such notices requesting the advance, continuation or
conversion of a Borrowing to the Administrative Agent by telephone or telecopy
(which notice shall be irrevocable once given and, if by telephone, shall be
promptly confirmed in writing), substantially in the form attached hereto as
Exhibit B (Notice of Borrowing) or Exhibit C (Notice of
Continuation/Conversion), as applicable, or in such other form acceptable to the
Administrative Agent. Notice of the continuation of a Borrowing of Eurocurrency
Loans denominated in U.S. Dollars for an additional Interest Period or of the
conversion of part or all of a Borrowing of Base Rate Loans into Eurocurrency
Loans denominated in U.S. Dollars must be given by no later than 10:00 a.m.
(Chicago time) at least three (3) Business Days before the date of the requested
continuation or conversion. Notices of the continuation of a Borrowing of
Eurocurrency Loans denominated in an Alternative Currency must be given no later
than 10:00 a.m. (Chicago time) at least four (4) Business Day before the
requested continuation. All such notices concerning the advance, continuation or
conversion of a Borrowing shall specify the date of the requested advance,
continuation or conversion of a Borrowing (which shall be a Business Day), the
amount of the requested Borrowing to be advanced, continued or
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converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurocurrency Loans, the
currency and Interest Period applicable thereto. The Borrower agrees that the
Administrative Agent may rely on any such telephonic or telecopy notice given by
any person the Administrative Agent in good faith believes is an Authorized
Representative without the necessity of independent investigation, and in the
event any such notice by telephone conflicts with any written confirmation such
telephonic notice shall govern if the Administrative Agent has acted in reliance
thereon.
(b) Notice to the Lenders. The Administrative Agent shall give prompt
telephonic or telecopy notice to each Lender of any notice from the Borrower
received pursuant to Section 1.5(a) above and, if such notice requests the
Lenders to make Eurocurrency Loans, the Administrative Agent shall give notice
to the Borrower and each Lender by like means of the interest rate applicable
thereto and if such Borrowing is denominated in an Alternative Currency, of the
Original Dollar Amount thereof, promptly after the Administrative Agent has made
such determination.
(c) Borrower's Failure to Notify; Automatic Continuations and Conversions.
Any outstanding Borrowing of Base Rate Loans shall automatically be continued
for an additional Interest Period on the last day of its then current Interest
Period unless the Borrower has notified the Administrative Agent within the
period required by Section 1.5(a) that the Borrower intends to convert such
Borrowing, subject to Section 7.1 hereof, into a Borrowing of Eurocurrency Loans
or such Borrowing is prepaid in accordance with Section 1.8(a). If the Borrower
fails to give notice pursuant to Section 1.5(a) above of the continuation or
conversion of any outstanding principal amount of a Borrowing of Eurocurrency
Loans denominated in U.S. Dollars before the last day of its then current
Interest Period within the period required by Section 1.5(a) or, whether or not
such notice has been given, one or more of the conditions set forth in Section
7.1 for the continuation or conversion of a Borrowing of Eurocurrency Loans
would not be satisfied, and such Borrowing is not prepaid in accordance with
Section 1.8(a), such Borrowing shall automatically be converted into a Borrowing
of Base Rate Loans. If the Borrower fails to give notice pursuant to Section
1.5(a) above of the continuation of any outstanding principal amount of a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency before
the last day of its then current Interest Period within the period required by
Section 1.5(a) and has not notified the Administrative Agent within the period
required by Section 1.8(a) that it intends to prepay such Borrowing, such
Borrowing shall automatically be continued as a Borrowing of Eurocurrency Loans
in the same Alternative Currency with an Interest Period of one month, subject
to Section 6.2 hereof, including the application of Section 1.3 and of the
restrictions contained in the definition of Interest Period.
(d) Disbursement of Loans. Not later than 1:00 p.m. (Chicago time) on the
date of any requested advance of a new Borrowing, subject to Section 7 hereof,
each Lender shall make available its Loan comprising part of such Borrowing in
funds immediately available (or, in the case of a Borrowing denominated in an
Alternative Currency, in such funds as are then customary for the settlement of
international transactions in such currency) at the principal office of the
Administrative Agent in Chicago, Illinois. The Administrative Agent shall make
the proceeds of each new Borrowing available to the Borrower at the
Administrative Agent's principal office in Chicago, Illinois, by depositing such
proceeds to the credit of the Borrower's
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operating account maintained with the Administrative Agent or as the Borrower
and the Administrative Agent may otherwise agree.
(e) Administrative Agent Reliance on Lender Funding. Unless the
Administrative Agent shall have been notified by a Lender prior to (or, in the
case of a Borrowing of Base Rate Loans, by 1:00 p.m. (Chicago time) on) the date
on which such Lender is scheduled to make payment to the Administrative Agent of
the proceeds of a Loan (which notice shall be effective upon receipt) that such
Lender does not intend to make such payment, the Administrative Agent may assume
that such Lender has made such payment when due and the Administrative Agent may
in reliance upon such assumption (but shall not be required to) make available
to the Borrower the proceeds of the Loan to be made by such Lender and, if any
Lender has not in fact made such payment to the Administrative Agent, such
Lender shall, on demand, pay to the Administrative Agent the amount made
available to the Borrower attributable to such Lender together with interest
thereon in respect of each day during the period commencing on the date such
amount was made available to the Borrower and ending on (but excluding) the date
such Lender pays such amount to the Administrative Agent at a rate per annum
equal to: (i) from the date the related advance was made by the Administrative
Agent to the date two (2) Business Days after payment by such Lender is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date two
(2) Business Days after the date such payment is due from such Lender to the
date such payment is made by such Lender, the Base Rate in effect for each such
day. If such amount is not received from such Lender by the Administrative Agent
immediately upon demand, the Borrower will, on demand, repay to the
Administrative Agent the proceeds of the Loan attributable to such Lender with
interest thereon at a rate per annum equal to the interest rate applicable to
the relevant Loan, but without such payment being considered a payment or
prepayment of a Loan under Section 1.12 hereof so that the Borrower will have no
liability under such Section with respect to such payment.
Section 1.6. Interest Periods. As provided in Section 1.5(a) and 1.14
hereof, at the time of each request to advance, continue or create by conversion
a Borrowing of Eurocurrency Loans or Swing Loans, the Borrower shall select an
Interest Period applicable to such Loans from among the available options. The
term "Interest Period" means the period commencing on the date a Borrowing of
Loans is advanced, continued or created by conversion and ending: (a) in the
case of Base Rate Loans, on the last day of the calendar quarter (i.e., the last
day of March, June, September or December, as applicable) in which such
Borrowing is advanced, continued or created by conversion (or on the last day of
the following calendar quarter if such Loan is advanced, continued or created by
conversion on the last day of a calendar quarter), (b) in the case of a
Eurocurrency Loan, 1, 2, 3 or 6 months thereafter, and (c) in the case of a
Swing Loan, on the date 1 to 7 days thereafter as mutually agreed to by the
Borrower and the Administrative Agent; provided, however, that:
(i) any Interest Period for a Borrowing of Revolving Loans or Swing
Loans consisting of Base Rate Loans that otherwise would end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date;
(ii) no Interest Period with respect to any portion of the Loans
shall extend beyond the Revolving Credit Termination Date;
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(iii) whenever the last day of any Interest Period would otherwise
be a day that is not a Business Day, the last day of such Interest Period
shall be extended to the next succeeding Business Day, provided that, if
such extension would cause the last day of an Interest Period for a
Borrowing of Eurocurrency Loans to occur in the following calendar month,
the last day of such Interest Period shall be the immediately preceding
Business Day; and
(iv) for purposes of determining an Interest Period for a Borrowing
of Eurocurrency Loans, a month means a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next
calendar month; provided, however, that if there is no numerically
corresponding day in the month in which such an Interest Period is to end
or if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period is to end.
Section 1.7. Maturity of Loans. Each Revolving Loan and Swing Loan, both
for principal and interest not sooner paid, shall mature and become due and
payable by the Borrower on the Revolving Credit Termination Date.
Section 1.8. Prepayments. (a) Optional. The Borrower may prepay in whole
or in part (but, if in part, then: (i) if such Borrowing is of Base Rate Loans,
in an amount not less than $500,000, (ii) if such Borrowing is of Eurocurrency
Loans denominated in U.S. Dollars, in an amount not less than $500,000, (iii) if
such is of Eurocurrency Loans denominated in an Alternative Currency, an amount
for which the U.S. Dollar Equivalent is not less than $500,000, and (iv) in each
case, in an amount such that the minimum amount required for a Borrowing
pursuant to Section 1.4 and 1.14 hereof remains outstanding) any Borrowing of
Eurocurrency Loans at any time upon (i) if such Loan is denominated in U.S.
Dollars, three (3) Business Days prior notice by the Borrower to the
Administrative Agent, (ii) if such Loan is denominated in an Alternative
Currency, four (4) Business Days prior notice by the Borrower to the
Administrative Agent, or (iii) in the case of a Borrowing of Base Rate Loans,
notice delivered by the Borrower to the Administrative Agent no later than 10:00
a.m. (Chicago time) on the date of prepayment (or, in any case, such shorter
period of time then agreed to by the Administrative Agent), such prepayment to
be made by the payment of the principal amount to be prepaid and, in the case of
any Eurocurrency Loans or Swing Loans, accrued interest thereon to the date
fixed for prepayment plus any amounts due the Lenders under Section 1.11 hereof.
(b) Mandatory. The Borrower shall, on each date the Revolving Credit
Commitments are reduced pursuant to Section 1.12 hereof, prepay the Revolving
Loans, Swing Loans, and, if necessary, prefund the L/C Obligations by the
amount, if any, necessary to reduce the sum of the aggregate principal amount of
Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount
to which the Revolving Credit Commitments have been so reduced.
(c) Application. Unless the Borrower otherwise directs, prepayments of
Loans under this Section 1.8(b) shall be applied first to Borrowings of Base
Rate Loans until payment in full thereof with any balance applied to Borrowings
of Eurocurrency Loans in the order in which their Interest Periods expire. Each
prepayment of Loans under this Section 1.8(b) shall be made
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by the payment of the principal amount to be prepaid and, in the case of any
Eurocurrency Loans or Swing Loans, accrued interest thereon to the date of
prepayment together with any amounts due the Lenders under Section 1.11 hereof.
Each prefunding of L/C Obligations shall be made in accordance with Section 9.4
hereof.
Section 1.9. Default Rate. Notwithstanding anything to the contrary
contained herein, while any Event of Default exists or after acceleration, the
Borrower shall pay interest (after as well as before entry of judgment thereon
to the extent permitted by law) on the principal amount of all Loans and
Reimbursement Obligations, and letter of credit fees at a rate per annum equal
to:
(a) for any Base Rate Loan or any Swing Loan bearing interest based
on the Base Rate, the sum of 2.0% plus the Applicable Margin plus the Base
Rate from time to time in effect;
(b) for any Eurocurrency Loan denominated in U.S. Dollars or any
Swing Loan bearing interest at the Administrative Agent's Quoted Rate, the
sum of 2.0% plus the rate of interest in effect thereon at the time of
such default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of 2.0% plus the
Applicable Margin for Base Rate Loans plus the Base Rate from time to time
in effect;
(c) for any Eurocurrency Loan denominated in an Alternative
Currency, the sum of two percent (2%) plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum equal to the sum
of the Applicable Margin for Eurocurrency Loans plus two percent (2%) plus
the rate of interest per annum as determined by the Administrative Agent
(rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) at which overnight or weekend deposits (or, if such
amount due remains unpaid more than three (3) Business Days, then for such
other period of time not longer than one (1) month as the Administrative
Agent may elect in its absolute discretion) of the relevant Alternative
Currency for delivery in immediately available and freely transferable
funds would be offered by the Administrative Agent to major banks in the
interbank market upon request of such major banks for the applicable
period as determined above and in an amount comparable to the unpaid
principal amount of any such Eurocurrency Loan (or, if the Administrative
Agent is not placing deposits in such currency in the interbank market,
then the Administrative Agent's cost of funds in such currency for such
period); and
(d) for any Reimbursement Obligation, the sum of 2.0% plus the
amounts due under Section 1.2 with respect to such Reimbursement
Obligation; and
(e) for any Letter of Credit, the sum of 2.0% plus the letter of
credit fee due under Section 2.1 with respect to such Letter of Credit;
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provided, however, that in the absence of acceleration, any adjustments pursuant
to this Section shall be made at the election of the Administrative Agent,
acting at the request or with the consent of the Required Lenders, with written
notice to the Borrower. While any Event of Default exists or after acceleration,
interest shall be paid on demand of the Administrative Agent at the request or
with the consent of the Required Lenders.
Section 1.10. The Notes. (a) The Revolving Loans made to the Borrower by a
Lender shall be evidenced by a single promissory note of the Borrower issued to
such Lender in the form of Exhibit D-1 hereto. Each such promissory note is
hereinafter referred to as a "Revolving Note" and collectively such promissory
notes are referred to as the "Revolving Notes."
(b) The Swing Loans made to the Borrower by the Administrative Agent shall
be evidenced by a single promissory note of the Borrower issued to the
Administrative Agent in the form of Exhibit D-2 hereto. Such promissory note is
hereinafter referred to as the "Swing Note."
(c) Each Lender shall record on its books and records or on a schedule to
its appropriate Note the amount of each Loan advanced, continued or converted by
it, all payments of principal and interest and the principal balance from time
to time outstanding thereon, the type of such Loan, and, for any Eurocurrency
Loan or Swing Loan, the Interest Period, currency and the interest rate
applicable thereto. The record thereof, whether shown on such books and records
of a Lender or on a schedule to the relevant Note, shall be prima facie evidence
as to all such matters; provided, however, that the failure of any Lender to
record any of the foregoing or any error in any such record shall not limit or
otherwise affect the obligation of the Borrower to repay all Loans made to it
hereunder together with accrued interest thereon. At the request of any Lender
and upon such Lender tendering to the Borrower the appropriate Note to be
replaced, the Borrower shall furnish a new Note to such Lender to replace any
outstanding Note.
Section 1.11. Funding Indemnity. If any Lender shall incur any loss, cost
or expense (including, without limitation, any loss of profit, and any loss,
cost or expense incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by such Lender to fund or maintain any
Eurocurrency Loan or Swing Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender) as a result of:
(a) any payment, prepayment or conversion of a Eurocurrency Loan or
Swing Loan on a date other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of
Section 7 or otherwise) by the Borrower to borrow or continue a
Eurocurrency Loan or Swing Loan, or to convert a Base Rate Loan into a
Eurocurrency Loan or Swing Loan, on the date specified in a notice given
pursuant to Section 1.5(a) or 1.14 hereof,
(c) any failure by the Borrower to make any payment of principal on
any Eurocurrency Loan or Swing Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Eurocurrency Loan or Swing
Loan as a result of the occurrence of any Event of Default hereunder,
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then, upon the demand of such Lender, the Borrower shall pay to such Lender such
amount as will reimburse such Lender for such loss, cost or expense. If any
Lender makes such a claim for compensation, it shall provide to the Borrower,
with a copy to the Administrative Agent, a certificate setting forth the amount
of such loss, cost or expense in reasonable detail (including an explanation of
the basis for and the computation of such loss, cost or expense) and the amounts
shown on such certificate shall be deemed prime facie correct.
Section 1.12. Revolving Credit Commitment Terminations. (a) The Borrower
shall have the right at any time and from time to time, upon five (5) Business
Days prior written notice to the Administrative Agent (or such shorter period of
time agreed to by the Administrative Agent), to terminate the Revolving Credit
Commitments without premium or penalty and in whole or in part, any partial
termination to be (i) in an amount not less than $1,000,000 and (ii) allocated
ratably among the Lenders in proportion to their respective Percentages,
provided that the Revolving Credit Commitments may not be reduced to an amount
less than the sum of the Original Dollar Amount of Revolving Loans, Swing Loans,
and L/C Obligations then outstanding. Any termination of the Revolving Credit
Commitments below the L/C Sublimit or Swing Line Sublimit then in effect shall
reduce the L/C Sublimit and Swing Line Sublimit, as applicable, by a like
amount. The Administrative Agent shall give prompt notice to each Lender of any
such termination of the Revolving Credit Commitments.
(b) Any termination of the Revolving Credit Commitments pursuant to this
Section 1.12 may not be reinstated.
Section 1.13. Substitution of Lenders. In the event (a) the Borrower
receives a claim from any Lender for compensation under Section 10.3 or 13.1
hereof, (b) the Borrower receives notice from any Lender of any illegality
pursuant to Section 10.1 hereof, (c) any Lender is in default in any material
respect with respect to its obligations under the Loan Documents, or (d) a
Lender fails to consent to an amendment or waiver requested under Section 13.13
hereof at a time when the Required Lenders have approved such amendment or
waiver (any such Lender referred to in clause (a), (b), (c), or (d) above being
hereinafter referred to as an "Affected Lender"), the Borrower may, in addition
to any other rights the Borrower may have hereunder or under applicable law,
require, at its expense, any such Affected Lender to assign, at par plus accrued
interest and fees, without recourse, all of its interest, rights, and
obligations hereunder (including its Revolving Credit Commitment and the Loans
and participation interests in Letters of Credit and other amounts at any time
owing to it hereunder and the other Loan Documents) to a commercial bank or
other financial institution specified by the Borrower, provided that (i) such
assignment shall not conflict with or violate any law, rule or regulation or
order of any court or other governmental authority, (ii) the Borrower shall have
received the written consent of the Administrative Agent, which consent shall
not be unreasonably withheld, to such assignment, (iii) the Borrower shall have
paid to the Affected Lender all monies (together with amounts due such Affected
Lender under Section 1.11 hereof as if the Loans owing to it were prepaid rather
than assigned) other than such principal owing to it hereunder, and (iv) the
assignment is entered into in accordance with the other requirements of Section
13.12 hereof (provided any assignment fees and reimbursable expenses due
thereunder shall be paid by the Borrower).
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Section 1.14. Swing Loans. (a) Generally. Subject to the terms and
conditions hereof, as part of the Revolving Credit, the Administrative Agent
agrees to make loans to the Borrower under the Swing Line (individually a "Swing
Loan" and collectively the "Swing Loans") which shall not in the aggregate at
any time outstanding exceed the Swing Line Sublimit. The Swing Loans may be
availed of the Borrower from time to time and borrowings thereunder may be
repaid and used again during the period ending on the Revolving Credit
Termination Date; provided that each Swing Loan must be repaid on the last day
of the Interest Period applicable thereto. Each Swing Loan shall be in a minimum
amount of $500,000 or such greater amount which is an integral multiple of
$100,000.
(b) Interest on Swing Loans. Each Swing Loan shall bear interest until
maturity (whether by acceleration or otherwise) at a rate per annum equal to (i)
the sum of the Base Rate plus the Applicable Margin for Base Rate Loans under
the Revolving Credit as from time to time in effect (computed on the basis of a
year of 365 or 366 days, as the case may be, for the actual number of days
elapsed) or (ii) the Administrative Agent's Quoted Rate (computed on the basis
of a year of 360 days for the actual number of days elapsed). Interest on each
Swing Loan shall be due and payable on the last day of its Interest Period and
at maturity (whether by acceleration or otherwise).
(c) Requests for Swing Loans. The Borrower shall give the Administrative
Agent prior notice (which may be written or oral) no later than 12:00 Noon
(Chicago time) on the date upon which a Borrower requests that any Swing Loan be
made, of the amount and date of such Swing Loan, and the Interest Period
requested therefor. Within 30 minutes after receiving such notice, the
Administrative Agent shall in its discretion quote an interest rate to the
Borrower at which the Administrative Agent would be willing to make such Swing
Loan available to the Borrower for the Interest Period so requested (the rate so
quoted for a given Interest Period being herein referred to as "Administrative
Agent's Quoted Rate"). The Borrower acknowledges and agrees that the interest
rate quote is given for immediate and irrevocable acceptance. If the Borrower
does not so immediately accept the Administrative Agent's Quoted Rate for the
full amount requested by the Borrower for such Swing Loan, the Administrative
Agent's Quoted Rate shall be deemed immediately withdrawn and such Swing Loan
shall bear interest at the rate per annum determined by adding the Applicable
Margin for Base Rate Loans under the Revolving Credit to the Base Rate as from
time to time in effect. Subject to the terms and conditions hereof, the proceeds
of such Swing Loan shall be made available to the Borrower on the date so
requested at the offices of the Administrative Agent in Chicago, Illinois, by
depositing such proceeds to the credit of the Borrower's operating account
maintained with the Administrative Agent or as the Borrower and the
Administrative Agent may otherwise agree. Anything contained in the foregoing to
the contrary notwithstanding, (i) the obligation of the Administrative Agent to
make Swing Loans shall be subject to all of the terms and conditions of this
Agreement and (ii) the Administrative Agent shall not be obligated to make more
than one Swing Loan during any one day.
(d) Refunding Loans. In its sole and absolute discretion, the
Administrative Agent may at any time, on behalf of the Borrower (which hereby
irrevocably authorizes the Administrative Agent to act on its behalf for such
purpose) and with notice to the Borrower, request each Lender to make a
Revolving Loan in the form of a Base Rate Loan in an amount equal to such
Lender's
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Percentage of the amount of the Swing Loans outstanding on the date such notice
is given. Unless an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the Borrower, regardless of the existence of any other
Event of Default, each Lender shall make the proceeds of its requested Revolving
Loan available to the Administrative Agent, in immediately available funds, at
the Administrative Agent's principal office in Chicago, Illinois, before 12:00
Noon (Chicago time) on the Business Day following the day such notice is given.
The proceeds of such Borrowing of Revolving Loans shall be immediately applied
to repay the outstanding Swing Loans.
(e) Participations. If any Lender refuses or otherwise fails to make a
Revolving Loan when requested by the Administrative Agent pursuant to Section
1.14(d) above (because an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the Borrower or otherwise), such Lender will, by the time
and in the manner such Revolving Loan was to have been funded to the
Administrative Agent, purchase from the Administrative Agent an undivided
participating interest in the outstanding Swing Loans in an amount equal to its
Percentage of the aggregate principal amount of Swing Loans that were to have
been repaid with such Revolving Loans. Each Lender that so purchases a
participation in a Swing Loan shall thereafter be entitled to receive its
Percentage of each payment of principal received on the Swing Loan and of
interest received thereon accruing from the date such Lender funded to the
Administrative Agent its participation in such Loan. The several obligations of
the Lenders under this Section shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever and shall not be subject to any
set-off, counterclaim or defense to payment which any Lender may have or have
had against the Borrower, any other Lender or any other Person whatever. Without
limiting the generality of the foregoing, such obligations shall not be affected
by any Default or Event of Default or by any reduction or termination of the
Revolving Credit Commitment of any Lender, and each payment made by a Lender
under this Section shall be made without any offset, abatement, withholding or
reduction whatsoever.
Section 1.15. Increase in Revolving Credit Commitments. The Borrower may,
on any Business Day prior to the Revolving Credit Termination Date, with the
written consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), increase the aggregate amount of the
Revolving Credit Commitments by delivering a Commitment Amount Increase Request
at least five (5) Business Days prior to the desired effective date of such
increase (the "Commitment Amount Increase") identifying an additional Lender (or
additional Revolving Credit Commitments for existing Lender(s)) and the amount
of its Revolving Credit Commitment (or additional amount of its Revolving Credit
Commitment(s)); provided, however, that (i) any increase of the aggregate amount
of the Revolving Credit Commitments to an amount in excess of $125,000,000 will
require the approval of all the Lenders, and (ii) any increase of the aggregate
amount of the Revolving Credit Commitments shall be in an amount not less than
$5,000,000. The effective date of the Commitment Amount Increase shall be agreed
upon by the Borrower and the Administrative Agent. Upon the effectiveness
thereof, the new Lender(s) (or, if applicable, existing Lender(s)) shall advance
Loans in an amount sufficient such that after giving effect to its Loans each
Lender shall have outstanding its pro rata share of Loans. It shall be a
condition to such effectiveness that (i) no Eurocurrency Loans be outstanding on
the date of such effectiveness and (ii) the Borrower shall not have terminated
any portion of the Revolving Credit Commitments pursuant of Section 1.12
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hereof. The Borrower agrees to pay any reasonable expenses of the Administrative
Agent relating to any Commitment Amount Increase. Notwithstanding anything
herein to the contrary, no Lender shall have any obligation to increase its
Revolving Credit Commitment and no Lender's Revolving Credit Commitment shall be
increased without its consent thereto, and each Lender may at its option,
unconditionally and without cause, decline to increase its Revolving Credit
Commitment.
SECTION 2. FEES.
Section 2.1. Fees. (a) Revolving Credit Commitment Fee. The Borrower shall
pay to the Administrative Agent for the ratable account of the Lenders in
accordance with their Percentages a commitment fee at the rate per annum equal
to the Applicable Margin (computed on the basis of a year of 360 days and the
actual number of days elapsed) on the average daily Unused Revolving Credit
Commitments. Such commitment fee shall be payable quarterly in arrears on the
last day of each March, June, September, and December in each year (commencing
on the first such date occurring after the date hereof) and on the Revolving
Credit Termination Date, unless the Revolving Credit Commitments are terminated
in whole on an earlier date, in which event the commitment fee for the period to
the date of such termination in whole shall be paid on the date of such
termination.
(b) Letter of Credit Fees. On the date of issuance or extension, or
increase in the amount, of any Letter of Credit pursuant to Section 1.3 hereof,
the Borrower shall pay to the L/C Issuer for its own account a fronting fee
equal to 0.125% of the face amount of (or of the increase in the face amount of)
such Letter of Credit. Quarterly in arrears, on the last day of each March,
June, September, and December, commencing on the first such date occurring after
the date hereof, the Borrower shall pay to the Administrative Agent, for the
ratable benefit of the Lenders in accordance with their Percentages, a letter of
credit fee at a rate per annum equal to the Applicable Margin (computed on the
basis of a year of 360 days and the actual number of days elapsed) in effect
during each day of such quarter applied to the daily average face amount of
Letters of Credit outstanding during such quarter. In addition, the Borrower
shall pay to the L/C Issuer for its own account the L/C Issuer's standard
issuance, drawing, negotiation, amendment, and other administrative fees for
each Letter of Credit as established by the L/C Issuer from time to time.
(c) Administrative Agent Fees. The Borrower shall pay to the
Administrative Agent, for its own use and benefit, the fees agreed to between
the Administrative Agent and the Borrower in a fee letter dated October 31,
2003, or as otherwise agreed to in writing between them.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
Section 3.1. Place and Application of Payments. All payments of principal
of and interest on the Loans and the Reimbursement Obligations, and of all other
Obligations payable by the Borrower under this Agreement and the other Loan
Documents, shall be made by the Borrower to the Administrative Agent by no later
than 12:00 Noon (Chicago time) on the due
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date thereof at the office of the Administrative Agent in Chicago, Illinois (or
such other location as the Administrative Agent may designate to the Borrower)
for the benefit of the Lender or Lenders entitled thereto. Any payments received
after such time shall be deemed to have been received by the Administrative
Agent on the next Business Day. All such payments shall be made (i) in U.S.
Dollars, in immediately available funds at the place of payment or (ii) in the
case amounts payable hereunder in an Alternative Currency, in such Alternative
Currency in such funds then customary for the settlement of international
transactions in such currency, in each case without set-off or counterclaim. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest on Loans and on Reimbursement
Obligations in which the Lenders have purchased Participating Interests ratably
to the Lenders and like funds relating to the payment of any other amount
payable to any Lender to such Lender, in each case to be applied in accordance
with the terms of this Agreement. If the Administrative Agent causes amounts to
be distributed to the Lenders in reliance upon the assumption that the Borrower
will make a scheduled payment and such scheduled payment is not so made, each
Lender shall, on demand, repay to the Administrative Agent the amount
distributed to such Lender together with interest thereon in respect of each day
during the period commencing on the date such amount was distributed to such
Lender and ending on (but excluding) the date such Lender repays such amount to
the Administrative Agent, at a rate per annum equal to: (i) from the date the
distribution was made to the date two (2) Business Days after payment by such
Lender is due hereunder, the Federal Funds Rate for each such day and (ii) from
the date 2 Business Days after the date such payment is due from such Lender to
the date such payment is made by such Lender, the Base Rate in effect for each
such day.
Anything contained herein to the contrary notwithstanding (including,
without limitation, Section 1.9(b) hereof), all payments and collections
received in respect of the Obligations, by the Administrative Agent or any of
the Lenders after acceleration or the final maturity of the Obligations or
termination of the Revolving Credit Commitments as a result of an Event of
Default shall be remitted to the Administrative Agent and distributed as
follows:
(a) first, to the payment of any outstanding costs and expenses
incurred by the Administrative Agent in protecting, preserving or
enforcing rights under the Loan Documents, and in any event including all
costs and expenses of a character which the Borrower has agreed to pay the
Administrative Agent under Section 13.15 hereof (such funds to be retained
by the Administrative Agent for its own account unless it has previously
been reimbursed for such costs and expenses by the Lenders, in which event
such amounts shall be remitted to the Lenders to reimburse them for
payments theretofore made to the Administrative Agent);
(b) second, to the payment of principal and interest on the Swing
Note until paid in full;
(c) third, to the payment of any outstanding interest and fees due
under the Loan Documents to be allocated pro rata in accordance with the
aggregate unpaid amounts owing to each holder thereof;
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(d) fourth, to the payment of principal on the Notes, unpaid
Reimbursement Obligations, together with amounts to be held by the
Administrative Agent as collateral security for any outstanding L/C
Obligations pursuant to Section 9.4 hereof (until the Administrative Agent
is holding an amount of cash equal to the then outstanding amount of all
such L/C Obligations), and Hedging Liability, the aggregate amount paid
to, or held as collateral security for, the Lenders and, in the case of
Hedging Liability, their Affiliates to be allocated pro rata in accordance
with the aggregate unpaid amounts owing to each holder thereof;
(e) fifth, to the payment of all other unpaid Obligations to be
allocated pro rata in accordance with the aggregate unpaid amounts owing
to each holder thereof; and
(f) finally, to the Borrower or whoever else may be lawfully
entitled thereto.
Section 3.2. Account Debit. The Borrower hereby irrevocably authorizes the
Administrative Agent to charge the Borrower's deposit account or accounts
maintained with the Administrative Agent for the amounts from time to time
necessary to pay any then due Obligations; provided that the Borrower
acknowledges and agrees that the Administrative Agent shall not be under an
obligation to do so and the Administrative Agent shall not incur any liability
to the Borrower or any other Person for the Administrative Agent's failure to do
so.
SECTION 4. GUARANTIES.
Section 4.1. Guaranties. The payment and performance of the Obligations,
Hedging Liability, and Funds Transfer and Deposit Account Liability shall at all
times be guaranteed by each direct and indirect Material Subsidiary of the
Borrower (individually a "Guarantor" and collectively the "Guarantors") pursuant
to Section 12 hereof or pursuant to one or more guaranty agreements in form and
substance acceptable to the Administrative Agent, as the same may be amended,
modified or supplemented from time to time (individually a "Guaranty" and
collectively the "Guaranties"); provided, however, that unless otherwise
required by the Administrative Agent or the Required Lenders during the
existence of any Event of Default, a Foreign Subsidiary shall not be required to
be a Guarantor hereunder if providing such Guaranty would cause a material
adverse effect on the Borrower's federal income tax liability.
Section 4.2. Further Assurances. The Borrower agrees that it shall, and
shall cause each Guarantor to, from time to time at the request of the
Administrative Agent or the Required Lenders, execute and deliver such documents
and do such acts and things as the Administrative Agent or the Required Lenders
may reasonably request in order to provide for a Guaranty as required by Section
4.1. In the event the Borrower or any Guarantor forms or acquires any other
Material Subsidiary after the date hereof, except as otherwise provided in
Section 4.1 above, the Borrower shall promptly upon such formation or
acquisition cause such newly formed or acquired Material Subsidiary to execute a
Guaranty as the Administrative Agent may then require, and the Borrower shall
also deliver to the Administrative Agent, or cause such Material Subsidiary to
deliver to the Administrative Agent, at the Borrower's cost and expense, such
other instruments, documents, certificates, and opinions reasonably required by
the Administrative Agent in connection therewith.
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SECTION 5. DEFINITIONS; INTERPRETATION.
Section 5.1. Definitions. The following terms when used herein shall have
the following meanings:
"Acquired Business" means the entity or assets acquired by the Borrower or
a Subsidiary in an Acquisition, whether before or after the date hereof.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person
(other than a Person that is a Subsidiary), or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary) provided that the
Borrower or the Subsidiary is the surviving entity.
"Adjusted LIBOR" is defined in Section 1.3(b) hereof.
"Administrative Agent" means Xxxxxx Trust and Savings Bank and any
successor pursuant to Section 11.7 hereof.
"Administrative Agent's Quoted Rate" is defined in Section 1.14(c) hereof.
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise; provided that, in any event for
purposes of this definition, any Person that owns, directly or indirectly, 5% or
more of the securities having the ordinary voting power for the election of
directors or governing body of a corporation or 5% or more of the partnership or
other ownership interest of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other Person.
"Agreement" means this Credit Agreement, as the same may be amended,
modified, restated or supplemented from time to time pursuant to the terms
hereof.
"Alternative Currency" means either of Euros or Pound Sterling, and any
other currency approved by all the Lenders, in each case for so long as such
currency is readily available to all the Lenders and is freely transferable and
freely convertible to U.S. Dollars and the Dow Xxxxx Telerate Service or Reuters
Monitor Money Rates Service (or any successor to either) reports a LIBOR for
such currency for interest periods of one, two, three and six calendar months;
provided that if any Lender provides written notice to the Borrower (with a copy
to the Administrative Agent) that any currency control or other exchange
regulations are imposed in the country in which any such Alternative Currency is
issued and that in the reasonable opinion of such Lender funding a Loan in such
currency is impractical, then such currency shall cease to be
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an Alternative Currency hereunder until such time as all the Lenders reinstate
such country's currency as an Alternative Currency.
"Applicable Margin" means, with respect to Loans, Reimbursement
Obligations, and the commitment fees and letter of credit fees payable under
Section 2.1 hereof, until the first Pricing Date, the rates per annum shown
opposite Level I below, and thereafter from one Pricing Date to the next the
Applicable Margin means the rates per annum determined in accordance with the
following schedule:
APPLICABLE MARGIN FOR APPLICABLE MARGIN
TOTAL SENIOR FUNDED BASE RATE LOANS AND FOR EUROCURRENCY LOANS APPLICABLE MARGIN
DEBT/EBITDA RATIO REIMBURSEMENT AND LETTER OF CREDIT FOR COMMITMENT FEE
LEVEL FOR SUCH PRICING DATE OBLIGATIONS SHALL BE: FEE SHALL BE: SHALL BE:
IV Greater than or equal to 0% 1.250% 0.250%
2.0 to 1.0
III Less than 2.0 to 1.0, 0% 0.875% 0.200%
but greater than or
equal to 1.5 to 1.0
II Less than 1.5 to 1.0, 0% 0.750% 0.150%
but greater than or
equal to 1.0 to 1.0
I Less than 1.0 to 1.0 0% 0.625% 0.125%
For purposes hereof, the term "Pricing Date" means, for any fiscal quarter of
the Borrower ending on or after September 30, 2003, the date on which the
Administrative Agent is in receipt of the Borrower's most recent financial
statements (and, in the case of the year-end financial statements, audit report)
for the fiscal quarter then ended, pursuant to Section 8.5 hereof. The
Applicable Margin shall be established based on the Total Senior Debt/EBITDA
Ratio for the most recently completed fiscal quarter and the Applicable Margin
established on a Pricing Date shall remain in effect until the next Pricing
Date. If the Borrower has not delivered its financial statements by the date
such financial statements (and, in the case of the year-end financial
statements, audit report) are required to be delivered under Section 8.5 hereof,
until such financial statements and audit report are delivered, the Applicable
Margin shall be the highest Applicable Margin (i.e., Level IV shall apply). If
the Borrower subsequently delivers such financial statements before the next
Pricing Date, the Applicable Margin established by such late delivered financial
statements shall take effect from the date of delivery until the next Pricing
Date. In all other circumstances, the Applicable Margin established by such
financial statements shall be in effect from the Pricing Date that occurs
immediately after the end of the fiscal quarter covered by such financial
statements until the next Pricing Date. Each determination of the Applicable
Margin made by the Administrative Agent in accordance with the foregoing shall
be conclusive and binding on the Borrower and the Lenders if reasonably
determined.
"Application" is defined in Section 1.2(b) hereof.
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"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 7.2 hereof or on any
update of any such list provided by the Borrower to the Administrative Agent, or
any further or different officers of the Borrower so named by any Authorized
Representative of the Borrower in a written notice to the Administrative Agent.
"Base Rate" is defined in Section 1.3(a) hereof.
"Base Rate Loan" means a Loan bearing interest at a rate specified in
Section 1.3(a) hereof.
"Borrower" is defined in the introductory paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by the Lenders under a Credit on a single date and, in the case of
Eurocurrency Loans, for a single Interest Period. Borrowings of Loans are made
and maintained ratably from each of the Lenders under a Credit according to
their Percentages of such Credit. A Borrowing is "advanced" on the day Lenders
advance funds comprising such Borrowing to the Borrower, is "continued" on the
date a new Interest Period for the same type of Loans commences for such
Borrowing, and is "converted" when such Borrowing is changed from one type of
Loans to the other, all as determined pursuant to Section 1.5 hereof. Borrowings
of Swing Loans are made by the Administrative Agent in accordance with the
procedures set forth in Section 1.14 hereof.
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan, on which banks are dealing in U.S. Dollar deposits or the relevant
Alternative Currency in the interbank market in London, England and, if the
applicable Business Day relates to the borrowing or payment of a Eurocurrency
Loan denominated in an Alternative Currency, on which banks and foreign exchange
markets are open for business in the city where disbursements of or payments on
such Loan are to be made and, if such Alternative Currency is the Euro or any
national currency of a nation that is a member of the European Economic and
Monetary Union, which is a TARGET Settlement Day.
"Capital Lease" means any lease of Property which in accordance with GAAP
is required to be capitalized on the balance sheet of the lessee.
"Capitalized Lease Obligation" means, for any Person, the amount of the
liability shown on the balance sheet of such Person in respect of a Capital
Lease determined in accordance with GAAP.
"Capitalized Rentals" shall mean as of the date of any determination the
amount at which the aggregate Rentals due and to become due under all
Capitalized Leases under which the Borrower or any Restricted Subsidiary is a
lessee would be reflected as a liability on a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries.
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"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. ss.ss.9601 et seq., and any future
amendments.
"Change of Control" means any of (a) the acquisition by any "person" or
"group" (as such terms are used in sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) at any time of beneficial ownership of 20% or
more of the outstanding capital stock or other equity interests of the Borrower
on a fully-diluted basis, (b) the failure of individuals who are members of the
board of directors (or similar governing body) of the Borrower on the Closing
Date (together with any new or replacement directors whose initial nomination
for election was approved by a majority of the directors who were either
directors on the Closing Date or previously so approved) to constitute a
majority of the board of directors (or similar governing body) of the Borrower,
or (c) any "Change of Control" (or words of like import), as defined in any
agreement or indenture relating to any issue of Indebtedness shall occur.
"Closing Date" means the date of this Agreement or such later Business Day
upon which each condition described in Section 7.2 shall be satisfied or waived
in a manner acceptable to the Administrative Agent in its discretion.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Collateral Account" is defined in Section 9.4 hereof.
"Commitment Amount Increase" is defined in Section 1.15 hereof.
"Commitment Amount Increase Request" means a Commitment Amount Increase
Request in the form of Exhibit E hereto.
"Consolidated Current Liabilities" as of the date of any determination
thereof shall mean such liabilities of the Borrower and its Subsidiaries on a
consolidated basis as shall be determined in accordance with GAAP to constitute
current liabilities.
"Consolidated Net Tangible Assets" shall mean as of the date of any
determination thereof the total amount of all Tangible Assets of the Borrower
and its Subsidiaries after deducting all investments in and loans, advances and
extensions of credit to Unrestricted Subsidiaries and all items which in
accordance with GAAP would be included on the liability side of a consolidated
balance sheet, except deferred income taxes, deferred investment tax credits,
capital stock of any class, surplus, and Funded Debt.
"Consolidated Tangible Net Worth" shall mean, as of the date of any
determination thereof, Consolidated Net Tangible Assets less all outstanding
Funded Debt, deferred income taxes, deferred investment tax credits and Minority
Interests, all determined in accordance with GAAP consolidating the Borrower and
its Subsidiaries.
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"Consolidated Total Capitalization" shall mean as of the date of any
determination thereof the total amount of all assets of the Borrower and its
Subsidiaries after deducting all investments in and loans, advances and
extensions of credit to Unrestricted Subsidiaries and all items which in
accordance with GAAP would be included on the liability side of a consolidated
balance sheet, except capital stock of any class, surplus (net of treasury stock
and loans to officers), and Funded Debt.
"Contingent Obligations" of any Person shall mean all obligations (other
than endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect,
guaranteeing any Indebtedness, dividend or other obligation, of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, all obligations incurred through an agreement,
contingent or otherwise, by such Person: (i) to purchase such Indebtedness or
obligation or any property or assets constituting security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or payment of such
Indebtedness or obligation, or (iii) to lease property or to purchase Securities
or other property or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary obligor to make
payment of the Indebtedness or obligation, or (iv) otherwise to assure the owner
of the Indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this Agreement, a
guaranty in respect of any Indebtedness shall be deemed to be Indebtedness equal
to the principal amount of such Indebtedness which has been guaranteed, and a
guaranty in respect of any other obligation or liability or any dividend shall
be deemed to be Indebtedness equal to the maximum aggregate amount of such
obligation, liability or dividend.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Credit" means either of the Revolving Credit or the Swing Line.
"Credit Event" means the advancing of any Loan, the continuation of or
conversion into a Eurocurrency Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.
"Current Debt" as of the date of any determination thereof shall mean (i)
all Indebtedness other than Funded Debt, (ii) letter of credit obligations and
(iii) Contingent Obligations with respect to Current Debt of others.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"EBITDA" means, with reference to any period, Net Income for such period
plus the sum of all amounts deducted in arriving at such Net Income amount in
respect of (a) Interest
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Expense for such period, (b) federal, state, and local income taxes for such
period, and (c) depreciation of fixed assets and amortization of intangible
assets for such period.
"Eligible Line of Business" means any business engaged in as of the date
of this Agreement by the Borrower or any of its Subsidiaries.
"Environmental Claim" means any investigation, notice, violation, demand,
allegation, action, suit, injunction, judgment, order, consent decree, penalty,
fine, lien, proceeding or claim (whether administrative, judicial or private in
nature) arising (a) pursuant to, or in connection with an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any abatement, removal, remedial, corrective or response
action in connection with a Hazardous Material, Environmental Law or order of a
governmental authority or (d) from any actual or alleged damage, injury, threat
or harm to health, safety, natural resources or the environment.
"Environmental Law" means any current or future Legal Requirement
pertaining to (a) the protection of health, safety and the indoor or outdoor
environment, (b) the conservation, management or use of natural resources and
wildlife, (c) the protection or use of surface water or groundwater, (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, Release, threatened Release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material or (e)
pollution (including any Release to air, land, surface water or groundwater),
and any amendment, rule, regulation, order or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute thereto.
"Eurocurrency Loan" means a Loan bearing interest at the rate specified in
Section 1.3(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.3(b) hereof.
"Event of Default" means any event or condition identified as such in
Section 9.1 hereof.
"Existing Letters of Credit" is defined in Section 1.2(a) hereof.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate appearing in
Section 1.3(a) hereof.
"Foreign Subsidiary" means each Subsidiary which (a) is organized under
the laws of a jurisdiction other than the United States of America or any state
thereof, (b) conducts substantially all of its business outside of the United
States of America, and (c) has substantially all of its assets outside of the
United States of America.
"Funded Debt" of any Person shall mean (i) all Indebtedness having a final
maturity of one or more than one year from the date of origin thereof (or which
is renewable or extendible at
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the option of the obligor for a period or periods more than one year from the
date of origin), including all payments in respect thereof that are required to
be made within one year from the date of any determination of Funded Debt,
whether or not included in Consolidated Current Liabilities, (ii) all
Capitalized Rentals, and (iii) all Contingent Obligations with respect to Funded
Debt of others (unless such Funded Debt is included in subclauses (i) or (ii)
above). "Consolidated" when used as a prefix to any Funded Debt shall mean the
aggregate amount of all such Funded Debt of the Borrower and its Subsidiaries on
a consolidated basis eliminating intercompany items.
"Funds Transfer and Deposit Account Liability" means the liability of the
Borrower or any Subsidiary owing to any of the Lenders, or any Affiliates of
such Lenders, arising out of (a) the execution or processing of electronic
transfers of funds by automatic clearing house transfer, wire transfer or
otherwise to or from deposit accounts of the Borrower and/or any Subsidiary now
or hereafter maintained with any of the Lenders or their Affiliates, (b) the
acceptance for deposit or the honoring for payment of any check, draft or other
item with respect to any such deposit accounts, and (c) any other deposit,
disbursement, and cash management services afforded to the Borrower or any
Subsidiary by any of such Lenders or their Affiliates.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Guarantor" and "Guarantors" each is defined in Section 4.1 hereof.
"Guaranty" and "Guaranties" each is defined in Section 4.1 hereof.
"Hazardous Material" means any substance, chemical, compound, product,
solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which
is hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls and petroleum (including crude oil or any fraction
thereof) and (b) any material classified or regulated as "hazardous" or "toxic"
or words of like import pursuant to an Environmental Law.
"Hazardous Material Activity" means any activity, event or occurrence
involving a Hazardous Material, including, without limitation, the manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, Release, threatened Release, abatement, removal, remediation, handling
of or corrective or response action to any Hazardous Material.
"Hedging Liability" means the liability of the Borrower or any Subsidiary
to any of the Lenders, or any Affiliates of such Lenders, in respect of any
interest rate, foreign currency, and/or commodity swap, exchange, cap, collar,
floor, forward, future or option agreement, or any other similar interest rate,
currency or commodity hedging arrangement, as the Borrower or such Subsidiary,
as the case may be, may from time to time enter into with any one or more of the
Lenders party to this Agreement or their Affiliates.
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"Hostile Acquisition" means the acquisition of the capital stock or other
equity interests of a Person through a tender offer or similar solicitation of
the owners of such capital stock or other equity interests which has not been
approved (prior to such acquisition) by resolutions of the Board of Directors of
such Person or by similar action if such Person is not a corporation, and as to
which such approval has not been withdrawn.
"Indebtedness" means for any Person (without duplication) (a) all
indebtedness created, assumed or incurred in any manner by such Person
representing money borrowed (including by the issuance of debt securities), (b)
all indebtedness for the deferred purchase price of property or services (other
than trade accounts payable arising in the ordinary course of business which are
not more than thirty (30) days past due), (c) all indebtedness secured by any
Lien upon Property of such Person, whether or not such Person has assumed or
become liable for the payment of such indebtedness, (d) all Capitalized Lease
Obligations of such Person, (e) all obligations of such Person on or with
respect to letters of credit, bankers' acceptances and other extensions of
credit whether or not representing obligations for borrowed money, (f)
liabilities of such Person in respect of any so-called "synthetic" leases or
other transactions which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on such Person's balance
sheet and (g) net obligations under any Swap Contract in an amount equal to the
Swap Termination Value thereof.
"Interest Expense" means, with reference to any period, the sum of all
interest charges (including imputed interest charges with respect to Capitalized
Lease Obligations and all amortization of debt discount and expense) of the
Borrower and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Interest Period" is defined in Section 1.6 hereof.
"L/C Issuer" means the Administrative Agent, or any other Lender requested
by the Borrower and approved by the Administrative Agent in its sole discretion
with respect to any Letter of Credit.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"L/C Sublimit" means $25,000,000, as reduced pursuant to the terms hereof.
"Legal Requirement" means any treaty, convention, statute, law,
regulation, ordinance, license, permit, governmental approval, injunction,
judgment, order, consent decree or other requirement of any governmental
authority, whether federal, state, or local.
"Lenders" means and includes the financial institutions from time to time
party to this Agreement, including each assignee Lender pursuant to Section
13.12 hereof.
"Lending Office" is defined in Section 10.4 hereof.
"Letter of Credit" is defined in Section 1.2(a) hereof.
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"LIBOR" is defined in Section 1.3(b) hereof.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, Capital Lease or other title
retention arrangement.
"Loan" means any Revolving Loan or Swing Loan, whether outstanding as a
Base Rate Loan or Eurocurrency Loan or otherwise, each of which is a "type" of
Loan hereunder.
"Loan Documents" means this Agreement, the Notes, the Applications, the
Guaranties, and each other instrument or document to be delivered hereunder or
thereunder or otherwise in connection therewith.
"Material Adverse Effect" means (a) a material adverse change in, or
material adverse effect upon, the operations, business, Property, condition
(financial or otherwise) or prospects of the Borrower or of the Borrower and its
Subsidiaries taken as a whole, (b) a material impairment of the ability of the
Borrower or any Subsidiary to perform its obligations under any Loan Document or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower or any Subsidiary of any Loan Document or
the rights and remedies of the Administrative Agent and the Lenders thereunder.
"Material Subsidiary" means any Subsidiary that, directly or indirectly
through a Subsidiary, either (a) owns assets with a book value in excess of 5%
of the book value of the total consolidated assets of the Borrower and its
Subsidiaries measured as of the last day of the most recently completed fiscal
quarter for which financial statements have been delivered pursuant to Section
8.5 or (b) generated annual revenues in excess of 5% of the revenues of the
Borrower and its Subsidiaries, taken as a whole, for the most recently completed
four fiscal quarter period for which financial statements have been delivered
pursuant to Section 8.5.
"Minority Interests" shall mean any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law) that are
not owned by the Borrower and/or one or more of its Subsidiaries. Minority
Interests shall be valued by valuing Minority Interests constituting preferred
stock at the voluntary or involuntary liquidating value of such preferred stock,
whichever is greater, and by valuing Minority Interests constituting common
stock at the book value of capital and surplus applicable thereto adjusted, if
necessary, to reflect any changes from the book value of such common stock
required by the foregoing method of valuing Minority Interests in preferred
stock.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Net Income" means, with reference to any period, the net income (or net
loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded from Net Income (a) the net income (or net loss) of any Person accrued
prior to the date it becomes a Subsidiary of, or has merged into or consolidated
with, the Borrower or another Subsidiary, and (b) the net income (or net loss)
of any Person (other than a Subsidiary) in which the Borrower or any of its
Subsidiaries has a equity
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interest in, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of its Subsidiaries during
such period.
"Net Worth" means, for any Person and at any time the same is to be
determined, total shareholder's equity (including capital stock, additional
paid-in capital, and retained earnings after deducting treasury stock) which
would appear on the balance sheet of such Person in accordance with GAAP.
"Notes" means and includes the Revolving Notes and the Swing Note.
"Obligations" means all obligations of the Borrower to pay principal and
interest on the Loans, all Reimbursement Obligations owing under the
Applications, all fees and charges payable hereunder, and all other payment
obligations of the Borrower or any of its Subsidiaries arising under or in
relation to any Loan Document, in each case whether now existing or hereafter
arising, due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired.
"Original Dollar Amount" means the amount of any Obligation denominated in
U.S. Dollars and, in relation to any Loan denominated in an Alternative
Currency, the U.S. Dollar Equivalent of such Loan on the day it is advanced or
continued for an Interest Period.
"Participating Interest" is defined in Section 1.2(d) hereof.
"Participating Lender" is defined in Section 1.2(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Percentage" means, for each Lender, the percentage of the Revolving
Credit Commitments represented by such Lender's Revolving Credit Commitment or,
if the Revolving Credit Commitments have been terminated, the percentage held by
such Lender (including through participation interests in Reimbursement
Obligations and Swing Loans) of the aggregate principal amount of all Revolving
Loans, Swing Loans and L/C Obligations then outstanding.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof.
"Plan" means any employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
that either (a) is maintained by a member of the Controlled Group for employees
of a member of the Controlled Group or (b) is maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
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"Premises" means the real property owned or leased by the Borrower or any
Subsidiary.
"Property" means, as to any Person, all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent balance sheet of such Person and its subsidiaries under GAAP.
"RCRA" means the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. ss.ss.6901 et seq., and any future amendments.
"Reimbursement Obligation" is defined in Section 1.2(c) hereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migration, dumping, or
disposing into the indoor or outdoor environment, including, without limitation,
the abandonment or discarding of barrels, drums, containers, tanks or other
receptacles containing or previously containing any Hazardous Material.
"Rentals" shall mean and include all fixed rents (including as such all
payments which the lessee is obligated to make to the lessor on termination of
the lease or surrender of the property) payable by the Borrower or a Subsidiary,
as lessee or sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Borrower or a Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called, "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Required Lenders" means, as of the date of determination thereof, Lenders
whose outstanding Loans and interests in Letters of Credit and Unused Revolving
Credit Commitments constitute more than 66-2/3% of the sum of the total
outstanding Loans, interests in Letters of Credit, and Unused Revolving Credit
Commitments of the Lenders.
"Revolving Credit" means the credit facility for making Revolving Loans
and issuing Letters of Credit described in Sections 1.1 and 1.2 hereof.
"Revolving Credit Commitment" means, as to any Lender, the obligation of
such Lender to make Revolving Loans and to participate in Swing Loans and
Letters of Credit issued for the account of the Borrower hereunder in an
aggregate principal or face amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule 1 attached hereto and
made a part hereof, as the same may be reduced or modified at any time or from
time to time pursuant to the terms hereof. The Borrower and the Lenders
acknowledge and agree that the Revolving Credit Commitments of the Lenders
aggregate $100,000,000 on the date hereof.
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"Revolving Credit Termination Date" means October 31, 2006, or such
earlier date on which the Revolving Credit Commitments are terminated in whole
pursuant to Section 1.12, 9.2 or 9.3 hereof.
"Revolving Loan" is defined in Section 1.1 hereof and, as so defined,
includes a Base Rate Loan or a Eurocurrency Loan, each of which is a "type" of
Revolving Loan hereunder.
"Revolving Note" is defined in Section 1.10 hereof.
"S&P" means Standard & Poor's Ratings Services Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
"Subordinated Debt" means Indebtedness which is subordinated in right of
payment to the prior payment of the Obligations, Hedging Liability, and Funds
Transfer and Deposit Account Liability pursuant to subordination provisions
approved in writing by the Administrative Agent and the Required Lenders and is
otherwise pursuant to documentation that is, which is in an amount that is, and
which contains interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies and other material terms that are in
form and substance, in each case satisfactory to the Administrative Agent and
the Required Lenders.
"Subsidiary" means, as to any particular parent corporation or
organization, any other corporation or organization more than 50% of the
outstanding Voting Stock of which is at the time directly or indirectly owned by
such parent corporation or organization or by any one or more other entities
which are themselves subsidiaries of such parent corporation or organization.
Unless otherwise expressly noted herein, the term "Subsidiary" means a
Subsidiary of the Borrower or of any of its direct or indirect Subsidiaries.
"Swap Contract" means any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-
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market value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts.
"Swing Line" means the credit facility for making one or more Swing Loans
described in Section 1.14 hereof.
"Swing Line Sublimit" means $10,000,000, as reduced pursuant to the terms
hereof.
"Swing Loan" and "Swing Loans" each is defined in Section 1.14 hereof.
"Swing Note" is defined in Section 1.10 hereof.
"Tangible Assets" shall mean as of the date of any determination thereof,
the total amount of all assets of the Borrower and its Subsidiaries (less
depreciation, depletion and other properly deductible valuation reserves) after
deducting good will, patents, trade names, trade marks, copyrights, franchises,
experimental expense, organization expense, unamortized debt discount and
expense, deferred assets other than prepaid insurance and prepaid taxes, the
excess of cost of shares acquired over book value of related assets and such
other assets as are properly classified as "intangible assets" in accordance
with GAAP.
"TARGET Settlement Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"Total Consideration" means, with respect to an Acquisition, the sum (but
without duplication) of (a) cash paid in connection with any Acquisition, (b)
indebtedness payable to the seller in connection with such Acquisition, (c) the
fair market value of any equity securities, including any warrants or options
therefor, delivered in connection with any Acquisition, (d) the present value of
covenants not to compete entered into in connection with such Acquisition or
other future payments which are required to be made over a period of time and
are not contingent upon the Borrower or its Subsidiary meeting financial
performance objectives (exclusive of salaries paid in the ordinary course of
business) (discounted at the Base Rate), but only to the extent not included in
clause (a), (b) or (c) above, and (e) the amount of indebtedness assumed in
connection with such Acquisition.
"Total Funded Debt" means, at any time the same is to be determined, the
sum (but without duplication) of (a) all Indebtedness of the Borrower and its
Subsidiaries at such time, and (b) all Indebtedness of any other Person which is
directly or indirectly guaranteed by the Borrower or any of its Subsidiaries.
"Total Senior Funded Debt" means, at any time the same is to be
determined, Total Funded Debt at such time minus the principal balance of
Subordinated Debt of the Borrower which is due more than 12 months after such
determination date then outstanding.
"Total Senior Funded Debt/EBITDA Ratio" means, as of the last day of any
fiscal quarter of the Borrower, the ratio of Total Senior Funded Debt of the
Borrower and its Subsidiaries as of
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the last day of such fiscal quarter to EBITDA of the Borrower and its
Subsidiaries for the period of four fiscal quarters then ended.
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
Unused Revolving Credit Commitments" means, at any time, the difference
between the Revolving Credit Commitments then in effect and the aggregate
outstanding principal amount of Revolving Loans and L/C Obligations.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would be
realized by converting an Alternative Currency into U.S. Dollars at the exchange
rate quoted to the Administrative Agent, at approximately 11:00 a.m. (London
time) three (3) Business Days prior to the date on which a computation thereof
is required to be made, by major banks in the interbank foreign exchange market
for the purchase of U.S. Dollars for such Alternative Currency.
"U.S. Dollars" and "$" each means the lawful currency of the United States
of America.
"Voting Stock" of any Person means capital stock or other equity interests
of any class or classes (however designated) having ordinary power for the
election of directors or other similar governing body of such Person, other than
stock or other equity interests having such power only by reason of the
happening of a contingency.
"Welfare Plan" means a "welfare plan" as defined in Section 3(1) of ERISA.
"Wholly-owned Subsidiary" means a Subsidiary of which all of the issued
and outstanding shares of capital stock (other than directors' qualifying shares
as required by law) or other equity interests are owned by the Borrower and/or
one or more Wholly-owned Subsidiaries within the meaning of this definition.
Section 5.2. Interpretation. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. The words
"hereof", "herein", and "hereunder" and words of like import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. All references to time of day herein are references
to Chicago, Illinois, time unless otherwise specifically provided. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall be done in
accordance with GAAP except where such principles are inconsistent with the
specific provisions of this Agreement.
Section 5.3. Change in Accounting Principles. If, after the date of this
Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements
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referred to in Section 6.5 hereof and such change shall result in a change in
the method of calculation of any financial covenant, standard or term found in
this Agreement, either the Borrower or the Required Lenders may by notice to the
Lenders and the Borrower, respectively, require that the Lenders and the
Borrower negotiate in good faith to amend such covenants, standards, and term so
as equitably to reflect such change in accounting principles, with the desired
result being that the criteria for evaluating the financial condition of the
Borrower and its Subsidiaries shall be the same as if such change had not been
made. No delay by the Borrower or the Required Lenders in requiring such
negotiation shall limit their right to so require such a negotiation at any time
after such a change in accounting principles. Until any such covenant, standard,
or term is amended in accordance with this Section 5.3, financial covenants
shall be computed and determined in accordance with GAAP in effect prior to such
change in accounting principles. Without limiting the generality of the
foregoing, the Borrower shall neither be deemed to be in compliance with any
financial covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Administrative Agent and the
Lenders as follows:
Section 6.1. Organization and Qualification. The Borrower is duly
organized, validly existing, and in good standing as a corporation under the
laws of the State of Delaware, has full and adequate power to own its Property
and conduct its business as now conducted, and is duly licensed or qualified and
in good standing in each jurisdiction in which the nature of the business
conducted by it or the nature of the Property owned or leased by it requires
such licensing or qualifying, except where the failure to do so would not have a
Material Adverse Effect.
Section 6.2. Subsidiaries. Each Subsidiary is duly organized, validly
existing, and in good standing under the laws of the jurisdiction in which it is
organized, has full and adequate power to own its Property and conduct its
business as now conducted, and is duly licensed or qualified and in good
standing in each jurisdiction in which the nature of the business conducted by
it or the nature of the Property owned or leased by it requires such licensing
or qualifying, except where the failure to do so would not have a Material
Adverse Effect. Schedule 6.2 hereto identifies each Subsidiary, the jurisdiction
of its organization, the percentage of issued and outstanding shares of each
class of its capital stock or other equity interests owned by the Borrower and
the other Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding. All of the outstanding shares of capital
stock and other equity interests of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable and all such shares and other
equity interests indicated on Schedule 6.2 as owned by the Borrower or another
Subsidiary are owned, beneficially and of record, by the Borrower or such
Subsidiary free and clear of all Liens. There are no outstanding commitments or
other obligations of any Subsidiary to issue, and no options,
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warrants or other rights of any Person to acquire, any shares of any class of
capital stock or other equity interests of any Subsidiary.
Section 6.3. Authority and Validity of Obligations. The Borrower has full
right and authority to enter into this Agreement and the other Loan Documents
executed by it, to make the borrowings herein provided for, to issue its Notes
in evidence thereof, and to perform all of its obligations hereunder and under
the other Loan Documents executed by it. Each Subsidiary has full right and
authority to enter into the Loan Documents executed by it, to guarantee the
Obligations, Hedging Liability, and Funds Transfer and Deposit Account
Liability, and to perform all of its obligations under the Loan Documents
executed by it. The Loan Documents delivered by the Borrower and by each
Subsidiary have been duly authorized, executed, and delivered by such Person and
constitute valid and binding obligations of such Person enforceable against it
in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law); and this Agreement and the other Loan Documents do not, nor
does the performance or observance by the Borrower or any Subsidiary of any of
the matters and things herein or therein provided for, (a) contravene or
constitute a default under any provision of law or any judgment, injunction,
order or decree binding upon the Borrower or any Subsidiary or any provision of
the organizational documents (e.g., charter, certificate or articles of
incorporation and by-laws, certificate or articles of association and operating
agreement, partnership agreement, or other similar organizational documents) of
the Borrower or any Subsidiary, (b) contravene or constitute a default under any
covenant, indenture or agreement of or affecting the Borrower or any Subsidiary
or any of its Property, in each case where such contravention or default,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (c) result in the creation or imposition of any Lien
on any Property of the Borrower or any Subsidiary.
Section 6.4. Use of Proceeds; Margin Stock. The Borrower shall use the
proceeds of the Revolving Credit for its general working capital purposes and
for such other legal and proper purposes as are consistent with all applicable
laws. Neither the Borrower nor any Subsidiary is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan or any other extension of
credit made hereunder will be used to purchase or carry any such margin stock or
to extend credit to others for the purpose of purchasing or carrying any such
margin stock. Margin stock (as hereinabove defined) constitutes less than 25% of
the assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge or other restriction hereunder.
Section 6.5. Financial Reports. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2002, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, and accompanying
notes thereto, which financial statements are accompanied by the audit report of
KPMG LLP, independent public accountants, and the unaudited interim consolidated
balance sheet of the Borrower and its Subsidiaries as at June 30, 2003, and the
related consolidated statements of income, retained earnings and cash flows of
the Borrower and its
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Subsidiaries for the six (6) months then ended, heretofore furnished to the
Administrative Agent and the Lenders, fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as at said dates and the
consolidated results of their operations and cash flows for the periods then
ended in conformity with GAAP applied on a consistent basis. Neither the
Borrower nor any Subsidiary has contingent liabilities which are material to it
other than as indicated on such financial statements or, with respect to future
periods, on the financial statements furnished pursuant to Section 8.5 hereof.
Section 6.6. No Material Adverse Change. Since December 31, 2002, there
has been no change in the condition (financial or otherwise) or business
prospects of the Borrower or any Subsidiary except those occurring in the
ordinary course of business, none of which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
Section 6.7. Full Disclosure. The statements and information furnished to
the Administrative Agent and the Lenders in connection with the negotiation of
this Agreement and the other Loan Documents and the commitments by the Lenders
to provide all or part of the financing contemplated hereby do not contain any
untrue statements of a material fact or omit a material fact necessary to make
the material statements contained herein or therein not misleading, the
Administrative Agent and the Lenders acknowledging that as to any projections
furnished to the Administrative Agent and the Lenders, the Borrower only
represents that the same were prepared on the basis of information and estimates
the Borrower believed to be reasonable.
Section 6.8. Trademarks, Franchises, and Licenses. The Borrower and its
Subsidiaries own, possess, or have the right to use all necessary patents,
licenses, franchises, trademarks, trade names, trade styles, copyrights, trade
secrets, know how, and confidential commercial and proprietary information to
conduct their businesses as now conducted, without known conflict with any
patent, license, franchise, trademark, trade name, trade style, copyright or
other proprietary right of any other Person except where the failure to own,
possess or have such rights could not reasonably be expected to have a Material
Adverse Effect.
Section 6.9. Governmental Authority and Licensing. The Borrower and its
Subsidiaries have received all licenses, permits, and approvals of all federal,
state, and local governmental authorities, if any, necessary to conduct their
businesses, in each case where the failure to obtain or maintain the same could
reasonably be expected to have a Material Adverse Effect. No investigation or
proceeding which, if adversely determined, could reasonably be expected to
result in revocation or denial of any material license, permit or approval is
pending or, to the knowledge of the Borrower, threatened.
Section 6.10. Good Title. The Borrower and its Subsidiaries have good and
defensible title (or valid leasehold interests) to their assets as reflected on
the most recent consolidated balance sheet of the Borrower and its Subsidiaries
furnished to the Administrative Agent and the Lenders (except for sales of
assets in the ordinary course of business), subject to no Liens other than such
thereof as are permitted by Section 8.8 hereof.
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Section 6.11. Litigation and Other Controversies. There is no litigation
or governmental or arbitration proceeding or labor controversy pending, nor to
the knowledge of the Borrower threatened, against the Borrower or any Subsidiary
which if adversely determined, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
Section 6.12. Taxes. All tax returns required to be filed by the Borrower
or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees, and other governmental charges upon the Borrower or any
Subsidiary or upon any of its Property, income or franchises, which are shown to
be due and payable in such returns, have been paid, except such taxes,
assessments, fees and governmental charges, if any, as are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and as to which adequate reserves established in accordance
with GAAP have been provided. The Borrower does not know of any proposed
additional tax assessment against it or its Subsidiaries for which adequate
provisions in accordance with GAAP have not been made on their accounts.
Adequate provisions in accordance with GAAP for taxes on the books of the
Borrower and each Subsidiary have been made for all open years, and for its
current fiscal period.
Section 6.13. Approvals. No authorization, consent, license or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of any other Person, is
or will be necessary to the valid execution, delivery or performance by the
Borrower or any Subsidiary of any Loan Document, except for such approvals which
have been obtained prior to the date of this Agreement and remain in full force
and effect.
Section 6.14. Affiliate Transactions. Neither the Borrower nor any
Subsidiary is a party to any contracts or agreements with any of its Affiliates
(other than with Wholly-owned Subsidiaries) on terms and conditions which are
less favorable to the Borrower or such Subsidiary than would be usual and
customary in similar contracts or agreements between Persons not affiliated with
each other.
Section 6.15. Investment Company; Public Utility Holding Company. Neither
the Borrower nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "public utility holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 6.16. ERISA. The Borrower and each other member of its Controlled
Group has fulfilled its obligations under the minimum funding standards of and
is in compliance in all material respects with ERISA and the Code to the extent
applicable to it and has not incurred any liability to the PBGC or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. Neither the Borrower nor any Subsidiary has any contingent
liabilities with respect to any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in article 6 of Title I
of ERISA.
Section 6.17. Compliance with Laws. (a) The Borrower and its Subsidiaries
are in compliance with the requirements of all federal, state and local laws,
rules and regulations
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applicable to or pertaining to their Property or business operations (including,
without limitation, the Occupational Safety and Health Act of 1970, the
Americans with Disabilities Act of 1990, and laws and regulations establishing
quality criteria and standards for air, water, land and toxic or hazardous
wastes and substances), where any such non-compliance, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) Without limiting the representations and warranties set forth in
Section 6.17(a) above, except for such matters, individually or in the
aggregate, which could not reasonably be expected to result in a Material
Adverse Effect, the Borrower represents and warrants that: (i) the Borrower and
its Subsidiaries, and each of the Premises, comply in all material respects with
all applicable Environmental Laws; (ii) the Borrower and its Subsidiaries have
obtained all governmental approvals required for their operations and each of
the Premises by any applicable Environmental Law; (iii) the Borrower and its
Subsidiaries have not, and the Borrower has no knowledge of any other Person who
has, caused any Release, threatened Release or disposal of any Hazardous
Material at, on, about, or off any of the Premises in any material quantity and,
to the knowledge of the Borrower, none of the Premises are adversely affected by
any Release, threatened Release or disposal of a Hazardous Material originating
or emanating from any other property; (iv) none of the Premises contain and have
contained any: (1) underground storage tank, (2) material amounts of asbestos
containing building material, (3) landfills or dumps, (4) hazardous waste
management facility as defined pursuant to RCRA or any comparable state law, or
(5) site on or nominated for the National Priority List promulgated pursuant to
CERCLA or any state remedial priority list promulgated or published pursuant to
any comparable state law; (v) the Borrower and its Subsidiaries have not used a
material quantity of any Hazardous Material and have conducted no Hazardous
Material Activity at any of the Premises; (vi) the Borrower and its Subsidiaries
have no material liability for response or corrective action, natural resource
damage or other harm pursuant to CERCLA, RCRA or any comparable state law; (vii)
the Borrower and its Subsidiaries are not subject to, have no notice or
knowledge of and are not required to give any notice of any Environmental Claim
involving the Borrower or any Subsidiary or any of the Premises, and there are
no conditions or occurrences at any of the Premises which could reasonably be
anticipated to form the basis for an Environmental Claim against the Borrower or
any Subsidiary or such Premises; (viii) none of the Premises are subject to any,
and the Borrower has no knowledge of any imminent restriction on the ownership,
occupancy, use or transferability of the Premises in connection with any (1)
Environmental Law or (2) Release, threatened Release or disposal of a Hazardous
Material; and (ix) there are no conditions or circumstances at any of the
Premises which pose an unreasonable risk to the environment or the health or
safety of Persons.
Section 6.18. Other Agreements. Neither the Borrower nor any Subsidiary is
in default under the terms of any covenant, indenture or agreement of or
affecting such Person or any of its Property, which default if uncured could
reasonably be expected to have a Material Adverse Effect.
Section 6.19. Solvency. The Borrower and its Subsidiaries are solvent,
able to pay their debts as they become due, and have sufficient capital to carry
on their business and all businesses in which they are about to engage.
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Section 6.20. No Default. No Default or Event of Default has occurred and
is continuing.
SECTION 7. CONDITIONS PRECEDENT.
The obligation of each Lender to advance, continue or convert any Loan
(other than the continuation of, or conversion into, a Base Rate Loan) or of the
L/C Issuer to issue, extend the expiration date (including by not giving notice
of non-renewal) of or increase the amount of any Letter of Credit under this
Agreement, shall be subject to the following conditions precedent:
Section 7.1. All Credit Events. At the time of each Credit Event
hereunder:
(a) each of the representations and warranties set forth herein and
in the other Loan Documents shall be and remain true and correct as of
said time, except to the extent the same expressly relate to an earlier
date;
(b) the Borrower and each Subsidiary shall be in compliance with all
of the terms and conditions hereof and of the other Loan Documents, and no
Default or Event of Default shall have occurred and be continuing or would
occur as a result of such Credit Event;
(c) in the case of a Borrowing the Administrative Agent shall have
received the notice required by Section 1.5 hereof, in the case of the
issuance of any Letter of Credit the L/C Issuer shall have received a duly
completed Application for such Letter of Credit together with any fees
called for by Section 2.1 hereof, and, in the case of an extension or
increase in the amount of a Letter of Credit, a written request therefor
in a form acceptable to the L/C Issuer together with fees called for by
Section 2.1 hereof; and
(d) such Credit Event shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to the Administrative Agent, the L/C Issuer, or any
Lender (including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder and each request for the issuance
of, increase in the amount of, or extension of the expiration date of, a Letter
of Credit shall be deemed to be a representation and warranty by the Borrower on
the date on such Credit Event as to the facts specified in subsections (a)
through (c), both inclusive, of this Section.
Section 7.2. Initial Credit Event. Before or concurrently with the initial
Credit Event:
(a) the Administrative Agent shall have received for each Lender
this Agreement duly executed by the Borrower and its Subsidiaries, as
Guarantors, and the Lenders;
(b) the Administrative Agent shall have received for each Lender
such Lender's duly executed Notes of the Borrower dated the date hereof
and otherwise in compliance with the provisions of Section 1.11 hereof;
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(c) the Administrative Agent shall have received for each Lender
copies of the Borrower's and each Guarantor's articles of incorporation
and bylaws (or comparable organizational documents) and any amendments
thereto, certified in each instance by its Secretary or Assistant
Secretary;
(d) the Administrative Agent shall have received for each Lender
copies of resolutions of the Borrower's and each Guarantor's Board of
Directors (or similar governing body) authorizing the execution, delivery
and performance of this Agreement and the other Loan Documents to which it
is a party and the consummation of the transactions contemplated hereby
and thereby, together with specimen signatures of the persons authorized
to execute such documents on the Borrower's and each Guarantor's behalf,
all certified in each instance by its Secretary or Assistant Secretary;
(e) the Administrative Agent shall have received for each Lender
copies of the certificates of good standing for the Borrower and each
Subsidiary (dated no earlier than 30 days prior to the date hereof) from
the office of the secretary of the state of its incorporation or
organization;
(f) the Administrative Agent shall have received for each Lender a
list of the Borrower's Authorized Representatives;
(g) the Administrative Agent shall have received for itself and for
the Lenders the initial fees called for by Section 2.1 hereof;
(h) each Lender shall have received such evaluations and
certifications as it may reasonably require in order to satisfy itself as
to the financial condition of the Borrower and its Subsidiaries, and the
lack of material contingent liabilities of the Borrower and its
Subsidiaries;
(i) The Credit Agreement dated as of October 4, 1994 among the
Borrower, the banks party thereto, and Xxxxxx Trust and Savings Bank, as
Administrative Agent, shall have terminated and all amounts payable
thereunder shall have been paid or shall be paid with the proceeds of the
initial Credit Event;
(j) the Administrative Agent shall have received for each Lender the
favorable written opinion of counsel to the Borrower and each Guarantor,
in form and substance satisfactory to the Administrative Agent; and
(k) the Administrative Agent shall have received for the account of
the Lenders such other agreements, instruments, documents, certificates,
and opinions as the Administrative Agent may reasonably request.
Each Lender that is also a bank under the credit agreement referenced in
clause (i), by its execution hereof, hereby waives any requirement under such
agreement that the Borrower give prior notice of the termination of the
commitments thereunder, and agrees that such notice may be given on the same day
as such termination is to be effective. In addition, as such Lenders
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constitute the "Required Banks" under such credit agreement, such Lenders and
the Borrower agree that such credit agreement shall terminate and all amounts
payable thereunder shall be due and payable on the date hereof.
SECTION 8. COVENANTS.
The Borrower agrees that, so long as any credit is available to or in use
by the Borrower hereunder, except to the extent compliance in any case or cases
is waived in writing pursuant to the terms of Section 13.13 hereof:
Section 8.1. Maintenance of Business. The Borrower shall, and shall cause
each Subsidiary to, preserve and maintain its existence, except as otherwise
provided in Section 8.10(c) hereof. The Borrower shall, and shall cause each
Subsidiary to, preserve and keep in force and effect all licenses, permits,
franchises, approvals, patents, trademarks, trade names, trade styles,
copyrights, and other proprietary rights necessary to the proper conduct of its
business where the failure to do so could reasonably be expected to have a
Material Adverse Effect.
Section 8.2. Maintenance of Properties. The Borrower shall, and shall
cause each Subsidiary to, maintain, preserve, and keep its property, plant, and
equipment in good repair, working order and condition (ordinary wear and tear
excepted), and shall from time to time make all needful and proper repairs,
renewals, replacements, additions, and betterments thereto so that at all times
the efficiency thereof shall be fully preserved and maintained, except to the
extent that, in the reasonable business judgment of such Person, any such
Property is no longer necessary for the proper conduct of the business of such
Person.
Section 8.3. Taxes and Assessments. The Borrower shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all taxes,
rates, assessments, fees, and governmental charges upon or against it or its
Property, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves are provided therefor.
Section 8.4. Insurance. The Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks (including, without limitation, business
interruption, employers' and public liability risks) with good and responsible
insurance companies as and to the extent usually insured by Persons similarly
situated and conducting similar businesses. The Borrower shall, upon the request
of the Administrative Agent, furnish to the Administrative Agent and the Lenders
a certificate setting forth in summary form the nature and extent of the
insurance maintained pursuant to this Section.
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Section 8.5. Financial Reports. The Borrower shall, and shall cause each
Subsidiary to, maintain a standard system of accounting in accordance with GAAP
and shall furnish to the Administrative Agent, each Lender and each of their
duly authorized representatives such information respecting the business and
financial condition of the Borrower and each Subsidiary as the Administrative
Agent or such Lender may reasonably request; and without any request, shall
furnish to the Administrative Agent and the Lenders:
(a) as soon as available, and in any event within sixty (60) days
after the close of each fiscal quarter of each fiscal year of the
Borrower, a copy of the consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as of the last day of such fiscal
quarter and the consolidated and consolidating statements of income,
retained earnings, and cash flows of the Borrower and its Subsidiaries for
the fiscal quarter and for the fiscal year-to-date period then ended, each
in reasonable detail showing in comparative form the figures for the
corresponding date and period in the previous fiscal year, prepared by the
Borrower in accordance with GAAP (subject to the absence of footnote
disclosures and year-end audit adjustments) and certified to by its chief
financial officer or another officer of the Borrower acceptable to the
Administrative Agent;
(b) as soon as available, and in any event within one hundred twenty
(120) days after the close of each fiscal year of the Borrower, a copy of
the consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the last day of the fiscal year then ended and the
consolidated and consolidating statements of income, retained earnings,
and cash flows of the Borrower and its Subsidiaries for the fiscal year
then ended, and accompanying notes thereto, each in reasonable detail
showing in comparative form the figures for the previous fiscal year,
accompanied in the case of the consolidated financial statements by an
unqualified opinion of KPMG LLP or another firm of independent public
accountants of recognized national standing, selected by the Borrower and
reasonably satisfactory to the Administrative Agent and the Required
Lenders, to the effect that the consolidated financial statements have
been prepared in accordance with GAAP and present fairly in accordance
with GAAP the consolidated financial condition of the Borrower and its
Subsidiaries as of the close of such fiscal year and the results of their
operations and cash flows for the fiscal year then ended and that an
examination of such accounts in connection with such financial statements
has been made in accordance with generally accepted auditing standards
and, accordingly, such examination included such tests of the accounting
records and such other auditing procedures as were considered necessary in
the circumstances;
(c) within the period provided in subsection (b) above, the written
statement of the accountants who certified the audit report thereby
required that in the course of their audit they have obtained no knowledge
of any Default or Event of Default, or, if such accountants have obtained
knowledge of any such Default or Event of Default, they shall disclose in
such statement the nature and period of the existence thereof;
(d) Within the period provided in paragraph (b) above, financial
statements of the character and for the dates and periods as in said
paragraph (b) covering each Unrestricted Subsidiary (or groups of
Unrestricted Subsidiaries on a consolidated basis).
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(e) promptly after receipt thereof, any additional written reports,
management letters or other detailed information contained in writing
concerning significant aspects of the Borrower's or any Subsidiary's
operations and financial affairs given to it by its independent public
accountants;
(f) promptly after the sending or filing thereof, copies of each
financial statement, report, notice or proxy statement sent by the
Borrower or any Subsidiary to its stockholders or other equity holders,
and copies of each regular, periodic or special report, registration
statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K
reports) filed by the Borrower or any Subsidiary with any securities
exchange or the Securities and Exchange Commission or any successor
agency;
(g) promptly after receipt thereof, a copy of each audit made by any
regulatory agency of the books and records of the Borrower or any
Subsidiary or of notice of any material noncompliance with any applicable
law, regulation or guideline relating to the Borrower or any Subsidiary,
or its business;
(h) as soon as available, and in any event no later than 30 days
following the first day of each fiscal year of the Borrower, a copy of the
Borrower's consolidated and consolidating business plan for such fiscal
year, such business plan to show the Borrower's projected consolidated and
consolidating revenues, expenses and balance sheet on a quarter-by-quarter
basis, such business plan to be in reasonable detail prepared by the
Borrower and in form satisfactory to the Administrative Agent and the
Required Lenders (which shall include a summary of all assumptions made in
preparing such business plan);
(i) notice of any Change of Control;
(j) promptly after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice of
any threatened or pending litigation or governmental or arbitration
proceeding or labor controversy against the Borrower or any Subsidiary
which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect or of the occurrence of any Default or Event of
Default hereunder; and
(k) with each of the financial statements furnished to the Lenders
pursuant to subsections (a) and (b) above, a written certificate in the
form attached hereto as Exhibit F signed by the chief financial officer of
the Borrower or another officer of the Borrower acceptable to the
Administrative Agent to the effect that to the best of such officer's
knowledge and belief no Default or Event of Default has occurred during
the period covered by such statements or, if any such Default or Event of
Default has occurred during such period, setting forth a description of
such Default or Event of Default and specifying the action, if any, taken
by the Borrower or any Subsidiary to remedy the same. Such certificate
shall also set forth the calculations supporting such statements in
respect of Section 8.21 hereof.
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Section 8.6. Inspection. The Borrower shall, and shall cause each
Subsidiary to, permit the Administrative Agent, each Lender, and each of their
duly authorized representatives and agents to visit and inspect any of its
Property, corporate books, and financial records, to examine and make copies of
its books of accounts and other financial records, and to discuss its affairs,
finances, and accounts with, and to be advised as to the same by, its officers,
employees and independent public accountants (and by this provision the Borrower
hereby authorizes such accountants to discuss with the Administrative Agent and
such Lenders the finances and affairs of the Borrower and its Subsidiaries) at
such reasonable times and intervals as the Administrative Agent or any such
Lender may designate and, so long as no Default or Event of Default exists, with
reasonable prior notice to the Borrower.
Section 8.7. Limitations on Indebtedness. The Borrower will not and will
not permit any Subsidiary to create, assume or incur or in any manner be or
become liable in respect of any Current Debt or Funded Debt, except:
(a) the Obligations, Hedging Liability, and Funds Transfer and
Deposit Account Liability of the Borrower and its Subsidiaries owing to
the Administrative Agent and the Lenders (and their Affiliates);
(b) Current Debt or Funded Debt of a Material Subsidiary to the
Borrower or to a Wholly-Owned Material Subsidiary;
(c) Funded Debt of the Borrower and its Subsidiaries in an aggregate
principal amount at any one time outstanding of not more than 25% of the
total assets of the Borrower and its Subsidiaries as shown on the
Borrower's most recent financial statements delivered pursuant to Section
8.5 hereof; and
(d) unsecured Current Debt of the Borrower.
Section 8.8. Limitation on Liens. The Borrower will not, and will not
permit any Subsidiary to, create or incur, or suffer to be incurred or to exist,
any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
on its or their property or assets, whether now owned or hereafter acquired, or
upon any income or profits therefrom, or transfer any property for the purpose
of subjecting the same to the payment of obligations in priority to the payment
of its or their general creditors, or acquire or agree to acquire, or permit any
Subsidiary to acquire, any property or assets upon conditional sales agreements
or other title retention devices, except:
(a) liens for property taxes and assessments or governmental charges
or levies and liens securing claims or demands of mechanics and
materialmen, provided that payment thereof is not at the time required by
Section 8.3;
(b) liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or
in respect of which the Borrower or a Subsidiary shall at any time in good
faith be prosecuting an appeal or proceeding for a review and in respect
of which a stay of execution pending such appeal or proceeding for review
shall have been secured;
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(c) liens, charges, encumbrances and priority claims incidental to
the conduct of business or the ownership of properties and assets
(including warehousemen's and attorneys' liens and statutory landlords'
liens) and deposits, pledges or liens to secure the performance of bids,
tenders or trade contracts, or to secure statutory obligations, surety or
appeal bonds or other liens of like general nature incurred in the
ordinary course of business and not in connection with the borrowing of
money, provided in each case, the obligation secured is not overdue or, if
overdue, is being contested in good faith by appropriate actions or
proceedings;
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Borrower and its Subsidiaries or which customarily exist on properties of
corporations engaged in similar activities and similarly situated and
which do not in any event materially impair their use in the operation of
the business of the Borrower and its Subsidiaries;
(e) mortgages, liens or security interests securing Indebtedness of
a Material Subsidiary to the Borrower or to another Material Subsidiary;
(f) mortgages, conditional sale contracts, security interests or
other arrangements for the retention of title (including Capitalized
Leases) incurred after the date hereof given to secure the payment of the
purchase price incurred in connection with the acquisition or cost of
construction of fixed assets useful and intended to be used in carrying on
the business of the Borrower or a Subsidiary, including liens existing on
such fixed assets at the time of acquisition thereof or at the time of
acquisition by the Borrower or a Subsidiary of any business entity then
owning such fixed assets, whether or not such existing liens were given to
secure the payment of the purchase price of the fixed assets to which they
attach so long as they were not incurred, extended or renewed in
contemplation of such acquisition, provided that (i) the lien or charge
shall attach solely to the property acquired or purchased and shall be
created contemporaneously with, or within 120 days after, such acquisition
or the completion of such construction, (ii) at the time of acquisition of
such fixed assets, the aggregate amount remaining unpaid on all
Indebtedness secured by liens on such fixed assets whether or not assumed
by the Borrower or a Subsidiary shall not exceed the lesser of the total
purchase price or fair market value at the time of acquisition of such
fixed assets (as determined in good faith by the Board of Directors of the
Borrower), and (iii) all such Indebtedness shall have been incurred within
the applicable limitations provided in Section 8.7; and
(g) Liens not otherwise permitted under this Section 8.8 on Property
securing Indebtedness that is permitted under Section 8.7(c) in an
aggregate principal amount not exceeding 5% of the total assets of the
Borrower and its Subsidiaries as shown on the Borrower's most recent
financial statements delivered pursuant to Section 8.5 hereof.
Section 8.9. Investments, Acquisitions, Loans and Advances. The Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly, make,
retain or have outstanding any
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investments (whether through purchase of stock or obligations or otherwise) in,
or loans or advances to (other than for travel advances and other similar cash
advances made to employees in the ordinary course of business), any other
Person, or acquire all or any substantial part of the assets or business of any
other Person or division thereof; provided, however, that the foregoing shall
not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America, provided that any such obligations shall mature within one year
of the date of issuance thereof;
(b) investments in commercial paper rated at least P-1 by Xxxxx'x
and at least A-1 by S&P maturing within one year of the date of issuance
thereof;
(c) investments in certificates of deposit issued by any Lender or
by any United States commercial bank having capital and surplus of not
less than $100,000,000 which have a maturity of one year or less;
(d) investments in repurchase obligations with a term of not more
than 7 days for underlying securities of the types described in subsection
(a) above entered into with any bank meeting the qualifications specified
in subsection (c) above, provided all such agreements require physical
delivery of the securities securing such repurchase agreement, except
those delivered through the Federal Reserve Book Entry System;
(e) investments in money market funds or mutual funds that invest
solely, and which are restricted by their respective charters to invest
solely, in investments of the type described in the immediately preceding
subsections (a), (b), (c), and (d) above;
(f) the Borrower's investments from time to time in its
Subsidiaries, and investments made from time to time by a Subsidiary in or
more of its Subsidiaries at any one time outstanding in an amount that
does not exceed in the aggregate 20% of the total amount of all assets of
the Borrower and its Subsidiaries as shown on the Borrower's most recent
financial statements delivered pursuant to Section 8.5 hereof;
(h) acquisitions, provided that (i) no Default or Event of Default
exists or would exist after given effect to such acquisition, (ii) the
board of directors or other governing body of such Person whose property
or Voting Stock is being so acquired has approved the terms of such
acquisition, (iii) the acquired business is in an Eligible Line of
Business and (iv) prior to each acquisition requiring Total Consideration
from the Borrower and its Subsidiaries in excess of $10,000,000, (x) there
is delivered to the Lenders a certificate, signed by the chief financial
officer of the Borrower, demonstrating that, taking into account such
acquisition and its effects, the Borrower will remain in compliance with
the covenants set forth in Section 8.22 hereof as of the date of such
acquisition and, based on projections believed by the Borrower to be
reasonable, at all times during the twelve month period following such
date and certifying that no Default or Event of Default has occurred or is
continuing hereunder as of the date of and
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immediately after giving effect to such acquisition any (y) such
certificate is true and correct; and
(i) other investments, loans, and advances in addition to those
otherwise permitted by this Section in an amount not to exceed $35,000,000
in the aggregate at any one time outstanding.
In determining the amount of investments, acquisitions, loans, and advances
permitted under this Section, investments and acquisitions shall always be taken
at the original cost thereof (regardless of any subsequent appreciation or
depreciation therein), and loans and advances shall be taken at the principal
amount thereof then remaining unpaid.
Section 8.10. Mergers, Consolidations and Sales. (a) The Borrower will
not, and will not permit any Subsidiary to (i) consolidate with or be a party to
a merger with any other corporation or (ii) sell, lease or otherwise dispose of
all or any substantial part (as defined in paragraph (d) of this Section) of the
assets of the Borrower and its Subsidiaries, provided, however, that:
(1) any Subsidiary may merge or consolidate with or into the
Borrower or any Wholly-owned Subsidiary so long as in any merger or
consolidation involving the Borrower, the Borrower shall be the surviving
or continuing corporation;
(2) the Borrower may consolidate or merge with any other corporation
if (i) the surviving or continuing corporation shall be a corporation
incorporated under the laws of the United States of America or any State
thereof, (ii) at the time of such consolidation or merger and after giving
effect thereto no Default or Event of Default shall have occurred and be
continuing, and (iii) the surviving or continuing corporation (if other
than the Borrower) shall have expressly assumed the obligations of the
Borrower in connection with the Notes and this Agreement; and
(3) any Subsidiary may sell, lease or otherwise dispose of all or
any substantial part of its assets to the Borrower or any Wholly-owned
Subsidiary.
(b) The Borrower will not permit any Subsidiary to issue or sell any
shares of stock of any class (including as "stock" for the purposes of this
Section 8.10, any warrants, rights or options to purchase or otherwise acquire
stock or other Securities exchangeable for or convertible into stock) of such
Subsidiary to any Person other than the Borrower or a Wholly-owned Subsidiary,
except for the purpose of qualifying directors, or except in satisfaction of the
validly pre-existing preemptive rights of minority shareholders in connection
with the simultaneous issuance of stock to the Borrower and/or a Subsidiary
whereby the Borrower and/or such Subsidiary maintain their same proportionate
interest in such Subsidiary.
(c) The Borrower will not sell, transfer or otherwise dispose of any
shares of stock in any Subsidiary (except to qualify directors) or any
Indebtedness of any Subsidiary, and will not permit any Subsidiary to sell,
transfer or otherwise dispose of (except to the Borrower or a Wholly-owned
Subsidiary) any shares of stock or any Indebtedness of any other Subsidiary,
unless:
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(1) simultaneously with such sale, transfer, or disposition, all
shares of stock and all Indebtedness of such Subsidiary at the time owned
by the Borrower and by every other Subsidiary shall be sold, transferred
or disposed of as an entirety;
(2) the Board of Directors of the Borrower shall have determined, as
evidenced by a resolution thereof, that the retention of such stock and
Indebtedness is no longer in the best interests of the Borrower;
(3) such stock and Indebtedness is sold, transferred or otherwise
disposed of to a Person, for a cash consideration and on terms reasonably
deemed by the Board of Directors to be adequate and satisfactory;
(4) the Subsidiary being disposed of shall not have any continuing
investment in the Borrower or any other Subsidiary not being
simultaneously disposed of; and
(5) such sale or other disposition does not involve a substantial
part (as hereinafter defined) of the assets of the Borrower and its
Subsidiaries.
(d) As used in this Section 8.10, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Borrower
and its Subsidiaries only if (i) the book value of such assets when added to the
book value of all other assets sold, leased or otherwise disposed of by the
Borrower and its Subsidiaries (other than in the ordinary course of business)
during the same fiscal year, less the amount of proceeds of any such sale, lease
or other disposition applied within one year after such sale, lease or other
disposition to the purchase price of other property similar to the property so
disposed of and having a value at least equal to the property so disposed of,
exceeds 10% of the Tangible Assets of the Borrower and its Subsidiaries
determined as of the end of the immediately preceding fiscal year, or (ii) the
book value of such assets when added to the book value of all other assets sold,
leased or otherwise disposed of by the Borrower and its Subsidiaries (other than
in the ordinary course of business) during the period commencing on the date of
this Agreement and ending on the date of such disposition, less the amount of
proceeds of any such sale, lease or other disposition applied within one year
after such sale, lease or other disposition to the purchase price of other
property similar to the property so disposed of and having a value a least equal
to the property so disposed of, exceeds 25% of the Tangible Assets of the
Borrower and its Subsidiaries determined as of the end of the fiscal year
immediately preceding the date of such disposition.
Section 8.11. Dividends and Certain Other Restricted Payments. The
Borrower shall not, (a) declare any dividends on or make any other distributions
(other than dividends and distributions payable solely in its capital stock) in
respect of any class or series of its capital stock or other equity interests or
(b) directly or indirectly purchase, redeem, or otherwise acquire or retire any
of its capital stock or other equity interests or any warrants, options, or
similar instruments to acquire the same, if an Event of Default exists prior to
or would exist after giving effect to such action.
Section 8.12. ERISA. The Borrower shall, and shall cause each Subsidiary
to, promptly pay and discharge all obligations and liabilities arising under
ERISA of a character which if
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unpaid or unperformed could reasonably be expected to result in the imposition
of a Lien against any of its Property. The Borrower shall, and shall cause each
Subsidiary to, promptly notify the Administrative Agent and each Lender of: (a)
the occurrence of any reportable event (as defined in ERISA) with respect to a
Plan, (b) receipt of any notice from the PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (c) its intention
to terminate or withdraw from any Plan, and (d) the occurrence of any event with
respect to any Plan which would result in the incurrence by the Borrower or any
Subsidiary of any material liability, fine or penalty, or any material increase
in the contingent liability of the Borrower or any Subsidiary with respect to
any post-retirement Welfare Plan benefit.
Section 8.13. Compliance with Laws. (a) The Borrower shall, and shall
cause each Subsidiary to, comply in all respects with the requirements of all
federal, state, and local laws, rules, regulations, ordinances and orders
applicable to or pertaining to its Property or business operations, where any
such non-compliance, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or result in a Lien upon any of its
Property.
(b) Without limiting the agreements set forth in Section 8.14(a) above,
the Borrower shall, and shall cause each Subsidiary to, at all times, do the
following to the extent the failure to do so, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect: (i) comply in
all material respects with, and maintain each of the Premises in compliance in
all material respects with, all applicable Environmental Laws; (ii) require that
each tenant and subtenant, if any, of any of the Premises or any part thereof
comply in all material respects with all applicable Environmental Laws; (iii)
obtain and maintain in full force and effect all material governmental approvals
required by any applicable Environmental Law for operations at each of the
Premises; (iv) cure any material violation by it or at any of the Premises of
applicable Environmental Laws; (v) not allow the presence or operation at any of
the Premises of any (1) landfill or dump or (2) hazardous waste management
facility or solid waste disposal facility as defined pursuant to RCRA or any
comparable state law; (vi) not manufacture, use, generate, transport, treat,
store, release, dispose or handle any Hazardous Material at any of the Premises
except in the ordinary course of its business and in de minimis amounts; (vii)
within 10 Business Days notify the Administrative Agent in writing of and
provide any reasonably requested documents upon learning of any of the following
in connection with the Borrower or any Subsidiary or any of the Premises: (1)
any material liability for response or corrective action, natural resource
damage or other harm pursuant to CERCLA, RCRA or any comparable state law; (2)
any material Environmental Claim; (3) any material violation of an Environmental
Law or material Release, threatened Release or disposal of a Hazardous Material;
(4) any restriction on the ownership, occupancy, use or transferability arising
pursuant to any (x) Release, threatened Release or disposal of a Hazardous
Material or (y) Environmental Law; or (5) any environmental, natural resource,
health or safety condition, which could reasonably be expected to have a
Material Adverse Effect; (viii) conduct at its expense any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or xxxxx any material Release,
threatened Release or disposal of a Hazardous Material as required by any
applicable Environmental Law, (ix) abide by and observe any restrictions on the
use of the Premises imposed by any governmental authority as set forth in a deed
or other instrument affecting the Borrower's or any Subsidiary's interest
therein; (x) promptly provide or otherwise make available to the Administrative
Agent any reasonably
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requested environmental record concerning the Premises which the Borrower or any
Subsidiary possesses or can reasonably obtain; and (xi) perform, satisfy, and
implement any operation or maintenance actions required by any governmental
authority or Environmental Law, or included in any no further action letter or
covenant not to xxx issued by any governmental authority under any Environmental
Law.
Section 8.14. Burdensome Contracts With Affiliates. The Borrower shall
not, nor shall it permit any Subsidiary to, enter into any contract, agreement
or business arrangement with any of its Affiliates (other than with Wholly-owned
Subsidiaries) on terms and conditions which are less favorable to the Borrower
or such Subsidiary than would be usual and customary in similar contracts,
agreements or business arrangements between Persons not affiliated with each
other.
Section 8.15. No Changes in Fiscal Year. The fiscal year of the Borrower
and its Subsidiaries ends on December 31 of each year; and the Borrower shall
not, nor shall it permit any Subsidiary to, change its fiscal year from its
present basis.
Section 8.16. Formation of Subsidiaries. Promptly upon the formation or
acquisition of any Material Subsidiary, the Borrower shall provide the
Administrative Agent and the Lenders notice thereof and timely comply with the
requirements of Section 4 hereof (at which time Schedule 6.2 shall be deemed
amended to include reference to such Subsidiary).
Section 8.17. Change in the Nature of Business. The Borrower shall not,
nor shall it permit any Subsidiary to, engage in any business or activity if as
a result the general nature of the business of the Borrower or any Subsidiary
would be changed in any material respect from the general nature of the business
engaged in by it as of the Closing Date.
Section 8.18. Use of Loan Proceeds. The Borrower shall use the credit
extended under this Agreement solely for the purposes set forth in, or otherwise
permitted by, Section 6.4 hereof.
Section 8.19. No Restrictions. Except as provided herein, the Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of the Borrower or any
Subsidiary to: (a) pay dividends or make any other distribution on any
Subsidiary's capital stock or other equity interests owned by the Borrower or
any other Subsidiary, (b) pay any indebtedness owed to the Borrower or any other
Subsidiary, (c) make loans or advances to the Borrower or any other Subsidiary,
(d) transfer any of its Property to the Borrower or any other Subsidiary or (e)
guarantee the Obligations as required by the Loan Documents.
Section 8.20. Subordinated Debt. The Borrower shall not, nor shall it
permit any Subsidiary to, amend or modify any of the terms or conditions
relating to Subordinated Debt or make any voluntary prepayment thereof or effect
any voluntary redemption thereof or make any payment on account of Subordinated
Debt which is prohibited under the terms of any instrument or agreement
subordinating the same to the Obligations.
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Section 8.21. Financial Covenants. (a) Total Senior Funded Debt/EBITDA
Ratio. As of the last day of each fiscal quarter of the Borrower, the Borrower
shall not permit the Total Senior Funded Debt/EBITDA Ratio to be greater than
2.5 to 1.0.
(b) Net Worth. The Borrower will at all times maintain a Net Worth of not
less than the Minimum Required Amount (as defined below). For purposes of this
Section 8.22(b), the "Minimum Required Amount" shall mean (i) $120,000,000 for
the period from and including the Closing Date through and including December
31, 2003 and (ii) during each Annual Measurement Period (as defined below)
thereafter, an amount equal to the sum of (x) the Minimum Required Amount for
the immediately preceding Annual Measurement Period plus (y) an amount equal to
25% of the cumulative positive Net Income earned in such immediately preceding
Annual Measurement Period (but without subtraction for any negative Net Income
for any such period); provided, however, that in each case such Minimum Required
Amount shall increase on the date of the issuance of equity securities by the
Borrower by an amount equal to 25% of the Net Cash Proceeds of such issuance. As
used herein the term "Annual Measurement Period" shall mean each period
commencing on January 1 of a calendar year and ending on December 31 of such
calendar year.
(c) Interest Coverage Ratio. As of the last day of each fiscal quarter of
the Borrower, the Borrower shall maintain a ratio of (a) EBITDA for the four
fiscal quarters of the Borrower then ended to (b) Interest Expense for the same
four fiscal quarters then ended of not less than 2.5 to 1.0.
Section 8.22. Contingent Obligations. The Borrower will not and will not
permit any Subsidiary to become or be liable in respect of any Contingent
Obligation except the Guaranties hereunder and Contingent Obligations of the
Borrower which are limited in amount to a stated maximum dollar exposure in the
aggregate not greater than an amount equal to 5% of the total assets of the
Borrower and its Subsidiaries as shown on the Borrower's most recent financial
statements delivered pursuant to Section 8.5 hereof and included in Current Debt
or Consolidated Funded Debt.
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.
Section 9.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" hereunder:
(a) default in the payment when due of all or any part of the
principal of or interest on any Note (whether at the stated maturity
thereof or at any other time provided for in this Agreement) or of any
Reimbursement Obligation or of any fee or other Obligation payable
hereunder or under any other Loan Document;
(b) default in the observance or performance of any covenant set
forth in Sections 8.1, 8.5, 8.7, 8.8, 8.9, 8.10, 8.11, 8.20, 8.21 or 8.22
hereof;
(c) default in the observance or performance of any other provision
hereof or of any other Loan Document which is not remedied within thirty
(30) days after the
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earlier of (i) the date on which such failure shall first become known to
any officer of the Borrower or (ii) written notice thereof is given to the
Borrower by the Administrative Agent;
(d) any representation or warranty made herein or in any other Loan
Document or in any certificate furnished to the Administrative Agent or
the Lenders pursuant hereto or thereto or in connection with any
transaction contemplated hereby or thereby proves untrue in any material
respect as of the date of the issuance or making or deemed making thereof
and, to the extent capable of being cured, shall not be made good within
30 days after the earlier of (i) the date the Borrower knows or should
have known that such representation or warranty was untrue and (ii) the
date notice thereof is provided to the Borrower by the Administrative
Agent, any Lender or any holder of any Note;
(e) any event occurs or condition exists (other than those described
in subsections (a) through (d) above) which is specified as an event of
default under any of the other Loan Documents, or any of the Loan
Documents shall for any reason not be or shall cease to be in full force
and effect or is declared to be null and void, or any Subsidiary takes any
action for the purpose of terminating, repudiating or rescinding any Loan
Document executed by it or any of its obligations thereunder;
(f) default shall occur under any Indebtedness issued, assumed or
guaranteed by the Borrower or any Subsidiary aggregating in excess of
$2,500,000, or under any indenture, agreement or other instrument under
which the same may be issued, and such default shall continue for a period
of time sufficient to permit the acceleration of the maturity of any such
Indebtedness (whether or not such maturity is in fact accelerated), or any
such Indebtedness shall not be paid when due (whether by demand, lapse of
time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or warrants
of attachment, or any similar process or processes, shall be entered or
filed against the Borrower or any Subsidiary, or against any of its
Property, in an aggregate amount in excess of $2,500,000 (except to the
extent fully covered by insurance pursuant to which the insurer has
accepted liability therefor in writing), and which remains undischarged,
unvacated, unbonded or unstayed for a period of thirty (30) days;
(h) the Borrower or any Subsidiary, or any member of its Controlled
Group, shall fail to pay when due an amount or amounts aggregating in
excess of 5% of Consolidated Tangible Net Worth which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice
of intent to terminate a Plan or Plans having aggregate Unfunded Vested
Liabilities in excess of 5% of Consolidated Tangible Net Worth
(collectively, a "Material Plan") shall be filed under Title IV of ERISA
by the Borrower or any Subsidiary, or any other member of its Controlled
Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate or
to cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the Borrower or any Subsidiary, or any member of its Controlled
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Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within thirty (30) days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to
or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of
its Property, (v) institute any proceeding seeking to have entered against
it an order for relief under the United States Bankruptcy Code, as
amended, to adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i) through (v) above, or (vii) fail to contest in good
faith any appointment or proceeding described in Section 9.1(k) hereof; or
(k) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Subsidiary, or any
substantial part of any of its Property, or a proceeding described in
Section 9.1(j)(v) shall be instituted against the Borrower or any
Subsidiary, and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) days.
Section 9.2. Non-Bankruptcy Defaults. When any Event of Default other than
those described in subsection (j) or (k) of Section 9.1 hereof has occurred and
is continuing, the Administrative Agent shall, by written notice to the
Borrower: (a) if so directed by the Required Lenders, terminate the remaining
Revolving Credit Commitments and all other obligations of the Lenders hereunder
on the date stated in such notice (which may be the date thereof); (b) if so
directed by the Required Lenders, declare the principal of and the accrued
interest on all outstanding Notes to be forthwith due and payable and thereupon
all outstanding Notes, including both principal and interest thereon, shall be
and become immediately due and payable together with all other amounts payable
under the Loan Documents without further demand, presentment, protest or notice
of any kind; and (c) if so directed by the Required Lenders, demand that the
Borrower immediately pay to the Administrative Agent the full amount then
available for drawing under each or any Letter of Credit, and the Borrower
agrees to immediately make such payment and acknowledges and agrees that the
Lenders would not have an adequate remedy at law for failure by the Borrower to
honor any such demand and that the Administrative Agent, for the benefit of the
Lenders, shall have the right to require the Borrower to specifically perform
such undertaking whether or not any drawings or other demands for payment have
been made under any Letter of Credit. The Administrative Agent, after giving
notice to the Borrower
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pursuant to Section 9.1(c) or this Section 9.2, shall also promptly send a copy
of such notice to the other Lenders, but the failure to do so shall not impair
or annul the effect of such notice.
Section 9.3. Bankruptcy Defaults. When any Event of Default described in
subsections (j) or (k) of Section 9.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Lenders to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Administrative Agent the full
amount then available for drawing under all outstanding Letters of Credit, the
Borrower acknowledging and agreeing that the Lenders would not have an adequate
remedy at law for failure by the Borrower to honor any such demand and that the
Lenders, and the Administrative Agent on their behalf, shall have the right to
require the Borrower to specifically perform such undertaking whether or not any
draws or other demands for payment have been made under any of the Letters of
Credit.
Section 9.4. Collateral for Undrawn Letters of Credit. (a) If the
prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 1.9(b) or under Section 9.2 or 9.3
above, the Borrower shall forthwith pay the amount required to be so prepaid, to
be held by the Administrative Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by
the Administrative Agent in one or more separate collateral accounts (each such
account, and the credit balances, properties, and any investments from time to
time held therein, and any substitutions for such account, any certificate of
deposit or other instrument evidencing any of the foregoing and all proceeds of
and earnings on any of the foregoing being collectively called the "Collateral
Account") as security for, and for application by the Administrative Agent (to
the extent available) to, the reimbursement of any payment under any Letter of
Credit then or thereafter made by the Administrative Agent, and to the payment
of the unpaid balance of any other Obligations. The Collateral Account shall be
held in the name of and subject to the exclusive dominion and control of the
Administrative Agent for the benefit of the Administrative Agent, the Lenders,
and the L/C Issuer. If and when requested by the Borrower, the Administrative
Agent shall invest funds held in the Collateral Account from time to time in
direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America with a remaining
maturity of one year or less, provided that the Administrative Agent is
irrevocably authorized to sell investments held in the Collateral Account when
and as required to make payments out of the Collateral Account for application
to amounts due and owing from the Borrower to the L/C Issuer, the Administrative
Agent or the Lenders; provided, however, that if (i) the Borrower shall have
made payment of all such obligations referred to in subsection (a) above and
(ii) no Letters of Credit, Revolving Credit Commitments, Loans or other
Obligations remain outstanding hereunder, then the Administrative Agent shall
release to the Borrower any remaining amounts held in the Collateral Account.
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Section 9.5. Notice of Default. The Administrative Agent shall give notice
to the Borrower under Section 9.1(c) hereof promptly upon being requested to do
so by any Lender and shall thereupon notify all the Lenders thereof.
Section 9.6. Expenses. The Borrower agrees to pay to the Administrative
Agent and each Lender, and any other holder of any Note outstanding hereunder,
all costs and expenses reasonably incurred or paid by the Administrative Agent
and such Lender or any such holder, including reasonable attorneys' fees and
court costs, in connection with any Default or Event of Default hereunder or in
connection with the enforcement of any of the Loan Documents (including all such
costs and expenses incurred in connection with any proceeding under the United
States Bankruptcy Code involving the Borrower or any Subsidiary as a debtor
thereunder).
SECTION 10. CHANGE IN CIRCUMSTANCES.
Section 10.1. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time any change in applicable law or regulation
or in the interpretation thereof makes it unlawful for any Lender to make or
continue to maintain any Eurocurrency Loans or to perform its obligations as
contemplated hereby, such Lender shall promptly give notice thereof to the
Borrower and such Lender's obligations to make or maintain Eurocurrency Loans
under this Agreement shall be suspended until it is no longer unlawful for such
Lender to make or maintain Eurocurrency Loans. The Borrower shall prepay on
demand the outstanding principal amount of any such affected Eurocurrency Loans,
together with all interest accrued thereon and all other amounts then due and
payable to such Lender under this Agreement; provided, however, subject to all
of the terms and conditions of this Agreement, the Borrower may then elect to
borrow the principal amount of the affected Eurocurrency Loans from such Lender
by means of Base Rate Loans from such Lender, which Base Rate Loans shall not be
made ratably by the Lenders but only from such affected Lender.
Section 10.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurocurrency Loans:
(a) the Administrative Agent determines that deposits in the
applicable currency (in the applicable amounts) are not being offered to
it in the interbank eurodollar market for such Interest Period, or that by
reason of circumstances affecting the interbank eurodollar market adequate
and reasonable means do not exist for ascertaining the applicable LIBOR,
or
(b) the Required Lenders advise the Administrative Agent that (i)
LIBOR as determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their Eurocurrency
Loans for such Interest Period or (ii) that the making or funding of
Eurocurrency Loans become impracticable,
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances
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giving rise to such suspension no longer exist, the obligations of the Lenders
to make Eurocurrency Loans shall be suspended.
Section 10.3. Increased Cost and Reduced Return. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Lending Office) to any tax,
duty or other charge with respect to its Eurocurrency Loans, its Notes,
its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligations owed to it or its obligation to make
Eurocurrency Loans, issue a Letter of Credit, or to participate therein,
or shall change the basis of taxation of payments to any Lender (or its
Lending Office) of the principal of or interest on its Eurocurrency Loans,
Letter(s) of Credit, or participations therein or any other amounts due
under this Agreement or any other Loan Document in respect of its
Eurocurrency Loans, Letter(s) of Credit, any participation therein, any
Reimbursement Obligations owed to it, or its obligation to make
Eurocurrency Loans, or issue a Letter of Credit, or acquire participations
therein (except for changes in the rate of tax on the overall net income
of such Lender or its Lending Office imposed by the jurisdiction in which
such Lender's principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurocurrency Loans any such
requirement included in an applicable Eurocurrency Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Lender (or its Lending Office) or shall impose on any Lender (or
its Lending Office) or on the interbank market any other condition
affecting its Eurocurrency Loans, its Notes, its Letter(s) of Credit, or
its participation in any thereof, any Reimbursement Obligation owed to it,
or its obligation to make Eurocurrency Loans, or to issue a Letter of
Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining any Eurocurrency Loan, issuing
or maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Lender (or its Lending Office)
under this Agreement or under any other Loan Document with respect thereto, by
an amount deemed by such Lender to be material, then, within fifteen (15) days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction.
(b) If, after the date hereof, any Lender or the Administrative Agent
shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy,
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or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its Lending Office) or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has had the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, within fifteen (15) days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.
(c) A certificate of a Lender claiming compensation under this Section
10.3 and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive if reasonably determined. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.
Section 10.4. Lending Offices. Each Lender may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a written notice to the
Borrower and the Administrative Agent.
Section 10.5. Discretion of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder with respect to Eurocurrency Loans shall
be made as if each Lender had actually funded and maintained each Eurocurrency
Loan through the purchase of deposits in the interbank eurodollar market having
a maturity corresponding to such Loan's Interest Period, and bearing an interest
rate equal to LIBOR for such Interest Period.
SECTION 11. THE ADMINISTRATIVE AGENT.
Section 11.1. Appointment and Authorization of Administrative Agent. Each
Lender hereby appoints Xxxxxx Trust and Savings Bank as the Administrative Agent
under the Loan Documents and hereby authorizes the Administrative Agent to take
such action as Administrative Agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
The Lenders expressly agree that the Administrative Agent is not acting as a
fiduciary of the Lenders in respect of the Loan Documents, the Borrower or
otherwise, and nothing herein or in any of the other Loan Documents shall result
in any duties or obligations on the Administrative Agent or any of the Lenders
except as expressly set forth herein.
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Section 11.2. Administrative Agent and its Affiliates. The Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any other Lender and may exercise or refrain from exercising
such rights and power as though it were not the Administrative Agent, and the
Administrative Agent and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Affiliate
of the Borrower as if it were not the Administrative Agent under the Loan
Documents. The term "Lender" as used herein and in all other Loan Documents,
unless the context otherwise clearly requires, includes the Administrative Agent
in its individual capacity as a Lender. References in Section 1 hereof to the
Administrative Agent's Loans, or to the amount owing to the Administrative Agent
for which an interest rate is being determined, refer to the Administrative
Agent in its individual capacity as a Lender.
Section 11.3. Action by Administrative Agent. If the Administrative Agent
receives from the Borrower a written notice of an Event of Default pursuant to
Section 8.5 hereof, the Administrative Agent shall promptly give each of the
Lenders written notice thereof. The obligations of the Administrative Agent
under the Loan Documents are only those expressly set forth therein. Without
limiting the generality of the foregoing, the Administrative Agent shall not be
required to take any action hereunder with respect to any Default or Event of
Default, except as expressly provided in Sections 9.2 and 9.5. Unless and until
the Required Lenders give such direction, the Administrative Agent may (but
shall not be obligated to) take or refrain from taking such actions as it deems
appropriate and in the best interest of all the Lenders. In no event, however,
shall the Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Loan Document, and the Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder or under any other Loan Document unless it first receives any further
assurances of its indemnification from the Lenders that it may require,
including prepayment of any related expenses and any other protection it
requires against any and all costs, expense, and liability which may be incurred
by it by reason of taking or continuing to take any such action. The
Administrative Agent shall be entitled to assume that no Default or Event of
Default exists unless notified in writing to the contrary by a Lender or the
Borrower. In all cases in which the Loan Documents do not require the
Administrative Agent to take specific action, the Administrative Agent shall be
fully justified in using its discretion in failing to take or in taking any
action thereunder. Any instructions of the Required Lenders, or of any other
group of Lenders called for under the specific provisions of the Loan Documents,
shall be binding upon all the Lenders and the holders of the Obligations.
Section 11.4. Consultation with Experts. The Administrative Agent may
consult with legal counsel, independent public accountants, and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 11.5. Liability of Administrative Agent; Credit Decision. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection with the
Loan Documents: (i) with the consent or at the request of the Required Lenders
or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify: (i) any
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statement, warranty or representation made in connection with this Agreement,
any other Loan Document or any Credit Event; (ii) the performance or observance
of any of the covenants or agreements of the Borrower or any Subsidiary
contained herein or in any other Loan Document; (iii) the satisfaction of any
condition specified in Section 7 hereof, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness,
genuineness, enforceability, perfection, value, worth or collectibility hereof
or of any other Loan Document or of any other documents or writing furnished in
connection with any Loan Document; and the Administrative Agent makes no
representation of any kind or character with respect to any such matter
mentioned in this sentence. The Administrative Agent may execute any of its
duties under any of the Loan Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, the Borrower, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Administrative Agent shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, other document or statement (whether written or oral) believed by
it to be genuine or to be sent by the proper party or parties. In particular and
without limiting any of the foregoing, the Administrative Agent shall have no
responsibility for confirming the accuracy of any compliance certificate or
other document or instrument received by it under the Loan Documents. The
Administrative Agent may treat the payee of any Note as the holder thereof until
written notice of transfer shall have been filed with the Administrative Agent
signed by such payee in form satisfactory to the Administrative Agent. Each
Lender acknowledges that it has independently and without reliance on the
Administrative Agent or any other Lender, and based upon such information,
investigations and inquiries as it deems appropriate, made its own credit
analysis and decision to extend credit to the Borrower in the manner set forth
in the Loan Documents. It shall be the responsibility of each Lender to keep
itself informed as to the creditworthiness of the Borrower and its Subsidiaries,
and the Administrative Agent shall have no liability to any Lender with respect
thereto.
Section 11.6. Indemnity. The Lenders shall ratably, in accordance with
their respective Percentages, indemnify and hold the Administrative Agent, and
its directors, officers, employees, agents, and representatives harmless from
and against any liabilities, losses, costs or expenses suffered or incurred by
it under any Loan Document or in connection with the transactions contemplated
thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrower and except to the extent that
any event giving rise to a claim was caused by the gross negligence or willful
misconduct of the party seeking to be indemnified. The obligations of the
Lenders under this Section shall survive termination of this Agreement. The
Administrative Agent shall be entitled to offset amounts received for the
account of a Lender under this Agreement against unpaid amounts due from such
Lender to the Administrative Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to offset
against amounts owed to the Administrative Agent by any Lender arising outside
of this Agreement and the other Loan Documents.
Section 11.7. Resignation and Removal of Administrative Agent and
Successor Administrative Agent. The Administrative Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower. The
Administrative Agent may be removed at any time with or without cause by written
notice received by the Administrative Agent from the Required Lenders, such
removal to be effective on the date specified by the Required Lenders. Upon any
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such resignation or removal of the Administrative Agent, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation or the
removed Administrative Agent's receipt of notice from the Required Lenders then
the retiring or removed Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which may be any Lender hereunder or
any commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$200,000,000. Upon the acceptance of its appointment as the Administrative Agent
hereunder, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring or removed
Administrative Agent under the Loan Documents, and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations
thereunder. After any retiring or removed Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 11 and
all protective provisions of the other Loan Documents shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent, but no successor Administrative Agent shall in any event be liable or
responsible for any actions of its predecessor. If the Administrative Agent
resigns or is removed and no successor is appointed, the rights and obligations
of such Administrative Agent shall be automatically assumed by the Required
Lenders and the Borrower shall be directed to make all payments due each Lender
hereunder directly to such Lender.
Section 11.8. L/C Issuer. The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith. The L/C Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 11 with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
Applications pertaining to such Letters of Credit as fully as if the term
"Administrative Agent", as used in this Section 11, included the L/C Issuer with
respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to such L/C Issuer.
Section 11.9. Hedging Liability and Funds Transfer and Deposit Account
Liability Arrangements. By virtue of a Lender's execution of this Agreement or
an assignment agreement pursuant to Section 13.12 hereof, as the case may be,
any Affiliate of such Lender with whom the Borrower or any Subsidiary has
entered into an agreement creating Hedging Liability or Funds Transfer and
Deposit Account Liability shall be deemed a Lender party hereto for purposes of
any reference in a Loan Document to the parties for whom the Administrative
Agent is acting, it being understood and agreed that the rights and benefits of
such Affiliate under the Loan Documents consist exclusively of such Affiliate's
right to share in payments and collections out of the Guaranties as more fully
set forth in Section 3.1 hereof. In connection with any such distribution of
payments and collections, the Administrative Agent shall be entitled to assume
no amounts are due to any Lender or its Affiliate with respect to Hedging
Liability or Funds Transfer and Deposit Account Liability unless such Lender has
notified the Administrative Agent in writing of the amount of any such liability
owed to it or its Affiliate prior to such distribution.
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Section 11.10. Designation of Additional Agents. The Administrative Agent
shall have the continuing right, for purposes hereof, at any time and from time
to time to designate one or more of the Lenders (and/or its or their Affiliates)
as "syndication agents," "documentation agents," "arrangers," or other
designations for purposes hereto, but such designation shall have no substantive
effect, and such Lenders and their Affiliates shall have no additional powers,
duties or responsibilities as a result thereof.
SECTION 12. THE GUARANTEES.
Section 12.1. The Guarantees. To induce the Lenders to provide the credits
described herein and in consideration of benefits expected to accrue to the
Borrower by reason of the Revolving Credit Commitments and for other good and
valuable consideration, receipt of which is hereby acknowledged, each Subsidiary
party hereto (including any Subsidiary formed or acquired after the Closing Date
executing an Additional Guarantor Supplement in the form attached hereto as
Exhibit G or such other form acceptable to the Administrative Agent) hereby
unconditionally and irrevocably guarantee jointly and severally to the
Administrative Agent, the Lenders, and their Affiliates, the due and punctual
payment of all present and future Obligations, Hedging Liability, and Funds
Transfer and Deposit Account Liability, including, but not limited to, the due
and punctual payment of principal of and interest on the Notes, the
Reimbursement Obligations, and the due and punctual payment of all other
Obligations now or hereafter owed by the Borrower under the Loan Documents and
the due and punctual payment of all Hedging Liability and Funds Transfer and
Deposit Account Liability, in each case as and when the same shall become due
and payable, whether at stated maturity, by acceleration, or otherwise,
according to the terms hereof and thereof (including interest which, but for the
filing of a petition in bankruptcy, would otherwise accrue on any such
indebtedness, obligation, or liability). In case of failure by the Borrower or
other obligor punctually to pay any Obligations, Hedging Liability, or Funds
Transfer and Deposit Account Liability guaranteed hereby, each Guarantor hereby
unconditionally agrees to make such payment or to cause such payment to be made
punctually as and when the same shall become due and payable, whether at stated
maturity, by acceleration, or otherwise, and as if such payment were made by the
Borrower or such obligor.
Section 12.2. Guarantee Unconditional. The obligations of each Guarantor
under this Section 12 shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged, or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver, or
release in respect of any obligation of the Borrower or other obligor or
of any other guarantor under this Agreement or any other Loan Document or
by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any other Loan Document or any agreement relating to Hedging Liability
or Funds Transfer and Deposit Account Liability;
(c) any change in the corporate existence, structure, or ownership
of, or any insolvency, bankruptcy, reorganization, or other similar
proceeding affecting, the Borrower or other obligor, any other guarantor,
or any of their respective assets, or any
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resulting release or discharge of any obligation of the Borrower or other
obligor or of any other guarantor contained in any Loan Document;
(d) the existence of any claim, set-off, or other rights which the
Borrower or other obligor or any other guarantor may have at any time
against the Administrative Agent, any Lender, or any other Person, whether
or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or demand
or any exercise of, or failure to exercise, any rights or remedies against
the Borrower or other obligor, any other guarantor, or any other Person or
Property;
(f) any application of any sums by whomsoever paid or howsoever
realized to any obligation of the Borrower or other obligor, regardless of
what obligations of the Borrower or other obligor remain unpaid;
(g) any invalidity or unenforceability relating to or against the
Borrower or other obligor or any other guarantor for any reason of this
Agreement or of any other Loan Document or any agreement relating to
Hedging Liability or Funds Transfer and Deposit Account Liability or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower or other obligor or any other guarantor of the
principal of or interest on any Note or any Reimbursement Obligation or
any other amount payable under the Loan Documents or any agreement
relating to Hedging Liability or Funds Transfer and Deposit Account
Liability; or
(h) any other act or omission to act or delay of any kind by the
Administrative Agent, any Lender, or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the obligations of
any Guarantor under this Section 12.
Section 12.3. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances. Each Guarantor's obligations under this Section 12 shall
remain in full force and effect until the Revolving Credit Commitments are
terminated, all Letters of Credit have expired, and the principal of and
interest on the Notes and all other amounts payable by the Borrower and the
Guarantors under this Agreement and all other Loan Documents and, if then
outstanding and unpaid, all Hedging Liability and Funds Transfer and Deposit
Account Liability shall have been paid in full. If at any time any payment of
the principal of or interest on any Note or any Reimbursement Obligation or any
other amount payable by the Borrower or other obligor or any Guarantor under the
Loan Documents or any agreement relating to Hedging Liability or Funds Transfer
and Deposit Account Liability is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy, or reorganization of the Borrower or
other obligor or of any guarantor, or otherwise, each Guarantor's obligations
under this Section 12 with respect to such payment shall be reinstated at such
time as though such payment had become due but had not been made at such time.
Section 12.4. Subrogation. Each Guarantor agrees it will not exercise any
rights which it may acquire by way of subrogation by any payment made hereunder,
or otherwise, until all the
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Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability
shall have been paid in full subsequent to the termination of all the Revolving
Credit Commitments and expiration of all Letters of Credit. If any amount shall
be paid to a Guarantor on account of such subrogation rights at any time prior
to the later of (x) the payment in full of the Obligations, Hedging Liability,
and Funds Transfer and Deposit Account Liability and all other amounts payable
by the Borrower hereunder and the other Loan Documents and (y) the termination
of the Revolving Credit Commitments and expiration of all Letters of Credit,
such amount shall be held in trust for the benefit of the Administrative Agent
and the Lenders (and their Affiliates) and shall forthwith be paid to the
Administrative Agent for the benefit of the Lenders (and their Affiliates) or be
credited and applied upon the Obligations, Hedging Liability, and Funds Transfer
and Deposit Account Liability, whether matured or unmatured, in accordance with
the terms of this Agreement.
Section 12.5. Waivers. Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest, and any notice not provided for herein, as
well as any requirement that at any time any action be taken by the
Administrative Agent, any Lender, or any other Person against the Borrower or
other obligor, another guarantor, or any other Person.
Section 12.6. Limit on Recovery. Notwithstanding any other provision
hereof, the right of recovery against each Guarantor under this Section 12 shall
not exceed the lowest amount which would render such Guarantor's obligations
under this Section 12 void or voidable under applicable law, including, without
limitation, fraudulent conveyance law minus $1.00.
Section 12.7. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower or other obligor under this
Agreement or any other Loan Document, or under any agreement relating to Hedging
Liability or Funds Transfer and Deposit Account Liability, is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower or such obligor, all
such amounts otherwise subject to acceleration under the terms of this Agreement
or the other Loan Documents, or under any agreement relating to Hedging
Liability or Funds Transfer and Deposit Account Liability, shall nonetheless be
payable by the Guarantors hereunder forthwith on demand by the Administrative
Agent made at the request of the Required Lenders.
Section 12.8. Benefit to Guarantors. The Borrower and the Guarantors are
engaged in related businesses and integrated to such an extent that the
financial strength and flexibility of the Borrower has a direct impact on the
success of each Guarantor. Each Guarantor will derive substantial direct and
indirect benefit from the extensions of credit hereunder.
Section 12.9. Guarantor Covenants. Each Guarantor shall take such action
as the Borrower is required by this Agreement to cause such Guarantor to take,
and shall refrain from taking such action as the Borrower is required by this
Agreement to prohibit such Guarantor from taking.
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SECTION 13. MISCELLANEOUS.
Section 13.1. Withholding Taxes. (a) Payments Free of Withholding. Except
as otherwise required by law and subject to Section 13.1(b) hereof, each payment
by the Borrower and the Guarantors under this Agreement or the other Loan
Documents shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient) imposed by
or within the jurisdiction in which the Borrower or such Guarantor is domiciled,
any jurisdiction from which the Borrower or such Guarantor makes any payment, or
(in each case) any political subdivision or taxing authority thereof or therein.
If any such withholding is so required, the Borrower or such Guarantor shall
make the withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon, and
forthwith pay such additional amount as may be necessary to ensure that the net
amount actually received by each Lender and the Administrative Agent free and
clear of such taxes (including such taxes on such additional amount) is equal to
the amount which that Lender or the Administrative Agent (as the case may be)
would have received had such withholding not been made. If the Administrative
Agent or any Lender pays any amount in respect of any such taxes, penalties or
interest, the Borrower or such Guarantor shall reimburse the Administrative
Agent or such Lender for that payment on demand in the currency in which such
payment was made. If the Borrower or such Guarantor pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Lender or Administrative Agent on
whose account such withholding was made (with a copy to the Administrative Agent
if not the recipient of the original) on or before the thirtieth day after
payment.
(b) U.S. Withholding Tax Exemptions. Each Lender that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Administrative Agent on or before the date the
initial Credit Event is made hereunder or, if later, the date such financial
institution becomes a Lender hereunder, two duly completed and signed copies of
(i) either Form W-8 BEN (relating to such Lender and entitling it to a complete
exemption from withholding under the Code on all amounts to be received by such
Lender, including fees, pursuant to the Loan Documents and the Obligations) or
Form W-8 ECI (relating to all amounts to be received by such Lender, including
fees, pursuant to the Loan Documents and the Obligations) of the United States
Internal Revenue Service or (ii) solely if such Lender is claiming exemption
from United States withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8 BEN, or any
successor form prescribed by the Internal Revenue Service, and a certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code). Thereafter and from time to time, each Lender shall submit to the
Borrower and the Administrative Agent such additional duly completed and signed
copies of one or the other of such Forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) and
such other certificates as may be (i) requested by the Borrower in a written
notice, directly or through the Administrative Agent, to such Lender and (ii)
required under then-current United States law or regulations to avoid or reduce
United States withholding taxes on payments in respect of all amounts to be
received by such Lender,
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including fees, pursuant to the Loan Documents or the Obligations. Upon the
request of the Borrower or the Administrative Agent, each Lender that is a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Administrative Agent a certificate to
the effect that it is such a United States person.
(c) Inability of Lender to Submit Forms. If any Lender determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the
Borrower or the Administrative Agent any form or certificate that such Lender is
obligated to submit pursuant to subsection (b) of this Section 13.1 or that such
Lender is required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise becomes ineffective or
inaccurate, such Lender shall promptly notify the Borrower and Administrative
Agent of such fact and the Lender shall to that extent not be obligated to
provide any such form or certificate and will be entitled to withdraw or cancel
any affected form or certificate, as applicable.
Section 13.2. No Waiver, Cumulative Remedies. No delay or failure on the
part of the Administrative Agent or any Lender or on the part of the holder or
holders of any of the Obligations in the exercise of any power or right under
any Loan Document shall operate as a waiver thereof or as an acquiescence in any
default, nor shall any single or partial exercise of any power or right preclude
any other or further exercise thereof or the exercise of any other power or
right. The rights and remedies hereunder of the Administrative Agent, the
Lenders and of the holder or holders of any of the Obligations are cumulative
to, and not exclusive of, any rights or remedies which any of them would
otherwise have.
Section 13.3. Non-Business Days. If any payment hereunder becomes due and
payable on a day which is not a Business Day, the due date of such payment shall
be extended to the next succeeding Business Day on which date such payment shall
be due and payable. In the case of any payment of principal falling due on a day
which is not a Business Day, interest on such principal amount shall continue to
accrue during such extension at the rate per annum then in effect, which accrued
amount shall be due and payable on the next scheduled date for the payment of
interest.
Section 13.4. Documentary Taxes. The Borrower agrees to pay on demand any
documentary, stamp or similar taxes payable in respect of this Agreement or any
other Loan Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and whether or
not any credit is then in use or available hereunder.
Section 13.5. Survival of Representations. All representations and
warranties made herein or in any other Loan Document or in certificates given
pursuant hereto or thereto shall survive the execution and delivery of this
Agreement and the other Loan Documents, and shall continue in full force and
effect with respect to the date as of which they were made as long as any credit
is in use or available hereunder.
Section 13.6. Survival of Indemnities. All indemnities and other
provisions relative to reimbursement to the Lenders of amounts sufficient to
protect the yield of the Lenders with
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respect to the Loans and Letters of Credit, including, but not limited to,
Sections 1.11, 10.3, and 13.15 hereof, shall survive the termination of this
Agreement and the other Loan Documents and the payment of the Obligations.
Section 13.7. Sharing of Set-Off. Each Lender agrees with each other
Lender a party hereto that if such Lender shall receive and retain any payment,
whether by set-off or application of deposit balances or otherwise, on any of
the Loans or Reimbursement Obligations in excess of its ratable share of
payments on all such Obligations then outstanding to the Lenders, then such
Lender shall purchase for cash at face value, but without recourse, ratably from
each of the other Lenders such amount of the Loans or Reimbursement Obligations,
or participations therein, held by each such other Lenders (or interest therein)
as shall be necessary to cause such Lender to share such excess payment ratably
with all the other Lenders; provided, however, that if any such purchase is made
by any Lender, and if such excess payment or part thereof is thereafter
recovered from such purchasing Lender, the related purchases from the other
Lenders shall be rescinded ratably and the purchase price restored as to the
portion of such excess payment so recovered, but without interest. For purposes
of this Section, amounts owed to or recovered by the L/C Issuer in connection
with Reimbursement Obligations in which Lenders have been required to fund their
participation shall be treated as amounts owed to or recovered by the L/C Issuer
as a Lender hereunder.
Section 13.8. Notices. Except as otherwise specified herein, all notices
hereunder and under the other Loan Documents shall be in writing (including,
without limitation, notice by telecopy) and shall be given to the relevant party
at its address or telecopier number set forth below, or such other address or
telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower given by courier, by United States
certified or registered mail, by telecopy or by other telecommunication device
capable of creating a written record of such notice and its receipt. Notices
under the Loan Documents to the Lenders and the Administrative Agent shall be
addressed to their respective addresses or telecopier numbers set forth on the
signature pages hereof, and to the Borrower or any Guarantor to:
AMCOL International Corporation
0000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section or on the signature pages hereof and a confirmation of
such telecopy has been received by the sender, (ii) if given by mail, 5 days
after such communication is deposited in the mail, certified or registered with
return receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section or on the
signature pages hereof; provided that any notice given pursuant to Section 1
hereof shall be effective only upon receipt.
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Section 13.9. Counterparts. This Agreement may be executed in any number
of counterparts, and by the different parties hereto on separate counterpart
signature pages, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 13.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and the Guarantors and their successors and assigns, and shall
inure to the benefit of the Administrative Agent and each of the Lenders and the
benefit of their respective successors and assigns, including any subsequent
holder of any of the Obligations. The Borrower and the Guarantors may not assign
any of their rights or obligations under any Loan Document without the written
consent of all of the Lenders.
Section 13.11. Participants. Each Lender shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
and/or Revolving Credit Commitment held by such Lender at any time and from time
to time to one or more other Persons; provided that no such participation shall
relieve any Lender of any of its obligations under this Agreement, and,
provided, further that no such participant shall have any rights under this
Agreement except as provided in this Section, and the Administrative Agent shall
have no obligation or responsibility to such participant. Any agreement pursuant
to which such participation is granted shall provide that the granting Lender
shall retain the sole right and responsibility to enforce the obligations of the
Borrower under this Agreement and the other Loan Documents including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of the Loan Documents, except that such agreement may provide that
such Lender will not agree to any modification, amendment or waiver of the Loan
Documents that would reduce the amount of or postpone any fixed date for payment
of any Obligation in which such participant has an interest. Any party to which
such a participation has been granted shall have the benefits of Section 1.12
and Section 10.3 hereof. The Borrower authorizes each Lender to disclose to any
participant or prospective participant under this Section any financial or other
information pertaining to the Borrower or any Subsidiary.
Section 13.12. Assignments. (a) Each Lender shall have the right at any
time, with the prior consent of the Administrative Agent (and the L/C Issuers,
if other than the Administrative Agent) and, so long as no Event of Default then
exists, the Borrower (which consent of the Borrower shall not be unreasonably
withheld) to sell, assign, transfer or negotiate all or any part of its rights
and obligations under the Loan Documents (including, without limitation, the
indebtedness evidenced by the Notes then held by such assigning Lender, together
with an equivalent percentage of its obligation to make Loans and participate in
Letters of Credit) to one or more commercial banks or other financial
institutions or investors, provided that, unless otherwise agreed to by the
Administrative Agent, such assignment shall be of a fixed percentage (and not by
its terms of varying percentage) of the assigning Lender's rights and
obligations under the Loan Documents; provided, however, that in order to make
any such assignment (i) unless the assigning Lender is assigning all of its
Revolving Credit Commitment, outstanding Loans and interests in Letters of
Credit Obligations, the assigning Lender shall retain at least $5,000,000 in
unused Revolving Credit Commitment, outstanding Loans and interests in Letters
of Credit, (ii) the assignee Lender shall have a Revolving Credit Commitment,
outstanding Loans and interests in Letters of Credit of at least $5,000,000,
(iii) each such assignment shall be
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evidenced by a written agreement (substantially in the form attached hereto as
Exhibit G or in such other form acceptable to the Administrative Agent) executed
by such assigning Lender, such assignee Lender or Lenders, the Administrative
Agent (and the L/C Issuers, if other than the Administrative Agent) and, if
required as provided above, the Borrower, which agreement shall specify in each
instance the portion of the Obligations which are to be assigned to the assignee
Lender and the portion of the Revolving Credit Commitment of the assigning
Lender to be assumed by the assignee Lender, and (iv) the assigning Lender shall
pay to the Administrative Agent a processing fee of $3,500 and any out-of-pocket
attorneys' fees and expenses incurred by the Administrative Agent in connection
with any such assignment agreement. Any such assignee shall become a Lender for
all purposes hereunder to the extent of the rights and obligations under the
Loan Documents it assumes and the assigning Lender shall be released from its
obligations, and will have released its rights, under the Loan Documents to the
extent of such assignment. The address for notices to such assignee Lender shall
be as specified in the assignment agreement executed by it. Promptly upon the
effectiveness of any such assignment agreement, the Borrower shall execute and
deliver a Note to the assignee Lender (all such Notes to constitute "Notes" for
all purposes of the Loan Documents). The Borrower authorizes each Lender to
disclose to any purchaser or prospective purchaser of an interest in the Loans
and interest in Letters of Credit owed to it or its Revolving Credit Commitment
under this Section any financial or other information pertaining to the Borrower
or any Subsidiary.
(b) Any Lender may at any time pledge or grant a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or grant to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or grant of a security interest;
provided that no such pledge or grant of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
secured party for such Lender as a party hereto; provided further, however, the
right of any such pledgee or grantee (other than any Federal Reserve Bank) to
further transfer all or any portion of the rights pledged or granted to it,
whether by means of foreclosure or otherwise, shall be at all times subject to
the terms of this Agreement.
Section 13.13. Amendments. Any provision of this Agreement or the other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the Required
Lenders, and (c) if the rights or duties of the Administrative Agent or the L/C
Issuer are affected thereby, the Administrative Agent or such L/C Issuer, as
applicable; provided that:
(i) no amendment or waiver pursuant to this Section 13.13 shall (A)
increase the Revolving Credit Commitment of any Lender without the consent
of such Lender or (B) reduce the amount of or postpone the date for any
scheduled payment of any principal of or interest on any Loan or of any
Reimbursement Obligation or of any fee payable hereunder without the
consent of the Lender to which such payment is owing or which has
committed to make such Loan or Letter of Credit (or participate therein)
hereunder;
(ii) no amendment or waiver pursuant to this Section 13.13 shall,
unless signed by each Lender, change the definitions of Revolving Credit
Termination Date or Required Lenders, change the provisions of this
Section 13.13, release any material
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guarantor (except as otherwise provided for in the Loan Documents), or
affect the number of Lenders required to take any action hereunder or
under any other Loan Document; and
(iii) no amendment to Section 12 hereof shall be made without the
consent of the Guarantor(s) affected thereby.
Section 13.14. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 13.15. Costs and Expenses; Indemnification. The Borrower agrees to
pay all reasonable costs and expenses of the Administrative Agent in connection
with the preparation, negotiation, syndication, and administration of the Loan
Documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent, in connection with the preparation and
execution of the Loan Documents, and any amendment, waiver or consent related
thereto, whether or not the transactions contemplated herein are consummated.
The Borrower further agrees to indemnify the Administrative Agent, each Lender,
and their respective directors, officers, employees, agents, financial advisors,
and consultants against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all reasonable expenses
of litigation or preparation therefor, whether or not the indemnified Person is
a party thereto, or any settlement arrangement arising from or relating to any
such litigation) which any of them may pay or incur arising out of or relating
to any Loan Document or any of the transactions contemplated thereby or the
direct or indirect application or proposed application of the proceeds of any
Loan or Letter of Credit, other than those which arise from the gross negligence
or willful misconduct of the party claiming indemnification. The Borrower, upon
demand by the Administrative Agent or a Lender at any time, shall reimburse the
Administrative Agent or such Lender for any legal or other expenses incurred in
connection with investigating or defending against any of the foregoing
(including any settlement costs relating to the foregoing) except if the same is
directly due to the gross negligence or willful misconduct of the party to be
indemnified. The obligations of the Borrower under this Section shall survive
the termination of this Agreement.
Section 13.16. Set-off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Lender and each subsequent holder of
any Obligation is hereby authorized by the Borrower and each Guarantor at any
time or from time to time, without notice to the Borrower or such Guarantor or
to any other Person, any such notice being hereby expressly waived, to set-off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts, and in
whatever currency denominated) and any other indebtedness at any time held or
owing by that Lender or that subsequent holder to or for the credit or the
account of the Borrower or such Guarantor, whether or not matured, against and
on account of the Obligations of the Borrower or such Guarantor to that Lender
or that subsequent holder under the Loan Documents, including, but not limited
to, all claims of any nature or description arising out of or connected with the
Loan Documents, irrespective of whether or not (a) that Lender or that
subsequent holder shall have made any demand hereunder or (b) the principal of
or the interest on the Loans or Notes and other amounts due hereunder shall have
become due and
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payable pursuant to Section 9 and although said obligations and liabilities, or
any of them, may be contingent or unmatured.
Section 13.17. Entire Agreement. The Loan Documents constitute the entire
understanding of the parties thereto with respect to the subject matter thereof
and any prior agreements, whether written or oral, with respect thereto are
superseded hereby.
Section 13.18. Governing Law. This Agreement and the other Loan Documents
(except as otherwise specified therein), and the rights and duties of the
parties hereto, shall be construed and determined in accordance with the
internal laws of the State of Illinois.
Section 13.19. Severability of Provisions. Any provision of any Loan
Document which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies
and powers provided in this Agreement and the other Loan Documents may be
exercised only to the extent that the exercise thereof does not violate any
applicable mandatory provisions of law, and all the provisions of this Agreement
and other Loan Documents are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement or the other Loan
Documents invalid or unenforceable.
Section 13.20. Excess Interest. Notwithstanding any provision to the
contrary contained herein or in any other Loan Document, no such provision shall
require the payment or permit the collection of any amount of interest in excess
of the maximum amount of interest permitted by applicable law to be charged for
the use or detention, or the forbearance in the collection, of all or any
portion of the Loans or other obligations outstanding under this Agreement or
any other Loan Document ("Excess Interest"). If any Excess Interest is provided
for, or is adjudicated to be provided for, herein or in any other Loan Document,
then in such event (a) the provisions of this Section shall govern and control,
(b) neither the Borrower nor any guarantor or endorser shall be obligated to pay
any Excess Interest, (c) any Excess Interest that the Administrative Agent or
any Lender may have received hereunder shall, at the option of the
Administrative Agent, be (i) applied as a credit against the then outstanding
principal amount of Obligations hereunder and accrued and unpaid interest
thereon (not to exceed the maximum amount permitted by applicable law), (ii)
refunded to the Borrower, or (iii) any combination of the foregoing, (d) the
interest rate payable hereunder or under any other Loan Document shall be
automatically subject to reduction to the maximum lawful contract rate allowed
under applicable usury laws (the "Maximum Rate"), and this Agreement and the
other Loan Documents shall be deemed to have been, and shall be, reformed and
modified to reflect such reduction in the relevant interest rate, and (e)
neither the Borrower nor any guarantor or endorser shall have any action against
the Administrative Agent or any Lender for any damages whatsoever arising out of
the payment or collection of any Excess Interest. Notwithstanding the foregoing,
if for any period of time interest on any of Borrower's Obligations is
calculated at the Maximum Rate rather than the applicable rate under this
Agreement, and thereafter such applicable rate becomes less than the Maximum
Rate, the rate of interest payable on the Borrower's Obligations shall remain at
the Maximum Rate until the Lenders have received the amount of interest which
such
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Lenders would have received during such period on the Borrower's Obligations had
the rate of interest not been limited to the Maximum Rate during such period.
Section 13.21. Construction. Nothing contained herein shall be deemed or
construed to permit any act or omission which is prohibited by the terms of any
Collateral Document, the covenants and agreements contained herein being in
addition to and not in substitution for the covenants and agreements contained
in the Collateral Documents.
Section 13.22. Lender's Obligations Several. The obligations of the
Lenders hereunder are several and not joint. Nothing contained in this Agreement
and no action taken by the Lenders pursuant hereto shall be deemed to constitute
the Lenders a partnership, association, joint venture or other entity.
Section 13.23. Submission to Jurisdiction; Waiver of Jury Trial. The
Borrower and the Guarantors hereby submit to the nonexclusive jurisdiction of
the United States District Court for the Northern District of Illinois and of
any Illinois State court sitting in the City of Chicago for purposes of all
legal proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. The Borrower and
the Guarantors irrevocably waive, to the fullest extent permitted by law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. THE BORROWER,
THE GUARANTORS, THE ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 13.24. Currency. Each reference in this Agreement to U.S. Dollars
or to an Alternative Currency (the "relevant currency") is of the essence. To
the fullest extent permitted by law, the obligation of the Borrower and each
Guarantor in respect of any amount due in the relevant currency under this
Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the relevant currency that the Person entitled to receive such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the Business
Day immediately following the day on which such Person receives such payment. If
the amount of the relevant currency so purchased is less than the sum originally
due to such Person in the relevant currency, the Borrower or relevant Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Person against such loss, and if the amount of the specified
currency so purchased exceeds the sum of (a) the amount originally due to the
relevant Person in the specified currency plus (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Person under Section 13.16 hereof, such Person agrees to remit such
excess to the Borrower.
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This Credit Agreement is entered into between us for the uses and purposes
hereinabove set forth as of the date first above written.
"BORROWER"
AMCOL INTERNATIONAL CORPORATION
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name Xxxx X. Xxxxxxxx
Title Chief Financial Officer
"GUARANTORS"
AMERI-CO LOGISTICS, INC.
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name Xxxx X. Xxxxxxxx
Title Treasurer
AMERICAN COLLOID COMPANY
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name Xxxx X. Xxxxxxxx
Title Treasurer
COLLOID ENVIRONMENTAL TECHNOLOGIES COMPANY
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name Xxxx X. Xxxxxxxx
Title Treasurer
AMCOL SPECIALTIES HOLDINGS, INC.
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name Xxxx X. Xxxxxxxx
Title Vice President
"LENDERS"
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Lender, as
L/C Issuer, and as Administrative Agent
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name Xxxxxx X. Xxxxxxx
Title Vice President
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
-2-
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx Xxxx
---------------------------------------
Name Xxxxxx Xxxx
Title Vice President
Address:
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
-3-
BANK OF AMERICA N.A.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name Xxxxx X. Xxxxxxx
Title Senior Vice President
Address:
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-06-04
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
-4-
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------
Name Xxxxxxxx X. Xxxxxxxx
Title Vice President
Address:
00 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
-5-
