EXHIBIT 10.2
INTEGRATED DEFENSE TECHNOLOGIES, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of October 31, 2002
and entered into by and among INTEGRATED DEFENSE TECHNOLOGIES,
INC., a Delaware corporation ("Borrower"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF OR PARTY FROM
TIME TO TIME HERETO (each individually referred to herein as a
"Lender" and collectively as "Lenders"), CANADIAN IMPERIAL BANK
OF COMMERCE, acting through one or more of its agencies, branches
or affiliates ("CIBC"), as administrative agent for Lenders (in
such capacity, "Administrative Agent").
R E C I T A L S
WHEREAS, Borrower is the borrower under that certain
Credit Agreement (the "Existing Credit Agreement") dated as of
February 27, 2002 among Borrower, CIBC, as administrative agent,
General Electric Capital Corporation, as co-syndication agent,
Credit Lyonnais New York Branch, as co-syndication agent and co-
lead arranger, CIBC World Markets Corp., as lead arranger, and
certain other lenders named therein (the "Existing Lenders");
WHEREAS, Borrower desires to continue the Loans
outstanding under the Existing Credit Agreement, increase the
amount of the Loans and acquire through its wholly-owned
subsidiary Signia-IDT, Inc. ("Newco") substantially all of the
assets of the Gaithersburg, Maryland division of BAE Systems
Aerospace Electronics Inc. (the "Target") for approximately
$146,000,000 (the "Acquisition") through the credit facility
contemplated hereby;
WHEREAS, Lenders, at the request of Borrower, have
agreed to extend certain credit facilities to Borrower, in the
aggregate original principal amount of $262,525,000, the proceeds
of which will be used (a) to complete the Acquisition and the
amendment and restatement of the Existing Credit Agreement
(collectively, the "Transactions") and (b) thereafter, to provide
financing for general corporate purposes of Borrower and its
Subsidiaries, including working capital, capital expenditures,
refinancing, acquisitions and investments made in accordance with
the terms hereof;
WHEREAS, Borrower may increase the original principal
amount of the credit facility contemplated hereby, at Lead
Arranger's and Borrower's mutual discretion, in an aggregate
amount of up to $45,000,000 at any time on or before the date
that is two years after the Effective Date in accordance with the
terms hereof;
WHEREAS, Borrower desires to continue to secure all of
the Obligations hereunder and under the other Loan Documents by
continuing and confirming the grant to Administrative Agent, on
behalf of Lenders, of a First Priority Lien on substantially all
of its real, personal and mixed property, including a pledge of
all of the Capital Stock of each of its domestic Subsidiaries
(including Newco) and all of the non-voting and 65% of the voting
Capital Stock of its foreign Subsidiaries (if any);
WHEREAS, all of the domestic Subsidiaries of Borrower
party to the Subsidiary Guaranty have agreed to continue and
confirm their guarantee of the Obligations hereunder and under
the other Loan Documents and to continue and confirm their prior
grant to Administrative Agent, on behalf of Lenders, a First
Priority Lien on substantially all of their real, personal and
mixed property, including a pledge of all of the Capital Stock of
each of their domestic Subsidiaries (if any) and 65% of the
voting and 100% of the non-voting Capital Stock of their
respective foreign Subsidiaries (if any) to secure their
guaranties;
WHEREAS, Newco has agreed to guarantee the obligations
hereunder and under the other Loan Documents and to secure its
guaranty by granting to Administrative Agent on behalf of
Lenders, a First Priority Lien on substantially all of its real,
personal and mixed property, including a pledge of all of the
Capital Stock of each of its domestic Subsidiaries (if any) and
65% of the voting and 100% of the non-voting Capital Stock of
their respective foreign Subsidiaries (if any);
WHEREAS, for ease of reference and clarity, Borrower,
Administrative Agent, and the Existing Lenders and Lenders that
are not Existing Lenders ("New Lenders") desire to amend and
restate the Existing Credit Agreement in its entirety (i) to
provide for new credit facilities to Borrower and (ii) to make
certain other amendments to the terms and provisions of the
Existing Credit Agreement, all on the terms and conditions set
forth in this Agreement; and
WHEREAS, it is the intent of the parties that this
Agreement shall not cause a novation or repayment of any of the
indebtedness or obligations of Borrower under the Existing Credit
Agreement or other loan documents executed in connection
therewith (collectively, the "Existing Loan Documents"), nor
shall it extinguish, discharge, terminate or impair Borrower's
indebtedness or obligations or Administrative Agent's or any
Lender's rights or remedies under the Existing Credit Agreement
and the other Existing Loan Documents except to the extent
expressly provided for herein; in addition, this Agreement shall
not release, limit or impair in any way the priority of any
security interests and liens held by Administrative Agent for the
benefit of Lenders against any assets of Borrower or its
Subsidiaries arising under the Existing Credit Agreement or the
other Existing Loan Documents.
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained,
Borrower, Lenders and Administrative Agent agree that the
Existing Credit Agreement is hereby amended and restated to read
in its entirety as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have
the following meanings:
"Accounts" means all present and future rights of
Borrower and its Subsidiaries to payment for goods sold or leased
or for services rendered (including any such rights evidenced by
instruments or chattel paper), whether due or to become due,
whether now existing or hereinafter arising and wherever arising,
and whether or not they have been earned by performance.
"Acquisition" has the meaning assigned to that term in
the Recitals.
"Acquisition Agreement" means that certain Asset
Purchase Agreement by and among Seller, IDT Acquisition Co. and
Borrower, dated as of September 12, 2002, in the form delivered
to Administrative Agent and Lenders prior to their execution of
this Agreement.
"Acquisition Consideration" means the aggregate Cash
consideration paid to Seller in connection with the Acquisition.
"Additional Mortgaged Property" has the meaning
assigned to that term in subsection 6.9A.
"Additional Mortgages" has the meaning assigned to that
term in subsection 6.9A.
"Adjusted LIBOR" means, for any Interest Rate
Determination Date with respect to an Interest Period for a LIBOR
Loan, the rate per annum obtained by dividing (x) the rate of
interest equal to (a) the rate per annum determined on the basis
of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest
Period and appearing on Moneyline Telerate Screen 3750 at or
about 11:00 A.M., London time, two Business Days prior to the
commencement of such Interest Period, or (b) if such a rate does
not appear on Moneyline Telerate Screen 3750, the average of the
rates per annum at which Dollar deposits in immediately available
funds are offered to CIBC in the interbank LIBOR market as at or
about 10:00 A.M. (New York City time) two Business Days prior to
the beginning of such Interest Period for delivery on the first
day of such Interest Period, and for a period approximately equal
to such Interest Period, by (y) a percentage equal to 100% minus
the stated maximum rate (expressed as a percentage) of all
reserve requirements (including any marginal, emergency,
supplemental, special or other reserves) applicable on such
Interest Rate Determination Date to any member bank of the
Federal Reserve System in respect of "Eurocurrency liabilities"
as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Administrative Agent" has the meaning assigned to that
term in the introduction to this Agreement and also means and
includes any successor Administrative Agent appointed pursuant to
subsection 9.5A.
"Administrative Agent's Office" means (i) the office of
Administrative Agent located at CIBC, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, or (ii) such other office of Administrative Agent
as may from time to time hereafter be designated as such in a
written notice delivered by Administrative Agent to Borrower and
each Lender.
"Affected Lender" has the meaning assigned to that term
in subsection 2.6C.
"Affected Loans" has the meaning assigned to that term
in subsection 2.6C.
"Affiliate", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of
the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise. For
purposes of this definition, a Person shall be deemed to be
"controlled by" a Person if such Person possesses, directly or
indirectly, power to vote 10% or more of the securities having
ordinary voting power for the election of directors of such
Person. Notwithstanding the foregoing, neither Administrative
Agent nor any Lender shall be deemed to be an Affiliate of any of
the Loan Parties.
"Agents" means collectively, Administrative Agent and
any documentation agent or syndication agent appointed under this
Agreement.
"Agreement" means this Amended and Restated Credit
Agreement dated as of October 31, 2002.
"Alabama Mortgage" means the Mortgage, Security
Agreement, Assignment of Rents and Leases and Fixture Filing
(Alabama), executed by Enterprise Electronics Corporation on the
Original Closing Date in favor of Administrative Agent.
"Applicable Base Rate Margin" means, as at any date of
determination, with respect to any Type of Loan that is a Base
Rate Loan, a percentage per annum equal to the Applicable LIBOR
Margin for such Type of Loan less 1.00%.
"Applicable LIBOR Margin" means with respect to
Revolving Loans, Tranche A Term Loans and Tranche B Term Loans
that are LIBOR Loans, a percentage per annum as set forth below
opposite the applicable Consolidated Total Leverage Ratio:
Consolidated Revolving Loan Tranche B
Total Leverage and Tranche A Applicable LIBOR
Ratio Applicable LIBOR Margin
Margin
----------------- ----------------- ------------------
greater than or 3.00% 4.00%
equal to
3.00:1.00
less than 2.75% 4.00%
3.00:1.00 but
greater than or
equal to 2.50:1.00
less than 2.50% 4.00%
2.50:1.00
but greater than
or equal to
2.00:1.00
less than 2.25% 4.00%
2.00:1.00
but greater than
or equal to
1.50:1.00
less than 2.00% 4.00%
1.50:1.00
"Applied Amount" has the meaning assigned to that term
in subsection 2.4B(iv)(b).
"Approved Fund" means any fund that invests (in whole
or in part) in commercial loans or any other fund that is managed
or advised by a Lender, the same investment advisor as such
Lender or by an Affiliate of such Lender or investment advisor.
"Asset Sale" means the sale (in any single transaction
or related series of transactions) by Borrower or any of its
Subsidiaries to any Person other than Borrower or any of its
wholly-owned domestic Subsidiaries of (i) any of the Capital
Stock of any of Borrower's Subsidiaries, (ii) substantially all
of the assets of any division or line of business of Borrower or
any of its Subsidiaries, or (iii) any other assets (whether
tangible or intangible) of Borrower or any of its Subsidiaries
(other than (a) Inventory sold in the ordinary course of
business, (b) Capital Stock of Borrower, and (c) sales of assets
from Borrower or any of its Subsidiaries to Borrower or any
Subsidiary Guarantor).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit XII annexed hereto.
"Assignment and Assumption Agreement and Xxxx of Sale"
means that certain Assignment and Assumption Agreement and Xxxx
of Sale by and among Seller and Newco, dated as of October 31,
2002, in the form delivered to Administrative Agent and Lenders
prior to their execution of this Agreement.
"Assignment of Patents" means that certain Assignment
of Patents by and among Seller and Newco, dated October 31, 2002,
in the form delivered to Administrative Agent and Lenders prior
to their execution of this Agreement.
"Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as now and hereafter in effect, or
any successor statute.
"Base Rate" means, at any time, the higher of (i) the
Reference Rate and (ii) the rate which is one-half of 1% in
excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in
subsection 2.2A.
"Borrower" has the meaning assigned to that term in the
introductory paragraph to this Agreement.
"Borrowing Base" means (i) the sum of (a) 90% of the
face amount of Eligible Accounts Receivable, (b) 50% of the lower
of the cost or fair market value of Eligible Inventory, and (c)
50% of the face amount of Eligible Unbilled Accounts Receivable
less (ii) the amount of the obligations secured by Permitted
Encumbrances on such Eligible Accounts Receivable, Eligible
Unbilled Accounts Receivable or Eligible Inventory.
"Borrowing Base Certificate" means a certificate
substantially in the form of Exhibit IV annexed hereto delivered
to Administrative Agent and Lenders by Borrower pursuant to
subsection 4.1T or subsection 6.1(i).
"Business Day" means (i) any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of New York or is a day on which banking institutions
located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all
notices, determinations, fundings and payments in connection with
Adjusted LIBOR or any LIBOR Loan, any day that (a) is a Business
Day described in clause (i) above, and (b) is a day for trading
by and between banks in Dollar deposits in the London Interbank
Market.
"Capital Lease", as applied to any Person, means any
lease of any property (whether real, personal or mixed) by that
Person as lessee that, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (iii) in
the case of a partnership, partnership interests (whether general
or limited), (iv) in the case of a limited liability company,
membership interests, and (v) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
"Cash" means money, currency or a credit balance in a
Deposit Account.
"Cash Equivalents" means (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is
pledged in support thereof) having maturities of not more than
twelve months from the date of acquisition ("Government
Obligations"), (ii) U.S. dollar denominated (or foreign currency
fully hedged) time deposits, certificates of deposit, Eurodollar
time deposits and Eurodollar certificates of deposit of
(y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank
whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank") in
each case with maturities of not more than 364 days from the date
of acquisition, (iii) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by
any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six months of the date of
acquisition, (iv) repurchase agreements with a bank or trust
company (including a Lender) or a recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America, (v) obligations of any state of the United States or any
political subdivision thereof for the payment of the principal
and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to
principal and interest at times and in amounts sufficient to
provide such payment, and (vi) auction preferred stock rated in
the highest short-term credit rating category by S&P or Moody's.
"Certificate re: Non-Bank Status" means a certificate
substantially in the form of Exhibit XXI annexed hereto delivered
by a Lender to Administrative Agent pursuant to subsection
2.7B(iii).
"CEC" means Continental Electronics Corporation, a
Nevada corporation.
"Change in Control" means the occurrence of any of the
following events: (a) (i) any Person or two or more Persons
acting in concert (other than Veritas and its Affiliates) shall
have acquired beneficial ownership, directly or indirectly, or
shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation,
will result in its or their acquisition of control over, Voting
Stock of Borrower (or other securities convertible into such
Voting Stock) representing 25% or more of the combined voting
power of all Voting Stock of Borrower, and (ii) such Person or
Persons acting in concert have beneficial ownership of more
Voting Stock of Borrower than Veritas and its Affiliates, (b)
individuals who were members of the board of directors of
Borrower on the Effective Date, together with any other
individuals whose nomination or election to the board of
directors was approved by a majority of the members of the board
of directors then in office, fail to constitute a majority of the
members of the board of directors of Borrower then in office, or
(c) a "change in control" (as such term is defined therein) shall
occur as provided in any agreement with respect to Subordinated
Indebtedness. As used herein, "beneficial ownership" shall have
the meaning provided in Rule 13d-3 of the Securities and Exchange
Commission promulgated under the Securities Exchange Act of 1934.
"Collateral" means, collectively, all of the real,
personal and mixed property (including Capital Stock) in which
Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
"Collateral Access Agreement" means any landlord
waiver, mortgagee waiver, bailee letter or any similar
acknowledgement or agreement of any landlord or mortgagee in
respect of any Real Property Asset where any Collateral is
located or any warehouseman or processor in possession of any
Inventory of any Loan Party, substantially in the form of
Exhibit XVI annexed hereto with such changes thereto as may be
agreed to by Administrative Agent in the reasonable exercise of
its discretion.
"Collateral Account" has the meaning assigned to that
term in the Security Agreement.
"Collateral Documents" means the Security Agreement,
the Mortgages, the Existing Deposit Account Control Agreement,
the Deposit Account Control Agreement, the Instruments of
Assignment, the Master Confirmation and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement
or any of the other Loan Documents in order to grant to
Administrative Agent, on behalf of Lenders, a Lien on any real,
personal or mixed property of that Loan Party as security for the
Obligations.
"Commitments" means the commitments of Lenders to make
Loans as set forth in subsection 2.1A.
"Compliance Certificate" means a certificate
substantially in the form of Exhibit IX annexed hereto delivered
to Administrative Agent and Lenders by Borrower pursuant to
subsection 6.1(iv).
"Conforming Leasehold Interest" means any Recorded
Leasehold Interest as to which the lessor has agreed in writing
for the benefit of Administrative Agent (which writing has been
delivered to Administrative Agent), whether under the terms of
the applicable lease, under the terms of a Landlord Consent and
Estoppel, or otherwise, to the matters described in the
definition of "Landlord Consent and Estoppel," which interest, if
a subleasehold or sub-subleasehold interest, is not subject to
any contrary restrictions contained in a superior lease or
sublease.
"Consolidated Capital Expenditures" means, for any
period, the sum of the aggregate of all expenditures (whether
paid in Cash or other consideration or accrued as a liability and
including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Borrower and its Subsidiaries)
by Borrower and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property,
plant or equipment" or comparable items reflected in the
consolidated statement of cash flows of Borrower and its
Subsidiaries. For purposes of this definition, (a) the purchase
price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds shall
be included in Consolidated Capital Expenditures only to the
extent of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such proceeds, as the
case may be, (b) the aggregate of all expenditures by Borrower
and its Subsidiaries during that period to acquire (by purchase
or otherwise) the business, property or fixed assets of any
Person, or the Capital Stock or other evidence of beneficial
ownership of any Person that, as a result of such acquisition,
becomes a Subsidiary of Borrower shall be included in
Consolidated Capital Expenditures and (c) the portion which is
capitalized on the consolidated balance sheet of Borrower and its
Subsidiaries for software and related purchases of software, up
to an aggregate maximum of $2,500,000 in each Fiscal Year, shall
be excluded from Consolidated Capital Expenditures.
"Consolidated Current Assets" means, as of any date of
determination, the total assets of Borrower and its Subsidiaries
on a consolidated basis that may properly be classified as
current assets in conformity with GAAP, excluding Cash and Cash
Equivalents.
"Consolidated Current Liabilities" means, as of any
date of determination, the total liabilities of Borrower and its
Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP,
excluding the current portions of Funded Debt and Capital Leases.
"Consolidated EBITDA" means, for any period, the sum,
without duplication, of the amounts for such period of
(i) Consolidated Net Income, plus (ii) an amount that, in the
determination of Consolidated Net Income for such period, has
been deducted for (A) Consolidated Interest Expense, (B) total
federal, state, local and foreign income, value added and similar
taxes, (C) losses (or minus gains) on the sale or disposition of
assets outside the ordinary course of business, and
(D) depreciation, amortization expense and other non-cash, non-
recurring extraordinary charges reducing Consolidated Net Income
plus (iii) management fees to the extent paid as permitted by
subsection 7.10A(iii), plus (iv) on a one-time basis, costs and
expenses incurred by the Loan Parties in connection with the
Transactions, plus (v) for the period commencing with the Fiscal
Quarter ending December 31, 2002 through the end of the Fiscal
Quarter ending December 31, 2003 an amount equal to $1,400,000
(and the parties expressly agree that such amount shall not be
added back for any purposes for any measurement date after
December 31, 2003) (it being understood that any amount which
under clause (ii)(D) above was added back to Consolidated EBITDA
during any period but was paid in cash during a subsequent period
will reduce Consolidated EBITDA to the extent of such payment in
such subsequent period), all of the foregoing components as
determined on a consolidated basis for Borrower and its
Subsidiaries in conformity with GAAP; provided that in
calculating any such items for purposes of Consolidated Total
Leverage Ratio for such period, any Asset Sales or other
acquisitions or dispositions of assets during such period shall
have been deemed to have occurred on the first day of such
period.
"Consolidated Excess Cash Flow" means, for any period,
an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated
EBITDA (determined by adding back thereto any amount deducted in
the calculation of Consolidated Net Income that was paid,
incurred or accrued in violation of any of the provisions of this
Agreement) and (b) the Consolidated Working Capital Adjustment
minus (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of Consolidated
Total Debt (excluding repayments of Revolving Loans except to the
extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), (b) Consolidated Capital
Expenditures, (c) Consolidated Interest Expense, (d) the
provision for current taxes based on income of Borrower and its
Subsidiaries and payable in Cash with respect to such period, (e)
management fees to the extent paid as permitted by subsection
7.10A(iii) and bank fees paid by Borrower in connection with the
Transactions to the extent not deducted in determining
Consolidated EBITDA, (f) for the period commencing with the
Fiscal Quarter ending December 31, 2002 through the end of the
Fiscal Quarter ending December 31, 2003 an amount equal to
$1,400,000 (and the parties expressly agree that such amount
shall not be subtracted for any purposes for any measurement date
after December 31, 2003) and (g) severance and other costs and
expenses related to the restructuring of certain operations of
Borrower's Subsidiaries in an aggregate amount not to exceed
$7,500,000 to the extent excluded in determining Consolidated Net
Income.
"Consolidated Fixed Charges" means, for any period, the
sum (without duplication) of the amounts for such period of
(i) Consolidated Interest Expense, (ii) Cash payments for taxes
based on income, and (iii) all scheduled principal payments to be
made by Borrower or any of its Subsidiaries (whether or not such
payments are actually made) on all Indebtedness of Borrower and
its Subsidiaries (including the principal component of all
Capital Leases), all of the foregoing as determined on a
consolidated basis for Borrower and its Subsidiaries in
conformity with GAAP.
"Consolidated Interest Expense" means, for any period,
total cash interest expense (including that portion attributable
to Capital Leases in accordance with GAAP and capitalized
interest) of Borrower and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of Borrower
and its Subsidiaries, including all commissions, discounts and
other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in
subsection 2.3 payable to Administrative Agent and Lenders on or
before the Effective Date.
"Consolidated Net Income" means, for any period, the
net income (or loss) of Borrower and its Subsidiaries on a
consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP, without giving effect
to any non-cash losses as a result of impairment of goodwill to
the extent required by Statement of Financial Accounting
Standards No. 142; provided that there shall be excluded (i) the
income (or loss) of any Person (other than a Subsidiary of
Borrower) in which any other Person (other than Borrower or any
of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid
to Borrower or any of its Subsidiaries by such Person during such
period, (ii) the income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary of Borrower or is merged into or
consolidated with Borrower or any of its Subsidiaries or that
Person's assets are acquired by Borrower or any of its
Subsidiaries, (iii) the income of any Subsidiary of Borrower to
the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary,
(iv) any after-tax gains or losses attributable to Asset Sales or
returned surplus assets of any Pension Plan, (v) severance and
other costs and expenses related to the restructuring of certain
operations of Borrower's Subsidiaries in an aggregate amount not
to exceed $7,500,000, (vi) (to the extent not included in clauses
(i) through (v) above) any net extraordinary gains or net non-
cash extraordinary losses, and (vii) (to the extent not included
in clauses (i) through (vi) above) any net income (or loss) of
Borrower's Subsidiaries in connection with operations of
Borrower's Subsidiaries that were discontinued on or before the
Effective Date.
"Consolidated Net Worth" means, as at any date of
determination, the sum of the Capital Stock and additional paid-
in capital plus retained earnings (or minus accumulated deficits)
of Borrower and its Subsidiaries on a consolidated basis
determined in conformity with GAAP, without giving effect to any
non-cash losses (i) as a result of impairment of goodwill to the
extent required by Statement of Financial Accounting Standards
No. 142 or (ii) as a result of severance and other costs and
expenses related to the restructuring of certain operations of
Borrower's Subsidiaries in an aggregate amount not to exceed
$7,500,000.
"Consolidated Rental Payments" means, for any period,
the aggregate amount of all rents paid or payable by Borrower and
its Subsidiaries on a consolidated basis during that period under
all Operating Leases to which Borrower or any of its Subsidiaries
is a party as lessee.
"Consolidated Total Debt" means, as at any date of
determination, the aggregate principal amount of all Indebtedness
of Borrower and its Subsidiaries other than the face amount of
performance letters of credit where the conditions to drawing
have not been met less the amount of Cash and Cash Equivalents in
excess of $500,000.
"Consolidated Total Leverage Ratio" means, as at the
last day of any Fiscal Quarter, the ratio of (a) Consolidated
Total Debt as of the last day of such Fiscal Quarter, to
(b) Consolidated EBITDA for the four Fiscal Quarter period then
ended.
"Consolidated Working Capital" means, as of any date of
determination, the excess (or deficit) of Consolidated Current
Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for
any period on a consolidated basis, the amount (which may be a
negative number) by which Consolidated Working Capital as of the
beginning of such period exceeds (or is less than) Consolidated
Working Capital as of the end of such period.
"Consultant" has the meaning assigned to that term in
subsection 6.7C.
"Contingent Obligation", as applied to any Person,
means any direct or indirect liability, contingent or otherwise,
of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or
intent thereof by the Person incurring the Contingent Obligation
is to provide assurance to the obligee of such obligation of
another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof,
or (ii) under Hedge Agreements. Contingent Obligations shall
include (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course
of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the
obligation to make take-or-pay or similar payments if required
regardless of non-performance by any other party or parties to an
agreement, and (c) any liability of such Person for the
obligation of another through any agreement (contingent or
otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or
otherwise) or (2) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in
the case of any agreement described under subclauses (1) or (2)
of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported or, if less, the
amount to which such Contingent Obligation is specifically
limited.
"Contractual Obligation", as applied to any Person,
means any provision of any Security issued by that Person or of
any Material Contract to which that Person is a party or by which
it or any of its properties is bound or to which it or any of its
properties is subject.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement, futures contract, option
contract, synthetic cap or other similar agreement or arrangement
to which Borrower or any of its Subsidiaries is a party.
"Deed of Conveyance" means that certain Deed of
Conveyance, dated as of October 31, 2002, relating to the real
property and improvements thereon located at 000 Xxxxxx Xxxxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, in the form delivered to
Administrative Agent and Lenders prior to their execution of this
Agreement.
"Deposit Account" means a demand, time, savings,
passbook, brokerage or similar account maintained with a Person
or securities intermediary engaged in the business of banking,
including a savings bank, savings and loan association, credit
union or trust company.
"Deposit Account Control Agreement" means (i) the
Deposit Account Control Agreement executed and delivered by
Borrower, Administrative Agent and the financial institution at
which a Deposit Account is maintained, substantially in the form
of Exhibit XX annexed hereto or (ii) an agreement, satisfactory
in form and substance to Administrative Agent and executed by the
financial institution at which a Deposit Account is maintained,
pursuant to which such financial institution confirms and
acknowledges Administrative Agent's security interest in such
Deposit Account, and agrees that the financial institution will
comply with instructions originated by Administrative Agent as to
disposition of funds in the Deposit Account, without further
consent by Borrower or any Subsidiary and waives its right to set
off with respect to amounts in the Deposit Account.
"Dollars" and the sign "$" mean the lawful money of the
United States of America.
"Effective Date" means the date on or before November
25, 2002 on which the conditions precedent set forth in Section
4.1 have been satisfied or waived.
"Effective Date Mortgage" means collectively, the New
Mortgages and the Existing Mortgages.
"Effective Date Mortgage Policies" means collectively,
the New Mortgage Policies and the Existing Mortgage Policies.
"Effective Date Mortgaged Properties" means
collectively, the New Mortgage Properties and the Existing
Mortgage Properties.
"Eligible Accounts Receivable" means, as at any date of
determination, the total face amount of those invoiced Accounts
of Borrower and the Subsidiary Guarantors consisting of ordinary
trade accounts receivable owned by Borrower and the Subsidiary
Guarantors, payable in Cash in Dollars on delivery or at a future
date and arising out of the final sale of Inventory or the
provision of services in the ordinary course of business of
Borrower and the Subsidiary Guarantors; provided that in
determining the eligibility of Eligible Accounts Receivable for
Borrower and the Subsidiary Guarantors, there shall be excluded
(to the extent included above):
(i) Accounts with respect to which more than 120 days
have elapsed since the invoice date;
(ii) Accounts with respect to which the Account debtor
is a director, officer, shareholder, employee or an
Affiliate of Borrower if the terms of such Accounts are less
favorable to Borrower or any such Subsidiary than those
which might be obtained at the time from a Person who is not
such a director, officer, shareholder, employee or an
Affiliate;
(iii) Accounts with respect to which the Account
debtor is the United States of America or any department,
agency or instrumentality thereof, except for those Accounts
as to which Borrower or any such Subsidiary has assigned its
right to payment thereof to the Administrative Agent, and
the assignment has been acknowledged pursuant to the
Assignment of Claims Act of 1940 (31 U.S.C. 3727); provided,
however, that until the date that is 180 days after the
Effective Date, such Accounts shall not be excluded on the
basis that the assignment has not been acknowledged pursuant
to the Assignment of Claims Act of 1940; and provided
further, however, if a Government Contract to which any such
Account relates is required to be novated in accordance with
applicable laws, an aggregate amount of up to $10,000,000 of
such Accounts shall not be excluded on the basis that a
valid and effective Instrument of Assignment and notice of
assignment have not been executed and delivered and an
acknowledgement has not been received;
(iv) Accounts with respect to which the Account debtor
is not a resident of the United States or Canada, unless the
Account debtor has supplied Borrower or any such Subsidiary
with (a) an irrevocable commercial letter of credit, issued
by a financial institution, or (b) credit insurance, in each
case in form and substance satisfactory to the
Administrative Agent;
(v) Accounts with respect to which the Account debtor
has asserted a counterclaim, allowance, deduction, or right
to set off or which is otherwise unearned or disputed,
including Accounts which reflect "barter" activity;
(vi) Accounts with respect to which the Administrative
Agent, on behalf of Lenders and the Issuing Lender, does not
have a valid, First Priority Lien or which are not free of
all Liens or other claims of all other Persons other than
Liens permitted under this Agreement;
(vii) Accounts with respect to which the Account
debtor is the subject of bankruptcy or a similar insolvency
proceeding, or has made an assignment for the benefit of
creditors, whose assets have been conveyed to a receiver or
trustee, or who has failed or suspended or gone out of
business;
(viii) Accounts with respect to which the Account
debtor's obligation to pay the Account is conditional upon
the Account debtor's approval or otherwise subject to return
rights with respect to the goods purchased giving rise to
any such Account (other than return rights based on product
warranties in the ordinary course of business);
(ix) Accounts which are not in full force and effect or
do not constitute legal, valid and binding obligations of
the Account debtor enforceable against the Account debtor in
accordance with their terms;
(x) Accounts with respect to which the terms or
conditions prohibit or restrict assignment or collection
rights;
(xi) Accounts with respect to which the Account debtor
is located in New Jersey which exceed, individually or in
the aggregate, $150,000, unless Borrower or such Subsidiary
has filed, or is exempt from filing, a Notice of Business
Activities Report with the New Jersey Division of Taxation
for the then current year;
(xii) Accounts with respect to which the Account
debtor is a supplier or a creditor of Borrower or any of its
Subsidiaries up to an amount equal to the amount owed by
Borrower and its Subsidiaries to such Account debtor;
(xiii)Accounts evidenced by notes, chattel paper or
other instruments, unless such notes, chattel paper or
instruments (a) have been delivered to and are in the
possession of the Administrative Agent, or (b) the aggregate
amount of such Accounts is not greater than $50,000;
(xiv) Accounts (if any) created in connection with
any sale where payment is due on delivery of Inventory sold
until the Inventory is actually delivered; and
(xv) Accounts which fail to meet such other
specifications and requirements as may from time to time to
be established by the Administrative Agent in its reasonable
discretion.
"Eligible Assignee" means (A) (i) a commercial bank
organized under the laws of the United States or any state
thereof; (ii) a savings and loan association or savings bank
organized under the laws of the United States or any state
thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof (provided that
(x) such bank is acting through a branch or agency located in the
United States or (y) such bank is organized under the laws of a
country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such
country); and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses
including insurance companies, mutual funds, lease financing
companies and investment funds and any Approved Funds; (B) a
Lender, an Affiliate of a Lender, or an Approved Fund; or (C) any
other Person (other than a natural Person) approved by (1)
Administrative Agent, (2) in the case of any assignment of a
Revolving Loan, Issuing Lender, and (3) unless (x) such Person is
taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction, or (y) an Event
of Default or Potential Event of Default has occurred and is
continuing, Borrower (each such approval not to be unreasonably
withheld or delayed); provided that no Affiliate of Borrower
shall be an Eligible Assignee. If the consent of Borrower to an
assignment to an Eligible Assignee is required hereunder
(including a consent to an assignment which does not meet the
minimum assignment thresholds specified in subsection 10.1B(i)),
Borrower shall be deemed to have given its consent five Business
Days after the date notice thereof has been delivered by the
assigning Lender (through Administrative Agent) unless such
consent is expressly refused by Borrower prior to such fifth
Business Day.
"Eligible Inventory" means, as at any date of
determination, the gross dollar value (valued at the lower of
cost (on a "first-in, first-out" basis) or fair market value) of
all Inventory owned by Borrower and the Subsidiary Guarantors,
less appropriate reserves determined in accordance with GAAP
applied on a consistent basis; provided that in determining the
eligibility of Eligible Inventory for Borrower and the Subsidiary
Guarantors, there shall be excluded (to the extent included
above):
(i) Inventory with respect to which the Administrative
Agent, on behalf of Lenders and the Issuing Lender, does not
have a valid, First Priority Lien or which are not free of
all Liens or other claims of all other Persons other than
Liens permitted under this Agreement;
(ii) Inventory that fails to meet standards for sale or
use imposed by Governmental Authorities having a regulatory
authority over such Inventory or its use or sale;
(iii) Inventory that is not useable or saleable at
prices approximating their cost (after taking into account,
without duplication, the amount of any reserves for
obsolescence, unsaleability or decline in value);
(iv) Inventory that is not in the possession and
control of Borrower or a Subsidiary Guarantor (including a
common carrier under a xxxx of lading in such Person's
name), and if located in a warehouse or other facility
leased by Borrower or any of the Subsidiary Guarantors, the
warehouseman or lessor has not delivered to Administrative
Agent a lien waiver or subordination in such form, if any,
as may be requested by the Administrative Agent; and
(v) Inventory consisting of materials, supplies and
work in process.
"Eligible Unbilled Accounts Receivable" means all
Accounts from Government Contracts or a prime contractor on a
Government Contract that would otherwise be Eligible Accounts
Receivables and with respect to which the sale of Inventory has
occurred or the rendering of services has been performed and the
payment obligations therefore are owing but which have not yet
been invoiced in the ordinary course of business.
"Employee Benefit Plan" means any "employee benefit
plan" as defined in Section 3.3 of ERISA, which is or was
maintained or contributed to by Borrower, any of its Subsidiaries
or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice,
notice of violation, claim, action, suit, proceeding, demand,
abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority or any other Person,
arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection
with any Hazardous Materials or any actual or alleged Hazardous
Materials Activity, or (iii) in connection with any actual or
alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"Environmental Indemnity" means the Environmental
Indemnity Agreement executed and delivered by Borrower and the
domestic Subsidiaries of Borrower on the Original Closing Date,
substantially in the form of Exhibit XVII annexed hereto as
confirmed by the Master Confirmation.
"Environmental Indemnity Counterpart" means the
Counterpart for Additional Indemnitors attached as Exhibit A to
the Environmental Indemnity.
"Environmental Laws" means any and all current or
future statutes, ordinances, orders, rules, regulations, guidance
documents, judgments, Governmental Authorizations, or any other
requirements of any Governmental Authority relating to
(i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land
use or the protection of human, plant or animal health or
welfare, in any manner applicable to Borrower or any of its
Subsidiaries or any Facility, including the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9601 et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. Section 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. Section 136 et seq.), the Occupational
Safety and Health Act (29 U.S.C. Section 651 et seq.), the Oil
Pollution Act (33 U.S.C. Section 2701 et seq.) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et
seq.), each as amended or supplemented, any analogous present or
future state or local statutes or laws, and any regulations
promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security
Act of 1974.
"ERISA Affiliate" means, as applied to any Person
(i) any corporation that is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which that Person is a member; (ii) any trade or
business (whether or not incorporated) that is a member of a
group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which
that Person is a member; and (iii) any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the
Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described
in clause (ii) above is a member. Any former ERISA Affiliate of
a Person or any of its Subsidiaries shall continue to be
considered an ERISA Affiliate of such Person or such Subsidiary
within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of such Person or such
Subsidiary and with respect to liabilities arising after such
period (but attributable to the period such entity was an ERISA
Affiliate of such Person or such Subsidiary) for which such
Person or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for
which the provision for 30-day notice to the PBGC has been waived
by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect
to any Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to
make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer
Plan, unless the failure is cured within two Business Days after
such failure; (iii) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice
of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by
Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Section 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which
might reasonably constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer,
any Pension Plan; (vi) the imposition of liability on Borrower,
any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor,
or the receipt by Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which would give rise
to the imposition on Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or
under Section 409, Section 502(c), (i) or (l), or Section 4071 of
ERISA in respect of any Employee Benefit Plan any of which would
constitute a Material Adverse Effect; (ix) the assertion of a
material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the
assets thereof, or against Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of final determination of the failure of any Pension Plan
(or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure
of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal
Revenue Code which cannot be remedied; or (xi) the imposition of
a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
"Event of Default" means each of the events set forth
in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Credit Agreement" has the meaning assigned to
that term in the Recitals.
"Existing Deposit Account Control Agreement" means the
Deposit Account Control Agreement executed and delivered by
Borrower, Administration Agent and First Union National Bank on
the Original Closing Date.
"Existing Instruments of Assignment" means the
Instruments of Assignment executed and delivered variously by
Borrower or its Subsidiaries on the Original Closing Date.
"Existing Lenders" has the meaning assigned to that
term in the Recitals.
"Existing Loan Documents" has the meaning assigned to
that term in the Recitals.
"Existing Mortgage" means each of the Florida Mortgage,
the Alabama Mortgage and the Texas Deed of Trust.
"Existing Mortgage Policies" has the meaning assigned
to that term in subsection 4.1N(v).
"Existing Mortgaged Properties" has the meaning
assigned to that term in subsection 4.1N(ii).
"Facilities" means all real property (including all
buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by
Borrower or any of its Subsidiaries or any of their respective
predecessors or Affiliates.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of
recognized standing selected by Administrative Agent.
"Financial Plan" has the meaning assigned to that term
in subsection 6.1(xii).
"First Amendment to Alabama Mortgage" means the First
Amendment to the Mortgage, Security Agreement, Assignment of
Rents and Leases and Fixture Filing (Alabama), executed by
Enterprise Electronics Corporation in favor of Administrative
Agent.
"First Amendment to Florida Mortgage" means the First
Amendment to the Mortgage, Security Agreement, Assignment of
Rents and Leases and Fixture Filing (Florida), executed by Metric
Systems Corporation in favor of Administrative Agent.
"First Amendment to Texas Deed of Trust" means the
First Amendment to the Deed of Trust, Security Agreement,
Assignment of Rents and Leases and Fixture Filing (Texas),
executed by Continental Electronics Corporation in favor of the
trustee named therein for the benefit of Administrative Agent as
beneficiary.
"First Priority" means, with respect to any Lien
purported to be created in any Collateral pursuant to any
Collateral Document, that (i) such Lien is perfected and has
priority over any other Lien on such Collateral (other than
Permitted Encumbrances) and (ii) such Lien is the only Lien
(other than Liens permitted pursuant to subsection 7.2A) to which
such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Borrower and its
Subsidiaries ending on December 31 of each calendar year.
"Flood Hazard Property" means an Effective Date
Mortgaged Property or an Additional Mortgaged Property located in
an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards.
"Florida Mortgage" means the Mortgage, Security
Agreement, Assignment of Rents and Leases and Fixture Filing
(Florida), executed on the Original Closing Date by Metric
Systems Corporation in favor of Administrative Agent.
"Fund" means any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"Funded Debt", as applied to any Person, means (a) all
Indebtedness of that Person (including any current portions
thereof) which by its terms or by the terms of any instrument or
agreement relating thereto matures more than one year from, or is
directly renewable or extendable at the option of that Person to
a date more than one year from (including an option of that
Person under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of one year
or more from), the date of the creation thereof, other than (i)
any performance letters of credit (i.e., letters of credit which
can be drawn upon only if Borrower or any of its Subsidiaries
fails to comply with or perform under any material provision of
any contract) issued for the account of such Person, (b) all
Funded Debt of others of the type referred to in clause (a) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (c) all Contingent
Obligations of such Person with respect to Funded Debt of the
type referred to in clause (a) above of another Person and
(d) Funded Debt of the type referred to in clause (a) above of
any partnership or unincorporated joint venture in which such
Person is legally obligated or has a reasonable expectation of
being liable with respect thereto.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the
application thereof set forth in subsection 1.2, generally
accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by
a significant segment of the accounting profession, in each case
as the same are applicable to the circumstances as of the date of
determination.
"Governing Body" means the board of directors or other
body having the power to direct or cause the direction of the
management and policies of a Person that is a corporation,
partnership, trust or limited liability company.
"Governmental Authority" means any political
subdivision or department thereof, any other governmental or
regulatory body, commission, central bank, board, bureau, organ
or instrumentality or any court, in each case whether federal,
state, local or foreign, and any corporation or other entity
owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Governmental Authorization" means any permit, license,
registration, authorization, plan, directive, consent, order or
consent decree of or from, or notice to, any Governmental
Authority.
"Government Contract" means (i) any contract entered
into between Borrower or any of its Subsidiaries and the
government of the United States of America, the District of
Columbia, or any department, agency or instrumentality thereof
and (ii) any contract entered into between Target and the
government of the United States of America, the District of
Columbia, or any department, agency or instrumentality thereof
that is being assigned, transferred or otherwise acquired by
Newco in connection with the Acquisition.
"Hazardous Materials" means (i) any chemical, material
or substance at any time defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous waste", "acutely hazardous
waste", "radioactive waste", "biohazardous waste", "pollutant",
"toxic pollutant", "contaminant", "restricted hazardous waste",
"infectious waste", "toxic substances", or any other term or
expression intended to define, list or classify substances by
reason of properties harmful to health, safety or the indoor or
outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words
of similar import under any applicable Environmental Laws);
(ii) any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other
wastes associated with the exploration, development or production
of crude oil, natural gas or geothermal resources; (iv) any
flammable substances or explosives; (v) any radioactive
materials; (vi) any asbestos-containing materials; (vii) urea
formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing polychlorinated
biphenyls; (ix) pesticides; and (x) any other chemical, material
or substance, exposure to which is prohibited, limited or
regulated by any Governmental Authority or which poses a hazard
to the health and safety of the owners, occupants or any Persons
in the vicinity of any Facility or to the indoor or outdoor
environment.
"Hazardous Materials Activity" means any past, current,
proposed or threatened activity, event or occurrence involving
any Hazardous Materials, including the use, manufacture,
possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation,
transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action
with respect to any of the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a
Currency Agreement designed to hedge against fluctuations in
interest rates or currency values, respectively.
"Increasing Lenders" has the meaning assigned to that
term in subsection 2.1A(iv).
"Indebtedness", as applied to any Person, means,
without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which
interest payments are customarily made without regard to any
original issue discount relating thereto, (c) all obligations of
such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other
than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed
as the deferred purchase price of property or services purchased
by such Person (other than trade debt incurred in the ordinary
course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of
such Person, (e) all obligations of such Person under take-or-pay
or similar arrangements or under commodities agreements, (f) all
indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(g) all Contingent Obligations of such Person with respect to
Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases, (i) all
obligations of such Person under Hedge Agreements, (j) the
maximum amount of all letters of credit issued or bankers'
acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (k) all preferred Capital Stock issued by
such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory
sinking fund payments, redemption or other acceleration, (1) the
principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-
balance sheet financing product, and (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person
is a general partner or a joint venturer, but not including any
Indebtedness payable to the United States Armed Forces.
Obligations under Interest Rate Agreements and Currency
Agreements constitute (1) in the case of Hedge Agreements,
Contingent Obligations, and (2) in all other cases, Investments,
and in neither case constitute Indebtedness.
"Indemnitees" has the meaning assigned to that term in
subsection 10.3.
"Instruments of Assignment" means collectively, the
Existing Instruments of Assignment and the New Instruments of
Assignment.
"Intellectual Property" means (i) all trademarks,
service marks, designs, logos, indicia, tradenames, trade
dresses, corporate names, business names, fictitious business
names and/or other source and/or business identifiers and
applications pertaining thereto, used in or necessary for the
conduct of the business of Borrower or any of its Subsidiaries
that are material to the condition (financial or otherwise),
business or operations of Borrower and its Subsidiaries,
including the trademarks identified in Schedule 5.5C (all the
foregoing being referred to herein collectively as the
"Trademarks"); and all goodwill associated therewith (the
"Associated Goodwill") relating to the Trademarks; (ii) all
registrations that have been or may hereafter be issued or
applied for on the Trademarks in the United States and any state
thereof and in foreign countries (the "Trademark Registrations");
(iii) all patents and patent applications and rights and
interests in patents and patent applications that are used in or
necessary for the conduct of the business of Borrower or its
Subsidiaries that are material to the condition (financial or
otherwise), business or operations of Borrower or any of its
Subsidiaries, including the patents and patent applications
listed in Schedule 5.5C, and all re-issues, divisions,
continuations, renewals, extensions and continuations-in-part
thereof (all of the foregoing being collectively referred to as
the "Patents") and all Associated Goodwill related to such
Patents; (iv) various published and unpublished works of
authorship, including, computer programs, computer data bases,
other computer software, including, without limitation, object
code and source code, mask works, semiconductor chips, masks,
trade secrets, trade secret rights, ideas, drawings, designs,
writings, know-how, techniques, processes and formulas, used in
or necessary for the conduct of the business of Borrower or any
of its Subsidiaries that are material to the condition (financial
or otherwise), business or operations of Borrower and its
Subsidiaries (all the foregoing being referred to herein
collectively as the "Copyrights") and all Associated Goodwill
relating to such Copyrights; (v) all copyright registrations
issued to Borrower or any of its Subsidiaries for any copyright
registrations that have been issued or applied for on the
Copyrights in the United States and any state thereof and in
foreign countries (all the foregoing being referred to herein
collectively as the "Copyright Registrations") and all Associated
Goodwill relating to such Copyright Registrations and (vi) all
common law and other rights in and to the Copyrights (including
all copyright licenses) in the United States and any state
thereof and in foreign countries used in or necessary for the
conduct of the business of Borrower or its Subsidiaries that are
material to the condition (financial or otherwise), business or
operations of Borrower and its Subsidiaries (all of the foregoing
being referred to herein collectively as the "Copyright Rights")
and all Associated Goodwill relating to such Copyright Rights.
"Interest Payment Date" means (i) with respect to any
Base Rate Loan, the last Business Day of each March, June,
September and December of each year, commencing on the first such
date to occur after the Effective Date, and (ii) with respect to
any LIBOR Loan, the last day of each Interest Period applicable
to such Loan; provided that in the case of each Interest Period
of six months "Interest Payment Date" shall also include the date
that is three months after the commencement of such Interest
Period and in the case of each Interest Period of twelve months,
to the extent a Lender is willing to so provide pursuant to
subsection 2.2B, "Interest Period" shall also include the date
that is three months, six months and nine months after the
commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term
in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement to which
Borrower or any of its Subsidiaries is a party.
"Interest Rate Determination Date", with respect to any
Interest Period, means the second Business Day prior to the first
day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended to the date hereof and from time to time
hereafter, and any successor statute.
"Inventory" means, with respect to any Person as of any
date of determination, all goods, merchandise and other personal
property which are then held by such Person for sale or lease,
including raw materials and work in process.
"Investment" means (i) any direct or indirect purchase
or other acquisition by Borrower or any of its Subsidiaries of,
or of a beneficial interest in, any Securities of any other
Person (including any Subsidiary of Borrower), (ii) any direct or
indirect redemption, retirement, purchase or other acquisition
for value, by any Subsidiary of Borrower from any Person other
than Borrower or any of its Subsidiaries, of any equity
Securities of such Subsidiary, (iii) any direct or indirect loan,
advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital
contribution by Borrower or any of its Subsidiaries to any other
Person (other than a wholly-owned Subsidiary of Borrower),
including all indebtedness and accounts receivable from that
other Person that are not current assets or did not arise from
sales to that other Person in the ordinary course of business, or
(iv) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements. The amount of any Investment shall
be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment (other than adjustments for the
repayment of, or the refund of capital with respect to, the
original principal amount of any such Investment).
"IP Collateral" means, collectively, the Collateral
consisting of rights in or to Intellectual Property under the
Security Agreement.
"Issuing Lender" means, with respect to any Letter of
Credit, the Lender who agrees or is otherwise obligated to issue
such Letter of Credit, determined as provided in subsection
3.1B(iii).
"Joint Venture" means a joint venture, partnership or
other similar arrangement, whether in corporate, partnership or
other legal form; provided that in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to
which such Person is a party.
"Landlord Consent and Estoppel" means, with respect to
any Leasehold Property, a letter, certificate or other instrument
in writing from the lessor under the related lease, satisfactory
in form and substance to Administrative Agent, pursuant to which
such lessor agrees, for the benefit of Administrative Agent, (i)
that without any further consent of such lessor or any further
action on the part of the Loan Party holding such Leasehold
Property, such Leasehold Property may be encumbered pursuant to a
Mortgage and may be assigned to the purchaser at a foreclosure
sale or in a transfer in lieu of such a sale (and to a subsequent
third party assignee if Administrative Agent, any Lender, or an
Affiliate of either so acquires such Leasehold Property), (ii)
that such lessor shall not terminate such lease as a result of a
default by such Loan Party thereunder without first giving
Administrative Agent notice of such default and at least 60 days
(or, if such default cannot reasonably be cured by Administrative
Agent within such period, such longer period as may reasonably be
required) to cure such default, (iii) to the matters contained in
a Collateral Access Agreement, and (iv) to such other matters
relating to such Leasehold Property as Administrative Agent may
reasonably request.
"LC Reimbursement Amount" has the meaning assigned to
that term in subsection 3.3B.
"Lead Arranger" means CIBC World Markets Corp.
"Leasehold Property" means any leasehold interest of
any Loan Party as lessee under any lease of real property.
"Lender" and "Lenders" means the Persons identified as
"Lenders" and listed on the signature pages of this Agreement,
together with their successors and permitted assigns pursuant to
subsection 10.1; provided that the term "Lenders", when used in
the context of a particular Commitment, shall mean Lenders having
that Commitment.
"Letter of Credit" or "Letters of Credit" means any
standby letter of credit or similar instrument issued for the
purpose of supporting (i) Indebtedness of Borrower or any of its
Subsidiaries in respect of industrial revenue or development
bonds or financings, (ii) workers' compensation liabilities of
Borrower or any of its Subsidiaries, (iii) the obligations of
third party insurers of Borrower or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third
party insurers, (iv) obligations with respect to Capital Leases
or Operating Leases of Borrower or any of its Subsidiaries, and
(v) performance, payment, deposit or surety obligations of
Borrower or any of its Subsidiaries, in any case if required by
law or governmental rule or regulation or in accordance with
custom and practice in the industry; provided that Letters of
Credit may not be issued for the purpose of supporting (a) trade
payables or (b) any Indebtedness constituting "antecedent debt"
(as that term is used in Section 547 of the Bankruptcy Code).
"Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which
is or at any time thereafter may become available for drawing
under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the
proceeds of Revolving Loans pursuant to subsection 3.3B or
otherwise reimbursed by Borrower.
"LIBOR Loans" means Loans bearing interest at rates
determined by reference to Adjusted LIBOR as provided in
subsection 2.2A.
"Lien" means any lien, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any
security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"Loan" or "Loans" means one or more of the Tranche A
Term Loans, Tranche B Term Loans or Revolving Loans or any
combination thereof.
"Loan Documents" means this Agreement, the Notes, the
Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by
Borrower in favor of an Issuing Lender relating to, the Letters
of Credit), the Subsidiary Guaranty, the Master Confirmation and
the Collateral Documents.
"Loan Party" means each of Borrower and any of
Borrower's Subsidiaries from time to time executing a Loan
Document, and "Loan Parties" means all such Persons,
collectively.
"Margin Determination Certificate" means an Officer's
Certificate of Borrower delivered (a) with respect to each Fiscal
Quarter (other than each fourth Fiscal Quarter), together with
the three most recent financial statements required pursuant to
subsection 6.1(ii), and (b) with respect to each fourth Fiscal
Quarter, within 45 days of the last day of such fourth Fiscal
Quarter, setting forth in reasonable detail the Consolidated
Total Leverage Ratio that is applicable as of the last day of the
fiscal period for which such financial statements and Officer's
Certificate are being delivered.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"Maryland Landlord's Estoppel Certificate" means that
certain Landlord's Estoppel Certificate, dated September 19,
2002, by and among Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx and Seller
relating to the leased property located at the "Xxxxxxxxx" Sod
Farm situated on the north side of Route 107, Poolsville,
Maryland, in the form delivered to Administrative Agent and
Lenders prior to their execution of this Agreement.
"Maryland Lease Assignment and Assumption Agreement"
means that certain Lease Assignment and Assumption Agreement by
and among Seller and Newco, dated November 1, 2002, relating to
the leased property located at the "Xxxxxxxxx" Sod Farm situated
on the north side of Route 107, Poolsville, Maryland, in the form
delivered to Administrative Agent and Lenders prior to their
execution of this Agreement.
"Maryland Property" has the meaning assigned to that
term in subsection 4.1M(ii).
"Master Confirmation" means the Acknowledgement and
Consent to be executed and delivered by Borrower and the
Subsidiary Guarantors on the Effective Date, substantially in the
form of Exhibit XXIV annexed hereto.
"Material Adverse Effect" means any act, omission,
situation, circumstance, event or undertaking which could
reasonably be expected to have, singly or in any combination with
one or more other acts, omissions, situations, circumstances,
events or undertakings, a materially adverse effect upon (a) the
business, assets, properties, liabilities, condition (financial
or otherwise), results of operations or business prospects of
Borrower and its Subsidiaries taken as a whole, (b) the value of
the whole or any material part of the Collateral, or the
enforceability or priority of the security interest in the
Collateral, (c) the respective ability of Borrower or any of the
other Loan Parties to perform any obligations under this
Agreement or any other Loan Document to which it is a party, or
(d) the legality, validity, binding effect, enforceability or
admissibility into evidence of any Loan Document or the rights or
remedies of Administrative Agent or Lenders under or in
connection with any Loan Document.
"Material Contract" means any contract, indenture,
mortgage, deed of trust, undertaking, agreement, instrument or
other arrangement, whether written or oral, (a) having annual
revenues in excess of $5,000,000, if Borrower or any of its
Subsidiaries is a provider of services, and (b) having remaining
payments in excess of $1,000,000, if Borrower or any of its
Subsidiaries is the recipient of services, inventory, materials
or other goods.
"Material Leasehold Property" means a Leasehold
Property reasonably determined by Administrative Agent to be of
material value as Collateral or of material importance to the
operations of Borrower or any of its Subsidiaries; provided,
however, no Leasehold Property with respect to which the
aggregate amount of all rents payable during any one Fiscal Year
never exceeds $500,000 shall be a "Material Leasehold Property".
"Metric" means Metric Systems Corporation, a Florida
corporation.
"Minimum Amount" means, with respect to each of the
following actions, the minimum amount and any multiples in excess
thereof set forth opposite such action:
Multiples
Minimum in excess
Type of Action Amount thereof
------------------------- ---------- -------------
Conversion into Base Rate $150,000 $50,000
Loans
Conversion into LIBOR $1,000,000 $100,000
Loans
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means (i) a security instrument (whether
designated as a deed of trust or a mortgage or by any similar
title) executed and delivered by any Loan Party, substantially in
the form of Exhibit XVII annexed hereto or in such other form as
may be approved by Administrative Agent in its sole discretion,
in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or
customary local mortgage or deed of trust practices, or (ii) at
Administrative Agent's option, in the case of an Additional
Mortgaged Property, an amendment to an existing Mortgage, in form
satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such
existing Mortgage. "Mortgages" means all such instruments,
including the Effective Date Mortgages and the Additional
Mortgages.
"Multiemployer Plan" means any Employee Benefit Plan
that is a "multiemployer plan" as defined in Section 3(37) of
ERISA.
"Net Asset Sale Proceeds" means, with respect to any
Asset Sale, Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received)
received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income
taxes reasonably estimated to be actually payable within two
years of the date of such Asset Sale as a result of any gain
recognized in connection with such Asset Sale and (ii) payment of
the outstanding principal amount of, premium or penalty, if any,
and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such
Asset Sale.
"Net Insurance/Condemnation Proceeds" means any Cash
payments or proceeds received by Borrower or any of its
Subsidiaries (i) under any business interruption or casualty
insurance policy in respect of a covered loss thereunder or (ii)
as a result of the taking of any assets of Borrower or any of its
Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any
such assets to a purchaser with such power under threat of such a
taking, in each case net of any actual and reasonable documented
costs incurred by Borrower or any of its Subsidiaries in
connection with the adjustment or settlement of any claims of
Borrower or such Subsidiary in respect thereof.
"Net Pension Proceeds" has the meaning assigned to that
term in subsection 2.4B(iii)(c).
"Net Proceeds Amount" has the meaning assigned to that
term in subsection 2.4B(iii)(g).
"Net Securities Proceeds" means the Cash proceeds (net
of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable
legal fees and expenses) from the (i) issuance of Capital Stock
of or incurrence of Indebtedness by Borrower or any of its
Subsidiaries and (ii) capital contributions made by a holder of
Capital Stock of Borrower.
"Newco" has the meaning assigned to that term in the
Recitals.
"New Florida Property" has the meaning assigned to that
term in subsection 4.1N(i).
"New Instruments of Assignment" means the Instruments
of Assignment to be executed and delivered by Borrower or any of
its Subsidiaries on the Effective Date and from time to time
thereafter, substantially in the form of Exhibit XXII annexed
hereto.
"New Lender" has the meaning assigned to that term in
subsection 2.1A(iv).
"New Mortgage" has the meaning assigned to that term in
subsection 4.1N(i).
"New Mortgage Policies" has the meaning assigned to
that term in subsection 4.1N(iv).
"New Mortgaged Properties" has the meaning assigned to
that term in subsection 4.1N(i).
"Non-US Lender" has the meaning assigned to that term
in subsection 2.7B(iii)(a).
"Notes" means one or more of the Tranche A Term Notes,
Tranche B Term Notes or Revolving Notes or any combination
thereof.
"Notice of Borrowing" means a notice substantially in
the form of Exhibit I annexed hereto delivered by Borrower to
Administrative Agent pursuant to subsection 2.1B with respect to
a proposed borrowing.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto delivered
by Borrower to Administrative Agent pursuant to subsection 2.2D
with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect
to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit III annexed hereto delivered
by Borrower to Administrative Agent pursuant to subsection
3.1B(i) with respect to the proposed issuance of a Letter of
Credit.
"Obligations" means all obligations of every nature of
each Loan Party from time to time owed to Administrative Agent,
Lenders or any of them under the Loan Documents whether for
principal, interest, reimbursement of amounts drawn under Letters
of Credit, fees, expenses, indemnification or otherwise, whether
contingent, direct or otherwise, including post-petition interest
on such amounts accruing subsequent to, and interest that would
have accrued but for, the commencement of a proceeding under the
Bankruptcy Code (whether or not such interest is allowed as a
claim in such proceeding).
"Officer" means the president, chief executive officer,
a vice president, chief financial officer, treasurer, general
partner (if an individual), managing member (if an individual) or
other individual appointed by the Governing Body or the
Organizational Documents of a corporation, partnership, trust or
limited liability company to serve in a similar capacity as the
foregoing.
"Officer's Certificate," as applied to any Person that
is a corporation, partnership, trust or limited liability
company, means a certificate executed on behalf of such Person by
one or more Officers of such Person or one or more Officers of a
general partner or a managing member if such general partner or
managing member is a corporation, partnership, trust or limited
liability company; provided that every Officer's Certificate with
respect to the compliance with a condition precedent to the
making of any Loans hereunder shall include (i) a statement that
the Officer or Officers making or giving such Officer's
Certificate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto, (ii) a
statement that, in the opinion of the signers, they have made or
have caused to be made such examination or investigation as is
reasonably necessary to enable them to express an informed
opinion as to whether or not such condition has been complied
with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"Operating Lease", as applied to any Person, means any
lease (including leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that
is not a Capital Lease other than any such lease under which that
Person is the lessor.
"Organizational Documents" means the documents
(including Bylaws, if applicable) pursuant to which a Person that
is a corporation, partnership, trust or limited liability company
is organized.
"Original Closing Date" means March 4, 2002.
"Participant" means a purchaser of a participation in
the rights and obligations under this Agreement pursuant to
subsection 10.1C.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereto.
"Pension Plan" means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
"Permitted Acquisition" means an acquisition of assets
or substantially all of the Capital Stock of any Person where (i)
the acquired Person is in the same line of business as that of
Borrower or any of its Subsidiaries on the Effective Date, (ii)
after giving effect to such transaction, the Revolving Loan
Commitments minus the Total Utilization of Revolving Loan
Commitments is not less than $7,500,000, (iii) Borrower or any
Subsidiary Guarantor is the surviving entity, (iv) a description
of the acquisition shall have been delivered to Administrative
Agent prior to the consummation of the acquisition, (v) Borrower
shall have demonstrated to Administrative Agent's reasonable
satisfaction pro forma compliance (as of the date of the
acquisition after giving effect to any Loans made or to be made
in connection therewith) with the financial covenants contained
in subsection 7.6 and a Consolidated Total Leverage Ratio at
least .15 below the applicable ratio set forth in subsection 7.6B
prior to consummating the acquisition, (vi) Borrower shall have
demonstrated to Administrative Agent's reasonable satisfaction
that the acquired Person has positive pro forma Consolidated
EBITDA for the most recent twelve month period then ended, (vii)
Borrower shall have delivered to Administrative Agent copies of
the most recent audited financial statements, if available, of
the acquired Person, together with any other information that
Administrative Agent may reasonably request, and (viii) no
Potential Event of Default or Event of Default shall have
occurred or be continuing both before and after giving effect to
the acquisition.
"Permitted Encumbrances" means the following types of
Liens (excluding any such Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA,
any such Lien relating to or imposed in connection with any
Environmental Claim, and any such Lien expressly prohibited by
any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3A or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or,
in the case of Subsidiaries with significant operations outside
of the United States of America, generally accepted accounting
principles in effect from time to time in their respective
jurisdictions of incorporation);
(ii) statutory Liens of landlords, statutory Liens and rights
of set-off of banks, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law, in each case incurred in the ordinary course of
business (a) for amounts which are not overdue for a period of
more than 60 days or (b) for amounts that are overdue and that
(in the case of any such amounts overdue for a period in excess
of 5 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts, and (2) in the case of a
Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion
of the Collateral on account of such Lien, and the aggregate
amount of such Liens is less than $75,000;
(iii) deposits in an aggregate amount not to exceed $75,000
made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(iv) deposits in an aggregate amount not to exceed $75,000 made
in the ordinary course of business or to secure the performance
of statutory obligations, bids, leases, government contracts,
trade contracts, and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(v) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(vi) leases or subleases granted to third parties in accordance
with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of
the business of Borrower or any of its Subsidiaries or resulting
in a material diminution in the value of any Collateral as
security for the Obligations;
(vii) easements, rights-of-way, restrictions, encroachments,
and other minor defects or irregularities in title, in each case
which do not and will not interfere in any material respect with
the ordinary conduct of the business of Borrower or any of its
Subsidiaries or result in a material diminution in the value of
any Collateral as security for the Obligations;
(viii) any (a) interest or title of a lessor or sublessor
under any lease not prohibited by this Agreement, (b) restriction
or encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (c) subordination of the interest
of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as
the holder of such restriction or encumbrance agrees to recognize
the rights of such lessee or sublessee under such lease;
(ix) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement; and
(x) matters contained in the Effective Date Mortgage Policies.
"Person" means and includes natural persons,
corporations, limited partnerships, general partnerships, limited
liability companies, limited liability partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts,
banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments
(whether federal, state or local, domestic or foreign, and
including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
"Pledged Collateral" means, collectively, the "Pledged
Collateral" as defined in the Security Agreement.
"Potential Event of Default" means a condition or event
that, after notice or lapse of time or both, would constitute an
Event of Default.
"Proceedings" means any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental
investigation or arbitration.
"Pro Rata Share" means (i) with respect to all
payments, computations and other matters relating to the Tranche
A Term Loan Commitment or the Tranche A Term Loan of any Lender,
the percentage obtained by dividing (x) the Tranche A Term Loan
Exposure of that Lender by (y) the aggregate Tranche A Term Loan
Exposure of all Lenders; (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term
Loan Commitment or the Tranche B Term Loan of any Lender, the
percentage obtained by dividing (x) the Tranche B Term Loan
Exposure of that Lender by (y) the aggregate Tranche B Term Loan
Exposure of all Lenders; (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of
Credit issued or participations therein purchased by any Lender,
the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders; and (iv) for all other purposes with
respect to each Lender, the percentage obtained by dividing
(x) the sum of the Tranche A Term Loan Exposure, the Tranche B
Term Loan Exposure and the Revolving Loan Exposure of that Lender
by (y) the sum of the aggregate Tranche A Term Loan Exposure,
Tranche B Term Loan Exposure and Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1.
"PTO" means the United States Patent and Trademark
Office or any successor or substitute office in which filings are
necessary or, in the opinion of Administrative Agent, desirable
in order to create or perfect Liens on any IP Collateral.
"Real Property Asset" means, at any time of
determination, any interest then owned by any Loan Party in any
real property.
"Recorded Leasehold Interest" means a Leasehold
Property with respect to which a Record Document (as hereinafter
defined) has been recorded in all places necessary or desirable,
in Administrative Agent's reasonable judgment, to give
constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For
purposes of this definition, the term "Record Document" means,
with respect to any Leasehold Property, (a) the lease evidencing
such Leasehold Property or a memorandum thereof, executed and
acknowledged by the owner of the affected real property, as
lessor, or (b) if such Leasehold Property was acquired or
subleased from the holder of a Recorded Leasehold Interest, the
applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"Reference Rate" means the rate that CIBC announces
from time to time as its prime lending rate, as in effect from
time to time. The Reference Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. CIBC or any other Lender may make commercial loans
or other loans at rates of interest at, above or below the
Reference Rate.
"Register" has the meaning assigned to that term in
subsection 2.1D(i).
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Reimbursement Date" has the meaning assigned to that
term in subsection 3.3B.
"Related Agreements" means, collectively, the
Acquisition Agreement, the Assignment and Assumption Agreement
and Xxxx of Sale, the Assignment of Patents, the Maryland
Landlord's Estoppel Certificate, the Maryland Lease Assignment
and Assumption Agreement, the Texas Landlord's Consent to
Assignment and Estoppel Certificate, the Texas Lease Assignment
and Assumption Agreement and the Deed of Conveyance.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of Hazardous
Materials into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), including
the movement of any Hazardous Materials through the air, soil,
surface water or groundwater.
"Requisite Lenders" means Lenders having or holding
more than 50% of the sum of the aggregate Tranche A Term Loan
Exposures, Tranche B Term Loan Exposures and Revolving Loan
Exposures of all Lenders.
"Restricted Junior Payment" means (i) any dividend or
other distribution, direct or indirect, on account of any Capital
Stock of any class of Capital Stock of Borrower or any of its
Subsidiaries now or hereafter outstanding, except a dividend
payable solely in shares of that class of Capital Stock to the
holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any Capital Stock of any class of Capital
Stock of Borrower or any of its Subsidiaries now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights
to acquire Capital Stock of Borrower or any of its Subsidiaries
now or hereafter outstanding, and (iv) any payment or prepayment
of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any
Subordinated Indebtedness.
"Revolving Lender" means a Lender that has a Revolving
Loan Commitment and/or has an outstanding Revolving Loan.
"Revolving Loan Commitment" means the commitment of a
Lender to make Revolving Loans to Borrower pursuant to subsection
2.1A(iii), and "Revolving Loan Commitments" means such
commitments of all Lenders in the aggregate. The Revolving Loan
Commitments shall be recorded by Administrative Agent in the
Register.
"Revolving Loan Commitment Termination Date" means
March 4, 2007.
"Revolving Loan Exposure" means, with respect to any
Lender, as of any date of determination (i) prior to the
termination of the Revolving Loan Commitments, that Lender's
Revolving Loan Commitment, and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that
Lender plus (b) if Lender is an Issuing Lender, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued
by that Lender (in each case net of any participations purchased
by other Lenders in such Letters of Credit or in any unreimbursed
drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding
Letters of Credit or any unreimbursed drawings under any Letters
of Credit.
"Revolving Loans" means the Loans made by Lenders to
Borrower pursuant to subsection 2.1A(iii).
"Revolving Notes" means (i) the promissory notes of
Borrower issued pursuant to subsection 2.1E on the Effective
Date, (ii) any promissory notes of Borrower issued pursuant to
the last paragraph of subsection 2.1E relating to any increase in
Revolving Loan Commitments made pursuant to subsection 2.1A(iv)
and (iii) any promissory notes issued by Borrower pursuant to
subsection 10.1B(i) in connection with assignments of the
Revolving Loan Commitments and Revolving Loans of any Lenders and
any replacements thereof, in each case substantially in the form
of Exhibit VII annexed hereto.
"S&P" means Standard & Poor's Ratings Group.
"Securities" means any stock, shares, partnership
interests, voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Security Agreement" means the Security Agreement
executed and delivered by Borrower and its Subsidiaries on the
Original Closing Date, substantially in the form of Exhibit XV
annexed hereto as confirmed by the Master Confirmation.
"Security Agreement Counterpart" means the Counterpart
attached as Exhibit VI to the Security Agreement.
"Seller" means BAE Systems Aerospace Electronics Inc.
"Solvent" means, with respect to any Person, that as of
the date of determination both (A) (i) the then fair saleable
value of the property of such Person is (y) greater than the
total amount of liabilities (including contingent liabilities) of
such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then
existing debts as they become absolute and matured considering
all financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person
does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such
debts as they become due; and (B) such Person is "solvent" within
the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Subordinated Indebtedness" means any Indebtedness of
Borrower incurred from time to time and subordinated in right of
payment to the Obligations on terms and conditions satisfactory
to Administrative Agent.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause
the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person
or one or more of the other Subsidiaries of that Person or a
combination thereof.
"Subsidiary Guarantor" means any domestic Subsidiary of
Borrower that executed and delivered the Subsidiary Guaranty on
the Original Closing Date or a counterpart thereto and any
domestic Subsidiary of Borrower that executes and delivers a
counterpart of the Subsidiary Guaranty from time to time after
the Effective Date pursuant to subsection 6.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty
executed and delivered by domestic Subsidiaries of Borrower on
the Original Closing Date and from time to time in accordance
with subsection 6.8, substantially in the form of Exhibit XIV
annexed hereto as confirmed by the Master Confirmation.
"Subsidiary Guaranty Counterpart" means the Counterpart
for Additional Guarantors attached as Exhibit A to the Subsidiary
Guaranty.
"Supplemental Collateral Agent" has the meaning
assigned to that term in subsection 9.1B.
"Target" has the meaning assigned to that term in the
Recitals.
"Tax" or "Taxes" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature
and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed, including
interest, penalties, additions to tax and any similar liabilities
with respect thereto; except that, in the case of a Lender, there
shall be excluded (1) taxes that are imposed on the overall net
income or net profits (including franchise taxes imposed in lieu
thereof) (i) by the United States, (ii) by any other Governmental
Authority under the laws of which such Lender is organized or has
its principal office or maintains its applicable lending office,
or (iii) by any jurisdiction solely as a result of a present or
former connection between such Lender (other than any such
connection arising solely from such Lender having executed,
delivered or performed its obligations or received a payment
under, or enforced any of the Loan Documents), and (2) any branch
profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which such Lender is
located.
"Term Loans" means, collectively, the Tranche A Term
Loans and the Tranche B Term Loans.
"Term Loan Notes" means collectively, the Tranche A
Term Notes and Tranche B Term Notes.
"Texas Deed of Trust" means the Deed of Trust, Security
Agreement, Assignment of Rents and Leases and Fixture Filing
(Texas), executed by Continental Electronics Corporation on the
Original Closing Date in favor of the trustee named therein for
the benefit of Administrative Agent as beneficiary.
"Texas Landlord's Consent to Assignment and Estoppel
Certificate" means that certain Landlord's Consent to Assignment
and Estoppel Certificate by and among Seller and Aberfeldy
Limited Partnership, dated November 1, 2002, relating to the
leased property located at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxx,
in the form delivered to Administrative Agent and Lenders prior
to their execution of this Agreement.
"Texas Lease Assignment and Assumption Agreement" means
that certain Lease Assignment and Assumption Agreement by and
among Seller and Newco, dated November 1, 2002, relating to the
leased property located at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxx,
in the form delivered to Administrative Agent and Lenders prior
to their execution of this Agreement.
"Title Company" means one or more other title insurance
companies reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments"
means, as at any date of determination, the sum of (i) the
aggregate principal amount of all outstanding Revolving Loans
plus (ii) the Letter of Credit Usage.
"Tranche A Term Loan Commitment" means the commitment
of a Lender to make a Tranche A Term Loan to Borrower pursuant to
subsection 2.1A(i), and "Tranche A Term Loan Commitments" means
such commitments of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" with respect to any
Lender, means, as of any date of determination (i) prior to the
funding of the Tranche A Term Loans, that Lender's Tranche A Term
Loan Commitment, and (ii), after the funding of the Tranche A
Term Loans, the outstanding principal amount of the Tranche A
Term Loan of that Lender.
"Tranche A Term Loan Maturity Date" has the meaning
assigned to that term in subsection 2.4A(i)
"Tranche A Term Loans" means the Loans made by Lenders
to Borrower pursuant to subsection 2.1A(i).
"Tranche A Term Notes" means (i) the promissory notes
of Borrower issued pursuant to subsection 2.1E on the Effective
Date (or any replacements thereof), (ii) any promissory notes of
Borrower issued pursuant to the last paragraph of subsection 2.1E
relating to any increase in the Tranche A Term Loans made
pursuant to subsection 2.1A(iv) and (iii) any promissory notes
issued by Borrower pursuant to subsection 10.1B(i) in connection
with assignments of the Tranche A Loan Commitments or Tranche A
Term Loans of any Lenders, in each case substantially in the form
of Exhibit V annexed hereto.
"Tranche B Term Loan Commitment" means the commitment
of a Lender to make a Tranche B Term Loan to Borrower pursuant to
subsection 2.1A(ii), and "Tranche B Term Loan Commitments" means
such commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" with respect to any
Lender, means, as of any date of determination (i) prior to the
funding of the Tranche B Term Loans, that Lender's Tranche B Term
Loan Commitment and (ii) after the funding of the Tranche B Term
Loans, the outstanding principal amount of the Tranche B Term
Loan of that Lender.
"Tranche B Term Loan Maturity Date" has the meaning
assigned to that term in subsection 2.4A(ii).
"Tranche B Term Loans" means the Loans made by Lenders
to Borrower pursuant to subsection 2.1A(ii).
"Tranche B Term Notes" means (i) the promissory notes
of Borrower issued pursuant to subsection 2.1E on the Effective
Date (or any replacements thereof), (ii) any promissory notes of
Borrower issued pursuant to the last paragraph of subsection 2.1E
relating to any increase in the Tranche B Term Loans made
pursuant to subsection 2.1A(iv) and (iii) any promissory notes
issued by Borrower pursuant to subsection 10.1B(i) in connection
with assignments of the Tranche B Loan Commitments or Tranche B
Term Loans of any Lenders, in each case substantially in the form
of Exhibit VI annexed hereto.
"Transactions" has the meaning assigned to that term in
the Recitals.
"Transaction Costs" means the fees, costs and expenses
payable by Borrower on or before the Effective Date in connection
with the transactions contemplated by the Loan Documents.
"T-S Holding" means T-S Holding Corporation, a Texas
corporation.
"Type" means, with respect to any Loan, a Term Loan, or
a Revolving Loan (each of which is a "Type" of Loan).
"UCC" means the Uniform Commercial Code (or any similar
or equivalent legislation) as in effect in any applicable
jurisdiction.
"Unfunded Benefit Liability" has the meaning assigned
to that term in subsection 5.11D.
"Veritas" means The Veritas Capital Fund, L.P.
"Voting Stock" means, with respect to any Person,
Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote has
been suspended by the happening of such a contingency.
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.
Except as otherwise expressly provided in this
Agreement, all accounting terms not otherwise defined herein
shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be
delivered by Borrower to Lenders pursuant to clauses (ii), (iii)
and (xii) of subsection 6.1 shall be prepared in accordance with
GAAP as in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in
subsection 6.1(v)). Calculations in connection with the
definitions, covenants and other provisions of this Agreement
shall utilize GAAP as in effect on the date of determination,
applied in a manner consistent with that used in preparing the
financial statements referred to in subsection 5.3. Borrower
shall deliver to the Administrative Agent at the same time as the
delivery of any annual or quarterly financial statements given in
accordance with the provisions of Section 6.1, (i) a description
in reasonable detail of any material change in the application of
accounting principles employed in the preparation of such
financial statements from those applied in the most recently
preceding quarterly or annual financial statements as to which no
objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the
financial statements on account of such changes in application.
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural,
depending on the reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Section and subsection headings
in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
C. The use in any of the Loan Documents of the word
"include" or "including", when following any general statement, term or
matter, shall not be construed to limit such statement, term or
matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or
not nonlimiting language (such as "without limitation" or "but
not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all
other items or matters that fall within the broadest possible
scope of such general statement, term or matter.
D. Each of the parties hereto acknowledges that
(i) it has been represented by counsel in the negotiation and
documentation of the terms of this Agreement, (ii) it has had full
and fair opportunity to review and revise the terms of this Agreement,
(iii) this Agreement has been drafted jointly by all of the
parties hereto, and (iv) neither Administrative Agent nor any
Lender has any fiduciary relationship with or duty to Borrower
arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative
Agent and Lenders, on the one hand, and Borrower, on the other
hand, in connection herewith or therewith is solely that of
debtor and creditor. Accordingly, each of the parties hereto
acknowledges and agrees that the terms of this Agreement shall
not be construed against or in favor of another party.
E. (i) Any reference in this Agreement or any other Loan
Document to any agreement means such agreement as it may be
amended, restated, supplemented or otherwise modified from time
to time; (ii) any reference in this Agreement or any other Loan
Document to any law, statute, regulation, rule or other
legislative action shall mean such law, statute, regulation, rule
or other legislative action as amended, supplemented or otherwise
modified from time to time, and shall include any rule or
regulation promulgated thereunder; and (iii) any reference in
this Agreement or any other Loan Document to a Person shall
include the successor or assignee of such Person.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Optional Notes.
A. Commitments. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties
of Borrower herein set forth, each Lender hereby severally agrees
to make the Loans as described in subsections 2.1A(i), 2.1A(ii)
and 2.1A(iii).
(i) Tranche A Term Loans. Borrower acknowledges that
Tranche A Term Loans in an aggregate amount of $40,000,000 were
advanced to Borrower on the Original Closing Date. The aggregate
amount of the Tranche A Term Loans currently outstanding is $37,750,000;
provided that the Tranche A Term Loan Commitments of Lenders
shall be adjusted to give effect to (1) any assignments of the
Tranche A Term Loan Commitments pursuant to subsection 10.1B and
(2) any increase in Tranche A Term Loans pursuant to subsection
2.1A(iv). Amounts borrowed under subsection 2.1A(i) of the
Existing Credit Agreement and subsequently repaid may not be
reborrowed.
(ii) Tranche B Term Loans. Borrower acknowledges that
Tranche B Term Loans in an aggregate amount equal to $45,000,000 were
advanced to Borrower on the Original Closing Date (of which
$44,775,000 remains outstanding) and only $135,000,000 of Tranche
B Term Loans will be advanced to Borrower on the Effective Date.
Each Lender that has an unfunded Tranche B Term Loan Commitment
severally agrees to lend to Borrower on the Effective Date an
amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche B Term Loan Commitment to be funded on the
Effective Date to be used for the purposes identified in
subsection 2.5A. Borrower shall deliver to Administrative Agent
a Notice of Borrowing no later than 12:00 Noon (New York City
time) at least one Business Day prior to the Effective Date,
requesting a borrowing of the unfunded Tranche B Term Loans. The
Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), and (ii) that such Loans shall
be Base Rate Loans. The aggregate amount of the Tranche B Term
Loan Commitments is $179,775,000; provided that the Tranche B
Term Loan Commitments of Lenders shall be adjusted to (1) give
effect to any assignments of the Tranche B Term Loan Commitments
pursuant to subsection 10.1B and (2) any increase in Tranche B
Term Loans pursuant to subsection 2.1A(iv). Each Lender's
unfunded Tranche B Term Loan Commitment shall expire immediately
and without further action on November 25, 2002 if the unfunded
Tranche B Term Loans have not been made on or before that date.
Subject to subsection 2.1A(iv), Borrower may make only one
borrowing under the unfunded Tranche B Term Loan Commitments.
Amounts borrowed under this subsection 2.1A(ii) or previously
borrowed under the corresponding section in the Existing Credit
Agreement and subsequently repaid or prepaid may not be
reborrowed.
(iii) Revolving Loans. Each Lender severally agrees,
subject to the limitations set forth below with respect to the
maximum amount of Revolving Loans permitted to be outstanding from
time to time, to lend to Borrower from time to time after the
Effective Date to but excluding the Revolving Loan Commitment
Termination Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Revolving Loan Commitments
to be used for the purposes identified in subsection 2.5B. The
aggregate original amount of the Revolving Loan Commitments is
$45,000,000; provided that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of
any reductions thereto made pursuant to subsection 2.4B; and
provided further that the Revolving Loan Commitments of Lenders
shall be adjusted to give effect to (1) any increase in Revolving
Loan Commitments pursuant to subsection 2.1A(iv), and (2) any
assignments of the Revolving Loan Commitments pursuant to
subsection 10.1B. Each Lender's Revolving Loan Commitment shall
expire immediately and without further action on the Revolving
Loan Commitment Termination Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans
and the Revolving Loan Commitments shall be paid in full no later
than that date; provided that each Lender's Revolving Loan
Commitment shall expire immediately and without further action on
November 25, 2002 if the Tranche A Term Loans have not been made
on or before that date. Amounts borrowed under this subsection
2.1A(iii) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan
Commitments shall be subject to the limitation that in no event
shall the Total Utilization of Revolving Loan Commitments at any
time exceed the lesser of the Revolving Loan Commitments then in
effect and the Borrowing Base then in effect.
(iv) Increases of the Term Loans or Revolving Loan Commitments.
(a) At the mutual discretion of Borrower and Lead Arranger,
Borrower may request in writing at any time during the period
from the Effective Date to and including the second anniversary
of the Effective Date that (x) the then effective aggregate
principal amount of any existing Type or Types of Term Loans be
increased, and/or (y) the then effective aggregate principal
amount of Revolving Loan Commitments be increased; provided that
(1) the aggregate principal amount of the increases in Term Loans
and/or Revolving Loan Commitments pursuant to this subsection
2.1A(iv) shall not exceed $45,000,000 in the aggregate, (2)
Borrower may not make more than three requests for such increases
in Term Loans and/or Revolving Loan Commitments and (3) no Event
of Default or Potential Event of Default shall have occurred and
be continuing or occur as a result of such increases in Term
Loans and/or Revolving Loan Commitments. Any request under this
subsection 2.1A(iv) shall be submitted by Borrower to
Administrative Agent (which shall promptly forward copies to
Lenders), specify the proposed effective date and amount of such
increase and be accompanied by an Officer's Certificate
certifying that no Event of Default or Potential Event of Default
exists or will occur as a result of such increase. Borrower
shall specify any fees offered to those Lenders (the "Increasing
Lenders") that agree to increase the principal amount of their
applicable Term Loans or Revolving Loan Commitments, as the case
may be, which fees may be variable based upon the amount by which
any such Lender is willing to increase the principal amount of
its applicable Term Loans or Revolving Loan Commitment, as the
case may be. No Lender shall have any obligation, express or
implied, to offer to increase the aggregate principal amount of
its applicable Term Loans or Revolving Loan Commitment, as the
case may be. Only the consent of each Increasing Lender shall be
required for an increase in the aggregate principal amount of the
applicable Term Loans or Revolving Loan Commitments, as the case
may be, pursuant to this subsection 2.1A(iv). No Lender that
elects not to increase the principal amount of its Term Loan or
Revolving Loan Commitment, as the case may be, may be replaced in
respect of its existing applicable Term Loans or Revolving Loan
Commitment, as the case may be, as a result thereof without such
Lender's consent.
(b) Each Increasing Lender shall as soon as practicable
specify the amount of the proposed increase that it is willing to
assume. Borrower may accept some or all of the offered amounts or
designate new lenders that qualify as Eligible Assignees and that
are reasonably acceptable to Administrative Agent as additional
Lenders hereunder in accordance with this subsection 2.1A(iv)
(each such new lender being a "New Lender"), which New Lender may
assume all or a portion of the increase in the aggregate
principal amount of the applicable Term Loans or Revolving Loan
Commitments, as the case may be. Borrower and Administrative
Agent shall have discretion jointly to adjust the allocation of
the increased aggregate principal amount of the applicable Term
Loans or Revolving Loan Commitments, as the case may be, among
Increasing Lenders and New Lenders.
(c) Each New Lender designated by Borrower and reasonably
acceptable to Administrative Agent shall become an additional
party hereto as a New Lender concurrently with the effectiveness
of the proposed increase in the aggregate principal amount of the
applicable Term Loans or Revolving Loan Commitments.
(d) Subject to the foregoing, any increase requested by
Borrower shall be effective upon delivery to Administrative Agent
of each of the following documents: (i) an originally executed
copy of an Instrument of Joinder signed by a duly authorized
officer of each New Lender, substantially in the form attached
hereto as Exhibit XXIII-A; (ii) a notice to the Increasing
Lenders and New Lenders, substantially in the form attached hereto
as Exhibit XXIII-B, signed by a duly authorized officer of
Borrower; (iii) an Officer's Certificate of Borrower,
substantially in the form attached hereto as Exhibit XXIII-C; and
(iv) any other certificates or documents that Administrative Agent
shall reasonably request, in form and substance satisfactory to
Administrative Agent and shall be in the principal amount equal
to (A) the principal amount that Increasing Lenders are willing
to assume as increases to the principal amount of their
applicable Term Loans or Revolving Loan Commitments, as the case
may be, plus (B) the principal amount offered by New Lenders with
respect to the applicable Term Loans or Revolving Loan
Commitments, as the case may be, in either case as adjusted by
Borrower and Administrative Agent pursuant to this subsection
2.1A(iv). Upon effectiveness of any such increase, the Pro Rata
Share of each Lender will be adjusted to give effect to the
increase in the applicable Term Loans or Revolving Loan
Commitments, as the case may be. To the extent that the
adjustment of Pro Rata Shares results in losses or expenses to
any Lender as a result of the prepayment of any LIBOR Loan on a
date other than the scheduled last day of the applicable Interest
Period, Borrower shall be responsible for such losses or expenses
pursuant to subsection 2.6D.
B. Borrowing Mechanics. Except for Revolving Loans made on the
Effective Date, Revolving Loans made on any Funding Date shall be
in an aggregate minimum amount of $500,000 and integral multiples
of $100,000 in excess of that amount; provided that Revolving
Loans made on any Funding Date as LIBOR Loans with a particular
Interest Period shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $100,000 in excess of that
amount. Whenever Borrower desires that Lenders make Revolving
Loans it shall deliver to Administrative Agent a Notice of
Borrowing no later than 10:00 A.M. (New York City time) at least
three Business Days in advance of the proposed Funding Date (in
the case of a LIBOR Loan) or no later than 10:00 a.m. on the
proposed Funding Date (in the case of a Base Rate Loan). The
Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount and Type of
Loans requested, (iii) in the case of any Loans made on the
Effective Date, that such Loans shall be Base Rate Loans, (iv) in
the case of Revolving Loans not made on the Effective Date,
whether such Loans shall be Base Rate Loans or LIBOR Loans,
(v) in the case of any Loans requested to be made as LIBOR Loans,
the initial Interest Period requested therefor, and (vi)
information about the account of Borrower to be credited.
Revolving Loans may be continued as or converted into Base Rate
Loans and LIBOR Loans in the manner provided in subsection 2.2D.
In lieu of delivering the above-described Notice of Borrowing for
any Loan, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly
confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent at Administrative Agent's Office no later
than 2:00 p.m. (New York City time) on the date such notice was
given.
Neither Administrative Agent, nor any Lender shall
incur any liability to Borrower in acting upon any telephonic
notice referred to above that Administrative Agent believes in
good faith to have been given by a duly authorized Officer or
other person authorized to borrow on behalf of Borrower or for
otherwise acting in good faith under this subsection 2.1B, and
upon funding of Revolving Loans by Lenders in accordance with
this Agreement pursuant to any such telephonic notice Borrower
shall have effected Revolving Loans hereunder.
Borrower shall notify Administrative Agent prior to the
funding of any Revolving Loans if any of the matters to which
Borrower is required to certify in the applicable Notice of
Borrowing is no longer true and correct as of the applicable
Funding Date, and the acceptance by Borrower of the proceeds of
any Revolving Loans shall constitute a re-certification by
Borrower, as of the applicable Funding Date, as to the matters to
which Borrower is required to certify in the applicable Notice of
Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Borrowing for a LIBOR Loan (or telephonic
notice in lieu thereof) shall be irrevocable once Administrative
Agent receives such notice, and Borrower shall be bound to make a
borrowing in accordance therewith.
C. Disbursement of Funds. Subject to subsection
2.1A(iv), all Term Loans and Revolving Loans under this Agreement
shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to
make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular Type of Loan requested be increased or
decreased as a result of a default by any other Lender in that
other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of
Borrowing pursuant to subsection 2.1A or 2.1B (or telephonic
notice in lieu thereof), Administrative Agent shall notify each
Lender for that Type of Loan of the proposed borrowing. Each
such Lender shall make the amount of its Loan available to
Administrative Agent at the Administrative Agent's Office not
later than 2:00 P.M. (New York City time) on the applicable
Funding Date. Except to reimburse any Issuing Lender for the
amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Loans made on the Effective Date)
and 4.2 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans available to Borrower on the
applicable Funding Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be wire-transferred to an
account of Borrower as specified in the applicable Notice of
Borrowing.
Unless Administrative Agent shall have been notified by
any Lender prior to a Funding Date for any Loans that such Lender
does not intend to make available to Administrative Agent the
amount of such Lender's Loan requested on such Funding Date,
Administrative Agent may assume that such Lender has made such
amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not
be obligated to, make available to Borrower a corresponding
amount on such Funding Date. If such corresponding amount is not
in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of
errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify Borrower, and Borrower
shall immediately pay such corresponding amount to Administrative
Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative
Agent, at the rate payable under this Agreement for Base Rate
Loans. Nothing in this subsection 2.1C shall be deemed to
relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Borrower may have
against any Lender as a result of any default by such Lender
hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address
referred to in subsection 10.8, a register for the recordation of
the names and addresses of Lenders and the Commitments and Loans of
each Lender from time to time (the "Register"). The Register
shall be available for inspection by Borrower at any reasonable
time and from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment
and Revolving Loan Commitment and the Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans from time to time of
each Lender, and each repayment or prepayment in respect of the
principal amount of the Term Loan or Revolving Loans of each
Lender. Any such recordation shall be conclusive and binding on
Borrower and each Lender, absent manifest error; provided that
failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or
Borrower's Obligations in respect of any applicable Loans.
(iii) Each Lender may record on its internal records
(including the Notes held by such Lender) the amount of the
Tranche A Term Loans, Tranche B Term Loans and each Revolving
Loan made by it and each payment in respect thereof. Any such
recordation shall be conclusive and binding on Borrower, absent
manifest error; provided that failure to make any such
recordation, or any error in such recordation, shall not affect
any Lender's Commitments or Borrower's Obligations in respect of
any applicable Loans; and provided further that in the event of
any inconsistency between the Register and any Lender's records,
the recordations in the Register shall govern (absent manifest
error).
(iv) Borrower, Administrative Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans
listed therein for all purposes hereof, and no assignment or
transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii). Prior to such recordation, all amounts
owed with respect to the applicable Commitment or Loan shall be
owed to the Lender listed in the Register as the owner thereof,
and any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent,
is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Borrower hereby designates CIBC to serve as Borrower's
agent solely for purposes of maintaining the Register as provided in
this subsection 2.1D, and Borrower hereby agrees that, to the
extent CIBC serves in such capacity, CIBC and its officers,
directors, employees, agents and Affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. Optional Notes. If so requested by any Lender by
written notice to Borrower (with a copy to Administrative Agent) at least
two Business Days prior to the Effective Date or at any time
thereafter, Borrower shall execute and deliver on the Effective
Date or within three Business Days after receipt of a written
request therefor, to each Lender (or to Administrative Agent for
that Lender if requested by such Lender) (a) a Tranche A Term
Loan Note substantially in the form of Exhibit V annexed hereto
to evidence that Lender's Tranche A Term Loan, in the principal
amount of that Lender's Tranche A Term Loan and with other
appropriate insertions, (b) a Tranche B Term Loan Note
substantially in the form of Exhibit VI annexed hereto to
evidence that Lender's Tranche B Term Loan, in the principal
amount of that Lender's Tranche B Term Loan and with other
appropriate insertions, and (c) a Revolving Note substantially in
the form of Exhibit VII annexed hereto to evidence that Lender's
Revolving Loans, in the principal amount of that Lender's
Revolving Loan Commitment and with other appropriate insertions;
provided that any Existing Lender requesting a Note must deliver
any Note or Notes issued in its favor under the Existing Credit
Agreement or deliver an affidavit satisfactory to Administrative
Agent stating that such Note or Notes have been lost and
providing for indemnification prior to delivery of a new Note
hereunder.
Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and
until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent
as provided in subsection 10.1B(ii). Any request, authorization
or consent of any person or entity who, at the time of making
such request or giving such authority or consent, is the holder
of any Note shall be conclusive and binding on any subsequent
holder, assignee or transferee of that Note or of any Note or
Notes issued in exchange therefor.
If Borrower increases the aggregate principal amount of
the Term Loans or Revolving Loan Commitments, as the case may be,
pursuant to subsection 2.1A(iv), Borrower shall issue replacement
Term Notes or Revolving Notes, as the case may be, to each
Increasing Lender (or to Administrative Agent for such Increasing
Lender) that requests a Note in accordance with terms hereof and
new Term Notes or Revolving Notes, as the case may be, to each
New Lender (or to Administrative Agent for such New Lender) that
requests a Note in accordance with terms hereof.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of
subsections 2.6 and 2.7, each Term Loan and each Revolving Loan shall
bear interest on the unpaid principal amount thereof from the date
made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate or Adjusted LIBOR.
The applicable basis for determining the rate of interest with
respect to any Term Loan or any Revolving Loan shall be selected
by Borrower initially at the time a Notice of Borrowing is given
with respect to such Loan pursuant to subsection 2.1B, and the
basis for determining the interest rate with respect to any Term
Loan or any Revolving Loan may be changed from time to time
pursuant to subsection 2.2D. If on any day a Term Loan or
Revolving Loan is outstanding with respect to which notice has
not been delivered to Administrative Agent in accordance with the
terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan
shall bear interest determined by reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7,
the Tranche A Term Loans, the Tranche B Term Loans and the
Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base
Rate plus the Applicable Base Rate Margin for such Type of
Loans; or
(ii) if a LIBOR Loan, then at the sum of Adjusted LIBOR
plus the Applicable LIBOR Margin for such Type of Loans.
Upon delivery of a Margin Determination Certificate by
Borrower to Administrative Agent pursuant to subsection 6.1(xvi),
the Applicable Base Rate Margin and Applicable LIBOR Margin shall
automatically be adjusted in accordance with such Margin
Determination Certificate, such adjustment to become effective on
the 60th day after the end of the Fiscal Quarter to which the
financial results contained in the Margin Determination
Certificate relate; provided that (1) at any time a Margin
Determination Certificate is not delivered at the time required
pursuant to subsection 6.1(xvi) and in all events until the first
Margin Determination Certificate is required to be delivered
pursuant to subsection 6.1(xvi), from the time such Margin
Determination Certificate was required to be delivered until
delivery of such Margin Determination Certificate, the Applicable
Base Rate Margin shall be 2.00% for the Revolving Loans and the
Tranche A Term Loans and 3.00% for the Tranche B Term Loans, and
the Applicable LIBOR Margin shall be 3.00% for the Revolving
Loans and the Tranche A Term Loans and 4.00% for the Tranche B
Term Loans, and (2) if a Margin Determination Certificate
erroneously indicates an applicable margin more favorable to
Borrower than should be afforded by the actual calculation of the
Consolidated Total Leverage Ratio, Borrower shall promptly pay
additional interest and letter of credit fees to correct for such
error.
B. Interest Periods. In connection with each LIBOR
Loan, Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an
interest period (each an "Interest Period") to be applicable to
such Loan, which Interest Period shall be, at Borrower's option,
either a one, two, three, six or, if provided by a Lender willing
to do so, twelve month period; provided that:
(i) the initial Interest Period for any LIBOR Loan shall
commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a LIBOR Loan, or on the date
specified in the applicable Notice of Conversion/Continuation, in
the case of a Loan converted to a LIBOR Loan;
(ii) in the case of immediately successive Interest
Periods applicable to a LIBOR Loan continued as such pursuant to
a Notice of Conversion/Continuation, each successive Interest
Period shall commence on the day on which the next preceding
Interest Period expires;
(iii) if an Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided that, if any Interest
Period would otherwise expire on a day that is not a Business Day
but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(iv) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (v) of this subsection
2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond March 4, 2007, no
Interest Period with respect to any portion of the Tranche B Term
Loans shall extend beyond March 4, 2008, and no Interest Period
with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any Type of Term
Loans shall extend beyond a date on which Borrower is required to make
a scheduled payment of principal of such Type of Term Loans,
unless the sum of (a) the aggregate principal amount of such Type
of Term Loans that are Base Rate Loans plus (b) the aggregate
principal amount of such Type of Term Loans that are LIBOR Loans
with Interest Periods expiring on or before such date equals or
exceeds the principal amount required to be paid on such Type of
Term Loans on such date;
(vii) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the date on which a permanent
reduction of the Revolving Loan Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of Revolving
Loans that are Base Rate Loans plus (b) the aggregate principal
amount of Revolving Loans that are LIBOR Loans with Interest
Periods expiring on or before such date plus (c) the excess of
the Revolving Loan Commitments then in effect over the aggregate
principal amount of Revolving Loans then outstanding equals or
exceeds the permanent reduction of the Revolving Loan Commitments
that is scheduled to occur on such date;
(viii) there shall be no more than eight Interest Periods
outstanding at any time; and
(ix) if Borrower fails to specify an Interest Period for any
LIBOR Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Borrower shall be deemed to have
selected an Interest Period of one month.
C. Interest Payments. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount
being prepaid) and at maturity (including final maturity)
provided that if any Revolving Loans that are Base Rate Loans are
prepaid pursuant to subsection 2.4B(i), interest accrued on such
Loans through the date of such prepayment shall be payable on the
next succeeding Interest Payment Date applicable to Base Rate
Loans (or, if earlier, at final maturity).
D. Conversion or Continuation.
(i) Subject to the provisions of subsection 2.6, Borrower shall
have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans from Loans bearing
interest at a rate determined by reference to one basis to Loans
bearing interest at a rate determined by reference to an
alternative basis, in each case in the applicable Minimum Amount
therefor, or (ii) upon the expiration of any Interest Period
applicable to a LIBOR Loan, to continue all or any portion of
such Loan equal to $1,000,000 and integral multiples of $100,000
in excess of that amount as a LIBOR Loan; provided, however, that
a LIBOR Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
(ii) Borrower shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 10:00 AM (New York City
time) at least three Business Days in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan)
and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or
a continuation of, a LIBOR Loan). With respect to any LIBOR
Loan, if Borrower fails to deliver a Notice of
Conversion/Continuation as described above or if any proposed
conversion/continuation under this subsection 2.2D is not
permitted hereunder, Borrower shall be deemed to have elected to
convert such LIBOR Loan to a Base Rate Loan on the last day of
the then-expiring Interest Period.
(iii) A Notice of Conversion/Continuation shall specify
(a) the proposed conversion/continuation date (which shall be a
Business Day), (b) the amount and Type of the Loan to be
converted/continued, (c) the nature of the proposed
conversion/continuation, (d) in the case of a conversion to, or a
continuation of, a LIBOR Loan, the requested Interest Period, and
(e) in the case of a conversion to, or a continuation of, a LIBOR
Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-
described Notice of Conversion/Continuation, Borrower may give
Administrative Agent telephonic notice by the required time of
any proposed conversion/continuation under this subsection 2.2D,
provided that Administrative Agent shall receive a Notice of
Conversion/Continuation to confirm such telephonic notice no
later than 2:00 P.M. (New York City time) on the day on which
such telephonic notice is given. Upon receipt of written or
telephonic notice of any proposed conversion/continuation under
this subsection 2.2D, Administrative Agent shall promptly
transmit such notice by telefacsimile or electronic mail (or by
telephone promptly confirmed by telefacsimile or electronic mail)
to each Lender.
(iv) Neither Administrative Agent nor any Lender shall
incur any liability to Borrower in acting upon any telephonic notice
referred to above that Administrative Agent believes in good
faith to have been given by a duly authorized Officer or other
person authorized to act on behalf of Borrower or for otherwise
acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in
accordance with this Agreement pursuant to any such telephonic
notice Borrower shall have effected a conversion or continuation,
as the case may be, hereunder.
(v) Except as otherwise provided in subsections 2.6B,
2.6C and 2.6G, a notice of a proposed conversion to, or continuation
of, a LIBOR Loan (whether by delivery of a Notice of
Conversion/Continuation or telephonic notice) shall be
irrevocable once Administrative Agent receives such notice, and
Borrower shall be bound to effect a conversion or continuation in
accordance therewith.
E. Default Rate. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal
amount of all Loans and, to the extent permitted by applicable
law, any interest payments thereon not paid when due and any fees
and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any
proceeding under the Bankruptcy Code or other applicable
bankruptcy laws) payable upon demand at a rate that is 2.00% per
annum in excess of the interest rate otherwise payable under this
Agreement with respect to the applicable Loans (or, in the case
of any such fees and other amounts, at a rate which is 2.00% per
annum in excess of the interest rate otherwise payable under this
Agreement for Revolving Loans that are Base Rate Loans); provided
that, in the case of LIBOR Loans, upon the expiration of the
Interest Period in effect at the time any such increase in
interest rate is effective such LIBOR Loans shall thereupon
become Base Rate Loans and shall thereafter bear interest payable
upon demand at a rate which is 2.00% per annum in excess of the
interest rate otherwise payable under this Agreement for Base
Rate Loans. Payment or acceptance of the increased rates of
interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any
rights or remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans
and other Obligations shall be computed (i) in the case of Base Rate
Loans, on the basis of a 365-day year, and (ii) in the case of LIBOR
Loans and other Obligations (other than Base Rate Loans), on the
basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of such Loan or the
first day of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted from a LIBOR Loan,
the date of conversion of such LIBOR Loan to such Base Rate Loan,
as the case may be, shall be included, and the date of payment of
such Loan or the expiration date of an Interest Period applicable
to such Loan or, with respect to a Base Rate Loan being converted
to a LIBOR Loan, the date of conversion of such Base Rate Loan to
such LIBOR Loan, as the case may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one
day's interest shall be paid on that Loan.
G. Maximum Rate. Notwithstanding the foregoing provisions
of this subsection 2.2, in no event shall the rate of interest
payable by Borrower with respect to any Loan exceed the maximum
rate of interest permitted to be charged under applicable law.
2.3 Fees.
A. Revolving Loan Commitment Fees. Borrower agrees
to pay to Administrative Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share of the Revolving Loan
Commitments, commitment fees for the period from and including
the Effective Date to and excluding the Revolving Loan Commitment
Termination Date equal to the average of the daily excess of the
Revolving Loan Commitments over the sum of (i) the aggregate
principal amount of outstanding Revolving Loans plus (ii) the
Letter of Credit Usage multiplied by one half of 1% per annum,
such commitment fees to be calculated on the basis of a 360-day
year and the actual number of days elapsed and to be payable
quarterly in arrears on the last Business Day of each March,
June, September and December of each Fiscal Year commencing on
the first such date to occur after the Effective Date, and on the
Revolving Loan Commitment Termination Date.
B. Other Fees. Borrower agrees to pay to Lead
Arranger and Administrative Agent such fees in the amounts and at
the times separately agreed upon among Borrower, Lead Arranger and
Administrative Agent.
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under Subsidiary Guaranty.
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Tranche A Term Loans. Borrower shall
make principal payments on the Tranche A Term Loans in
installments on the last Business Day of each of the months and
in the amounts set forth below:
DATE SCHEDULED REPAYMENT
December, 2002 $1,125,000
March, 2003 $1,125,000
June, 2003 $1,437,500
September, 2003 $1,437,500
December, 2003 $1,437,500
March, 2004 $1,437,500
June, 2004 $2,000,000
September, 2004 $2,000,000
December, 2004 $2,000,000
March, 2005 $2,000,000
June, 2005 $2,562,500
September, 2005 $2,562,500
December, 2005 $2,562,500
March, 2006 $2,562,500
June, 2006 $2,875,000
September, 2006 $2,875,000
December, 2006 $2,875,000
March, 2007 or the
Tranche A Term Loan Maturity Date, $2,875,000
whichever is earlier
Total: $37,750,000
; provided that the scheduled installments of principal of the
Tranche A Term Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the
Tranche A Term Loans in accordance with subsection 2.4B(iv); and
provided, further that the Tranche A Term Loans and all other
amounts owed hereunder with respect to the Tranche A Term Loans
shall be paid in full no later than March 4, 2007 (the "Tranche A
Term Loan Maturity Date"), and the final installment payable by
Borrower in respect of the Tranche A Term Loans on such date
shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by
Borrower under this Agreement with respect to the Tranche A Term
Loans; and provided, further that if the aggregate principal
amount of the Tranche A Term Loans is increased pursuant to
subsection 2.1A(iv), then each scheduled principal repayment to
be made after such increase becomes effective shall be increased
by an amount equal to (a) the aggregate principal amount of the
increase in the Tranche A Term Loans pursuant to subsection
2.1A(iv) multiplied by (b) an amount equal to (x) such scheduled
repayment amount divided by (y) the aggregate principal amount of
the Tranche A Term Loans to be repaid immediately prior to giving
effect to the increase in the Tranche A Term Loans made pursuant
to subsection 2.1A(iv).
(ii) Scheduled Payments of Tranche B Term Loans.
Borrower shall make principal payments on the Tranche B Term Loans
in quarterly installments equal to $450,000 on the last Business
Day of each March, June, September and December of each Fiscal Year
commencing on December 31, 2002, and ending on March 4, 2008;
provided that the scheduled installments of principal of the
Tranche B Term Loans shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that
the Tranche B Term Loans and all other amounts owed hereunder
with respect to the Tranche B Term Loans shall be paid in full no
later than March 4, 2008 (the "Tranche B Term Loan Maturity
Date"), and the final installment payable by Borrower in respect
of the Tranche B Term Loans on such date shall be in an amount
sufficient to repay all amounts owing by Borrower under this
Agreement with respect to the Tranche B Term Loans; and provided,
further that if the aggregate principal amount of the Tranche B
Term Loans is increased pursuant to subsection 2.1A(iv), then
each scheduled principal repayment to be made after such increase
becomes effective shall be increased by an amount equal to
(a) the aggregate principal amount of the increase in the Tranche
B Term Loans pursuant to subsection 2.1A(iv) multiplied by (b) an
amount equal to (x) such scheduled repayment amount divided by
(y) the aggregate principal amount of the Tranche B Term Loans to
be repaid immediately prior to giving effect to the increase in
the Tranche B Term Loans made pursuant to subsection 2.1A(iv).
B. Prepayments and Unscheduled Reductions in Revolving
Loan Commitments.
(i) Voluntary Prepayments. Borrower may, upon not less
than one Business Day's irrevocable prior written notice, in the case
of Base Rate Loans, and three Business Days' irrevocable prior
written notice, in the case of LIBOR Loans, in each case given to
Administrative Agent by 12:00 Noon (New York City time) on the
date required (which written notice Administrative Agent will
promptly transmit by telefacsimile or electronic mail to each
Lender), and any Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans on any Business Day in whole or in part in an
aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess of that amount; provided, however, that any
LIBOR Loan may be prepaid on a day other than the expiration of
the Interest Period applicable thereto, only if Borrower pays the
amounts due pursuant to subsection 2.6D caused by such
prepayment. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein.
Any such voluntary prepayment shall be applied as specified in
subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments.
Borrower may, upon not less than five Business Days' irrevocable
prior written notice to Administrative Agent (which written
notice Administrative Agent will promptly transmit by
telefacsimile or electronic mail to each Lender), at any time and
from time to time terminate in whole or permanently reduce in
part, without premium or penalty, the Revolving Loan Commitments
in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the
Revolving Loan Commitments shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess
of that amount. Borrower's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in
Borrower's notice and shall reduce the Revolving Loan Commitment
of each Revolving Lender proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments and Mandatory Reductions of
Revolving Loan Commitments. The Loans shall be prepaid and/or
the Revolving Loan Commitments shall be permanently reduced in
the amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as set forth below or
as more specifically provided in subsection 2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale
Proceeds. No later than the date of receipt by Borrower or
any of its Subsidiaries of any Net Asset Sale Proceeds in
respect of any Asset Sale, Borrower shall either (1) prepay
the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to such Net
Asset Sale Proceeds or (2) so long as no Potential Event of
Default or Event of Default shall have occurred and be
continuing and to the extent that aggregate Net Asset Sale
Proceeds for such Fiscal Year exceed $1,000,000, deliver to
Administrative Agent an Officer's Certificate setting forth
(x) that portion of such Net Asset Sale Proceeds that Borrower
or such Subsidiary intends to reinvest in equipment or other
productive assets of the general type used in the business of
Borrower and its Subsidiaries within 180 days of such date of
receipt and (y) the proposed use of such portion of the Net
Asset Sale Proceeds and such other information with respect
to such reinvestment as Administrative Agent may reasonably
request, and Borrower shall, or shall cause one or more of
its Subsidiaries to, promptly and diligently apply such
portion to such reinvestment purposes. Pending any such
reinvestment, such Net Asset Sale Proceeds shall be held in
the Collateral Account pledged to Administrative Agent for
the ratable benefit of Lenders. In addition, Borrower shall,
no later than 180 days after receipt of such Net Asset Sale
Proceeds that have not theretofore been applied to the
Obligations or that have not been so reinvested as provided
above, make an additional prepayment of the Loans (and/or
the Revolving Loan Commitments shall be permanently reduced)
in the full amount of all such Net Asset Sale Proceeds.
(b) Prepayments and Reductions from Net Insurance/
Condemnation Proceeds. No later than the first Business Day
following the date Borrower or any of its Subsidiaries is
required to prepay the Loans in accordance with the provisions
of subsection 6.4C with Net Insurance/Condemnation Proceeds,
Borrower shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount
equal to the amount of such Net Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions Due to Reversion of
Surplus Assets of Pension Plans. On the date of return to
Borrower or any of its Subsidiaries or any surplus assets of
any Pension Plan of Borrower or any of its Subsidiaries,
Borrower shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount
(such amount being the "Net Pension Proceeds") equal to 100% of
such returned surplus assets, net of transaction costs and
expenses incurred in obtaining such return, including incremental
taxes payable as a result thereof.
(d) Prepayments and Reductions Due to Issuance of Equity
Securities. On the date of receipt of the Net Securities
Proceeds from the issuance of any Capital Stock of Borrower or of
any Subsidiary of Borrower or from any capital contribution to
Borrower by any holder of Capital Stock thereof after the
Effective Date (other than, provided that no Potential Event of
Default or Event of Default shall have occurred and be continuing
at such time, proceeds from the issuance of Capital Stock or from
capital contributions to pay for acquisitions permitted pursuant
to subsection 7.7), Borrower shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to 25% of such Net Securities Proceeds.
(e) Intentionally Deleted.
(f) Prepayments and Reductions from Consolidated Excess
Cash Flow. If there is Consolidated Excess Cash Flow for any
Fiscal Year (commencing with Fiscal Year 2002), Borrower shall,
no later than 90 days after the end of such Fiscal Year, prepay
the Loans (but the Revolving Loan Commitment shall not be
permanently reduced) in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow, provided, however if the
Consolidated Total Leverage Ratio as of the most recent fiscal
quarter then ended is less than 2.50:1.00, Borrower shall not be
required to make such prepayment.
(g) Calculations of Net Proceeds Amounts; Additional
Prepayments and Reductions Based on Subsequent Calculations.
Concurrently with any prepayment of the Loans and/or reduction
of the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(b) - 2.4B(iii)(f), Borrower shall deliver to
Administrative Agent and Lenders an Officer's Certificate
demonstrating the calculation of the amount (the "Net Proceeds
Amount") of the applicable Net Asset Sale Proceeds, Net
Insurance/Condemnation Proceeds, Net Pension Proceeds, Net
Securities Proceeds, or Consolidated Excess Cash Flow, as the
case may be, that gave rise to such prepayment and/or reduction.
If Borrower subsequently determines that the actual Net Proceeds
Amount was greater than the amount set forth in such Officer's
Certificate (including if any actual taxes to be paid as a result
of an Asset Sale is less than the estimated taxes to be paid as a
result of such Asset Sale), Borrower shall promptly make an
additional prepayment of the Loans (and/or, if applicable, the
Revolving Loan Commitments shall be permanently reduced) in an
amount equal to the amount of such excess, and Borrower shall
concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the
additional Net Proceeds Amount resulting in such excess.
(h) Prepayments Due to Reductions or Restrictions of
Revolving Loan Commitments. Borrower shall from time to time
prepay first the Revolving Loans to the extent necessary so that
the Total Utilization of Revolving Loan Commitments shall not at
any time exceed the lesser of the Revolving Loan Commitments or
the Borrowing Base then in effect and second to cash
collateralize any outstanding Letters of Credit.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of
Loans and Order of Maturity. Subject to the provisions of
subsection 2.4D, any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied to the Term Loans or the Revolving Loans
as specified by Borrower in the applicable notice of prepayment;
provided that if Borrower fails to specify the Loans to which any
such prepayment shall be applied, such prepayment shall be
applied first to repay outstanding Term Loans to the full extent
thereof, second to repay outstanding Revolving Loans to the full
extent thereof and permanently reduce the Revolving Loan
Commitments and third to cash collateralize any outstanding
Letters of Credit and permanently reduce the Revolving Loan
Commitments to the full extent thereof. Any voluntary
prepayments of the Term Loans pursuant to subsection 2.4B(i) shall
be applied to prepay the Tranche A Term Loans and the Tranche B
Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to reduce the scheduled
installments of principal of the Tranche A Term Loans and Tranche
B Term Loans set forth in subsections 2.4A(i) and 2.4A(ii) on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof).
(b) Application of Mandatory Prepayments by Type of Loans.
Unless an Event of Default has occurred and is continuing, any
amount (the "Applied Amount") required to be applied as a
mandatory prepayment of the Term Loans and/or a reduction of the
Revolving Loan Commitments pursuant to subsections 2.4B(iii)(a) -
2.4B(iii)(g) shall be applied first to prepay the Term Loans to
the full extent thereof, second, to the extent of any remaining
portion of the Applied Amount, to prepay the Revolving Loans to
the full extent thereof and to cash collateralize any outstanding
Letters of Credit and to further permanently reduce the Revolving
Loan Commitments by the amount of such prepayment, third, to the
extent of any remaining portion of such Applied Amount, to
further permanently reduce the Revolving Loan Commitments to the
full extent thereof (except as provided in subsection
2.4B(iii)(f)). If an Event of Default has occurred and is
continuing, any amount required to be applied as a mandatory
prepayment shall be applied as set forth in subsection 2.4D.
(c) Application of Mandatory Prepayments of Term Loans to
Tranche A Term Loans and Tranche B Term Loans and the Scheduled
Installments of Principal Thereof. Any amount required to be
applied as a mandatory prepayment of the Term Loans pursuant to
subsection 2.4B(iii) shall be applied to the Tranche A Term Loans
or the Tranche B Term Loans in such manner as Borrower may
designate in its Officer's Certificate delivered in connection
therewith and shall be applied to scheduled installments of
principal of the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, (i) in forward order of maturity for
the succeeding four quarterly payments and (ii) thereafter, in
inverse chronological order of maturity.
(d) Application of Prepayments to Base Rate Loans and
LIBOR Loans. Considering Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to LIBOR Loans, in each case in
a manner which minimizes the amount of any payments required to
be made by Borrower pursuant to subsection 2.6D.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Borrower of
principal, interest, fees and other Obligations hereunder and
under the Notes shall be made in Dollars in same day funds,
without defense, setoff or counterclaim, free of any restriction
or condition, and delivered to Administrative Agent not later
than 12:00 Noon (New York City time) on the date due at the
Administrative Agent's Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date
shall be deemed to have been paid by Borrower on the next
succeeding Business Day. Notwithstanding the foregoing, payments
of amounts deposited in the Collateral Account pursuant to the
proviso to subsection 2.4B(iii)(a) shall be deemed to have been
paid by Borrower on the applicable date or dates such amounts are
applied to prepay LIBOR Loans. Borrower hereby authorizes
Administrative Agent to charge its accounts with Administrative
Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being
available in its accounts for that purpose).
(ii) Application of Payments. Prior to any payments being
applied to principal or interest under this Agreement or under
the Notes, such payments shall first be applied to any
outstanding and payable fees, costs, expenses, indemnities or
other amounts (aside from principal or interest due under the
Loan Documents), as determined in the reasonable opinion of
Administrative Agent.
(iii) Application of Payments to Principal and Interest.
Except as provided in subsection 2.2C, all payments in respect of
the principal amount of any Loan shall include payment of accrued
interest on the principal amount being repaid or prepaid, and all
such payments (and, in any event, any payments in respect of any
Loan on a date when interest is due and payable with respect to
such Loan) shall be applied to the payment of interest before
application to principal.
(iv) Apportionment of Payments. Aggregate principal and
interest payments in respect of Term Loans and Revolving Loans shall
be apportioned among all outstanding Loans to which such payments
relate, in each case proportionately to Lenders' respective Pro
Rata Shares. Administrative Agent shall promptly distribute to
each Lender, at its primary address set forth below its name on
the appropriate signature page hereof or at such other address as
such Lender may request, its Pro Rata Share of all such payments
received by Administrative Agent and the commitment fees of such
Lender, if any, when received by Administrative Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4C(iv), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to
any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of any LIBOR Loans,
Administrative Agent shall give effect thereto in apportioning
payments received thereafter.
(v) Payments on Business Days. Whenever any payment to
be made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the
commitment fees hereunder, as the case may be.
(vi) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than
by granting participations therein), that Lender will use
reasonable efforts to make a notation thereon of all Loans
evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid;
provided that the failure to make (or any error in the making of)
a notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of Borrower hereunder or under
such Note with respect to any Loan or any payments of principal
or interest on such Note; provided, further, that in the event of
any inconsistency, the Register shall govern (absent manifest
error).
D. Application of Proceeds of Collateral and Payments
after Event of Default.
Upon the occurrence and during the continuation of an
Event of Default, (a) all payments received on account of the
Obligations, whether from Borrower, from any Subsidiary Guarantor
or otherwise, shall be applied by Administrative Agent against
the Obligations and (b) all proceeds received by Administrative
Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of Administrative
Agent, be held by Administrative Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by
Administrative Agent against, the applicable Secured Obligations
(as defined in such Collateral Document), in each case in the
following order of priority:
(i) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable
compensation to Administrative Agent and its agents and counsel,
and all other expenses, liabilities and advances made or incurred
by Administrative Agent in connection therewith, and all amounts
for which Administrative Agent is entitled to compensation
(including the fees described in subsection 2.3), reimbursement
and indemnification under any Loan Document and all advances made
by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection
with the Loan Documents, all in accordance with subsections 9.4,
10.2 and 10.3 and the other terms of this Agreement and the other
Loan Documents;
(ii) thereafter to the payment of all other Secured Obligations
(as defined in such Collateral Document) or Guarantied
Obligations (as defined in the Subsidiary Guaranty) for the
ratable benefit of the holders thereof (subject to the provisions
of subsection 2.4C(ii)); and
(iii) thereafter to the payment to or upon the order of such
Loan Party or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
2.5 Use of Proceeds.
A. Term Loans. The proceeds of the Term Loans made on the
Effective Date shall initially be applied by Borrower to
(a) consummate the Acquisition and (b) pay transaction costs in
an amount not to exceed $7,500,000, and thereafter for the
purposes set forth in subsection 2.5B.
B. Increases of Term Loans; Revolving Loans. The proceeds of
any Term Loans made after the Effective Date pursuant to
subsection 2.1A(iv) and the proceeds of the Revolving Loans shall
be applied by Borrower for working capital and other general
corporate purposes, which may include the making of intercompany
loans to any of Borrower's wholly-owned domestic Subsidiaries, in
accordance with subsection 7.1(iv), for their own general
corporate purposes, including capital expenditures, refinancings,
acquisitions and investments made in accordance with the terms
hereof.
C. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by Borrower or any
of its Subsidiaries in any manner that might cause the borrowing
or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the
date or dates of such borrowing and such use of proceeds.
2.6 Special Provisions Governing LIBOR Loans.
Notwithstanding any other provision of this Agreement
to the contrary, the following provisions shall govern with
respect to LIBOR Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon
as practicable after 12:00 Noon (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall
determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest rate
that shall apply to the LIBOR Loans for which an interest rate is
then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.
B. Inability to Determine Applicable Interest Rate.
If Administrative Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties
hereto), on any Interest Rate Determination Date with respect to
any LIBOR Loans, that by reason of circumstances affecting the
interbank Eurodollar market adequate and fair means do not exist
for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted LIBOR,
Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower
and each Lender of such determination, whereupon (i) no Loans may
be made as, or converted to, LIBOR Loans until such time as
Administrative Agent notifies Borrower and Lenders that the
circumstances giving rise to such notice no longer exist and
(ii) any Notice of Borrowing or Notice of Conversion/Continuation
given by Borrower with respect to the Loans in respect of which
such determination was made shall be deemed to be for a Base Rate
Loan.
C. Illegality or Impracticability of LIBOR Loans.
If on any date any Lender shall have determined (which determination
shall be final, conclusive and binding upon all parties hereto but
shall be made only after consultation with Borrower and
Administrative Agent) that the making, maintaining or
continuation of its LIBOR Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even
though the failure to comply therewith would not be unlawful) or
(ii) has become impracticable, or would cause such Lender
material hardship, as a result of contingencies occurring after
the date of this Agreement which materially and adversely affect
the interbank Eurodollar market or the position of such Lender in
that market, then, and in any such event, such Lender shall be an
"Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower
and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender
by telefacsimile or electronic mail). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert
Loans to, LIBOR Loans shall be suspended until such notice shall
be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a LIBOR Loan then
being requested by Borrower pursuant to a Notice of Borrowing or
a Notice of Conversion/Continuation, the Affected Lender shall
make such Loan as (or convert such Loan to, as the case may be) a
Base Rate Loan, (c) the Affected Lender's obligation to maintain
its outstanding LIBOR Loans (the "Affected Loans") shall be
terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans
or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to
a LIBOR Loan then being requested by Borrower pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation,
Borrower shall have the option, subject to the provisions of
subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by
telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described
above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in
the immediately preceding sentence, nothing in this subsection
2.6C shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans
to, LIBOR Loans in accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement
of Interest Periods. Borrower shall compensate each Lender, upon
written request by that Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses,
expenses and liabilities (including any interest paid by that Lender
to lenders of funds borrowed by it to make or carry its LIBOR Loans
and any loss, expense or liability sustained by that Lender in
connection with the liquidation or re-employment of such funds)
which that Lender may sustain: (i) if for any reason (other than
a default by that Lender) a borrowing of any LIBOR Loan does not
occur on a date specified therefor in a Notice of Borrowing or a
telephonic request therefor, or a conversion to or continuation
of any LIBOR Loan does not occur on a date specified therefor in
a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment or other
principal payment or any conversion of any of its LIBOR Loans
(including any prepayment or conversion occasioned by the
circumstances described in subsection 2.6C) occurs on a date
prior to the last day of an Interest Period applicable to that
Loan, (iii) if any prepayment of any of its LIBOR Loans is not
made on any date specified in a notice of prepayment given by
Borrower, or (iv) as a consequence of any other default by
Borrower in the repayment of its LIBOR Loans when required by the
terms of this Agreement.
E. Booking of LIBOR Loans. Any Lender may make,
carry or transfer LIBOR Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this subsection
2.6 and under subsection 2.7A shall be made as though that Lender had
actually funded each of its relevant LIBOR Loans through the
purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Adjusted
LIBOR in an amount equal to the amount of such LIBOR Loan and
having a maturity comparable to the relevant Interest Period,
whether or not its LIBOR Loans had actually been funded in such
manner, and through the transfer of such Eurodollar deposit from
an offshore office of that Lender to a domestic office of that
Lender in the United States of America; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for
the purposes of calculating amounts payable under this subsection
2.6 and under subsection 2.7A.
G. LIBOR Loans After Default. After the occurrence
of and during the continuation of a Potential Event of Default or an
Event of Default, (i) Borrower may not elect to have a Loan be
made or maintained as, or converted to, a LIBOR Loan after the
expiration of any Interest Period then in effect for that Loan
and (ii) subject to the provisions of subsection 2.6D, any Notice
of Borrowing or Notice of Conversion/Continuation given by
Borrower with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed
to be rescinded by Borrower.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. Subject
to the provisions of subsection 2.7B (which shall be controlling with
respect to the matters covered thereby), if any Lender (including
any Issuing Lender) shall determine (which determination shall,
absent manifest error, be final and conclusive and binding upon
all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the
interpretation, administration or application thereof (including
the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or
Governmental Authority, in each case that becomes effective after
the date hereof, or compliance by such Lender with any guideline,
request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-Governmental
Authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax with respect to this Agreement or
any of its obligations hereunder (including with respect to issuing
or maintaining any Letters of Credit or purchasing or maintaining
any participations therein or maintaining any Commitment
hereunder) or any payments to such Lender (or its applicable
lending office) of principal, interest, fees or any other amount
payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, insurance charge or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by,
any office of such Lender (other than any such reserve or other
requirements with respect to LIBOR Loans that are reflected in
the definition of Adjusted LIBOR); or
(iii)imposes any other condition (other than with respect
to a Tax matter) on or affecting such Lender (or its applicable
lending office) or its obligations hereunder or the interbank
Eurodollar market;
and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making or maintaining its Loans
or Commitments or agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or
maintaining any participation therein or to reduce any amount
received or receivable by such Lender (or its applicable lending
office) with respect thereto; then, in any such case, Borrower
shall promptly pay to such Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or
amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in
its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction
in amounts received or receivable hereunder. Such Lender shall
deliver to Borrower (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis
for calculating the additional amounts owed to such Lender under
this subsection 2.7A, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. Unless otherwise required
by applicable law, all sums payable by Borrower under this Agreement
and the other Loan Documents shall be paid free and clear of, and
without any deduction or withholding on account of, any Tax
imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of
the United States of America or any other jurisdiction from or to
which a payment is made by or on behalf of Borrower or by any
federation or organization of which the United States of America
or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Borrower or any other Person
is required by law to make any deduction or withholding on account
of any such Tax from any sum paid or payable by Borrower to
Administrative Agent or any Lender under any of the Loan
Documents:
(a) Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement as
soon as Borrower becomes aware of it;
(b) Borrower shall pay any such Tax when such Tax is
due, such payment to be made (if the liability to pay is
imposed on Borrower) for its own account or (if that
liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Borrower in respect of which
the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment
been required or made (including taxes on additional payments
made on account of this subsection 2.7B net of any tax
benefits received with respect to any Taxes); and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Borrower shall deliver to
Administrative Agent and/or other affected parties evidence
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority;
provided that no such additional amount shall be required to
be paid to any Lender under clause (c) above (i) to the
extent such additional amount relates to a portion of any
sums paid or payable to such Lender under any of the Loan
Documents with respect to which such Lender does not act for
its own account, or (ii) except to the extent that any
change after the date on which such Lender became a Lender
in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase
in the rate of such deduction, withholding or payment from
that in effect on the date on which such Lender became a
Lender, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative
Agent and to Borrower, on or prior to the Effective Date (in the
case of each Lender listed on the signature pages hereof) or on
or prior to the date of the Assignment Agreement pursuant to
which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of
Borrower or Administrative Agent (each in the reasonable exercise
of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms) properly
completed and duly executed by such Non-US Lender, or, in the
case of a Non-US Lender claiming exemption from United States
federal withholding tax under Section 871(h) or 881(c) of the
Internal Revenue Code with respect to payments of "portfolio
interest", a form W-8BEN, and, in the case of a Non-US Lender
that has certified in writing to Administrative Agent that it is
not a "bank" (as defined in Section 881(c)(3)(A) of the Internal
Revenue Code), a certificate (the "Certificate re: Non-Bank
Status") of such Non-US Lender certifying that such Non-US Lender
is not (i) a "bank" for purposes of Section 881(c) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of
Borrower, or (iii) a controlled foreign corporation related to
Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code) in each case together with any other certificate or
statement of exemption required under the Internal Revenue Code
or the regulations issued thereunder to establish that such Non-
US Lender is not subject to United States withholding tax with
respect to any payments to such Non-US Lender of interest payable
under any of the Loan Documents.
(b) Each Non-US Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of
any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by
such Lender), shall deliver to Administrative Agent and to
Borrower, on or prior to the Effective Date (in the case of each
Lender listed on the signature pages hereof), on or prior to the
date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), or on such later date
when such Non-US Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of
Borrower or Administrative Agent (each in the reasonable exercise
of its discretion), (1) two original copies of the forms or
statements required to be provided by such Non-US Lender under
subsection 2.7B(iii)(a), properly completed and duly executed by
such Non-US Lender, to establish the portion of any such sums
paid or payable with respect to which such Non-US Lender acts for
its own account that is not subject to United States withholding
tax, and (2) two original copies of Internal Revenue Service Form
W-8IMY (or any successor forms) properly completed and duly
executed by such Non-US Lender, together with any information, if
any, such Non-US Lender chooses to transmit with such form, and
any other certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued thereunder,
to establish that such Non-US Lender is not acting for its own
account with respect to a portion of any such sums payable to
such Non-US Lender.
(c) Each Non-US Lender hereby agrees, from time to time
after the initial delivery by such Non-US Lender of such forms,
whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect or if, by virtue of a change
in law or regulations, such forms are no longer valid evidence of
a person's exemption from withholding tax which is reasonably
satisfactory to Borrower, that such Non-US Lender shall promptly
(1) deliver to Administrative Agent and to Borrower two original
copies of renewals, amendments or additional or successor forms,
properly completed and duly executed by such Non-US Lender,
together with any other certificate or statement of exemption
required in order to confirm or establish that such Non-US Lender
is not subject to United States withholding tax with respect to
payments to such Non-US Lender under the Loan Documents and, as
the case may be, that such Non-US Lender does not act for its own
account with respect to any portion of any such payments, or
(2) notify Administrative Agent and Borrower of its inability to
deliver any such forms, certificates or other evidence.
(d) Borrower shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii), (1) with respect to any Tax required to be deducted or
withheld on the basis of the information, certificates or
statements of exemption such Lender chooses to transmit with an
Internal Revenue Service Form W-8IMY pursuant to subsection
2.7B(iii)(b)(2) or (2) if such Non-US Lender shall have failed to
satisfy the requirements of clause (a), (b) or (c)(1) of this
subsection 2.7B(iii); provided that if such Non-US Lender shall
have satisfied the requirements of subsection 2.7B(iii)(a) on
the date such Non-US Lender became a Lender, nothing in this
subsection 2.7B(iii)(d) shall relieve Borrower of its obligation
to pay any amounts pursuant to subsection 2.7B(ii)(c) if, as a
result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Non-
US Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing
the fact that such Non-US Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have
determined that the adoption, effectiveness, phase-in or
applicability after the date hereof of any law, rule or
regulation (or any provision thereof) regarding capital adequacy,
or any change therein or 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 applicable lending office)
with any guideline, request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender
as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit or participations therein or
other obligations hereunder with respect to the Loans or the
Letters of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or
compliance (taking into consideration the policies of such Lender
or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt
by Borrower from such Lender of the statement referred to in the
next sentence, Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction.
Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such additional
amounts, which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate.
Each Lender and Issuing Lender agrees that, as promptly
as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of
such Lender or Issuing Lender, as the case may be, becomes aware
of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments
under subsection 2.7 or subsection 3.6, it will, to the extent
not inconsistent with the internal policies of such Lender or
Issuing Lender and/or any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or
maintain the Commitments of such Lender or the affected Loans or
Letters of Credit of such Lender or Issuing Lender through
another lending or letter of credit office of such Lender or
Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender or Issuing Lender
pursuant to subsection 2.7 or subsection 3.6 would be materially
reduced and if, as determined by such Lender or Issuing Lender in
its sole discretion, the making, issuing, funding or maintaining
of such Commitments or Loans or Letters of Credit through such
other lending or letter of credit office or in accordance with
such other measures, as the case may be, would not otherwise
materially adversely affect such Commitments or Loans or Letters
of Credit or the interests of such Lender or Issuing Lender;
provided that such Lender or Issuing Lender will not be obligated
to utilize such other lending or letter of credit office pursuant
to this subsection 2.8 unless Borrower agrees to pay all
incremental expenses incurred by such Lender or Issuing Lender as
a result of utilizing such other lending or letter of credit
office as described in clause (i) above. A certificate as to the
amount of any such expenses payable by Borrower pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender or Issuing
Lender to Borrower (with a copy to Administrative Agent) shall be
conclusive absent manifest error.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein.
A. Letters of Credit. In addition to Borrower requesting
that Lenders make Revolving Loans pursuant to subsection 2.1A(iii),
Borrower may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the
Effective Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Lenders issue Letters of
Credit for the account of Borrower for the purposes specified in
the definition of Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of Borrower herein set forth, any
one or more Lenders may, but (except as provided in subsection
3.1B(iii)) shall not be obligated to, issue such Letters of
Credit in accordance with the provisions of this subsection 3.1;
provided that Borrower shall not request that any Lender issue
(and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments
would exceed the lesser of the Revolving Loan Commitments or the
Borrowing Base then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $30,000,000;
(iii) any Letter of Credit having an expiration date later
than the earlier of (a) ten days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year
from the date of issuance of such Letter of Credit; provided that
the immediately preceding clause (b) shall not prevent any
Issuing Lender (but subject to clause (a) above) from agreeing
that a Letter of Credit will automatically be extended for one or
more successive periods not to exceed one year each unless such
Issuing Lender elects not to extend for any such additional
period; and provided, further that such Issuing Lender shall
elect not to extend such Letter of Credit if it has knowledge
that an Event of Default or Potential Event of Default has
occurred and is continuing (and has not been waived in accordance
with subsection 10.6) at the time such Issuing Lender must elect
whether or not to allow such extension;
(iv) any Letter of Credit denominated in a currency other
than Dollars;
(v) any Letter of Credit with a face amount of less than
$10,000, or any Letter of Credit with a face amount of less than
$100,000 if after giving effect to such issuance there shall be
more than 15 Letters of Credit outstanding with face amounts of
less than $100,000; or
(vi) any Letter of Credit that is otherwise unacceptable to
the applicable Issuing Lender in its reasonable discretion.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Borrower desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent
a Notice of Issuance of Letter of Credit substantially in the form
of Exhibit III annexed hereto no later than 12:00 Noon (New York
City time) at least three Business Days, or in each case such
shorter period as may be agreed to by the Issuing Lender in any
particular instance, in advance of the proposed date of issuance.
The Notice of Issuance of Letter of Credit shall specify (a) the
proposed date of issuance (which shall be a Business Day), (b)
the face amount of the Letter of Credit, (c) the expiration date
of the Letter of Credit, (d) the name and address of the
beneficiary, and (e) either the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents to be presented
by the beneficiary which, if presented by the beneficiary prior
to the expiration date of the Letter of Credit, would require the
Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its reasonable discretion,
may require changes in the text of the proposed Letter of Credit
or any such documents; and provided, further that no Letter of
Credit shall require payment against a conforming draft to be
made thereunder on the same Business Day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which
such draft is required to be presented is located) that such
draft is presented if such presentation is made after 12:00 Noon
(in the time zone of such office of the Issuing Lender) on such
Business Day.
(ii) Update of Certifications. Borrower shall notify the
applicable Issuing Lender (and Administrative Agent, if
Administrative Agent is not such Issuing Lender) prior to the
issuance of any Letter of Credit if any of the matters to which
Borrower is required to certify in the applicable Notice of
Issuance of Letter of Credit is no longer true and correct as of
the proposed date of issuance of such Letter of Credit, and upon
the issuance of any Letter of Credit Borrower shall be deemed to
have re-certified, as of the date of such issuance, as to the
matters to which Borrower is required to certify in the
applicable Notice of Issuance of Letter of Credit.
(iii) Determination of Issuing Lender. Upon receipt by
Administrative Agent of a Notice of Issuance of Letter of Credit
pursuant to subsection 3.1B(i) requesting the issuance of a
Letter of Credit, if Administrative Agent elects to issue such
Letter of Credit, Administrative Agent shall promptly so notify
Borrower, and Administrative Agent shall be the Issuing Lender
with respect thereto. If Administrative Agent, in its sole
discretion, elects not to issue such Letter of Credit,
Administrative Agent shall promptly so notify Borrower, whereupon
Borrower may request any other Lender to issue such Letter of
Credit by delivering to such Lender a copy of the applicable
Notice of Issuance of Letter of Credit. Any Lender so requested
to issue such Letter of Credit shall promptly notify Borrower and
Administrative Agent whether or not, in its sole discretion, it
has elected to issue such Letter of Credit, and any such Lender
that so elects to issue such Letter of Credit shall be the
Issuing Lender with respect thereto.
(iv) Issuance of Letter of Credit. Upon satisfaction or
waiver (in accordance with subsection 10.6) of the conditions set forth
in subsection 4.3, the Issuing Lender shall issue the requested
Letter of Credit in accordance with the Issuing Lender's standard
operating procedures.
(v) Notification to Lenders. Upon the issuance of or
amendment to any Letter of Credit, the applicable Issuing Lender shall
promptly notify Administrative Agent and each other Lender of
such issuance or amendment by telefacsimile or electronic mail
(or by telephone promptly confirmed by telefacsimile or
electronic mail). Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with such
notice), Administrative Agent shall notify each Lender by
telefacsimile or electronic mail (or by telephone promptly
confirmed by telefacsimile or electronic mail) of the amount of
such Lender's respective participation in such Letter of Credit,
determined in accordance with subsection 3.1C.
C. Lenders' Purchase of Participations in Letters of Credit.
Immediately upon the issuance of each Letter of Credit, each
Lender with a Revolving Loan Commitment shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing
Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Revolving Lender's
Pro Rata Share of the maximum amount which is or at any time may
become available to be drawn thereunder.
3.2 Letter of Credit Fees.
Borrower agrees to pay the following amounts with
respect to Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable to Administrative Agent for the account of the applicable
Issuing Lender, equal to 0.125% per annum of the daily amount
available to be drawn under such Letter of Credit, and (b) a
letter of credit fee, payable to Administrative Agent for the
account of those Lenders with a Revolving Loan Commitment, equal
to the Applicable LIBOR Margin for Revolving Loans multiplied by
the daily amount available to be drawn under such Letter of
Credit, each such fronting fee or letter of credit fee to be
payable in arrears on the last Business Day of each March, June,
September and December of each Fiscal Year commencing on the
first such date to occur after the Effective Date, and computed
on the basis of a 360-day year for the actual number of days
elapsed; and
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clause (i) above),
documentary and processing charges payable directly to the
applicable Issuing Lender for its own account in accordance with
such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or
payment, as the case may be.
For purposes of calculating any fees payable under clauses (i)
and (ii) of this subsection 3.2, the daily amount available to be
drawn under any Letter of Credit shall be determined as of the
close of business on any date of determination. Promptly upon
receipt by Administrative Agent of any amount described in clause
(i) or (ii) of this subsection 3.2, Administrative Agent shall
distribute to each Lender with a Revolving Loan Commitment its
Pro Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of
Credit.
A. Responsibility of Issuing Lender With Respect to
Drawings. In determining whether to honor any drawing under any Letter of
Credit by the beneficiary thereof, the Issuing Lender shall be
responsible only to examine the documents delivered under such
Letter of Credit with reasonable care to ascertain whether they
appear on their face to be in accordance with the terms and
conditions of such Letter of Credit.
B. Reimbursement by Borrower of Amounts Paid Under
Letters of Credit. If an Issuing Lender has determined to honor a drawing
under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify Borrower and Administrative Agent, and
Borrower shall reimburse such Issuing Lender on the date on which
such drawing is honored (the "Reimbursement Date") in an amount
in Dollars and in same day funds equal to the amount of such
honored drawing plus interest thereon as provided in subsection
3.3D(i) for the period from the date of drawing to the date on
which such Revolving Loans are made (the "LC Reimbursement
Amount"); provided that, anything contained in this Agreement to
the contrary notwithstanding, (i) unless Borrower shall have
notified Administrative Agent and such Issuing Lender prior to
12:00 P.M. (New York City time) on the date such drawing is
honored that Borrower intends to reimburse such Issuing Lender
for the LC Reimbursement Amount with funds other than the
proceeds of Revolving Loans, Borrower shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent
requesting Lenders to make Revolving Loans that are Base Rate
Loans on the Reimbursement Date in an amount in Dollars equal to
the LC Reimbursement Amount (and Administrative Agent shall
promptly give notice thereof to each Lender by telefacsimile or
electronic mail or by telephone promptly confirmed by
telefacsimile or electronic mail) and (ii) subject to
satisfaction or waiver of the conditions specified in subsection
4.2B, Lenders shall, on the Reimbursement Date, make Revolving
Loans that are Base Rate Loans in the LC Reimbursement Amount,
the proceeds of which shall be applied directly by Administrative
Agent to reimburse such Issuing Lender in an amount equal to the
LC Reimbursement Amount; and provided, further that if for any
reason proceeds of Revolving Loans are not received by
Administrative Agent on the Reimbursement Date in an amount equal
to the LC Reimbursement Amount, Borrower shall reimburse
Administrative Agent, on demand, in an amount in same day funds
equal to the excess of (x) the LC Reimbursement Amount over (y)
the aggregate amount of such Revolving Loans, if any, which are
so received. Nothing in this subsection 3.3B shall be deemed to
relieve any Lender from its obligation to make Revolving Loans on
the terms and conditions set forth in this Agreement, and
Borrower shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such
Revolving Loans under this subsection 3.3B. The Issuing Lender
may honor or dishonor any drawing in accordance with the terms of
any Letter of Credit without regard to any instruction of the
Borrower.
C. Payment by Lenders of Unreimbursed Amounts Paid Under
Letters of Credit.
(i) Payment by Lenders. If Borrower shall fail for any
reason to reimburse any Issuing Lender (or Administrative Agent) as
provided in subsection 3.3B in an amount equal to the amount of
any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, Administrative Agent shall promptly notify
each other Revolving Lender of the unreimbursed amount of such
honored drawing and of such other Revolving Lender's respective
participation therein based on such Revolving Lender's Pro Rata
Share of the Revolving Loan Commitment by telefacsimile or by
telephone promptly confirmed by telefacsimile. Each Revolving
Lender shall make available to Administrative Agent for the
account of such Issuing Lender an amount equal to its respective
participation, in Dollars and in same day funds, at the
Administrative Agent's office, not later than 2:00 P.M. (New York
City time) on the Business Day notified by Administrative Agent.
If any Revolving Lender fails to make available to Administrative
Agent for the account of such Issuing Lender on such Business Day
the amount of such Revolving Lender's participation in such
Letter of Credit as provided in this subsection 3.3C,
Administrative Agent and/or such Issuing Lender shall be entitled
to recover such amount on demand from such Revolving Lender
together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for
three Business Days and thereafter at the Base Rate. Nothing in
this subsection 3.3C shall be deemed to prejudice the right of
any Revolving Lender to recover from any Issuing Lender any
amounts made available by such Revolving Lender to such Issuing
Lender pursuant to this subsection 3.3C if it is determined by
the final judgment of a court of competent jurisdiction that the
payment with respect to a Letter of Credit by such Issuing Lender
in respect of which payment was made by such Issuing Lender
constituted gross negligence or willful misconduct on the part of
such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Borrower. If Administrative Agent for the account of any Issuing
Lender shall have been reimbursed by other Revolving Lenders
pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit
issued by it, Administrative Agent shall promptly distribute to
each other Revolving Lender which has paid all amounts payable by
it under subsection 3.3C(i) with respect to such honored drawing
such other Revolving Lender's Pro Rata Share of the Revolving
Loan Commitment of all payments subsequently received by
Administrative Agent for the account of such Issuing Lender from
Borrower in reimbursement of such honored drawing when such
payments are received. Any such distribution shall be made to a
Revolving Lender at its primary address set forth below its name
on the appropriate signature page hereof or at such other address
as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Borrower. Borrower agrees to pay
to Administrative Agent on account of each Issuing Lender, with
respect to drawings honored under any Letters of Credit issued by
it, interest on the amount paid by such Issuing Lender in respect
of each such honored drawing from the date a drawing is honored
to but excluding the date such amount is reimbursed by Borrower
(including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored to but
excluding the Reimbursement Date, the rate then in effect under
this Agreement with respect to Revolving Loans that are Base Rate
Loans and (b) thereafter, a rate which is 2.00% per annum in
excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate
Loans. Interest payable pursuant to this subsection 3.3D(i)
shall be computed on the basis of a 365-day year for the actual
number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date
on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) Distribution of Interest Payments by Administrative
Agent. Promptly upon receipt by Administrative Agent for the account of
any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a
Letter of Credit issued by it, (a) Administrative Agent shall
distribute to each Revolving Lender, out of the interest received
by Administrative Agent in respect of the period from the date
such drawing is honored to but excluding the date on which such
Issuing Lender is reimbursed for the amount of such honored
drawing (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that
such other Revolving Lender would have been entitled to receive
in respect of the letter of credit fee that would have been
payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored under
such Letter of Credit, and (b) if such Issuing Lender shall have
been reimbursed by other Revolving Lenders pursuant to subsection
3.3C(i) for all or any portion of such honored drawing, such
Issuing Lender shall pay to Administrative Agent for the account
of each other Revolving Lender which has paid all amounts payable
by it under subsection 3.3C(i) with respect to such honored
drawing such other Revolving Lender's Pro Rata Share of the
Revolving Loan Commitment any interest received by such Issuing
Lender in respect of that portion of such honored drawing so
reimbursed by other Revolving Lenders for the period from the
date on which such Issuing Lender was so reimbursed by other
Revolving Lenders to but excluding the date on which such portion
of such honored drawing is reimbursed by Borrower. Any such
distribution shall be made to a Revolving Lender at its primary
address set forth below its name on the appropriate signature
page hereof or at such other address as such Revolving Lender may
request.
3.4 Obligations Absolute.
The obligation of Borrower to reimburse each Issuing
Lender (or Administrative Agent for the account of each Issuing
Lender) for drawings honored under the Letters of Credit issued
by it and to repay any Revolving Loans made by Revolving Lenders
pursuant to subsection 3.3B and the obligations of Revolving
Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including any of
the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any
Persons for whom any such transferee may be acting), any Issuing
Lender or other Lender or any other Person or, in the case of a
Lender, against Borrower, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between
Borrower or one of its Subsidiaries and the beneficiary for which
any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a draft or other document which
does not substantially comply with the terms of such Letter of
Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of
Borrower or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii)the fact that an Event of Default or a Potential Event
of Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing
Lender under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of such
Issuing Lender under the circumstances in question (as determined
by a final judgment of a court of competent jurisdiction).
3.5 Indemnification; Nature of Issuing Lenders' Duties.
A. Indemnification. In addition to amounts payable as
provided in subsection 3.6, Borrower hereby agrees to protect, indemnify,
pay and save harmless Administrative Agent, each Issuing Lender
and each other Lender from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable fees, expenses and disbursements
of counsel and allocated costs of internal counsel) which
Administrative Agent, such Issuing Lender and each other Lender
may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender as determined by a
final judgment of a court of competent jurisdiction or (b)
subject to the following clause (ii), the wrongful dishonor by
such Issuing Lender of a proper demand for payment made under any
Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto Governmental Authority
(all such acts or omissions herein called "Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Borrower
and any Issuing Lender, Borrower assumes all risks of the acts and
omissions of, or misuse of the Letters of Credit issued by such
Issuing Lender by, the respective beneficiaries of such Letters
of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection
with the application for and issuance of any such Letter of
Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any such Letter
of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter
of Credit; or (viii) any consequences arising from causes beyond
the control of such Issuing Lender, including any Governmental
Acts, and none of the above shall affect or impair, or prevent
the vesting of, any of such Issuing Lender's or any other
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of
the specific provisions set forth in the first paragraph of this
subsection 3.5B, any action taken or omitted by any Issuing
Lender under or in connection with the Letters of Credit issued
by it or any documents and certificates delivered thereunder, if
taken or omitted in good faith, shall not put such Issuing Lender
or any other Lender under any resulting liability to Borrower.
Notwithstanding anything to the contrary contained in
this subsection 3.5, Borrower shall retain any and all rights it
may have against any Issuing Lender for any liability arising
solely out of the gross negligence or willful misconduct of such
Issuing Lender, as determined by a final judgment of a court of
competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
Subject to the provisions of subsection 2.7B (which
shall be controlling with respect to the matters covered
thereby), if any Issuing Lender or Lender shall determine (which
determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by any Issuing
Lender or Lender with any guideline, request or directive issued
or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not
having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other
than any Tax on the overall net income of such Issuing Lender or
Lender) with respect to the issuing or maintaining of any Letters
of Credit or the purchasing or maintaining of any participations
therein or any other obligations under this Section 3, whether
directly or by such being imposed on or suffered by any
particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any
Issuing Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to
a Tax matter) on or affecting such Issuing Lender or Lender (or
its applicable lending or letter of credit office) regarding this
Section 3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase
the cost to such Issuing Lender or Lender of agreeing to issue,
issuing or maintaining any Letter of Credit or agreeing to
purchase, purchasing or maintaining any participation therein or
to reduce any amount received or receivable by such Issuing
Lender or Lender (or its applicable lending or letter of credit
office) with respect thereto; then, in any case, Borrower shall
promptly pay to such Issuing Lender or Lender, upon receipt of
the statement referred to in the next sentence, such additional
amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in
amounts received or receivable hereunder. Such Issuing Lender or
Lender shall deliver to Borrower a written statement, setting
forth in reasonable detail the basis for calculating the
additional amounts owed to such Issuing Lender or Lender under
this subsection 3.6, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the
issuance of Letters of Credit hereunder are subject to the
satisfaction of the following conditions.
4.1 Conditions to Term Loans and Initial Revolving Loans.
The obligations of Lenders to make the Term Loans and
any Revolving Loans to be made on the Effective Date are, in
addition to the conditions precedent specified in subsection 4.2,
subject to prior or concurrent satisfaction of the following
conditions:
A. Loan Party Documents. On or before the Effective Date,
Borrower shall, and shall cause each other Loan Party to, deliver
to Lenders (or to Administrative Agent with sufficient originally
executed copies, where appropriate, for each Lender) the
following with respect to Borrower or such Loan Party, as the
case may be, each, unless otherwise noted, dated the Effective
Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of
organization or, if such document is of a type that may not be so
certified, certified by the secretary or similar Officer of the
applicable Loan Party, together with a good standing certificate
from the Secretary of State of its jurisdiction of organization
and each other state in which such Person is qualified to do
business and, to the extent generally available, a certificate or
other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, each dated a recent date prior to
the Effective Date;
(ii) Resolutions of the Governing Body of each Loan Party
approving and authorizing the execution, delivery and performance
of the Loan Documents to which it is a party, certified as of the
Effective Date by the secretary or similar Officer of such Person
as being in full force and effect without modification or
amendment;
(iii) Signature and incumbency certificates of the Officers
of each Loan Party executing the Loan Documents to which it is a
party;
(iv) Executed originals of the Master Confirmation, the First
Amendment to Florida Mortgage, the First Amendment to Alabama
Mortgage, the First Amendment to Texas Deed of Trust, a New
Mortgage for the Maryland Property, the Deposit Account Control
Agreement, the Security Agreement Counterpart, the Subsidiary
Guaranty Counterpart, the Environmental Indemnity Counterpart and
any other Loan Document not already delivered in connection with
the March 4, 2002 closing under the Existing Credit Agreement; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. No Material Adverse Effect. Except as otherwise disclosed
in writing to Lenders, since June 30, 2002 no Material Adverse
Effect (in the reasonable opinion of Administrative Agent) shall
have occurred.
C. Fees. Borrower shall have paid to Administrative Agent,
for distribution (as appropriate) to Administrative Agent and
Lenders, the fees payable on the Effective Date referred to in
subsection 2.3.
D. Corporate and Capital Structure, and Ownership.
(i) Corporate Structure. The corporate organizational
structure of Borrower and its Subsidiaries shall be as set forth on
Schedule 4.1D annexed hereto.
(ii) Capital Structure and Ownership. The capital structure and
ownership of Borrower and its Subsidiaries shall be as set forth
on Schedule 4.1D annexed hereto.
E. Financial Statements; Pro Forma Financial Statements.
On or before the Effective Date, Lenders shall have received from
Borrower (i) final audited financial statements of Borrower for
the three most recent Fiscal Years for which such financial
statements are available; (ii) a final pro forma balance sheet of
Borrower as of September 27, 2002; (iii) a final income statement
for the most recent of the fiscal years provided pursuant to
clause (i), giving pro forma effect to the Transactions, which
pro forma financial statements shall be in form and substance
reasonably satisfactory to Administrative Agent; (iv) the most
recently available projections of Borrower, which projections
shall be in form and substance reasonably satisfactory to
Administrative Agent; and (v) a final reconciliation of
adjustments for Consolidated EBITDA, in form and substance
satisfactory to Administrative Agent.
F. Opinions of Counsel to Loan Parties.
(i) Lenders shall have received originally executed copies of a
favorable written opinion of Winston & Xxxxxx, counsel for Loan
Parties, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Effective
Date and setting forth substantially the matters in the opinions
designated in Exhibit X annexed hereto and as to such other
matters as Administrative Agent acting on behalf of Lenders may
reasonably request (this Credit Agreement constituting a written
request by Borrower to such counsel to deliver such opinions to
Lenders).
(ii) Opinions of Nevada Counsel. Delivery to Administrative
Agent of an opinion of counsel (which counsel shall be reasonably
satisfactory to Administrative Agent) under the laws of the State
of Nevada with respect to (a) due formation, valid existence and
good standing of the Loan Parties incorporated or organized under
the laws of the State of Nevada, and (b) such other matters
governed by the laws of such jurisdiction regarding such security
interests as Administrative Agent may reasonably request, in each
case in form and substance reasonably satisfactory to
Administrative Agent.
(iii) Opinions of Other Local Counsel. Delivery to
Administrative Agent of all opinions required under subsection
4.1N(iii) relating to the Effective Date Mortgages and opinions
of counsel under the laws of the States of Alabama, Florida,
Texas and Maryland with respect to (a) the enforceability of the
Mortgages, (b) due formation, valid existence and good standing
of the Loan Parties incorporated or organized under the laws of
the States of Alabama, Florida and Texas, as the case may be, and
(c) such other matters governed by the laws of such jurisdiction
regarding such security interests as Administrative Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent.
G. Opinions of Administrative Agent's Counsel. Lenders shall
have received originally executed copies of a favorable written
opinion of O'Melveny & Xxxxx LLP, counsel to Administrative
Agent, dated as of the Effective Date, substantially in the form
of Exhibit XI annexed hereto.
H. Representations and Warranties; Performance of Agreements.
Borrower shall have delivered to Administrative Agent (for
delivery to Lenders) an Officer's Certificate, in form and
substance satisfactory to Administrative Agent, to the effect
that the representations and warranties in Section 5 hereof are
true, correct and complete in all material respects on and as of
the Effective Date to the same extent as though made on and as of
that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations
and warranties were true, correct and complete in all material
respects on and as of such earlier date) and that Borrower shall
have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before the Effective Date
except as otherwise disclosed to and agreed to in writing by
Administrative Agent; provided that, if a representation and
warranty, covenant or condition is qualified as to materiality,
with respect to such representation and warranty, covenant or
condition the applicable materiality qualifier set forth above
shall be disregarded for purposes of this condition.
I. Evidence of Insurance. Administrative Agent shall have
received a certificate from Borrower's insurance broker or other
evidence satisfactory to it that all insurance required to be
maintained pursuant to subsection 6.4B is in full force and
effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to
the extent required under subsection 6.4X.
X. Necessary Governmental Authorizations and Consents;
Expiration of Waiting Periods, Etc. Borrower shall have obtained
all Governmental Authorizations and all consents of other
Persons, in each case that are necessary or advisable in
connection with the Transactions and the other transactions
contemplated by the Loan Documents and the continued operation of
the business conducted by Borrower and its Subsidiaries in
substantially the same manner as conducted by Borrower prior to
the Effective Date. Each such Governmental Authorization or
consent shall be in full force and effect, except in a case where
the failure to obtain or maintain a Governmental Authorization or
consent, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
All applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that
would restrain, prevent or otherwise impose adverse conditions on
the transactions contemplated by the Loan Documents or the
Transactions. No action, request for stay, petition for review
or rehearing, reconsideration, or appeal with respect to any of
the foregoing shall be pending, and the time for any applicable
Governmental Authority to take action to set aside its consent on
its own motion shall have expired.
K. Consummation of the Acquisition.
(i) Consummation of Acquisition. The Acquisition shall have
been consummated or shall be simultaneously consummated with the
transactions contemplated hereunder in accordance with the terms
of the Acquisition Agreement, which shall have been executed as
of the Effective Date by all parties thereto and the other
transactions contemplated by the other Related Agreements shall
have been consummated or shall be simultaneously consummated in
accordance with their respective terms.
(ii) Effectiveness. The Acquisition shall have become or will
simultaneously become effective in accordance with the terms of
the Acquisition Agreement, and the laws of the State of New York;
(iii) Acquisition Consideration. The Acquisition
Consideration being paid as of the Effective Date shall not
exceed $146,000,000 in the aggregate, subject to a post-closing
purchase price adjustment pursuant to the terms of the
Acquisition Agreement;
(iv) Transaction Costs. The Transaction Costs shall not exceed
$7,500,000, and Administrative Agent shall have received evidence
to its satisfaction to such effect.
(v) Officer's Certificate. Administrative Agent shall have
received an Officer's Certificate of Borrower that clauses (i) - (iv)
above have been satisfied and stating that Borrower will
proceed to consummate the Acquisition upon the making of the
initial Loans.
L. Security Interests in Personal and Mixed Property.
To the extent not otherwise satisfied pursuant to subsection 6.8,
Administrative Agent shall have received evidence satisfactory to
it that Borrower and Subsidiary Guarantors shall have taken or
caused to be taken all such actions, executed and delivered or
caused to be executed and delivered all such agreements,
documents and instruments, and made or caused to be made all such
filings and recordings (other than the filing or recording of
items described in clauses (ii), (iii) and (iv) below) that may
be necessary or, in the opinion of Administrative Agent,
desirable in order to create in favor of Administrative Agent,
for the benefit of Lenders, a valid and (upon such filing and
recording) perfected First Priority Lien in the entire personal
and mixed property Collateral. Such actions shall include the
following:
(i) Schedules to Collateral Documents. Delivery to
Administrative Agent of accurate and complete schedules to all of
the applicable Collateral Documents, to the extent any of the
information contained in such schedules needs to be updated.
(ii) Stock Certificates and Instruments. To the extent not
previously delivered, delivery to Administrative Agent of (a)
certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to Administrative
Agent) representing all Capital Stock evidenced by certificates
pledged pursuant to the Security Agreement and (b) all promissory
notes or other instruments (duly endorsed, where appropriate, in
a manner satisfactory to Administrative Agent) evidencing any
Collateral;
(iii) Lien Searches and UCC Termination Statements. Delivery
to Administrative Agent of (a) the results of a recent search, by
a Person satisfactory to Administrative Agent, of all effective
UCC financing statements and fixture filings and all judgment and
tax lien filings which may have been made with respect to any
personal or mixed property of any Loan Party, together with
copies of all such filings disclosed by such search, and (b) UCC
termination statements for filing in all applicable jurisdictions
as may be necessary to terminate any effective UCC financing
statements or fixture filings disclosed in such search (other
than any such financing statements or fixture filings in respect
of Liens permitted to remain outstanding pursuant to the terms of
this Agreement);
(iv) UCC Financing Statements and Fixture Filings. Delivery
to Administrative Agent of UCC financing statements (or amendments
to existing UCC financing statements) and, where appropriate,
fixture filings (or amendments to existing fixture filings), duly
executed by each applicable Loan Party with respect to all
personal and mixed property Collateral of such Loan Party, for
filing in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to perfect or continue
the perfection of the security interests created in such
Collateral pursuant to the Collateral Documents;
(v) PTO Cover Sheets, Etc. Delivery to Administrative Agent
of all cover sheets, amendments to cover sheets or other documents
or instruments required to be filed with the PTO in order to
create, perfect or continue to perfect Liens in respect of any IP
Collateral;
(vi) Deposit Account Control Agreement. Delivery to
Administrative Agent of a Deposit Account Control Agreement
sufficient to perfect the security interests created in the
deposit accounts held at First Union National Bank pursuant to
the Collateral Documents; and
(vii) Instruments of Assignment. To the extent an Existing
Instrument of Assignment was not previously executed with respect
to any Government Contract, delivery to Administrative Agent of
New Instruments of Assignment with respect to each Government
Contract of Borrower and its Subsidiaries.
M. Environmental Matters.
(i) Delivery to Administrative of the Environmental Indemnity
Counterpart.
(ii) Administrative Agent shall have received reports and
other information, in form, scope and substance satisfactory to
Administrative Agent, regarding environmental matters relating
to each Effective Date Mortgaged Property, which reports shall
include (i) with respect to the New Mortgaged Property located
at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (the
"Maryland Property"), a Phase I environmental assessment for
such New Mortgaged Property which (a) conforms to the ASTM
Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process, E 1527, (b) was
conducted no more than six months prior to the Effective Date
by one or more environmental consulting firms reasonably
satisfactory to Administrative Agent, (c) includes a visual
assessment of potentially asbestos-containing materials at such
New Mortgaged Property, and (d) includes an estimate of the
reasonable worst-case cost of investigating and remediating any
Hazardous Materials Activity identified in such Phase I
environmental assessments as giving rise to an actual or
potential violation of any Environmental Law or as presenting a
material risk of giving rise to a material Environmental Claim,
and (ii) a current compliance review setting forth an assessment
of such New Mortgaged Property's current and past compliance with
Environmental Laws and an estimate of the cost of rectifying any
non-compliance with current Environmental Laws identified
therein and the cost of compliance with reasonably anticipated
future Environmental Laws identified therein.
N. Matters Relating to Real Property. Administrative Agent
shall have received from Borrower and each applicable Subsidiary:
(i) New Mortgages. For each New Mortgaged Property,
other than 000 Xxxxxxx Xxxxxx, Xxxx Xxxxxx Xxxxx, Xxxxxxx (the "New
Florida Property") which will be encumbered pursuant to the First
Amendment to Florida Mortgage, a fully executed and notarized
Mortgage (each, a "New Mortgage"), in proper form for recording
in the appropriate place in the applicable jurisdiction,
encumbering each Real Property Asset listed in Part A-1 of
Schedule 5.5B annexed hereto (each such listed Real Property
Asset, including the New Florida Property, being collectively,
the "New Mortgaged Properties").
(ii) Amendments to Existing Mortgages. Delivery of
the First Amendment to Florida Mortgage, the First Amendment to Alabama
Mortgage and the First Amendment to Texas Deed of Trust, each of
which shall amend the appropriate Existing Mortgage encumbering
each Real Property Asset listed in Part A-2 of Schedule 5.5B
(collectively, the "Existing Mortgaged Properties").
(iii) Opinions of Local Counsel. An opinion of counsel
(which counsel shall be reasonably satisfactory to Administrative
Agent) in each state in which an Effective Date Mortgaged
Property is located with respect to the enforceability of the
form(s) of Effective Date Mortgages and any amendments thereto to
be recorded in such state and such other matters as
Administrative Agent may reasonably request, in each case in form
and substance reasonably satisfactory to Administrative Agent;
(iv) Title Insurance. For each New Mortgage and the
New Florida Property (a) form 1970 ALTA extended coverage mortgagee title
insurance policies or unconditional commitments therefor or
endorsement to an existing title policy (the "New Mortgage
Policies") issued by the Title Company with respect to the New
Mortgaged Properties, in amounts not less than the respective
amounts designated therein with respect to any particular New
Mortgaged Properties, insuring fee simple title to, or a valid
leasehold interest in, each such New Mortgaged Property vested in
such Loan Party and insuring Administrative Agent that the
applicable New Mortgages or the First Amendment to Florida
Mortgage, as the case may be, create valid and enforceable First
Priority mortgage Liens on the respective New Mortgaged
Properties encumbered thereby, which New Mortgage Policies (1)
shall include the following endorsements to the extent available
in the states where the New Mortgaged Properties are located:
comprehensive, mechanics' lien, variable rate, street address,
separate tax lot, survey, contiguity, zoning (ALTA 3.1), street
access, usury, subdivision map act, revolving credit, tie-in,
creditors' rights, doing business, first loss and last dollar and
any other matters reasonably requested by Administrative Agent
and (2) shall provide for affirmative insurance and such
reinsurance as Administrative Agent may reasonably request, all
of the foregoing in form and substance reasonably satisfactory to
Administrative Agent; and (b) evidence satisfactory to
Administrative Agent that such Loan Party has (i) delivered to
the Title Company all certificates and affidavits required by the
Title Company in connection with the issuance of the New Mortgage
Policies and (ii) paid to the Title Company or to the appropriate
governmental authorities all expenses and premiums of the Title
Company in connection with the issuance of the New Mortgage
Policies and all recording and stamp taxes (including mortgage
recording and intangible taxes) payable in connection with
recording the New Mortgages or the First Amendment to Florida
Mortgage in the appropriate real estate records;
(v) Title Insurance Endorsement. With respect to each
title policy issued in connection with the Existing Mortgages (the
"Existing Mortgage Policies"), a 110.5 endorsement or other
endorsement in form and substance acceptable to the
Administrative Agent.
(vi) Title Reports. With respect to each New Mortgaged
Property, a title report issued by the Title Company with respect thereto,
dated not more than 30 days prior to the Effective Date and
satisfactory in form and substance to Administrative Agent;
(vii) Copies of Documents Relating to Title Exceptions.
Copies of all recorded documents listed as exceptions to title or
otherwise referred to in the New Mortgage Policies or in the
title reports delivered pursuant to subsection 4.1N(v);
(viii)Surveys. An as-built survey for the Maryland
Property prepared by a surveyor licensed or registered in the state where
such New Mortgaged Property is located, which surveys must be
sufficient to delete any standard printed survey exception
contained in the applicable New Mortgage Policy and otherwise be
in form and substance satisfactory to Administrative Agent; and
(ix) Matters Relating to Flood Hazard Properties.
(a) Evidence, which may be in the form of a letter from an insurance
broker or a municipal engineer, as to whether (1) any New Mortgaged
Property is a Flood Hazard Property and (2) the community in
which any such Flood Hazard Property is located is participating
in the National Flood Insurance Program, (b) if there are any
such Flood Hazard Properties, such Loan Party's written
acknowledgement of receipt of written notification from
Administrative Agent (1) as to the existence of each such Flood
Hazard Property and (2) as to whether the community in which each
such Flood Hazard Property is located is participating in the
National Flood Insurance Program, and (c) if any such Flood
Hazard Property is located in a community that participates in
the National Flood Insurance Program, evidence that Borrower has
obtained flood insurance in respect of such Flood Hazard Property
to the extent required under the applicable regulations of the
Board of Governors of the Federal Reserve System.
O. Matters Relating to Existing Indebtedness of Borrower and
its Subsidiaries.
Administrative Agent shall have received an Officer's
Certificate of Borrower stating that, after giving effect to the
transactions described in this Agreement, the Indebtedness of
Loan Parties (other than Indebtedness under the Loan Documents)
shall consist of (a) the aggregate principal amount set forth on
Part I of Schedule 7.1 of outstanding Indebtedness described in
Part I of Schedule 7.1 annexed hereto and (b) Indebtedness in an
aggregate amount not to exceed the amount set forth on Part II of
Schedule 7.1 in respect of Capital Leases described in Part II of
Schedule 7.1 annexed hereto. The terms and conditions of all
such Indebtedness shall be in form and in substance satisfactory
to Administrative Agent.
P. Completion of Proceedings. All corporate and other
proceedings, including confirmatory due diligence as provided in
the commitment letter from the Lead Arranger and the
Administrative Agent to Borrower taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative Agent
and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative
Agent may reasonably request.
Q. Solvency Assurances. On the Effective Date,
Administrative Agent and Lenders shall have received an Officer's Certificate
of Borrower dated the Effective Date, substantially in the form of
Exhibit XIII annexed hereto and with appropriate attachments, in
each case demonstrating that, after giving effect to the
consummation of the Transactions and the transactions
contemplated by the Loan Documents, Borrower and each Subsidiary
Guarantor (other than T-S Holding) will be Solvent and Borrower
and its Subsidiaries, on a consolidated basis, are Solvent.
R. No Disruption of Financial Markets. There shall have not
occurred any material adverse change in the financial markets or
in the financial condition of Borrower, and its Subsidiaries
after September 24, 2002, as determined by Administrative Agent
in its sole discretion.
S. Maximum Consolidated Total Leverage Ratios. On the
Effective Date, Administrative Agent shall have received an
Officer's Certificate executed by the chief financial officer of
Borrower, dated the Effective Date, with appropriate attachments,
demonstrating that, after giving effect to the consummation of
the Transactions and the other transactions contemplated by this
Agreement, the Consolidated Total Leverage Ratio does not exceed
3.55:1.00.
T. Borrowing Base Certificate. On or before the Effective
Date, Borrower shall have delivered to Administrative Agent a
Borrowing Base Certificate, which shall be satisfactory to
Administrative Agent, prepared as of October 31, 2002.
U. Margin Determination Certificate. On the Effective Date,
Administrative Agent shall have received a Margin Determination
Certificate dated as of the Effective Date.
4.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each
Funding Date are subject to the following further conditions
precedent:
A. Administrative Agent shall have received before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by a
duly authorized Officer of Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same
extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all
material respects on and as of such earlier date; provided, that
if a representation and warranty is qualified as to materiality,
then with respect to such representation and warranty the
materiality qualifier set forth above shall be disregarded for
purposes of this condition.
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of
Default or a Potential Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or
before that Funding Date;
(iv) No order, judgment or decree of any arbitrator or
Governmental Authority shall purport to enjoin or restrain any
Lender from making the Loans to be made by it on that Funding
Date;
(v) Borrower shall have delivered such other certificates or
documents that Administrative Agent shall reasonably request, in
form and substance satisfactory to Administrative Agent;
(vi) The making of the Loans requested on such Funding Date
shall not violate any law including Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve
System; and
(vii) There shall not be pending or, to the knowledge of
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Borrower or any
of its Subsidiaries or any property of Borrower or any of its
Subsidiaries that has not been disclosed by Borrower in writing
pursuant to subsection 5.6 or 6.1(ix) prior to the making of the
last preceding Loans (or, in the case of the initial Loans, prior
to the execution of this Agreement), and there shall have
occurred no development not so disclosed in any such action,
suit, proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of
Administrative Agent or of Requisite Lenders, could reasonably be
expected to have a Material Adverse Effect; and no injunction or
other restraining order shall have been issued and no hearing to
cause an injunction or other restraining order to be issued shall
be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the transactions contemplated by this Agreement or the
making of Loans hereunder.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder (whether
or not the applicable Issuing Lender is obligated to issue such
Letter of Credit) and the renewal of any Letter of Credit
hereunder is subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have
been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), a Notice of Issuance (or a
facsimile copy thereof) in each case signed by a duly authorized
Officer of Borrower, together with all other information
specified in subsection 3.1B(i) and such other documents or
information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be
satisfied to the same extent as if the issuance of such Letter of
Credit were the making of a Loan and the date of issuance of such
Letter of Credit were a Funding Date.
Section 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement
and to make the Loans, to induce Issuing Lenders to issue Letters
of Credit and to induce other Lenders to purchase participations
therein, Borrower represents and warrants to each Lender, on the
date of this Agreement, on each Funding Date and on the date of
issuance of each Letter of Credit and the renewal of any Letter
of Credit hereunder, that the following statements are true,
correct and complete:
5.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries.
A. Organization and Powers. Each Loan Party is a corporation,
partnership, trust or limited liability company duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization as specified in Schedule 4.1D
annexed hereto. Each Loan Party has all requisite power and
authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to
enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby. Newco has the
requisite power and authority to consummate the Acquisition.
B. Qualification and Good Standing. Each Loan Party is
qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary
to carry out its business and operations, except in jurisdictions
where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to result in a Material
Adverse Effect.
C. Conduct of Business. Borrower and its Subsidiaries are
engaged only in the businesses permitted to be engaged in
pursuant to subsections 7.13.
D. Subsidiaries. All of the Subsidiaries of Borrower and
their jurisdictions of organization are identified in Schedule 4.1D
annexed hereto, as said Schedule 4.1D may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xv).
The Capital Stock of Borrower and each of the Subsidiaries of
Borrower identified in Schedule 4.1D annexed hereto (as so
supplemented) are duly authorized, validly issued, fully paid and
nonassessable and none of such Capital Stock constitutes Margin
Stock. Each of the Subsidiaries of Borrower identified in
Schedule 4.1D annexed hereto (as so supplemented) is a
corporation, partnership, trust or limited liability company duly
organized, validly existing and in good standing under the laws
of its respective jurisdiction of organization set forth therein,
has all requisite power and authority to own and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents to
which it is a party and to carry out the transactions
contemplated thereby, and is qualified to do business and in good
standing in every jurisdiction where its assets are located and
wherever necessary to carry out its business and operations, in
each case except where failure to be so qualified or in good
standing or a lack of such power and authority has not had and
could not reasonably be expected to result in a Material Adverse
Effect. Schedule 4.1D annexed hereto (as so supplemented)
correctly sets forth the ownership interest of Borrower and each
of the Subsidiaries of Borrower identified therein.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing and Acquisition. The execution,
delivery and performance of the Loan Documents have been duly
authorized by all necessary action on the part of each Loan Party
that is a party thereto. The consummation of the Acquisition has
been duly authorized by all necessary action on the part of
Borrower and Newco.
B. No Conflict. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan
Documents and the Acquisition do not and will not (i) violate any
provision of any law or any governmental rule or regulation
applicable to Borrower or any of its Subsidiaries, the
Organizational Documents of Borrower or any of its Subsidiaries,
or any order, judgment or decree of any court or other
Governmental Authority binding on Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Borrower or any of its
Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent
on behalf of Lenders), (iv) require any approval of stockholders
or any approval or consent of any Person under any Contractual
Obligation of Borrower or any of its Subsidiaries, except for
such approvals or consents which will be obtained on or before
the Effective Date and disclosed in writing to Lenders or (v)
conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any other
contractual obligation of Borrower or any of its Subsidiaries,
which conflicts, breaches or defaults, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect or which would impose any liability upon
Administrative Agent or any Lenders.
C. Governmental Consents. Except as disclosed on Schedule
5.8E, the execution, delivery and performance by Loan Parties of
the Loan Documents to which they are parties and the consummation
of the Acquisition and the transactions contemplated by the Loan
Documents do not and will not require registration with, consent
or approval of, or notice to, or other action to, with or by, any
Governmental Authority.
D. Binding Obligation. Each of the Loan Documents has been
duly executed and delivered by each Loan Party that is a party
thereto and is the legally valid and binding obligation of such
Loan Party, enforceable against such Loan Party in accordance
with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
5.3 Financial Condition.
Borrower has heretofore delivered to Lenders, at
Lenders' request, the financial statements and information
required to be delivered pursuant to subsection 4.1E. All such
statements, other than pro forma financial statements, were
prepared in conformity with GAAP and fairly present the financial
position (on a consolidated and, where applicable, consolidating
basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and
cash flows (on a consolidated and, where applicable,
consolidating basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit
and normal year-end adjustments. No Loan Party has (and will not
have following the funding of the initial Loans) any Contingent
Obligation, contingent liability or liability for taxes, long-
term lease or unusual forward or long-term commitment that, as of
the Effective Date, is not reflected in the foregoing financial
statements or the notes thereto and, as of any Funding Date
subsequent to the Effective Date, is not reflected in the most
recent financial statements delivered to Lenders pursuant to
subsection 6.1 or the notes thereto and that, in any such case,
is material in relation to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of
Borrower or any of its Subsidiaries.
5.4 No Material Adverse Change; No Restricted Junior Payments.
Except as otherwise disclosed in writing to Lenders,
since June 30, 2002, no event or change has occurred that has
resulted in or evidences, either in any case or in the aggregate,
a Material Adverse Effect. Neither Borrower nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid
or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 Title to Properties; Liens; Real Property; Intellectual
Property.
A. Title to Properties; Liens. Borrower and its Subsidiaries
have (i) good, sufficient and legal title to (in the case of fee
interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal
property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets
reflected in the financial statements referred to in subsection
5.3 or in the most recent financial statements delivered pursuant
to subsection 6.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary
course of business or as otherwise permitted under subsection
7.7. Except as permitted by this Agreement, all such properties
and assets are free and clear of Liens.
B. Real Property. As of the Effective Date, Schedule 5.5B
annexed hereto contains a true, accurate and complete list of (i)
all fee interests in any Real Property Assets and (ii) all
leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of
any thereof) affecting each Real Property Asset, regardless of
whether a Loan Party is the landlord or tenant (whether directly
or as an assignee or successor in interest) under such lease,
sublease or assignment. Except as specified in Schedule 5.5B
annexed hereto, each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect and
Borrower does not have knowledge of any default that has occurred
and is continuing thereunder, and each such agreement constitutes
the legally valid and binding obligation of each applicable Loan
Party, enforceable against such Loan Party in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable
principles relating to enforceability. If Borrower or any of its
Subsidiaries acquires any additional Real Property Assets after
the Effective Date, Borrower shall deliver an updated Schedule
5.5B.
C. Intellectual Property. As of the Effective Date, Borrower
and its Subsidiaries own or have the right to use, all
Intellectual Property used in or necessary to the conduct of
their business. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does Borrower know of any valid
basis for any such claim except for such claims that individually
or in the aggregate could not reasonably be expected to result in
a Material Adverse Effect. The use of such Intellectual Property
by Borrower and its Subsidiaries does not infringe on the rights
of any Person, except for such claims and infringements that,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All federal and
state and all foreign registrations of and applications for
Intellectual Property that are owned or licensed by Borrower or
any of its Subsidiaries on the Effective Date are described on
Schedule 5.5C annexed hereto.
5.6 Litigation; Adverse Facts.
Except as disclosed on Schedule 5.6, there are no
Proceedings (whether or not purportedly on behalf of Borrower or
any of its Subsidiaries) at law or in equity, or before or by any
court or other Governmental Authority (including any
Environmental Claims) that are pending or, to the knowledge of
Borrower, threatened against or affecting Borrower or any of its
Subsidiaries or any property of Borrower or any of its
Subsidiaries and that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
Neither Borrower nor any of its Subsidiaries (i) is in violation
of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions,
decrees, rules or regulations of any court or other Governmental
Authority, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
Except to the extent permitted by subsection 6.3 and
except as set forth on Schedule 5.7, all tax returns and reports
of Borrower and its Subsidiaries required to be filed by any of
them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all assessments, fees and other
governmental charges upon Borrower and its Subsidiaries and upon
their respective properties, assets, income, businesses and
franchises that are due and payable have been paid when due and
payable, except for such taxes (i) which are not yet delinquent
or (ii) that are being contested in good faith and by proper
proceeds, and against which adequate reserves or other
appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.
Borrower knows of no proposed tax assessment against Borrower or
any of its Subsidiaries that is not being actively contested by
Borrower or such Subsidiary in good faith and by appropriate
proceedings.
5.8 Performance of Agreements; Materially Adverse Agreements;
Material Contracts; Government Contracts.
A. Neither Borrower nor any of its Subsidiaries is in default
in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its
Contractual Obligations, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute
such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, individually or in
the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Borrower nor any of its Subsidiaries is a party
to or is otherwise subject to any agreements or instruments or any
charter or other internal restrictions or any provision of any
applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect.
C. Schedule 5.8C contains a true, correct and complete list
of all the Material Contracts in effect on the Effective Date. All
such Material Contracts are in full force and effect and no
defaults currently exist thereunder, except for defaults that,
individually or in the aggregate, could not reasonably be deemed
to have a Material Adverse Effect.
D. Schedule 5.8D contains a true, correct and complete
list of all Government Contracts. Except as otherwise set forth on
Schedule 5.8D, each such Government Contract is assignable to
Administrative Agent and Lenders pursuant to the Assignment of
Claims Act. No notice of suspension, debarment, cure notice,
show cause notice or notice of termination for default with
respect to any Government Contract with Borrower or any of its
Subsidiaries, and neither Borrower nor any of its Subsidiaries is
party to any pending, or to Borrower's or any Subsidiary's
knowledge, threatened, suspension, debarment, or termination for
default issued by the U.S. government or other adverse U.S.
government action or proceeding in connection with any Government
Contract.
E. Schedule 5.8E contains a true, correct and complete
list of all Government Contracts assigned, transferred or otherwise
acquired in connection with the Acquisition and indicates whether
or not such Government Contracts require novation.
5.9 Governmental Regulation.
Neither Borrower nor any of its Subsidiaries is subject
to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of
the Obligations unenforceable.
5.10 Securities Activities.
A. Neither Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying any Margin Stock.
B. Following application of the proceeds of each Loan,
not more than 25% of the value of the assets (either of Borrower only or
of Borrower and its Subsidiaries on a consolidated basis) subject
to the provisions of subsection 7.2 or 7.7 or subject to any
restriction contained in any agreement or instrument, between
Borrower and any Lender or any Affiliate of any Lender, relating
to Indebtedness and within the scope of subsection 8.2, will be
Margin Stock.
5.11 Employee Benefit Plans.
A. Borrower, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance in all material
respects with all applicable provisions and requirements of ERISA
and the regulations and published interpretations thereunder with
respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan, except where
the failure to perform such obligations could not reasonably be
expected to have a Material Adverse Effect. Each Employee
Benefit Plan that is intended to qualify under Section 401(a) of
the Internal Revenue Code is so qualified, or, to the extent it
is not so qualified by reason of a form defect, the remedial
amendment period under Internal Revenue Code Section 401(b)
within which to correct a disqualifying provision has not yet
expired, or to the extent it is not qualified for reasons other
than form defects, such defects can be corrected without a
Material Adverse Effect.
B. No ERISA Event has occurred or is reasonably expected to
occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or except as set forth in Schedule 5.11
annexed hereto, no Employee Benefit Plan provides health or
welfare benefits (through the purchase of insurance or otherwise)
for any retired or former employee of Borrower or, any of its
Subsidiaries.
D. As of the most recent valuation date for any Pension Plan,
(i) the excess of (a) the actuarial present value (determined on
the basis of reasonable assumptions employed by the independent
actuary for such Pension Plan for purposes of Section 412 of the
Internal Revenue Code or Section 302 of ERISA) of benefit
liabilities (as defined in Section 4001(a)(16) of ERISA) over (b)
the fair market value of the assets of such Pension Plan (the
"Unfunded Benefit Liability"), individually or in the aggregate
for all Pension Plans to which Borrower or any of its
Subsidiaries have ever contributed, and (ii) the potential
liability that Borrower and its Subsidiaries could reasonably be
expected to incur as the result of the Unfunded Benefit
Liabilities, individually or in the aggregate, for all Pension
Plans to which neither Borrower nor any of its Subsidiaries has
ever contributed, excluding for purposes of such computations any
Pension Plans with respect to which assets exceed benefit
liabilities, do not exceed $2,000,000.
E. As of the most recent valuation date of each Multiemployer
Plan for which the actuarial report is available, the potential
liability of Borrower, its Subsidiaries of any of their ERISA
Affiliates for a complete withdrawal from such Multiemployer Plan
(within the meaning of Section 4203 of ERISA), when aggregate
with such potential liability for complete withdrawal for all
Multiemployer Plans, based on information available pursuant to
Section 4221(e) of ERISA, does not exceed $2,000,000.
5.12 Certain Fees.
No broker's or finder's fee or commission will be
payable by any Loan Party with respect to this Agreement or any
of the transactions contemplated by the Loan Documents, and
Borrower hereby indemnifies Lenders against, and agrees that it
will hold Lenders harmless from, any claim, demand or liability
for any such broker's or finder's fees alleged to have been
incurred in connection herewith or therewith and any expenses
(including reasonable fees, expenses and disbursements of
counsel) arising in connection with any such claim, demand or
liability.
5.13 Environmental Protection.
Except as disclosed on Schedule 5.13,
(i) (x) neither Borrower nor any of its Subsidiaries or
operations are subject to any outstanding written order, consent
decree or settlement agreement with any Person relating to any
Environmental Law, any Environmental Claim, or any Hazardous
Materials Activity and (y) none of Borrower's or its
Subsidiaries' respective Facilities are subject to any
outstanding written order, consent decree or settlement agreement
with any Person relating to any Environmental Law, any
Environmental Claim, or any Hazardous Materials Activity arising
from Borrower's or any of its Subsidiaries' activities or
operations;
(ii) neither Borrower nor any of its Subsidiaries has
received any letter or request for information under Section 104
of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9604) or any comparable state law;
(iii) there are and, to Borrower's knowledge, have been no
conditions, occurrences, or Hazardous Materials Activities that
could reasonably be expected to form the basis of an
Environmental Claim against Borrower or any of its Subsidiaries;
(iv) Borrower has maintained an environmental health and
safety management system for its and each of its Subsidiaries'
operations that demonstrates a commitment to environmental
compliance and includes procedures for (a) preparing and updating
written compliance manuals covering pertinent regulatory areas,
(b) tracking changes in applicable Environmental Laws and
modifying operations to comply with new requirements thereunder,
(c) training employees to comply with applicable environmental
requirements and updating such training as necessary, (d)
performing regular internal compliance audits of each Facility
and ensuring correction of any incidents of non-compliance
detected by means of such audits, and (e) reviewing the
compliance status of off-site waste disposal facilities;
(v) Compliance with all current or reasonably foreseeable
future requirements pursuant to or under Environmental Laws would not,
individually or in the aggregate, be reasonably expected to
result in a Material Adverse Effect. Nothing in this subsection
5.13 to the contrary, no event or condition has occurred or is
occurring with respect to Borrower or any of its Subsidiaries
relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity, which
individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect;
(vi) To Borrower's and each of its Subsidiary's knowledge, all
Real Property Assets and all operations of Borrower and its
Subsidiaries are in compliance, and have in the last five years
been compliance, with Environmental Laws, except where such
failure to comply could not reasonably be expected to have a
Material Adverse Effect; and
(vii) No judicial proceeding or action by any Governmental
Authority is pending, or to the knowledge of Borrower and each of
its Subsidiaries, threatened, under any Environmental Law to
which Borrower or any of its Subsidiaries is or will be named as
a party.
5.14 Employee Matters.
There are no collective bargaining agreements covering
the employees of Borrower and its Subsidiaries except as set
forth on Schedule 5.14. There is no strike or work stoppage in
existence or threatened involving Borrower or any of its
Subsidiaries that could reasonably be expected to result in a
Material Adverse Effect, and there are no strikes or walkouts in
progress, pending or to Borrower's knowledge contemplated
relating to any labor contracts to which Borrower or any of its
Subsidiaries is a party, relating to any labor contracts being
negotiated, or otherwise.
5.15 Solvency.
Each Loan Party (other than T-S Holding) is and, upon
the incurrence of any Obligations by such Loan Party on any date
on which this representation is made, will be, Solvent. Borrower
and its Subsidiaries taken as a whole are and, upon the
incurrence of any Obligations by Borrower and its Subsidiaries
taken as a whole on any date on which this representation is
made, will be, Solvent.
5.16 Matters Relating to Collateral.
A. Creation, Perfection and Priority of Liens.
The execution and delivery of the Collateral Documents by Loan Parties,
together with (i) the actions taken on or prior to the date
hereof pursuant to subsections 4.1L, 6.8 and 6.9 and (ii) the
delivery to Administrative Agent of any Pledged Collateral not
delivered to Administrative Agent at the time of execution and
delivery of the applicable Collateral Document (all of which
Pledged Collateral has been so delivered) are effective to create
in favor of Administrative Agent for the benefit of Lenders, as
security for the respective Secured Obligations (as defined in
the applicable Collateral Document in respect of any Collateral),
a valid and perfected First Priority Lien on all of the
Collateral, and all filings and other actions necessary or
desirable to perfect and maintain the perfection and First
Priority status of such Liens have been duly made or taken and
remain in full force and effect, other than the filing of any UCC
financing statements delivered to Administrative Agent for filing
(but not yet filed) and the periodic filing of UCC continuation
statements in respect of UCC financing statements filed by or on
behalf of Administrative Agent.
B. Governmental Authorizations. No authorization,
approval or other action by, and no notice to or filing with, any
Governmental Authority is required for either (i) the pledge or
grant by any Loan Party of the Liens purported to be created in
favor of Administrative Agent for the benefit of Lenders pursuant
to any of the Collateral Documents or (ii) the exercise by
Administrative Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created pursuant to
any of the Collateral Documents or created or provided for by
applicable law), except for (a) filings or recordings
contemplated by subsection 5.16A, (b) as may be required, in
connection with the disposition of any Pledged Collateral, by
laws generally affecting the offering and sale of securities, and
(c) with respect to clause (ii) above, for filings required under
the Assignment of Claims Act.
C. Absence of Third-Party Filings. Except such as
may have been filed in favor of Administrative Agent for the benefit of
Lenders as contemplated by subsection 5.16A and to evidence
permitted lease obligations and other Liens permitted pursuant to
subsection 7.2, (i) no effective UCC financing statement, fixture
filing or other instrument similar in effect covering all or any
part of the Collateral is on file in any filing or recording
office and (ii) no effective filing covering all or any part of
the IP Collateral is on file in the PTO.
D. Margin Regulations. The pledge of the Pledged
Collateral pursuant to the Collateral Documents does not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
E. Information Regarding Collateral. All information
supplied to Administrative Agent by or on behalf of any Loan Party with
respect to any of the Collateral (in each case taken as a whole
with respect to any particular Collateral) is accurate and
complete in all material respects.
5.17 Consummation of the Acquisition.
The Acquisition has been consummated or will close
simultaneously with the transactions contemplated hereby.
5.18 Accounts Receivable.
Each Account reflected in the computations included in
any Borrowing Base Certificate meets the criteria of the
definition of Eligible Account Receivable or Eligible Unbilled
Accounts Receivable, except as disclosed in such Borrowing Base
Certificate or as disclosed in a timely manner in a subsequent
Borrowing Base Certificate or otherwise in writing to
Administrative Agent. Borrower has no knowledge of any fact or
circumstance not disclosed to Administrative Agent in a Borrowing
Base Certificate or otherwise in writing which would impair the
validity or collectibility of any Eligible Account Receivable of
$50,000 or more or of Eligible Accounts Receivable which
(regardless of the individual amount thereof) aggregate $250,000
or more.
5.19 Inventory.
All Inventory included in any Borrowing Base
Certificate delivered to Administrative Agent meets the criteria
of the definition of Eligible Inventory, except as disclosed in
such Borrowing Base Certificate or in a subsequent Borrowing Base
Certificate, or as otherwise specifically disclosed in writing to
the Administrative Agent.
5.20 Disclosure.
No representation or warranty of Borrower or any of its
Subsidiaries in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on
behalf of Borrower or any of its Subsidiaries for use in
connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to
state a material fact (known to Borrower, in the case of any
document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections
and pro forma financial information contained in such materials
are based upon good faith estimates and assumptions believed by
Borrower to be reasonable at the time made, it being recognized
by Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the
projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Borrower
(other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
5.21 Mortgage Taxes, Etc.
All mortgage, note, transfer, documentary, stamp,
intangible and other similar taxes and impositions which may be
required to be paid in connection with the Loans, the Mortgages
and the other Loan Documents have been (or concurrently with the
closing of the Loans and recording of the Mortgages, will be)
paid in full by Borrower.
5.22 Proceeds of Loan.
The proceeds of the Loans will be used solely by
Borrower for the purposes set forth in Section 2.5.
5.23 Related Agreements.
A. Delivery of Related Agreements. Borrower has delivered to
Lenders complete and correct copies of each Related Agreement and
of all exhibits and schedules thereto.
B. Borrower's Warranties. Except to the extent otherwise set
forth herein or in the schedules hereto, each of the
representations and warranties given by Seller to Borrower in the
Acquisition Agreement is true and correct in all material
respects as of the date hereof (or as of any earlier date to
which such representation and warranty specifically relates) and
will be true and correct in all material respects as of the
Effective Date (or as of such earlier date, as the case may be),
in each case subject to the qualifications set forth in the
schedules to the Acquisition Agreement.
C. Warranties of Borrower. Subject to the qualifications set
forth therein, each of the representations and warranties given
by Borrower to Seller in the Acquisition Agreement is true and
correct in all material respects as of the date hereof and will
be true and correct in all material respects as of the Effective
Date.
Section 6. BORROWER'S AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations and the
cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 6.
6.1 Financial Statements and Other Reports.
Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to
permit preparation of financial statements in conformity with
GAAP. Borrower will deliver to Administrative Agent and Lenders:
(i) Monthly Financials: as soon as available and in any
event within 30 days after the end of each month, (a) the consolidated
and consolidating (consistent with those delivered on a quarterly
basis to its shareholders) balance sheet of Borrower and its
Subsidiaries as at the end of such fiscal period and the related
consolidated and consolidating statements of income,
stockholders' equity and cash flows of Borrower and its
Subsidiaries for such fiscal period and for the period from the
beginning of the then current Fiscal Year to the end of such
fiscal period, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the
Financial Plan for the current Fiscal Year, to the extent
prepared for such fiscal period, all in reasonable detail and
certified by the chief financial officer of Borrower that they
fairly present, in all material respects, the financial condition
of Borrower and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and
normal year-end adjustments, (b) a narrative report describing
the operations of Borrower and its Subsidiaries in the form
prepared for presentation to senior management for such fiscal
period and for the period from the beginning of the then current
Fiscal Year to the end of such fiscal period and (c) a Borrowing
Base Certificate (provided, however, that a Borrowing Base
Certificate for the last month of a Fiscal Quarter shall be
delivered within 45 days after the end of such month);
(ii) Quarterly Financials: as soon as available and in
any event within 45 days after the end of each Fiscal Quarter of each
Fiscal Year, (a) the consolidated balance sheets of Borrower and
its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of income, stockholders' equity
and cash flows of Borrower and its Subsidiaries for such Fiscal
Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current
Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Borrower that they fairly present, in all
material respects, the financial condition of Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end
adjustments, (b) a narrative report describing the operations of
Borrower and its Subsidiaries in the form prepared for
presentation to senior management for such Fiscal Quarter and for
the period from the beginning of the then current Fiscal Year to
the end of such Fiscal Quarter and (c) a Borrowing Base
Certificate;
(iii) Year-End Financials: as soon as available and in any
event within 90 days after the end of each Fiscal Year, (a) the
consolidated balance sheets of Borrower and its Subsidiaries as
at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of
Borrower and its Subsidiaries for such Fiscal Year, setting forth
in each case in comparative form the corresponding figures for
the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial
statements, all in reasonable detail and certified by the chief
financial officer of Borrower that they fairly present, in all
material respects, the financial condition of Borrower and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a
narrative report describing the operations of Borrower and its
Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Year, (c) in the case of such
consolidated financial statements, a report thereon of a
nationally recognized "big 5" accounting firm or other
independent certified public accountants of recognized national
standing selected by Borrower and satisfactory to Administrative
Agent, which report shall be unqualified, shall express no doubts
about the ability of Borrower and its Subsidiaries to continue as
a going concern, and shall state that such consolidated financial
statements fairly present, in all material respects, the
consolidated financial position of Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such
consolidated financial statements has been made in accordance
with generally accepted auditing standards, and (d) and an
updated Schedule 5.8C to this Agreement setting forth all of the
data required to be set forth in Schedule 5.8C annexed hereto
with respect to any Material Contracts entered into during such
Fiscal Year;
(iv) Officer and Compliance Certificates: together with
each delivery of financial statements of Borrower and its Subsidiaries
pursuant to subdivisions (ii) and (iii) above, (a) an Officer's
Certificate of Borrower stating that the signers have reviewed
the terms of this Agreement and have made, or caused to be made
under their supervision, a review in reasonable detail of the
transactions and condition of Borrower and its Subsidiaries
during the accounting period covered by such financial statements
and that such review has not disclosed the existence during or at
the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default, or, if any such
condition or event existed or exists, specifying the nature and
period of existence thereof and what action Borrower has taken,
is taking and proposes to take with respect thereto; and (b) a
Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting
periods with the restrictions contained in Section 7;
(v) Reconciliation Statements: if, as a result of any
change in accounting principles and policies from those used in the
preparation of the audited financial statements referred to in
subsection 5.3, the consolidated financial statements of Borrower
and its Subsidiaries delivered pursuant to subdivisions (ii),
(iii) or (xii) of this subsection 6.1 will differ in any material
respect from the consolidated financial statements that would
have been delivered pursuant to such subdivisions had no such
change in accounting principles and policies been made, then
(a) together with the first delivery of financial statements
pursuant to subdivision (ii), (iii) or (xii) of this subsection
6.1 following such change, consolidated financial statements of
Borrower and its Subsidiaries for (y) the current Fiscal Year to
the effective date of such change and (z) the two full Fiscal
Years immediately preceding the Fiscal Year in which such change
is made, in each case prepared on a pro forma basis as if such
change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to
subdivision (ii), (iii) or (xii) of this subsection 6.1 following
such change, if required pursuant to subsection 1.2, a written
statement of the chief accounting officer or chief financial
officer of Borrower setting forth the differences (including any
differences that would affect any calculations relating to the
financial covenants set forth in subsection 7.6) which would have
resulted if such financial statements had been prepared without
giving effect to such change;
(vi) Accountants' Certification: together with each
delivery of consolidated financial statements of Borrower and its
Subsidiaries pursuant to subdivision (iii) above, a written
statement by the independent certified public accountants giving
the report thereon (a) stating that their audit examination has
included a review of the terms of this Agreement and the other
Loan Documents as they relate to accounting matters, (b) stating
whether, in connection with their audit examination, any
condition or event that constitutes an Event of Default or
Potential Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that such
accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event
of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them
to believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv)
above is not correct or that the matters set forth in the
Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iv) above for the applicable Fiscal Year are
not stated in accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies
of all reports submitted to Borrower by independent certified
public accountants in connection with each annual, interim or
special audit of the financial statements of Borrower and its
Subsidiaries made by such accountants, including any comment
letter submitted by such accountants to management in connection
with their annual audit;
(viii)Other Public Disclosures: promptly upon their becoming
available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by
Borrower to its security holders or by any Subsidiary of Borrower
to its security holders other than Borrower or another Subsidiary
of Borrower, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar
form) and prospectuses, if any, filed by Borrower or any of its
Subsidiaries with any securities exchange or with the Securities
and Exchange Commission or any Governmental Authority or private
regulatory authority and (c) all press releases and other
statements made available generally by Borrower or any of its
Subsidiaries to the public concerning material developments in
the business of Borrower or any of its Subsidiaries;
(ix) Litigation or Other Proceedings: (a) promptly upon,
but in any event within five Business Days after, any officer of
Borrower obtaining knowledge of (1) the institution of, or non-
frivolous threat of, any Proceeding against or affecting Borrower
or any of its Subsidiaries or any property of Borrower or any of
its Subsidiaries (including any investigation or inquiry by any
Governmental Authority with respect to any Government Contract
not previously disclosed in writing by Borrower to Lenders or
(2) any material development in any Proceeding that, in any case:
(x) if adversely determined, has a
reasonable possibility of giving rise to a
Material Adverse Effect; or
(y) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or
obtain relief as a result of, the transactions
contemplated hereby;
written notice thereof together with such other information
as may be reasonably available to Borrower to enable Lenders
and their counsel to evaluate such matters; and (b) within
twenty days after the end of each Fiscal Quarter, a schedule
of all Proceedings involving an alleged liability of, or
claims against or affecting, Borrower or any of its
Subsidiaries equal to or greater than $250,000, and promptly
after request by Administrative Agent such other information
as may be reasonably requested by Administrative Agent to
enable Administrative Agent and its counsel to evaluate any
of such Proceedings;
(x) ERISA Events: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a
written notice specifying the nature thereof, what action
Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened
by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto;
(xi) ERISA Notices: with reasonable promptness, copies
of (a) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all
notices received by Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates from a Multiemployer Plan
sponsor concerning an ERISA Event; and (c) such other documents
or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any
event no later than 15 days prior to the beginning of each Fiscal
Year, a consolidated plan and financial forecast (other than for
any discontinued operations) for such Fiscal Year (the "Financial
Plan" for such Fiscal Year), including (a) forecasted
consolidated balance sheets and forecasted consolidated
statements of income and cash flows of Borrower and its
Subsidiaries for such Fiscal Year, together with a pro forma
Compliance Certificate for such Fiscal Year and an explanation of
the assumptions on which such forecasts are based, (b) forecasted
consolidated statements of income and cash flows of Borrower and
its Subsidiaries for each month of such Fiscal Year, together
with an explanation of the assumptions on which such forecasts
are based, (c) the amount of forecasted unallocated overhead for
each such Fiscal Year, and (d) such other information and
projections as any Lender may reasonably request;
(xiii) Insurance: (a) as soon as practicable and in any event
by the last day of each Fiscal Year, a report in form and
substance satisfactory to Administrative Agent outlining all
material insurance coverage required hereunder to be maintained
as of the date of such report by Borrower and its Subsidiaries
and all material insurance coverage planned to be maintained by
Borrower and its Subsidiaries in the immediately succeeding
Fiscal Year as required hereunder and (b) as soon as practicable
after any material change in insurance coverage maintained by
Borrower and its Subsidiaries notice thereof to Administrative
Agent specifying the changes and reasons therefor;
(xiv) Governing Body: with reasonable promptness, written
notice of any change in the Governing Body of Borrower;
(xv) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Borrower, a written notice setting forth with
respect to such Person (a) the date on which such Person became a
Subsidiary of Borrower and (b) all of the data required to be set
forth in Schedule 4.1D annexed hereto with respect to all
Subsidiaries of Borrower (it being understood that such written
notice shall be deemed to supplement Schedule 4.1D annexed hereto
for all purposes of this Agreement);
(xvi) Margin Determination Certificate: commencing with the
Fiscal Quarter ended June 30, 2003, together with each delivery
of financial statements for each Fiscal Quarter (other than each
fourth Fiscal Quarter) pursuant to subdivision (ii) above, and
within 45 days of the last day of each fourth Fiscal Quarter, a
Margin Determination Certificate demonstrating in reasonable
detail the calculation of the Consolidated Total Leverage Ratio
for the four consecutive Fiscal Quarters ending on the day of the
accounting period covered by such financial statements;
(xvii) Deposit Accounts: promptly upon the opening of any
Deposit Account by Borrower or any of its Subsidiaries, a written
notice setting forth all of the data required to be set forth in
Schedule 6.11 annexed hereto with respect to such Deposit
Account;
(xviii) Material Contracts; Government Contracts or
Investigations: promptly upon, and in any event within fifteen
Business Days after any Material Contract of Borrower or any of
its Subsidiaries is terminated or amended in a manner that is
materially adverse to Borrower or such Subsidiary, as the case
may be, or any new Material Contract is entered into, or, any
investigation or inquiry by any Governmental Authority with
respect to any Government Contract or any Loan Party, a written
statement describing such event with copies of such material
amendments or new contracts and an explanation of any actions
being taken with respect thereto;
(xix) Events of Default and Other Defaults: promptly upon,
and within five Business Days after, any officer of Borrower
obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than
to Administrative Agent) or taken any other action with respect
to a claimed Event of Default or Potential Event of Default,
(b) that any Person has given any notice to Borrower or any of
its Subsidiaries or taken any other action with respect to a
claimed default or event or condition of the type referred to in
subsection 8.2, (c) of any resignation or dismissal of Borrower's
independent accountant, (d) of any Change in Control or other
event requiring a prepayment of principal on any Subordinated
Indebtedness, (e) of any individual or series of related Asset
Sales, issuances of Capital Stock or receipt of Net
Insurance/Condemnation Proceeds aggregating in excess of
$500,000, or (f) of the occurrence of any event or change that
has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect, an Officer's Certificate specifying
the nature and period of existence of such condition, event or
change, or specifying the notice given or action taken by any
such Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition, and what
action Borrower has taken, is taking and proposes to take with
respect thereto;
(xx) Corporate Matters: with reasonable promptness,
written notice of (1) any amendment of the articles or certificate of
incorporation or by-laws or other constituent documents of
Borrower or any of its Subsidiaries, (2) any change in the
composition of the board of directors of Borrower or any of its
Subsidiaries, and (3) any change in the executive Officers of
Borrower or any of its Subsidiaries;
(xxi) Revisions or Updates to Schedules: should any of the
information or disclosures provided on any of the Schedules
originally attached to any of the Loan Documents become outdated
or incorrect in any material respect, as part of the next
quarterly Officer's Certificate required pursuant to subsection
6.1(iv), such revisions or updates to such Schedules as may be
necessary or appropriate to update or correct such Schedules,
provided that no such revisions or updates to any Schedules shall
be deemed to have amended, modified or superseded such Schedules
immediately prior to the submission of such revised or updated
Schedules, or to have cured any breach of warranty or
representation resulting from the inaccuracy or incompleteness of
any such Schedules, unless and until the Requisite Lenders in
their sole and absolute discretion, shall have accepted in
writing such revisions or updates to such Schedules; and
(xxii) Other Information: with reasonable promptness, such
other information and data with respect to Borrower or any of its
Subsidiaries as from time to time may be reasonably requested by
any Lender.
6.2 Existence, etc.
Except as permitted under subsection 7.7, Borrower
will, and will cause each of its Subsidiaries (other than T-S
Holding) to, at all times preserve and keep in full force and
effect its existence in the jurisdiction of organization
specified on Schedule 4.1D and all rights and franchises material
to its business; provided, however that neither Borrower nor any
of its Subsidiaries shall be required to preserve any such right
or franchise if the Governing Body of Borrower or such Subsidiary
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to Borrower, such
Subsidiary or Lenders.
6.3 Payment of Taxes and Claims; Tax .
A. Borrower will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental charges imposed
upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any penalty
accrues thereon, and all claims (including claims for labor,
services, materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien upon any of
its properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided that no
such tax, assessment, charge or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as (i) such reserve
or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor and (ii) in
the case of a tax, assessment, charge or claim which has or may
become a Lien against any of the Collateral, such proceedings
conclusively operate to stay the sale of any portion of the
Collateral to satisfy such charge or claim.
B. Borrower will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than
Borrower or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance; Application of Net
Insurance/Condemnation Proceeds.
A. Maintenance of Properties.
(i) Borrower will, and will cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order
and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Borrower and its
Subsidiaries (other than any Intellectual Property) and from time
to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.
(ii) Borrower and its Subsidiaries shall (a) prosecute, file
and/or make (i) all applications relating to the Intellectual
Property owned, held or used by Borrower or its Subsidiaries that
is pending as of the date of this Agreement, (ii) all
registrations of any existing or future unregistered or
copyrightable works and (iii) all Trademark opposition and
cancellation proceedings and renewal Trademark Registrations and
Copyright Registrations and (b) do any and all acts which are
necessary or desirable to preserve and maintain all rights in all
Intellectual Property, except in each case under clause (a) or
clause (b) where the failure could not reasonably be expected to
have a Material Adverse Effect. Any expenses incurred in
connection therewith shall be borne solely be Borrower and its
Subsidiaries.
B. Insurance. Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, such
public liability insurance, third party property damage
insurance, business interruption insurance and casualty insurance
with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Borrower and its
Subsidiaries as may customarily be carried or maintained under
similar circumstances by corporations of established reputation
engaged in similar businesses, in each case in such amounts
(giving effect to self-insurance, to the extent companies of
similar size and in similar businesses self-insure), with such
deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for corporations similarly
situated in the industry. Without limiting the generality of the
foregoing, Borrower will maintain or cause to be maintained
(i) flood insurance with respect to each Flood Hazard Property
that is located in a community that participates in the National
Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal
Reserve System, and (ii) replacement value casualty insurance on
the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles,
covering such risks and having other terms and conditions as are
at all times satisfactory to Administrative Agent in its
commercially reasonable judgment. Each such policy of insurance
shall (a) name Administrative Agent for the benefit of Lenders as
an additional insured thereunder as its interests may appear and
(b) in the case of each business interruption and casualty
insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Administrative Agent, that
names Administrative Agent for the benefit of Lenders as the loss
payee thereunder for any covered loss in excess of $500,000 and
provides for at least 30 days prior written notice to
Administrative Agent of any modification or cancellation of such
policy.
C. Application of Net Insurance/Condemnation Proceeds.
(i) Business Interruption Insurance. Upon receipt by Borrower
or any of its Subsidiaries of any business interruption insurance
proceeds constituting Net Insurance/Condemnation Proceeds, (a) so
long as no Event of Default or no Potential Event of Default
shall have occurred and be continuing, Borrower or such
Subsidiary may retain and apply such Net Insurance/Condemnation
Proceeds for working capital purposes, and (b) if an Event of
Default or Potential Event of Default shall have occurred and be
continuing, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in
subsection 2.4B.
(ii) Net Insurance/Condemnation Proceeds Received by Borrower.
Upon receipt by Borrower or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business
interruption insurance, (a) so long as no Event of Default or
Potential Event of Default shall have occurred and be continuing,
if the Net Insurance/Condemnation Proceeds are less than
$500,000, Borrower shall, or shall cause one or more of its
Subsidiaries to, promptly and diligently apply such Net
Insurance/Condemnation Proceeds to pay or reimburse the costs of
repairing, restoring or replacing the assets in respect of which
such Net Insurance/Condemnation Proceeds were received or, to the
extent not so applied, to prepay the Loans (and/or the Revolving
Loan Commitments shall be reduced) as provided in subsection
2.4B, and (b) if an Event of Default or Potential Event of
Default shall have occurred and be continuing or the Net
Insurance/Condemnation Proceeds are greater than or equal to
$500,000, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in
subsection 2.4B. If at any time Administrative Agent reasonably
determines (A) that Borrower or such Subsidiary is not proceeding
diligently with such repair, restoration or replacement or (B)
that such repair, restoration or replacement cannot be completed
with the Net Insurance/Condemnation Proceeds received, together
with funds otherwise available to Borrower for such purpose, or
that such repair, restoration or replacement cannot be completed
within 180 days after the receipt by Borrower or such Subsidiary
of such Net Insurance/Condemnation Proceeds (unless during such
180 day period Borrower or such Subsidiary commences such repair,
restoration or replacement and diligently pursues the same to
completion), then Administrative Agent shall notify Borrower and
Borrower shall apply such Net Insurance/Condemnation Proceeds to
prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) as provided in subsection 2.4B.
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Upon receipt by Administrative Agent of
any Net Insurance/Condemnation Proceeds as loss payee, (a) if the
aggregate amount of Net Insurance/Condemnation Proceeds received
(and reasonably expected to be received) by Administrative Agent
in respect of any covered loss exceeds $500,000, or if and to the
extent Borrower would have been required to apply such Net
Insurance/Condemnation Proceeds (if it had received them
directly) to prepay the Loans and/or reduce the Revolving Loan
Commitments, Administrative Agent shall, and Borrower hereby
authorizes Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) as provided in
subsection 2.4B, and (b) to the extent the foregoing clause (a)
does not apply, Administrative Agent shall deliver such Net
Insurance/Condemnation Proceeds to Borrower, and if such proceeds
are business interruption proceeds constituting Net
Insurance/Condemnation Proceeds, Borrower or such Subsidiary may
retain and apply such Net Insurance/Condemnation Proceeds for
working capital purposes, or, if such Net Insurance/Condemnation
Proceeds are other than from business interruption insurance,
Borrower shall, or shall cause one or more of its Subsidiaries
to, promptly apply such Net Insurance/Condemnation Proceeds to
the costs of repairing, restoring, or replacing the assets in
respect of which such Net Insurance/Condemnation Proceeds were
received; provided, however, that if at any time Administrative
Agent reasonably determines (A) that Borrower or such Subsidiary
is not proceeding diligently with such repair, restoration or
replacement or (B) that such repair, restoration or replacement
cannot be completed with the Net Insurance/Condemnation Proceeds
then held by Administrative Agent for such purpose, together with
funds otherwise available to Borrower for such purpose, or that
such repair, restoration or replacement cannot be completed
within 180 days after the receipt by Administrative Agent of such
Net Insurance/Condemnation Proceeds, Administrative Agent shall,
and Borrower hereby authorizes Administrative Agent to, apply
such Net Insurance/Condemnation Proceeds to prepay the Loans
(and/or the Revolving Loan Commitments shall be reduced) as
provided in subsection 2.4B(iii)(b).
6.5 Inspection Rights; Audits of Inventory and Accounts
Receivable; Lender Meeting.
A. Inspection Rights. Borrower shall, and shall cause
each of its Subsidiaries to, permit any authorized representatives
designated by Administrative Agent to visit and inspect any of
the properties of Borrower or of any of its Subsidiaries, to
inspect, copy and take extracts from its and their financial and
accounting records, and to discuss its and their affairs,
finances and accounts with its and their officers and independent
public accountants (provided that Borrower may, if it so chooses,
be present at or participate in any such discussion), all upon
reasonable notice and at such reasonable times during normal
business hours and as often as may reasonably be requested and
subject to any security clearance requirements imposed by
applicable Governmental Authorities. Any Lender, at such
Lender's sole cost and expense, may accompany Administrative
Agent on such visits and inspections.
B. Audits of Inventory and Accounts Receivable. Borrower
shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by Administrative Agent to
conduct one audit of all Inventory and accounts receivable of
Loan Parties during each twelve-month period after the Effective
Date, all upon reasonable notice and at such reasonable times
during normal business hours as may reasonably be requested;
provided that upon the occurrence and during the continuation of
an Event of Default or a Potential Event of Default, authorized
representatives designated by Administrative Agent shall be
permitted to conduct additional audits of all such Inventory and
accounts receivable.
C. Lender Meeting. Borrower will, upon the request of
Administrative Agent, participate in a meeting of Administrative
Agent and Lenders once during each Fiscal Year to be held at
Borrower's principal offices (or at such other location as may be
agreed to by Borrower and Administrative Agent) at such time as
may be agreed to by Borrower and Administrative Agent.
6.6 Compliance with Laws, etc.
Borrower shall comply, and shall cause each of its
Subsidiaries and all other Persons on or occupying any Facilities
to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including
all Environmental Laws), noncompliance with which could
reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
6.7 Environmental Matters.
A. Environmental Disclosure. Borrower will deliver to
Administrative Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable
following receipt thereof by Borrower or any of its Subsidiaries
copies of all environmental audits, investigations, analyses and
reports of any kind or character, whether prepared by personnel
of Borrower or any of its Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with
respect to significant environmental matters at any Facility
which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect or with respect
to any Environmental Claims which, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect.
(ii) Notice of Certain Releases, Remedial Actions, Etc.
Promptly upon the occurrence thereof, written notice describing in
reasonable detail (a) any Release required to be reported to any
federal, state or local governmental or regulatory agency under
any applicable Environmental Laws, (b) any remedial action taken
by Borrower or any other Person in response to (1) any Hazardous
Materials Activities the existence of which could reasonably be
expected to result in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or
(2) any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect, and (c) Borrower's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of
any Facility that could cause such Facility or any part thereof
to be subject to any material restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental
Laws.
(iii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or
receipt thereof by Borrower or any of its Subsidiaries, a copy of
any and all written communications with respect to (a) any
Environmental Claims that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse
Effect, (b) any Release required to be reported to any federal,
state or local governmental or regulatory agency, and (c) any
request for information from any governmental agency that
suggests such agency is investigating whether Borrower or any of
its Subsidiaries may be potentially responsible for any Hazardous
Materials Activity.
(iv) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail
(a) any proposed acquisition of stock, assets, or property by
Borrower or any of its Subsidiaries that could reasonably be
expected to (1) expose Borrower or any of its Subsidiaries to, or
result in, Environmental Claims that could reasonably be expected
to result in, individually or in the aggregate, a Material
Adverse Effect or (2) affect the ability of Borrower or any of
its Subsidiaries to maintain in full force and effect all
material Governmental Authorizations required under any
Environmental Laws for their respective operations and (b) any
proposed action to be taken by Borrower or any of its
Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Borrower or any of its
Subsidiaries to any material additional obligations or
requirements under any Environmental Laws.
B. Borrower's Actions Regarding Hazardous Materials
Activities, Environmental Claims and Violations of Environmental Laws.
(i) Remedial Actions Relating to Hazardous Materials
Activities. Borrower shall, in compliance with all applicable
Environmental Laws, promptly undertake, and shall cause each of its
Subsidiaries promptly to undertake, any and all investigations,
studies, sampling, testing, abatement, cleanup, removal,
remediation or other response actions necessary to remove,
remediate, clean up or xxxxx any Hazardous Materials Activity on,
under or about any Facility that is in violation of any
Environmental Laws or that presents a material risk of giving
rise to an Environmental Claim. If Borrower or any of its
Subsidiaries undertakes any such action with respect to any
Hazardous Materials, Borrower or such Subsidiary shall conduct
and complete such action in compliance with all applicable
Environmental Laws and in accordance with the policies, orders
and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Borrower's
or such Subsidiary's liability with respect to such Hazardous
Materials Activity is being diligently contested in good faith
and by appropriate proceedings by Borrower or such Subsidiary.
(ii) Actions with Respect to Environmental Claims and
Violations of Environmental Laws. Borrower shall promptly
take, and shall cause each of its Subsidiaries promptly to
take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by Borrower or
its Subsidiaries and (ii) make an appropriate response to
any Environmental Claim against Borrower or any of its
Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could
reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
C. Environmental Investigations. Borrower agrees that
Administrative Agent may, from time to time and in its reasonable
discretion, (i) retain, at Borrower's expense, an independent
professional consultant (a "Consultant") to review any
environmental audits, investigations, analyses and reports
relating to Hazardous Materials prepared by or for Borrower and
(ii) if (a) Administrative Agent reasonably believes that
Borrower has breached any representation, warranty or covenant
contained in subsection 5.6, 5.13, 6.6 or 6.7 or that there has
been a material violation of Environmental Laws at any Facility
or by Borrower or any of its Subsidiaries at any other location
or (b) an Event of Default has occurred and is continuing,
conduct its own investigation of any Facility; provided that, in
the case of any Facility no longer owned, leased, operated or
used by Borrower or any of its Subsidiaries, Borrower shall only
be obligated to use its best efforts to obtain permission for
Administrative Agent's Consultant to conduct an investigation of
such Facility. For purposes of conducting such a review and/or
investigation, Borrower hereby grants to Administrative Agent and
its agents, employees, consultants and contractors the right,
upon not less than two Business Days' prior written notice, to
enter into or onto any Facilities currently owned, leased,
operated or used by Borrower or any of its Subsidiaries and to
perform such tests on such property (including taking samples of
soil, groundwater and suspected asbestos-containing materials) as
are reasonably necessary in connection therewith. Any such
investigation of any Facility shall be conducted, unless
otherwise agreed to by Borrower and Administrative Agent, during
normal business hours and, to the extent reasonably practicable,
shall be conducted so as not to interfere with the ongoing
operations at such Facility or to cause any damage or loss to any
property at such Facility. Borrower and Administrative Agent
hereby acknowledge and agree that any report of any investigation
conducted at the request of Administrative Agent pursuant to this
subsection 6.7C will be obtained and shall be used by
Administrative Agent and Lenders for the purposes of Lenders'
internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Loan
Documents. Administrative Agent agrees to deliver a copy of any
such report to Borrower with the understanding that Borrower
acknowledges and agrees that (x) it will indemnify and hold
harmless Administrative Agent and each Lender from any costs,
losses or liabilities relating to Borrower's use of or reliance
on such report, (y) neither Administrative Agent nor any Lender
makes any representation or warranty with respect to such report,
and (z) by delivering such report to Borrower, neither
Administrative Agent nor any Lender is requiring or recommending
the implementation of any suggestions or recommendations
contained in such report.
6.8 Execution of Subsidiary Guaranty and Personal Property
Collateral Documents After the Effective Date.
A. Execution of Subsidiary Guaranty and Personal Property
Collateral Documents. If any Person organized under the laws of
the United States or any State thereof or the District of
Columbia becomes a direct or indirect domestic Subsidiary of
Borrower after the date hereof, Borrower will promptly notify
Administrative Agent of that fact and cause such domestic
Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and Security Agreement and
to take all such further actions and execute all such further
documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1L) as
may be necessary or, in the opinion of Administrative Agent,
desirable to create in favor of Administrative Agent, for the
benefit of Lenders, a valid and perfected First Priority Lien on
all of the personal and mixed property assets of such domestic
Subsidiary described in the applicable forms of Collateral
Documents.
B. Foreign Subsidiaries. If any Person becomes a foreign
Subsidiary of Borrower or any Subsidiary after the date hereof,
Borrower will promptly notify Administrative Agent of that fact
and, if such Subsidiary is directly or indirectly owned by
Borrower or a domestic Subsidiary, cause such Subsidiary and the
owner of such Subsidiary to execute and deliver to Administrative
Agent such documents and instruments and take such further
actions (including actions, documents and instruments comparable
to those described in subsection 4.1L) as may be necessary, or in
the reasonable opinion of Administrative Agent, desirable to
create in favor of Administrative Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on 65% of the
voting Capital Stock and all of the non-voting Capital Stock of
such foreign Subsidiary.
C. Subsidiary Organizational Documents, Legal Opinions, Etc.
Borrower shall deliver to Administrative Agent, together with
such Loan Documents, (i) certified copies of such Subsidiary's
Organizational Documents, together with, if such Subsidiary is a
domestic Subsidiary, a good standing certificate from the
Secretary of State of the jurisdiction of its organization and
each other state in which such Person is qualified to do business
and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, each to be dated a recent date
prior to their delivery to Administrative Agent, (ii) a
certificate executed by the secretary or similar Officer of such
Subsidiary as to (a) the fact that the attached resolutions of
the Governing Body of such Subsidiary approving and authorizing
the execution, delivery and performance of such Loan Documents
are in full force and effect and have not been modified or
amended and (b) the incumbency and signatures of the Officers of
such Subsidiary executing such Loan Documents, and (iii) a
favorable opinion of counsel to such Subsidiary addressed to
Administrative Agent and Lenders, in form and substance
satisfactory to Administrative Agent and its counsel, as to
(a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such
Subsidiary of such Loan Documents, (c) the enforceability of such
Loan Documents against such Subsidiary and (d) such other matters
(including matters relating to the creation and perfection of
Liens in any Collateral pursuant to such Loan Documents) as
Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent
and its counsel.
6.9 Matters Relating to Additional Real Property Collateral.
A. Additional Mortgages, Etc. From and after the Effective
Date, if (i) Borrower or any Subsidiary Guarantor acquires any
fee interest in real property or any Material Leasehold Property
or (ii) at the time any Person becomes a Subsidiary Guarantor,
such Person owns or holds any fee interest in real property or
any Material Leasehold Property, in either case excluding any
such Real Property Asset the encumbrancing of which requires the
consent of any applicable lessor or then-existing senior
lienholder, where Borrower and its Subsidiaries have attempted in
good faith, but are unable, to obtain such lessor's or senior
lienholder's consent after use of their best efforts (any such
non-excluded Real Property Asset described in the foregoing
clause (i) or (ii) being an "Additional Mortgaged Property"),
Borrower or such Subsidiary Guarantor shall deliver to
Administrative Agent, as soon as practicable after such Person
acquires such Additional Mortgaged Property or becomes a
Subsidiary Guarantor, as the case may be, a fully executed and
notarized Mortgage (an "Additional Mortgage"), in proper form for
recording in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan Party in
such Additional Mortgaged Property; and such opinions, documents,
title insurance, environmental reports that would have been
delivered on the Effective Date if such Additional Mortgaged
Property were a New Mortgaged Property or that may be reasonably
required by Administrative Agent, in each case in form and
substance satisfactory to Administrative Agent, except that in
the case of an Additional Mortgaged Property consisting of a
Leasehold Property, a Landlord Consent and Estoppel with respect
thereto and evidence that such Leasehold Property is a Recorded
Leasehold Interest shall also be required and with respect to all
Additional Mortgaged Properties a survey, which must contain a
certification from the surveyor in the form of Exhibit XIX
attached hereto.
B. Real Estate Appraisals. Borrower shall, and shall
cause each of its Subsidiaries to, permit an independent real estate
appraiser satisfactory to Administrative Agent, upon reasonable
notice, to visit and inspect any Additional Mortgaged Property
for the purpose of preparing an appraisal of such Additional
Mortgaged Property satisfying the requirements of any applicable
laws and regulations (in each case to the extent required under
such laws and regulations as determined by Administrative Agent
in its discretion).
C. Conforming Leasehold Interests. If Borrower or any
of its Subsidiaries acquires any Material Leasehold Property, Borrower
shall use its commercially reasonable efforts to, or shall use
its commercially reasonable efforts to cause such Subsidiary to,
cause such Material Leasehold Property to be a Conforming
Leasehold Interest.
6.10 Intentionally Omitted.
6.11 Deposit Accounts and Cash Management Systems.
Borrower shall, and shall cause each of its
Subsidiaries to, use and maintain its Deposit Accounts and cash
management systems in a manner reasonably satisfactory to
Administrative Agent. Information regarding these Deposit
Accounts, including (a) the name and address of the financial
institutions maintaining the Deposit Accounts, and (b) the
Deposit Account numbers, are set forth on Schedule 6.11 annexed
hereto. Borrower shall not permit any of such Deposit Accounts
at any time to have a principal balance in excess of $250,000
unless Borrower or such Subsidiary, as the case may be, has
(i) delivered to Administrative Agent a Deposit Account Control
Agreement executed by the financial institution at which such
Deposit Account is maintained, pursuant to which such financial
institution confirms and acknowledges Administrative Agent's
security interest in, and sole dominion and control over, such
Deposit Account and waives its rights to set-off with respect to
amounts in such Deposit Account and (ii) taken all other steps
necessary or, in the opinion of Administrative Agent, desirable
to ensure that Administrative Agent will have sole dominion and
control over such Deposit Account at all times while such
agreement is in effect; provided that if Borrower or such
Subsidiary is unable to obtain such agreement from such financial
institution Borrower shall, or shall cause such Subsidiary to,
within 30 days after receiving a written request by
Administrative Agent to do so, transfer all amounts in the
applicable Deposit Account to a Deposit Account maintained at a
financial institution from which Borrower or such Subsidiary has
obtained such an agreement. Borrower shall not permit the
aggregate amount on deposit in all Deposit Accounts of Borrower
and of its Subsidiaries (other than Deposit Accounts maintained
with Administrative Agent or Deposit Accounts for which a Deposit
Account Control Agreement described above has been executed and
delivered) at any time to exceed $500,000.
6.12 Assignment of Claims Act.
Borrower shall, and shall cause each applicable Subsidiary
to, execute any documents or instruments and take such steps or
actions reasonably required by Administrative Agent so that all
monies due or to become due under any Government Contract will be
assigned to Administrative Agent, for the benefit of itself and
Lenders, and notice given thereof in accordance with the
requirements of the Assignment of Claims Act of 1940, as amended,
or any other laws, rules or regulations relating to the
assignment of any such contract and monies due or to become due.
From and after the Effective Date, within fifteen Business Days
after Borrower enters into any Government Contract not listed on
Schedule 5.8D, Borrower shall deliver to Administrative Agent
written notice of such entry, together with a copy of the
Government Contract (to the extent that Borrower is permitted
under the terms thereof and applicable law to deliver a copy
thereof), and a New Instrument of Assignment, duly executed by
Borrower. If and to the extent that any Government Contract is
required by applicable laws to be novated, including any
Government Contracts assigned, transferred or otherwise acquired
in connection with the Acquisition, Borrower shall promptly
submit all documents and information required by the applicable
Governmental Authority in connection with such novation and
thereafter use its commercially reasonable efforts to promptly
cause any such Government Contract to be novated in accordance
with applicable laws.
6.13 Consents to Collateral Assignments.
On or before the date that is 90 days after the Effective
Date, Borrower shall use its commercially reasonable efforts to
obtain consents to the collateral assignment of the contracts
identified on part II of Schedule 5.8C, in form and substance
reasonably satisfactory to Administrative Agent.
6.14 Solvency.
Borrower shall at all times be Solvent and Borrower shall
cause Borrower and its Subsidiaries, taken as a whole, to be at
all times Solvent.
Section 7. BORROWER'S NEGATIVE COVENANTS
Borrower covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations and the
cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent,
Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 7.
7.1 Indebtedness.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(i) Borrower may become and remain liable with respect
to the Obligations;
(ii) Borrower and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by subsection
7.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain
liable with respect to Indebtedness (including in respect of
Capital Leases) incurred to provide all or a portion of the
purchase price or cost of construction of an asset in an
aggregate amount not to exceed $2,500,000 at any one time so long
as (i) the principal amount of such Indebtedness when incurred
shall not exceed the purchase price or the cost of construction
of such asset, and (ii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(iv) Borrower may become and remain liable with respect to
unsecured Indebtedness to any Subsidiary Guarantor, and any
wholly-owned domestic Subsidiary of Borrower may become and
remain liable with respect to unsecured Indebtedness to Borrower
or any Subsidiary Guarantor; provided that (a) to the extent the
principal amount of such Indebtedness in the aggregate is equal
to or greater than $250,000, a Lien on all such intercompany
Indebtedness shall be granted to Administrative Agent for the
benefit of Lenders and (b) if such intercompany Indebtedness is
evidenced by a promissory note or other instrument, such
promissory note or instrument shall have been pledged to
Administrative Agent pursuant to the Security Agreement;
(v) Borrower and its Subsidiaries may remain liable with
respect to Indebtedness outstanding as of the Effective Date as
referenced in the financial statements delivered pursuant to
subsection 4.1E (and set out more specifically in Schedule 7.1
annexed hereto) and renewals, refinancings or extensions thereof
in a principal amount not in excess of that outstanding as of the
date of such renewal, refinancing or extensions;
(vi) Borrower and its Subsidiaries may become and remain
liable with respect to other Indebtedness in an aggregate principal
amount not to exceed $500,000 at any time outstanding;
(vii) Borrower and its Subsidiaries may become and remain
liable with respect to Indebtedness incurred in the ordinary
course of business under documentary letters of credit for the
purpose of goods or other merchandise (but not under standby,
direct pay or other letters of credit) generally in an aggregate
face amount not to exceed $5,000,000; and
(viii)Borrower and its Subsidiaries may become and remain
liable with respect to Indebtedness to sellers or other third
Persons in connection with Permitted Acquisitions in an aggregate
principal amount not to exceed at any time outstanding
$50,000,000; provided such Indebtedness is Subordinated
Indebtedness pursuant to a subordination agreement in form and
substance reasonably acceptable to Administrative Agent.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind (including any
document or instrument in respect of goods or accounts
receivable) of Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom
or proceeds thereof, or file or permit the filing of, or permit
to remain in effect, any financing statement or other similar
notice of any Lien with respect to any such property, asset,
income or profits or proceeds under the UCC or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Effective Date and set forth on
Schedule 7.2A; provided that (a) no such Lien shall at any time
be extended to cover property or assets other than the property
or assets subject thereto on the Effective Date and (b) the
principal amount of the Indebtedness secured by such Liens shall
not be extended, renewed, refunded or refinanced; and
(iv) Other Liens on assets acquired with the proceeds of
Indebtedness permitted under subsection 7.1(iii) securing such
Indebtedness; provided such Liens attach concurrently with or
within ten days after the acquisition thereof and only to the
asset acquired with the proceeds of such Indebtedness.
B. Equitable Lien in Favor of Lenders. If Borrower or
any of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired,
other than Liens excepted by the provisions of subsection 7.2A,
Borrower or its Subsidiary shall make or cause to be made
effective provision whereby the Obligations will be secured by
such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so
secured which provision shall not cure any default that may have
occurred and which provision shall be made without prejudice to
any rights of Administrative Agent or Lenders with respect to
such default; provided that, notwithstanding the foregoing, this
covenant shall not be construed as a consent by Requisite Lenders
to the creation or assumption of any such Lien not permitted by
the provisions of subsection 7.2A.
C. No Further Negative Pledges. Neither Borrower nor
any of its Subsidiaries shall enter into any agreement prohibiting the
creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, except with
respect to specific property encumbered to secure payment of
particular Indebtedness or to be sold pursuant to an executed
agreement with respect to an Asset Sale permitted by this
Agreement.
D. No Restrictions on Subsidiary Distributions to
Borrower or Other Subsidiaries. Borrower will not, and will not permit any
of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such
Subsidiary's Capital Stock owned by Borrower or any other
Subsidiary of Borrower, (ii) repay or prepay any Indebtedness
owed by such Subsidiary to Borrower or any other Subsidiary of
Borrower, (iii) make loans or advances to Borrower or any other
Subsidiary of Borrower, or (iv) transfer any of its property or
assets to Borrower or any other Subsidiary of Borrower, except as
provided in this Agreement.
7.3 Investments; Acquisitions; Joint Ventures.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, or
acquire, by purchase or otherwise, all or substantially all the
business, property or fixed assets of, or Capital Stock or other
ownership interest of any Person, or any division or line of
business of any Person except:
(i) Borrower and its Subsidiaries may make and own Investments
in Cash Equivalents;
(ii) Borrower and its Subsidiaries may continue to own the
Investments owned by them as of the Effective Date in any
Subsidiaries of Borrower and Borrower and its wholly-owned
Subsidiaries may make and own additional equity Investments in
their respective wholly-owned Subsidiaries;
(iii) Borrower and its Subsidiaries may make intercompany
loans to the extent permitted under subsection 7.1(iv);
(iv) Borrower and its Subsidiaries may make Consolidated
Capital Expenditures permitted by subsection 7.8;
(v) Borrower and its Subsidiaries may make Investments in
Accounts owing to Borrower or any of its Subsidiaries or any
advances to suppliers, in each case if created, acquired or made
in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms;
(vi) Borrower and its Subsidiaries may acquire assets
(including Capital Stock and including Capital Stock of Subsidiaries
formed in connection with any such acquisition) in transactions
constituting Permitted Acquisitions having a fair market value
not in excess of $50,000,000 and continue to own such assets
after the acquisition thereof; provided that Borrower shall, and
shall cause its Subsidiaries to, comply with the requirements of
subsections 6.8 and 6.9 with respect to each such acquisition
that results in a Person becoming a Subsidiary;
(vii) Borrower and its Subsidiaries may make Investments
consisting of loans and advances to Officers, directors,
employees of Borrower and its Affiliates in an aggregate amount
not to exceed $1,000,000 at any time outstanding;
(viii)Borrower and its Subsidiaries may make Investments
(including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of
business;
(ix) Borrower and its Subsidiaries may make Investments
permitted under subsection 7.7; and
(x) Borrower and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time
$7,500,000.
7.4 Contingent Obligations.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or
remain liable with respect to any Contingent Obligation, except:
(i) Subsidiaries of Borrower may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary
Guaranty;
(ii) Borrower may become and remain liable with respect to (i)
Contingent Obligations under Hedge Agreements with respect to the
Indebtedness under this Agreement in an aggregate notional amount
up to the amount of the then-outstanding principal amount of the
Indebtedness under this Credit Agreement; and (ii) under other
Hedge Agreements with respect to Indebtedness entered into in the
ordinary course of business in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks
and not for speculative purposes in an aggregate notional amount
not to exceed at any time $1,000,000;
(iii) Borrower and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment
obligations incurred in connection with Asset Sales or other
sales of assets;
(iv) Borrower and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in an aggregate amount not
to exceed $500,000 at any time outstanding in respect of any
Indebtedness of Borrower or any of its Subsidiaries permitted by
subsection 7.1;
(v) Borrower and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in
Schedule 7.4 annexed hereto;
(vi) Borrower and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; provided that the
maximum aggregate liability, contingent or otherwise, of Borrower
and its Subsidiaries in respect of all such Contingent
Obligations shall at no time exceed $500,000; and
(vii) Borrower may guaranty the obligations of any of its
Subsidiaries to the extent Borrower is entitled to incur such
obligations under the terms of this Agreement (with any such
guaranty reducing Borrower's ability to incur such obligations in
a like amount).
7.5 Restricted Junior Payments.
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Junior Payment;
provided that Borrower may make a Restricted Junior Payment (i)
to make dividends payable solely in the same class of Capital
Stock of such Person; (ii) any Subsidiary may make a Restricted
Junior Payment to Borrower or any Subsidiary Guarantor; and (iii)
Borrower may make Restricted Junior Payments to purchase its own
Capital Stock, up to an aggregate amount of $10,000,000.
7.6 Financial Covenants.
A. Minimum Fixed Charge Coverage Ratio. Borrower shall not
permit the ratio of (i) Consolidated EBITDA to (ii) Consolidated
Fixed Charges for any four consecutive Fiscal Quarter period
ending during any of the periods set forth below to be less than
the correlative ratio indicated:
Minimum Fixed
Period Charge Coverage Ratio
---------- -------------------------
4th Fiscal Quarter, Fiscal Year 2002 1.25:1.00
1st Fiscal Quarter, Fiscal Year 2003 1.25:1.00
2nd Fiscal Quarter, Fiscal Year 2003 1.25:1.00
3rd Fiscal Quarter, Fiscal Year 2003 1.25:1.00
4th Fiscal Quarter, Fiscal Year 2003 1.20:1.00
1st Fiscal Quarter, Fiscal Year 2004 1.35:1.00
and each Fiscal Quarter thereafter
B. Maximum Consolidated Total Leverage Ratio. Borrower shall
not permit the Consolidated Total Leverage Ratio as of the last
day of the most recently ended Fiscal Quarter ending during any
of the periods set forth below to exceed the correlative ratio
indicated:
Maximum Consolidated Total
Period Leverage Ratio
------------------ -----------------------------
4th Fiscal Quarter, Fiscal Year 2002 3.75:1.00
1st Fiscal Quarter, Fiscal Year 2003 3.75:1.00
2nd Fiscal Quarter, Fiscal Year 2003 3.75:1.00
3rd Fiscal Quarter, Fiscal Year 2003 3.75:1.00
4th Fiscal Quarter, Fiscal Year 2003 3.75:1.00
1st Fiscal Quarter, Fiscal Year 2004 3.50:1.00
2nd Fiscal Quarter, Fiscal Year 2004 3.50:1.00
3rd Fiscal Quarter, Fiscal Year 2004 3.25:1.00
4th Fiscal Quarter, Fiscal Year 2004 3.25:1.00
1st Fiscal Quarter, Fiscal Year 2005 3.00:1.00
2nd Fiscal Quarter, Fiscal Year 2005 3.00:1.00
3rd Fiscal Quarter, Fiscal Year 2005 3.00:1.00
4th Fiscal Quarter, Fiscal Year 2005 3.00:1.00
1st Fiscal Quarter, Fiscal Year 2006 2.75:1.00
2nd Fiscal Quarter, Fiscal Year 2006 2.75:1.00
3rd Fiscal Quarter, Fiscal Year 2006 2.75:1.00
4th Fiscal Quarter, Fiscal Year 2006 2.75:1.00
1st Fiscal Quarter, Fiscal Year 2007 2.50:1.00
and each Fiscal Quarter thereafter
C. Minimum Consolidated EBITDA. Borrower shall not permit
Consolidated EBITDA for the 12 month period ending the last day
of each period set forth below to be less than the correlative
amount indicated:
Period Minimum Consolidated EBITDA
---------------- ------------------------------
4th Fiscal Quarter, Fiscal Year 2002 $55,000,000
1st Fiscal Quarter, Fiscal Year 2003 $55,000,000
2nd Fiscal Quarter, Fiscal Year 2003 $55,000,000
3rd Fiscal Quarter, Fiscal Year 2003 $55,000,000
4th Fiscal Quarter, Fiscal Year 2003 $55,000,000
1st Fiscal Quarter, Fiscal Year 2004 $57,500,000
2nd Fiscal Quarter, Fiscal Year 2004 $57,500,000
3rd Fiscal Quarter, Fiscal Year 2004 $60,000,000
4th Fiscal Quarter, Fiscal Year 2004 $60,000,000
1st Fiscal Quarter, Fiscal Year 2005 $62,500,000
2nd Fiscal Quarter, Fiscal Year 2005 $62,500,000
3rd Fiscal Quarter, Fiscal Year 2005 $62,500,000
4th Fiscal Quarter, Fiscal Year 2005 $62,500,000
1st Fiscal Quarter, Fiscal Year 2006 $65,000,000
2nd Fiscal Quarter, Fiscal Year 2006 $65,000,000
3rd Fiscal Quarter, Fiscal Year 2006 $65,000,000
4th Fiscal Quarter, Fiscal Year 2006 $65,000,000
1st Fiscal Quarter, Fiscal Year 2007 $67,500,000
and each Fiscal Quarter thereafter
D. Minimum Consolidated Net Worth. Borrower shall not
permit Consolidated Net Worth at any time to be less than the sum of (i)
85% of Consolidated Net Worth on the Effective Date plus (ii) 80%
of positive Consolidated Net Income on a cumulative basis since
the Effective Date plus (iii) 100% of Net Securities Proceeds on
a cumulative basis since the Effective Date.
7.7 Restriction on Fundamental Changes; Asset Sales.
Borrower shall not, and shall not permit any of its
Subsidiaries to, alter the corporate, capital or legal structure
of Borrower or any of its Subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series
of transactions, all or any part of its business, property or
assets (including its notes or receivables and Capital Stock of a
Subsidiary, whether newly issued or outstanding), whether now
owned or hereafter acquired, or acquire by purchase or otherwise
all or substantially all the business, property or fixed assets
of, or stock or other evidence of beneficial ownership of, any
Person or any division or line of business of any Person (other
than purchases or other acquisitions of Inventory, materials and
equipment in the ordinary course of Borrower's, or any of its
Subsidiary's, business) except:
(i) any Subsidiary of Borrower may be merged with or into
Borrower or any wholly-owned Subsidiary Guarantor, or be
liquidated, wound up or dissolved, or all or any part of its
business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a
series of transactions, to Borrower or any wholly-owned
Subsidiary Guarantor; provided that, (i) in the case of such a
merger, Borrower or such wholly-owned Subsidiary Guarantor shall
be the continuing or surviving Person and (ii) in the case of
such a liquidation, winding up or dissolution, all of the assets
of such wholly-owned Subsidiary Guarantor are transferred to
Borrower or a Subsidiary Guarantor that is wholly owned, directly
or indirectly, by Borrower or as otherwise expressly permitted
under this Agreement;
(ii) Borrower and its Subsidiaries may sell or otherwise
dispose of assets in transactions that do not constitute Asset Sales;
provided that the consideration received for such assets shall be
in an amount at least equal to the fair market value thereof;
(iii) Borrower and its Subsidiaries may dispose of obsolete,
worn out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may make Asset Sales to
Persons who are not Affiliates of Borrower and its Subsidiaries
of assets having a fair market value not in excess of $1,000,000
in any Fiscal Year; provided that (a) the consideration received
for such assets shall be in an amount at least equal to the fair
market value thereof; (b) the sole consideration received shall
be Cash; and (c) the proceeds of such Asset Sales shall be
applied as required by subsection 2.4B(iii) or subsection 2.4D;
(v) In order to resolve disputes that occur in the ordinary
course of business, Borrower and its Subsidiaries may discount or
otherwise compromise for less than the face value thereof, notes
or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares
of Capital Stock of any of its Subsidiaries in order to qualify
members of the Governing Body of the Subsidiary if required by
applicable law;
(vii) Any Person may be merged with or into Borrower or any
of its Subsidiaries if the acquisition of the Capital Stock of
such Person by Borrower or such Subsidiary would have been
permitted pursuant to subsection 7.3(vi) and 7.7; provided that
(a) in the case of Borrower, Borrower shall be the continuing or
surviving Person, (b) if a Subsidiary of Borrower is not the
surviving or continuing Person, the surviving Person becomes a
Subsidiary of Borrower and complies with the provisions of
subsection 6.8 and 6.9 and (c) no Potential Event of Default or
Event of Default shall have occurred or be continuing after
giving effect thereto;
(viii)To the extent the sale of the Concho Golf and Country
Club located in the State of Arizona pursuant to that certain
Amended and Restated Agreement of Sale, dated June 28, 2002,
between T-S Holding and Country Club Properties of Concho, Inc.
is unwound, rescinded or otherwise terminated in any manner, T-S
Holding may reacquire title to such property and may further
transfer or otherwise dispose of such property in an arm's length
transaction to a Person that is not an Affiliate of Borrower or
any of its Subsidiaries resulting in Net Asset Sale Proceeds in
an amount not less than $500,000;
(ix) The sale, transfer or other disposition of all or any
part of the Mortgaged Property owned by Metric and located at 000 Xxxx
Xxxxxxx, Xxxx Xxxxxx Xxxxx, Xxxxxxx (and Administrative Agent
shall release the lien of the Florida Mortgage from the portion
of the 000 Xxxx Xxxxxxx property so sold, transferred or
disposed) so long as the Net Asset Sale Proceeds resulting
therefrom are in an amount not less than $1,800,000 for the
entire parcel located at 000 Xxxx Xxxxxxx or a pro rata amount
thereof if the transaction involves less than the entire parcel
and are used to construct a new facility on a portion of the
Mortgaged Property owned by Metric and encumbered by the Florida
Mortgage, provided that such construction shall commence within
180 days after Borrower's receipt of the Net Asset Sale Proceeds
from such sale, transfer or disposition;
(x) consummation of the Acquisition; and
(xi) the transfer of assets and liabilities of certain
operations of Borrower's Subsidiaries as part of a restructuring of
any of Borrower's Subsidiaries to the extent that the businesses or the
operations being combined are of a similar nature, pursuant to
such agreements in form and substance reasonably acceptable to
Administrative Agent.
7.8 Consolidated Capital Expenditures.
Borrower shall not, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures
(other than those in connection with Permitted Acquisitions made
in accordance with subsection 7.3(vi)) in an aggregate amount to
exceed $11,000,000 in any Fiscal Year prior to the date that the
Loans are indefeasibly paid in full. Upon Administrative Agent's
prior written request, Borrower shall provide any information
reasonably requested by Administrative Agent regarding any such
material Consolidated Capital Expenditure.
7.9 Sale or Discount of Receivables.
Except as otherwise permitted in subsection 7.7(v),
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, sell with recourse, or discount or
otherwise sell for less than the face value thereof, any of its
notes or accounts receivable.
7.10 Transactions with Shareholders and Affiliates.
A. Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with
any holder of 5% or more of any class of equity Securities of
Borrower or with any Affiliate of Borrower or of any such holder,
on terms that are less favorable to Borrower or that Subsidiary,
as the case may be, than those that might be obtained at the time
from Persons who are not such a holder or Affiliate; provided
that the foregoing restriction shall not apply to (i) any
transaction between Borrower and any of its wholly-owned domestic
Subsidiaries that are Subsidiary Guarantors or between any of its
wholly-owned domestic Subsidiaries that are Subsidiary
Guarantors, (ii) reasonable and customary fees paid to members of
the Governing Bodies of Borrower and its Subsidiaries or (iii) so
long as no Potential Event of Default or Event of Default shall
have occurred and be continuing or would arise as a result
thereof, a management fee paid by Borrower to Affiliates of
Veritas in an aggregate amount not to exceed $1,500,000 per year.
7.11 Sales and Lease-Backs
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, become or remain liable
as lessee or as a guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any
property (whether real, personal or mixed), whether now owned or
hereafter acquired in an aggregate amount in excess of $500,000,
(i) that Borrower or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other
than Borrower or any of its Subsidiaries) or (ii) that Borrower
or any of its Subsidiaries intends to use for substantially the
same purpose as any other property that has been or is to be sold
or transferred by Borrower or any of its Subsidiaries to any
Person (other than Borrower or any of its Subsidiaries) in
connection with such lease; provided that Borrower and its
Subsidiaries may become and remain liable as lessee, guarantor or
other surety with respect to any such lease if and to the extent
that Borrower or any of its Subsidiaries would be permitted to
enter into, and remain liable under, such lease to the extent
that the transaction would be permitted under clauses (iii) and
(vi) of subsection 7.1, assuming the sale and lease back
transaction constituted Indebtedness in a principal amount equal
to the gross proceeds of the sale.
7.12 Disposal of Subsidiary Stock.
Except for any sale of 100% of the Capital Stock of any
of its Subsidiaries in compliance with the provisions of clauses
(i), (iv), (vi), and (vii) of subsection 7.7, Borrower shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of Capital Stock of any of its
Subsidiaries, except to qualify directors if required by
applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any
shares of Capital Stock of any of its Subsidiaries (including
such Subsidiary), except to Borrower, another wholly-owned
domestic Subsidiary of Borrower, or to qualify directors if
required by applicable law.
7.13 Conduct of Business.
From and after the Effective Date, Borrower shall not,
and shall not permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by Borrower and
its Subsidiaries on the Effective Date and similar or related
businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders.
7.14 Intentionally Deleted .
7.15 Fiscal Year; Tax Election.
Borrower shall not change its Fiscal Year-end from
December 31 unless Administrative Agent and Borrower have agreed
to such amendments to the computation of any financial ratio or
requirement set forth in any Loan Document that would be affected
by such change in Fiscal Year-end that are necessary to preserve
the original intent of such financial ratios and requirements
(subject to the approval of Requisite Lenders).
7.16 Restriction on Leases.
Borrower shall not, and shall not permit any of its
Subsidiaries to, become liable in any way, whether directly or by
assignment or as a guarantor or other surety, for the obligations
of the lessee under any lease (other than the intercompany leases
between Borrower and its wholly-owned Subsidiaries), unless,
immediately after giving effect to the incurrence of liability
with respect to such lease, the Consolidated Rental Payments at
the time in effect during the then current Fiscal Year do not
exceed $8,500,000 in the aggregate.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events
of Default") shall occur:
8.1 Failure to Make Payments When Due.
Failure by Borrower to pay any installment of principal
of any Loan when due, whether at stated maturity, by
acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; failure by Borrower to pay when due any
amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by Borrower to pay
any interest on any Loan or any fee or any other amount due under
this Agreement within three Business Days after the date due; or
8.2 Default in Other Indebtedness.
(i) Failure of Borrower or any of its Subsidiaries to
pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than
Indebtedness referred to in subsection 8.1) or Contingent
Obligations with an aggregate principal amount of $250,000 or
more, in each case beyond the end of any grace period provided
therefor (not to exceed 30 days); or
(ii) breach or default by Borrower or any of its Subsidiaries
with respect to any other material term of (a) one or more items
of Indebtedness or Contingent Obligations in the individual or
aggregate principal amount referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to
its stated maturity or the stated maturity of any underlying
obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
Failure of Borrower to perform or comply with any term
or condition contained in subsections 2.5 or 6.1(ix) and 6.1(xix)
or 6.2 or Section 7 of this Agreement; or
8.4 Breach of Warranty.
Any representation, warranty, certification or other
statement made by Borrower or any of its Subsidiaries in any Loan
Document or in any statement or certificate at any time given by
Borrower or any of its Subsidiaries in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false in
any material respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any of
the other Loan Documents, other than any such term referred to in
any other subsection of this Section 8, and such default shall
not have been remedied or waived within 30 days after the earlier
of (i) an Officer of Borrower or such Loan Party becoming aware
of such default or (ii) receipt by Borrower and such Loan Party
of notice from Administrative Agent or any Lender of such
default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Borrower or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law
now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable
federal or state law; or
(ii) an involuntary case shall be commenced against Borrower or
any of its Subsidiaries under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Borrower or any of its Subsidiaries,
or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of
Borrower or any of its Subsidiaries for all or a substantial part
of its property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of
the property of Borrower or any of its Subsidiaries, and any such
event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Borrower or any of its Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case
under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect,
or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or
Borrower or any of its Subsidiaries shall make any assignment for
the benefit of creditors; or
(ii) Borrower or any of its Subsidiaries shall be unable, or
shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the Governing Body of
Borrower or any of its Subsidiaries (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to in clause (i) above or
this clause (ii); or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or
similar process involving in the aggregate at any time an amount
in excess of $250,000 (in a case not adequately covered by
insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) shall be entered or filed
against Borrower or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of 30 days (or in any event
later than five days prior to the date of any proposed sale
thereunder); or
8.9 Dissolution.
Any order, judgment or decree shall be entered against
Borrower or any of its Subsidiaries decreeing the dissolution or
split up of Borrower or that Subsidiary and such order shall
remain undischarged or unstayed for a period in excess of 30
days; or
8.10 Employee Benefit Plans.
There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably
be expected to result in liability of Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in
excess of $5,000,000 during the term of this Agreement; or there
shall exist, as evidenced by the most recent annual valuation,
without regard to interim estimated valuations, an amount of
Unfunded Benefit Liabilities, individually or in the aggregate
for all Pension Plans (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds $5,000,000; or
8.11 Change in Control.
A Change in Control shall have occurred; or
8.12 Invalidity of Loan Documents; Repudiation of Obligations.
At any time after the execution and delivery thereof,
(i) any Loan Document or any provision thereof shall cease to be
in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, (ii)
Administrative Agent shall not have or shall cease to have a
valid and perfected First Priority Lien in any Collateral
purported to be covered by the Collateral Documents, in each case
for any reason other than the failure of Administrative Agent or
any Lender to take any commercially reasonable action solely
within its control, or (iii) any Loan Party shall contest the
validity or enforceability of any Loan Document or any provision
thereof in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders,
under any Loan Document or any provision thereof to which it is a
party; or
8.13 Government Contracts and Material Contracts.
A. (i) There shall be a material default under any material
Government Contract or other Material Contract; (ii) a notice of
termination shall have been issued under any material Government
Contract or other Material Contract; or (iii) a cure notice
issued under any material Government Contract or other Material
Contract shall remain uncured beyond (x) the expiration of the
time period available to Borrower or other Loan Party, as
applicable, pursuant to such material Government Contract or
other Material Contract and/or such cure notice (as the case may
be), to cure the noticed default, or (y) the date on which the
other contracting party is entitled to exercise its rights and
remedies under the material Government Contract or other Material
Contract as a consequence of such default; or
B. (i) Borrower or any of its Subsidiaries is disbarred or
suspended from contracting with any Governmental Authority; (ii)
a notice of debarment or suspension has been issued to or
received by Borrower or any of its Subsidiaries; or (iii) an
investigation or inquiry by any Governmental Authority relating
to any Loan Party and involving fraud, deception or willful
misconduct shall have been commenced in connection with any
material Government Contract or other Material Contract or any
Loan Party's activities which, if adversely determined, could
reasonable be expected to result in the termination of such
material Government Contract or other Material Contract or, with
respect to any Loan Party's activities, could reasonably be
expected to have a Material Adverse Effect; or
8.14 Uninsured Damage.
Any uninsured damage to or losses, theft or destruction
of any of the assets of Borrower or any of its Subsidiaries
occurs in excess of $3,000,000 in the aggregate; or
8.15 Failure to Consummate the Transactions.
The Transactions shall not be consummated in accordance
with this Agreement, and in the case of the Acquisition, in
accordance with the Acquisition Agreement and the Related
Agreements, prior to or concurrently with the making of the
initial Loans, or the Transactions shall be unwound, reversed or
otherwise rescinded in whole or in part for any reason; or
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of
and accrued interest on the Loans, (b) an amount equal to the
maximum amount that may at any time be drawn under all Letters of
Credit then outstanding (whether or not any beneficiary under any
such Letter of Credit shall have presented, or shall be entitled
at such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit), and
(c) all other Obligations shall automatically become immediately
due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly
waived by Borrower, and the obligation of each Lender to make any
Loan, the obligation of any Issuing Lender to issue any Letter of
Credit and the right of any Lender to issue any Letter of Credit
hereunder shall thereupon terminate, and (ii) upon the occurrence
and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to
Borrower, declare all or any portion of the amounts described in
clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, and the obligation of each
Lender to make any Loan, the obligation of Administrative Agent
to issue any Letter of Credit and the right of any Lender to
issue any Letter of Credit hereunder shall thereupon terminate;
provided that the foregoing shall not affect in any way the
obligations of Lenders under subsection 3.3C(i).
Any amounts described in clause (b) above, when
received by Administrative Agent, shall be held by Administrative
Agent pursuant to the terms of the Security Agreement and shall
be applied as therein provided.
Notwithstanding anything contained in the second
preceding paragraph, if at any time within 60 days after an
acceleration of the Loans pursuant to clause (ii) of such
paragraph Borrower shall pay all arrears of interest and all
payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on
principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-
payment of the principal of and accrued interest on the Loans, in
each case which is due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to subsection
10.6, then Requisite Lenders, by written notice to Borrower, may
at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent
Event of Default or Potential Event of Default or impair any
right consequent thereon and, if the Commitments of the Lenders
to make Loans and issue or participate in Letters of Credit have
been terminated pursuant to clause (ii), such Commitments shall
be reinstated only with the approval of each Lender directly
affected. The provisions of this paragraph are intended merely
to bind Lenders to a decision which may be made at the election
of Requisite Lenders and are not intended, directly or
indirectly, to benefit Borrower, and such provisions shall not at
any time be construed so as to grant Borrower the right to
require Lenders to rescind or annul any acceleration hereunder or
to preclude Administrative Agent or Lenders from exercising any
of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are
met.
Section 9. ADMINISTRATIVE AGENT
9.1 Appointment.
A. Appointment of Administrative Agent. CIBC is hereby
appointed Administrative Agent hereunder and under the other Loan
Documents and each Lender hereby authorizes Administrative Agent
to act as its administrative agent in accordance with the terms
of this Agreement and the other Loan Documents. Administrative
Agent agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of
Administrative Agent and Lenders and no Loan Party shall have any
rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties under this
Agreement, Administrative Agent shall act solely as an
Administrative Agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship
of agency or trust with or for Borrower or any of its
Subsidiaries.
B. Appointment of Supplemental Collateral Agents. It is the
purpose of this Agreement and the other Loan Documents that there
shall be no violation of any law of any jurisdiction denying or
restricting the right of banking corporations or associations to
transact business as agent or trustee in such jurisdiction. It
is recognized that in case of litigation under this Agreement or
any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case
Administrative Agent deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the
rights, powers or remedies granted herein or in any of the other
Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that
Administrative Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent
or collateral co-administrative agent (any such additional
individual or institution being referred to herein individually
as a "Supplemental Collateral Agent" and collectively as
"Supplemental Collateral Agents").
If Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and
every right, power, privilege or duty expressed or intended by
this Agreement or any of the other Loan Documents to be exercised
by or vested in or conveyed to Administrative Agent with respect
to such Collateral shall be exercisable by and vest in such
Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to
exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the
Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be
enforceable by either Administrative Agent or such Supplemental
Collateral Agent, and (ii) the provisions of this Section 9 and
of subsections 10.2 and 10.3 that refer to Administrative Agent
shall inure to the benefit of such Supplemental Collateral Agent
and all references therein to Administrative Agent shall be
deemed to be references to Administrative Agent and/or such
Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Borrower or any
other Loan Party be required by any Supplemental Collateral Agent
so appointed by Administrative Agent for more fully and certainly
vesting in and confirming to him or it such rights, powers,
privileges and duties, Borrower shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In
case any Supplemental Collateral Agent, or a successor thereto,
shall die, become incapable of acting, resign or be removed, all
the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in
and be exercised by Administrative Agent until the appointment of
a new Supplemental Collateral Agent.
9.2 Powers and Duties; General Immunity.
X. Xxxxxx; Duties Specified. Each Lender irrevocably
authorizes Administrative Agent to take such action on such
Lender's behalf and to exercise such powers, rights and remedies
hereunder and under the other Loan Documents as are specifically
delegated or granted to Administrative Agent by the terms hereof
and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. Administrative Agent shall
have only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents.
Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or
employees. Administrative Agent shall not have, by reason of
this Agreement or any of the other Loan Documents, a fiduciary
relationship in respect of any Lender; and nothing in this
Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose
upon Administrative Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly
set forth herein or therein.
B. No Responsibility for Certain Matters. Administrative Agent
shall not be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any other Loan
Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
statements or in any financial or other statements, instruments,
reports or certificates or any other documents furnished or made
by Administrative Agent to Lenders or by or on behalf of Borrower
to Administrative Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Borrower or any other
Person liable for the payment of any Obligations, nor shall
Administrative Agent be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans the use
of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding
Loans or the Letter of Credit Usage or the component amounts
thereof.
C. Exculpatory Provisions. Neither Administrative Agent nor
any of its officers, directors, employees or agents shall be
liable to Lenders for any action taken or omitted by
Administrative Agent under or in connection with any of the Loan
Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. Administrative Agent
shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from
the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until Administrative Agent
shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to
give such instructions under subsection 10.6) and, upon receipt
of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), Administrative Agent shall be
entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance
with such instructions. Without prejudice to the generality of
the foregoing, (i) Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who
may be attorneys for Borrower and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and
(ii) no Lender shall have any right of action whatsoever against
Administrative Agent as a result of Administrative Agent acting
or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with
the instructions of Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6).
D. Administrative Agent Entitled to Act as Lender. The agency
hereby created shall in no way impair or affect any of the rights
and powers of, or impose any duties or obligations upon,
Administrative Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and
the Letters of Credit, Administrative Agent shall have the same
rights and powers hereunder as any other Lender and may exercise
the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Administrative Agent in its
individual capacity. Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with
Borrower or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other
consideration from Borrower for services in connection with this
Agreement and otherwise without having to account for the same to
Lenders.
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness.
Each Lender represents and warrants that it has made
its own independent investigation of the financial condition and
affairs of Borrower and its Subsidiaries in connection with the
making of the Loans hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of
Borrower and its Subsidiaries. Administrative Agent shall not
have any duty or responsibility, either initially or on a
continuing basis, to make any such investigation or any such
appraisal on behalf of Lenders or to provide any Lender with any
credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time
or times thereafter, and Administrative Agent shall not have any
responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify Administrative Agent and its
officers, directors, employees, agents, attorneys, professional
advisors and affiliates, to the extent that Administrative Agent
or such Person shall not have been reimbursed by Borrower, for
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against Administrative Agent in exercising its
powers, rights and remedies or performing its duties hereunder or
under the other Loan Documents or otherwise in its capacity as
Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents; provided that no
Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from
Administrative Agent's gross negligence or willful misconduct as
determined by a final judgment of a court of competent
jurisdiction. If any indemnity furnished to Administrative Agent
or any other such Person for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
9.5 Successor Administrative Agent.
A. Successor Administrative Agent. Administrative Agent may
resign at any time by giving 30 days' prior written notice
thereof to Lenders and Borrower, and Administrative Agent may be
removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Borrower and
Administrative Agent and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five Business Days' notice to
Borrower, to appoint a successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this
Agreement.
9.6 Collateral Documents and Subsidiary Guaranty.
Each Lender hereby further authorizes Administrative
Agent, on behalf of and for the benefit of Lenders, to enter into
each Collateral Document as secured party and to be
Administrative Agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the
terms of each Collateral Document and the Subsidiary Guaranty;
provided that Administrative Agent shall not (i) enter into or
consent to any material amendment, modification, termination or
waiver of any provision contained in any Collateral Document or
any of the Subsidiary Guaranty or (ii) release any Collateral or
Subsidiary Guarantor (except as otherwise expressly permitted or
required pursuant to the terms of this Agreement or the
applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to
subsection 10.6, all Lenders); provided further, however, that,
without further written consent or authorization from Lenders,
Administrative Agent may execute any documents or instruments
necessary to (a) release any Lien encumbering any item of
Collateral that is the subject of a sale or other disposition of
assets permitted by this Agreement or to which Requisite Lenders
have otherwise consented, (b) release any Subsidiary Guarantor
from the Subsidiary Guaranty if all of the Capital Stock of such
Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Borrower) pursuant to a sale or other disposition
permitted hereunder or to which Requisite Lenders have otherwise
consented or (c) subordinate the Liens of Administrative Agent,
on behalf of Lenders, to any Liens permitted by subsection 7.2
provided that, in the case of a sale of such item of Collateral
or stock referred to in subclause (a) or (b), the requirements of
subsection 10.14 are satisfied. Anything contained in any of the
Loan Documents to the contrary notwithstanding, Borrower,
Administrative Agent and each Lender hereby agree that (X) no
Lender shall have any right individually to realize upon any of
the Collateral under any Collateral Document or to enforce any
Guaranty, it being understood and agreed that all powers, rights
and remedies under the Collateral Documents and the Subsidiary
Guaranty may be exercised solely by Administrative Agent for the
benefit of Lenders in accordance with the terms thereof, and (Y)
in the event of a foreclosure by Administrative Agent on any of
the Collateral pursuant to a public or private sale,
Administrative Agent or any Lender may be the purchaser of any or
all of such Collateral at any such sale and Administrative Agent,
as Administrative Agent for and representative of Lenders (but
not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in
writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the
purchase price for any Collateral payable by Administrative Agent
at such sale.
9.7 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
Borrower or any of the Subsidiaries of Borrower, Administrative
Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall
have made any demand on Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Loans and any
other Obligations that are owing and unpaid and to file such
other papers or documents as may be necessary or advisable in
order to have the claims of Lenders and Agents (including any
claim for the reasonable compensation, expenses, disbursements
and advances of Lenders and Agents and their agents and counsel
and all other amounts due Lenders and Agents under subsections
2.3 and 10.2) allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such
payments to Administrative Agent and, if Administrative Agent
shall consent to the making of such payments directly to Lenders,
to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agents and
their agents and counsel, and any other amounts due Agents under
subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations
or the rights of any Lenders or to authorize Administrative Agent
to vote in respect of the claim of any Lender in any such
proceeding.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of
Credit.
A. General. Subject to subsections 10.1B and 10.1C, each
Lender shall have the right at any time to (i) sell, assign or
transfer to any Eligible Assignee, or (ii) sell participations to
any Person in, all or any part of its Commitments or any Loan or
Loans made by it or its Letters of Credit (or participations in
Letters of Credit) or any other interest herein or in any other
Obligations owed to it; provided that no such sale, assignment,
transfer or participation shall, without the consent of Borrower,
require Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale,
assignment, transfer or participation under the securities laws
of any state; provided, further, that no such sale, assignment or
transfer described in clause (i) above shall be effective unless
and until an Assignment Agreement effecting such sale, assignment
or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); and
provided, further, that no such sale, assignment or transfer of
any Letter of Credit or any participation therein may be made
separately from a sale, assignment, transfer or participation of
a corresponding interest in the Revolving Loan Commitment and the
Revolving Loans of the Lender effecting such sale, assignment,
transfer or participation. Except as otherwise provided in this
subsection 10.1, no Lender shall, as between Borrower and such
Lender, be relieved of any of its obligations hereunder as a
result of any sale, assignment or transfer of, or any granting of
participations in, all or any part of its Commitments or the
Loans, or participations therein, or the other Obligations owed
to such Lender, and such Lender shall remain solely responsible
for the performance of such Obligations, and Borrower shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment or Loan
may (a) be assigned in any amount to another Lender, or to an
Affiliate or Approved Fund of the assigning Lender or another
Lender, with the giving of notice to Borrower and Administrative
Agent or (b) be assigned in an aggregate amount of not less than
$1,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments or Loans of the assigning
Lender) to any other Eligible Assignee treating any two or more
Approved Funds with the same investment advisor as a single
Eligible Assignee with the consent of Borrower (unless a
Potential Event of Default or an Event of Default has occurred
and is continuing) and Administrative Agent (which consent of
Borrower and Administrative Agent shall not be unreasonably
withheld or delayed); provided that each partial assignment shall
be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement.
To the extent of any such assignment in accordance with either
clause (a) or (b) above, the assigning Lender shall be relieved
of its obligations with respect to its Commitments or Loans or
the portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative Agent, for
its acceptance and recording in the Register, an Assignment
Agreement, together with a processing and recordation fee of
$3,500 and such forms (including an administrative questionnaire
if the Eligible Assignee is not a Lender), certificates or other
evidence, if any, with respect to United States federal income
tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a). Upon such execution,
delivery, acceptance and recordation, from and after the
effective date specified in such Assignment Agreement, (y) the
assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it
pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder, and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 10.9B)
and be released from its obligations under this Agreement (and,
in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto; provided that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is the
Issuing Lender with respect to any outstanding Letters of Credit
such Lender shall continue to have all rights and obligations of
an Issuing Lender with respect to such Letters of Credit until
the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender
and, if any such assignment occurs after the issuance of any
Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes, if any, to
Administrative Agent for cancellation, and thereupon new Notes
shall, if so requested by the assignee and/or the assigning
Lender in accordance with subsection 2.1E, be issued to the
assignee and/or to the assigning Lender, substantially in the
form of Exhibit V, Exhibit VI or Exhibit VII annexed hereto, as
the case may be, with appropriate insertions, to reflect the new
Commitments and/or outstanding Revolving Loans and/or outstanding
Term Loans, as the case may be, of the assignee and/or the
assigning Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply
with this subsection 10.1B shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection 10.1C.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an
Eligible Assignee, together with the processing and recordation
fee (if so required) referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United
States federal income tax withholding matters that such assignee
may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii)(a), Administrative Agent shall, if
Administrative Agent (and if necessary, Borrower) has consented
to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)),
(a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein (which acceptance shall evidence any
required consent of Administrative Agent to such assignment),
(b) record the information contained therein in the Register, and
(c) give prompt notice thereof to Borrower. Administrative Agent
shall maintain a copy of each Assignment Agreement delivered to
and accepted by it as provided in this subsection 10.1B(ii).
C. Participations. Any Lender may, without the consent of, or
notice to, Borrower or Administrative Agent, sell participations
to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under
this Agreement (including all or a portion of its Commitment
and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and
(iii) Borrower, Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to
approve any amendment, modification or waiver of any provision of
the Loan Documents; provided that such agreement or instrument
may provide that such Lender will not, without the consent of
such Participant, agree to any amendment, modification or waiver
that affects such Participant if such amendment, modification or
waiver requires the unanimous written consent of all Lenders
pursuant to subsection 10.6. Subject to subsection 10.1D,
Borrower agrees that each Participant shall be entitled to the
benefits of subsections 2.6D, 2.7, and 3.6 to the same extent as
if it were a Lender and had acquired its interest by assignment
pursuant to subsection 10.1B; provided, however, that in no event
shall Borrower be obligated to make any payment with respect to
such subsections which is greater than the amount that Borrower
would have paid to the Lender had no such participation been
sold. To the extent permitted by law, if any amounts outstanding
under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence
of an Event of Default, each participant shall be deemed to have
the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as
a Lender under this Agreement.
D. No Greater Payments to Participants. A Participant shall
not be entitled to receive any greater payment under subsections
2.6D, 2.7, and 3.6 than the applicable Lender would have been
entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with Borrower's prior written consent. A
Participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of subsection 2.7 unless
Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of
Borrower, to comply with subsection 2.7B(iii) as though it were a
Lender.
E. Assignments to Secured Parties and Trustees. In addition to
the assignments and participations permitted under the foregoing
provisions of this subsection 10.1, (a) any Lender may assign and
pledge all or any portion of its Loans, the other Obligations
owed to such Lender, and its Notes to any creditor, including any
Federal Reserve Bank, as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve
System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Borrower and
such Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event
shall such creditor be considered to be a "Lender" or be entitled
to require the assigning Lender to take or omit to take any
action hereunder, (b) any Lender which is a Fund may pledge its
Loans and/or Notes to its trustee for the benefit of its
investors without consent by or notice to Borrower or
Administrative Agent.
F. Information. Each Lender may furnish any information
concerning Borrower and its Subsidiaries in the possession of
that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to
subsection 10.19.
G. Representations of Lenders. Each Lender listed on the
signature pages hereof hereby represents and warrants (i) that it
is an Eligible Assignee described in clause (A) of the definition
thereof; (ii) that it has experience and expertise in the making
of loans such as the Loans; and (iii) that it will make its Loans
for its own account in the ordinary course of its business and
without a present view to distribution of such Loans within the
meaning of the Securities Act or the Exchange Act or other
federal securities laws (it being understood that, subject to the
provisions of this subsection 10.1, the disposition of such Loans
or any interests therein shall at all times remain within its
exclusive control). Each Lender that becomes a party hereto
pursuant to an Assignment Agreement shall be deemed to agree that
the representations and warranties of such Lender contained in
such Assignment Agreement are incorporated herein by this
reference.
10.2 Expenses.
Whether or not the transactions contemplated hereby
shall be consummated, Borrower agrees to pay promptly (i) all the
actual and reasonable costs and expenses of preparation of the
Loan Documents and any consents, amendments, waivers or other
modifications thereto; (ii) all the costs of furnishing all
opinions by counsel for Borrower (including any opinions
requested by Lenders as to any legal matters arising hereunder)
and of Borrower's performance of and compliance with all
agreements and conditions on its part to be performed or complied
with under this Agreement and the other Loan Documents including
with respect to confirming compliance with environmental,
insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of counsel to Administrative Agent in
connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents,
amendments, waivers or other modifications thereto and any other
documents or matters requested by Borrower; (iv) all the actual
costs and reasonable expenses of creating and perfecting Liens in
favor of Administrative Agent on behalf of Lenders pursuant to
any Collateral Document, including filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and
disbursements of counsel to Administrative Agent and of counsel
providing any opinions that Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the
Liens created pursuant thereto; (v) all the actual costs and
reasonable expenses (including the reasonable fees, expenses and
disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed
or retained by Administrative Agent or its counsel) of obtaining
and reviewing any environmental audits or reports provided for as
a result of its due diligence or 6.7C and any audits or reports
provided for under subsection 4.1M or 6.5B with respect to
Inventory and accounts receivable of Borrower and its
Subsidiaries; (vi) the custody or preservation of any of the
Collateral; (vii) all other actual and reasonable costs and
expenses incurred by Administrative Agent in connection with the
syndication of the Commitments and the negotiation, preparation
and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and the transactions
contemplated thereby; (viii) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys'
fees (including allocated costs of internal counsel) and fees,
costs and expenses of accountants, advisors and consultants,
incurred by Administrative Agent and its counsel relating to
efforts to (a) evaluate or assess any Loan Party, its business or
financial condition and (b) protect, evaluate, assess or dispose
of any of the Collateral; and (ix) all costs and expenses,
including reasonable attorneys' fees (including allocated costs
of internal counsel), fees, costs and expenses of accountants,
advisors and consultants and costs of settlement, incurred by
Administrative Agent and each Lender in enforcing any Obligations
of or in collecting any payments due from any Loan Party
hereunder or under the other Loan Documents by reason of such
Event of Default (including in connection with the sale of,
collection from, or other realization upon any of the Collateral
or the enforcement of the Subsidiary Guaranty) or in connection
with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 Indemnity.
In addition to the payment of expenses pursuant to
subsection 10.2, whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to defend (subject
to Indemnitees' selection of counsel), indemnify, pay and hold
harmless Administrative Agent and Lenders, and the officers,
directors, employees, counsel, agents, representatives, trustees,
advisors and affiliates of Administrative Agent and Lenders
(collectively called the "Indemnitees"), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided
that Borrower shall not have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross
negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means,
collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, actions,
judgments, suits, claims (including Environmental Claims and
Releases), costs (including the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove,
remediate, clean up or xxxxx any Hazardous Materials Activity),
expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative
or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a party
or a potential party thereto, and any fees or expenses incurred
by Indemnitees in enforcing this indemnity), whether direct,
indirect or consequential and whether based on any federal, state
or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations
and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or
asserted against any such Indemnitee, in any manner relating to
or arising out of (i) this Agreement or the other Loan Documents
or the Transactions or the transactions contemplated hereby or
thereby (including Lenders' agreement to make the Loans hereunder
or the use or intended use of the proceeds thereof or the
issuance of Letters of Credit hereunder or the use or intended
use of any thereof, or any enforcement of any of the Loan
Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty), (ii) the statements contained in the
commitment letter delivered by any Lender to Borrower or
Administrative Agent with respect thereto, and/or (iii) any
Environmental Claim or any Hazardous Materials Activity relating
to or arising from, directly or indirectly, any past or present
activity, operation, land ownership, or practice of Borrower or
any of its Subsidiaries.
To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in this subsection
10.3 may be unenforceable in whole or in part because they are
violative of any law or public policy, Borrower shall contribute
the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
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
is hereby authorized by Borrower at any time or from time to
time, without notice to Borrower 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 or other amounts
held by any Lender (or any Affiliate of that Lender) for the
credit or account of Borrower (general or special, time or
demand, provisional or final, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time
held or owing by that Lender (or any Affiliate of that Lender) to
or for the credit or the account of Borrower and each other Loan
Party against and on account of the Obligations of Borrower and
each other Loan Party to that Lender (or any Affiliate of that
Lender) under this Agreement, the Letters of Credit and
participations therein and the other Loan Documents, including
all claims of any nature or description arising out of or
connected with this Agreement, the Letters of Credit and
participations therein or any other Loan Document, irrespective
of whether or not (i) that Lender shall have made any demand
hereunder or (ii) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other
amounts due hereunder or under any of the other Loan Documents
shall have become due and payable pursuant to Section 8 and
although said obligations and liabilities, or any of them, may be
contingent or unmatured. Borrower hereby further grants to
Administrative Agent and each Lender a security interest in all
deposits and accounts maintained with Administrative Agent or
such Lender as security for the Obligations.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of
them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms
of this Agreement), by realization upon security, through the
exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right
under the Loan Documents or otherwise, or as adequate protection
of a deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and
owing to that Lender hereunder or under the other Loan Documents
(collectively, the "Aggregate Amounts Due" to such Lender) that
is greater than the proportion received by any other Lender in
respect of the Aggregate Amounts Due to such other Lender, then
the Lender receiving such proportionately greater payment shall
(i) notify Administrative Agent and each other Lender of the
receipt of such payment and (ii) apply a portion of such payment
to purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously upon
the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them
hereunder; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization
of Borrower or otherwise (and whether by litigation, demand,
settlement or otherwise), those purchases shall be rescinded and
the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such
recovery, but without interest. Borrower expressly consents to
the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of
banker's lien, set-off or counterclaim with respect to any and
all monies owing by Borrower to that holder with respect thereto
as fully as if that holder were owed the amount of the
participation held by that holder.
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of
any provision of this Agreement or of the Notes or of any of the
other Loan Documents, and no consent to any departure by Borrower
herefrom or therefrom, shall in any event be effective without
the written concurrence of Requisite Lenders; unless otherwise
provided elsewhere in this Agreement; provided that in addition:
(a) any such amendment, modification, termination,
waiver or consent which:
(i) postpones the date or reduces the amount of any scheduled
payment of principal of any of the Loans;
(ii) postpones the date on which any interest or any fees are
payable or reduces the amount of any interest or any fees payable
hereunder;
(iii) changes in any manner the definition of "Pro Rata
Share", the definition of "Requisite Lenders";
(iv) changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of
all Lenders;
(v) releases any Lien granted in favor of Administrative Agent
with respect to all or substantially all of the Collateral;
(vi) releases all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guaranty,
in each case other than in accordance with the terms of the Loan
Documents; or
(vii) changes in any manner the provisions contained in
subsection 8.1 or this subsection 10.6;
shall be effective only if evidenced by the written
concurrence of all Lenders.
In addition, any release of any Lien granted in favor
of Administrative Agent with respect to a material portion of the
Collateral shall be effective only if evidenced by the written
concurrence of Lenders having or holding not less than 66 2/3% of
the sum of the aggregate Tranche A Term Loan Exposures, the
Tranche B Term Loan Exposures and the Revolving Loan Exposures of
all Lenders.
In addition,
(b) no amendment, modification, termination or waiver
of any provision of any Note shall be effective without the
written concurrence of the Lender that is the holder of that
Note;
(c) no amendment, modification, termination or waiver
of any provision of subsection 2.1A(i)-2.1A(iii) or of any other
provision of this Agreement relating to the Term Loan Commitments
or the Revolving Loan Commitments shall increase the Commitments
of any Lender over the amount thereof then in effect without the
consent of Requisite Lenders and such Lender (it being understood
that amendments, modifications or waivers of conditions
precedent, representations and warranties, covenants or Events of
Default or of a mandatory reduction in the Commitments shall not
constitute an increase of the Commitment of any Lender, and that
an increase in the available portion of any Commitment of any
Lender shall not constitute an increase in the Commitment of such
Lender); and
(d) no amendment, modification, termination or waiver
of any provision of Section 9 or of any other provision of this
Agreement that, by its terms, expressly requires the approval or
concurrence of Administrative Agent shall be effective without
the written concurrence of Administrative Agent.
Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No
notice to or demand on Borrower in any case shall entitle
Borrower to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this subsection
10.6 shall be binding upon each Lender at the time outstanding,
each future Lender and, if signed by Borrower, on Borrower.
Notwithstanding anything contained herein to the contrary, as
among Lenders and Administrative Agent in connection with the
exercise of remedies under any of Loan Documents, the written
concurrence of Requisite Lenders shall be required for
Administrative Agent to execute proxy rights in the election of
the board of directors of any Loan Party owning real property or
to acquire any ownership interest in real property of any Loan
Party.
10.7 Independence of Covenants.
All covenants hereunder shall be given independent
effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence
of an Event of Default or Potential Event of Default if such
action is taken or condition exists.
10.8 Notices; Effectiveness of Signatures.
Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service
and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile or telex, or
three Business Days after depositing it in the United States mail
with postage prepaid and properly addressed; provided that
notices to Administrative Agent shall not be effective until
received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the
signature pages hereof or (i) as to Borrower and Administrative
Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to
Administrative Agent. A courtesy copy of any notice delivered to
Borrower or any other Loan Party will be delivered to Winston &
Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx X. Xxxx, Esq., Facsimile No. (000) 000-0000; provided,
however, Administrative Agent and Lenders shall no liability for
any failure to deliver a courtesy copy to Xx. Xxxx and any
failure to deliver such notice to Xx. Xxxx shall not affect the
validity or effectiveness of any notice delivered to Borrower or
any other Loan Party in accordance with the terms of this
Agreement.
Electronic mail may be used to distribute routine
communications, such as financial statements and other
information; provided, however, that no signature with respect to
any notice, request, agreement, waiver, amendment or other
document or any notice that is intended to have binding effect
may be sent by electronic mail.
Loan Documents and notices under the Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable
law, have the same force and effect as an original copy with
manual signatures and shall be binding on all Loan Parties,
Agents and Lenders. Administrative Agent may also require that
any such documents and signature be confirmed by a manually-
signed copy thereof; provided, however, that the failure to
request or deliver any such manually-signed copy shall not affect
the effectiveness of any facsimile document or signature.
10.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and
the making of the Loans and the issuance of the Letters of Credit
hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Borrower set forth in
subsections 2.6D, 2.7, 3.5A, 3.6, 10.2, 10.3, 10.4, 10.17, and
10.18 and the agreements of Lenders set forth in subsections
9.2C, 9.4, 10.5 and 10.18 shall survive the payment of the Loans,
the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the
termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of Administrative Agent
or any Lender in the exercise of any power, right or privilege
hereunder or under any other Loan Document shall impair such
power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement
and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
Neither Administrative Agent nor any Lender shall be
under any obligation to marshal any assets in favor of Borrower
or any other party or against or in payment of any or all of the
Obligations. To the extent that Borrower makes a payment or
payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, any other state or federal law,
common law or any equitable cause (whether by litigation, demand,
settlement or otherwise), then, to the extent of such recovery,
the obligation or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor or related
thereto, shall be revived and continued in full force and effect
as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 Severability.
In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13 Obligations Several; Independent Nature of Lenders'
Rights.
The obligations of Lenders hereunder are several and no
Lender shall be responsible for the obligations or Commitments of
any other Lender hereunder. Nothing contained herein or in any
other Loan Document, and no action taken by Lenders pursuant
hereto or thereto, shall be deemed to constitute Lenders, or
Lenders and Borrower, as a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any
time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce
its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14 Release of Security Interest or Guaranty.
Upon the proposed sale or other disposition of any
Collateral that is permitted by this Agreement or to which
Requisite Lenders have otherwise consented, or the sale or other
disposition of all of the Capital Stock of a Subsidiary Guarantor
to any Person (other than to a Subsidiary Guarantor) permitted by
this Agreement or to which Requisite Lenders have otherwise
consented, for which a Loan Party desires to obtain a security
interest release or a release of the Subsidiary Guaranty from
Administrative Agent, such Loan Party shall deliver an Officer's
Certificate (i) stating that the Collateral or the Capital Stock
subject to such disposition is being sold or otherwise disposed
of in compliance with the terms hereof and (ii) specifying the
Collateral or Capital Stock being sold or otherwise disposed of
in the proposed transaction. Upon the receipt of such Officer's
Certificate, Administrative Agent shall, at such Loan Party's
expense, so long as Administrative Agent (a) has no reason to
believe that the facts stated in such Officer's Certificate are
not true and correct, and (b) if the sale or other disposition of
such item of Collateral or Capital Stock constitutes an Asset
Sale, shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery of
the Net Asset Sale Proceeds if and as required by subsection 2.4,
execute and deliver such releases of its security interest in
such Collateral or such Subsidiary Guaranty, as may be reasonably
requested by such Loan Party.
10.15 Applicable Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES.
10.16 Successors and Assigns.
The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that
Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by Borrower
without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, Affiliates of Administrative Agent
and Affiliates of Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
10.17 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX,
XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS
AGREEMENT, BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO BORROWER AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION
10.17 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING
AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of all
disputes that may be filed in any court and that relate to the
subject matter of this transaction, including contract claims,
tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business
relationship, that each has already relied on this waiver in
entering into this Agreement, and that each will continue to rely
on this waiver in their related future dealings. Each party
hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. In the event of
litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.19 Confidentiality.
Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement that has
been identified in writing as confidential by Borrower or in any
environmental assessment, investigation, analyses or reports
obtained pursuant to subsection 6.7C in accordance with such
Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Borrower
that in any event a Lender may make disclosures (a) to its and
its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such information and
instructed to keep such information confidential), (b) to the
extent requested by any Governmental Authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
subsection 10.19, to (i) any Eligible Assignee of or participant
in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any
direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative
transaction relating to obligations of Borrower, (g) with the
consent of Borrower, (h) to the extent such information
(i) becomes publicly available other than as a result of a breach
of this subsection 10.19, or (ii) becomes available to
Administrative Agent or any Lender on a nonconfidential basis
from a source other than Borrower, or (i) to the National
Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that
requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its Affiliates and that no
written or oral communications from counsel to an Agent and no
information that is or is designated as privileged or as attorney
work product may be disclosed to any Person unless such Person is
a Lender or a participant hereunder; provided that, unless
specifically prohibited by applicable law or court order, each
Lender shall notify Borrower of any request by any Governmental
Authority or representative thereof (other than any such request
in connection with any examination of the financial condition of
such Lender by such Governmental Authority) for disclosure of any
such non-public information prior to disclosure of such
information; and provided, further, that in no event shall any
Lender be obligated or required to return any materials furnished
by Borrower or any of its Subsidiaries. Notwithstanding anything
contained herein to the contrary, Borrower understands and agrees
that Administrative Agent and each of the institutions identified
as "Lead Arranger" on the title page to this Agreement may make
customary disclosures for advertising and "league table"
purposes.
10.20 Lead Arranger
The institution identified as Lead Arranger on the
title page to this Agreement shall not have any obligations,
liabilities or duties under this Agreement other than those
applicable to a Lender (but only if such institution is a Lender)
as such, and no such institution shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any
such institution in deciding to enter into this Agreement or in
taking or not taking any action hereunder.
10.21 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by
Borrower and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery
thereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written
above.
BORROWER:
INTEGRATED DEFENSE TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxx
----------------------------------
Authorized Signatory
Notice Address:
Integrated Defense Technologies
000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx,
President & CEO
Facsimile Number: (000) 000-0000
With courtesy copies to:
Veritas Capital Management,
L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx
Facsimile Number: (000) 000-0000
and
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Facsimile Number: (000) 000-0000
ADMINISTRATIVE AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Administrative Agent
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Executive Director
CIBC World Markets Corp., AS AGENT
Notice Address:
CANADIAN IMPERIAL BANK OF COMMERCE
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Agency Services Dept.
Facsimile No.: (000) 000-0000
With a Copy to:
CIBC WORLD MARKETS CORP.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
LENDERS:
CIBC INC., as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Executive Director
CIBC World Markets Corp., AS AGENT
Notice Address:
CIBC INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Agency Services Dept.
Facsimile No.: (000) 000-0000
With a Copy to:
CIBC WORLD MARKETS CORP.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 2002
among
INTEGRATED DEFENSE TECHNOLOGIES, INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
and
CIBC WORLD MARKETS CORP.
as Lead Arranger
TABLE OF CONTENTS
Page No.
----------
SECTION 1. DEFINITIONS 2
1.1 Certain Defined Terms 2
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement 37
1.3 Other Definitional Provisions and Rules of
Construction 37
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 38
2.1 Commitments; Making of Loans; Optional Notes 38
2.2 Interest on the Loans 45
2.3 Fees 49
2.4 Repayments, Prepayments and Reductions in
Revolving Loan Commitments; General
Provisions Regarding Payments; Application of
Proceeds of Collateral and Payments Under
Subsidiary Guaranty 49
2.5 Use of Proceeds. 57
2.6 Special Provisions Governing LIBOR Loans 57
2.7 Increased Costs; Taxes; Capital Adequacy 59
2.8 Obligation of Lenders and Issuing Lenders to
Mitigate 64
SECTION 3. LETTERS OF CREDIT 64
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein 64
3.2 Letter of Credit Fees 67
3.3 Drawings and Reimbursement of Amounts Paid
Under Letters of Credit 67
3.4 Obligations Absolute 70
3.5 Indemnification; Nature of Issuing Lenders'
Duties 71
3.6 Increased Costs and Taxes Relating to Letters
of Credit 72
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT 73
4.1 Conditions to Term Loans and Initial
Revolving Loans 73
4.2 Conditions to All Loans 81
4.3 Conditions to Letters of Credit 82
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES 82
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries 83
5.2 Authorization of Borrowing, etc 84
5.3 Financial Condition 84
5.4 No Material Adverse Change; No Restricted
Junior Payments 85
5.5 Title to Properties; Liens; Real Property;
Intellectual Property 85
5.6 Litigation; Adverse Facts 86
5.7 Payment of Taxes 86
5.8 Performance of Agreements; Materially Adverse
Agreements; Material Contracts; Government
Contracts 86
5.9 Governmental Regulation 87
5.10 Securities Activities 87
5.11 Employee Benefit Plans 88
5.12 Certain Fees 88
5.13 Environmental Protection 89
5.14 Employee Matters 90
5.15 Solvency 90
5.16 Matters Relating to Collateral 90
5.17 Consummation of the Acquisition 91
5.18 Accounts Receivable 91
5.19 Inventory 91
5.20 Disclosure 92
5.21 Mortgage Taxes, Etc 92
5.22 Proceeds of Loan 92
5.23 Related Agreements 92
SECTION 6. BORROWER'S AFFIRMATIVE COVENANTS 93
6.1 Financial Statements and Other Reports 93
6.2 Existence, etc 99
6.3 Payment of Taxes and Claims; Tax 99
6.4 Maintenance of Properties; Insurance;
Application of Net Insurance/ Condemnation
Proceeds 99
6.5 Inspection Rights; Audits of Inventory and
Accounts Receivable; Lender Meeting 102
6.6 Compliance with Laws, etc 102
6.7 Environmental Matters 103
6.8 Execution of Subsidiary Guaranty and Personal
Property Collateral Documents After the
Effective Date 105
6.9 Matters Relating to Additional Real Property
Collateral 106
6.10 Intentionally Omitted 107
6.11 Deposit Accounts and Cash Management Systems 107
6.12 Assignment of Claims Act 107
6.13 Consents to Collateral Assignments 108
6.14 Solvency 108
SECTION 7. BORROWER'S NEGATIVE COVENANTS 108
7.1 Indebtedness 108
7.2 Liens and Related Matters 109
7.3 Investments; Acquisitions; Joint Ventures 110
7.4 Contingent Obligations 112
7.5 Restricted Junior Payments 112
7.6 Financial Covenants 113
7.7 Restriction on Fundamental Changes; Asset
Sales 115
7.8 Consolidated Capital Expenditures 117
7.9 Sale or Discount of Receivables. 117
7.10 Transactions with Shareholders and Affiliates 117
7.11 Sales and Lease-Backs 117
7.12 Disposal of Subsidiary Stock 118
7.13 Conduct of Business 118
7.14 Intentionally Deleted 118
7.15 Fiscal Year; Tax Election 118
7.16 Restriction on Leases 119
SECTION 8. EVENTS OF DEFAULT 119
8.1 Failure to Make Payments When Due 119
8.2 Default in Other Indebtedness 119
8.3 Breach of Certain Covenants 119
8.4 Breach of Warranty 120
8.5 Other Defaults Under Loan Documents 120
8.6 Involuntary Bankruptcy; Appointment of
Receiver, etc 120
8.7 Voluntary Bankruptcy; Appointment of
Receiver, etc 120
8.8 Judgments and Attachments 121
8.9 Dissolution 121
8.10 Employee Benefit Plans 121
8.11 Change in Control 121
8.12 Invalidity of Loan Documents; Repudiation of
Obligations 121
8.13 Government Contracts and Material Contracts 122
8.14 Uninsured Damage 122
8.15 Failure to Consummate the Transactions 122
SECTION 9. ADMINISTRATIVE AGENT 123
9.1 Appointment 123
9.2 Powers and Duties; General Immunity 124
9.3 Representations and Warranties; No
Responsibility For Appraisal of
Creditworthiness 126
9.4 Right to Indemnity 126
9.5 Successor Administrative Agent 127
9.6 Collateral Documents and Subsidiary Guaranty 127
9.7 Administrative Agent May File Proofs of Claim 128
SECTION 10. MISCELLANEOUS 128
10.1 Assignments and Participations in Loans and
Letters of Credit 128
10.2 Expenses 132
10.3 Indemnity 133
10.4 Set-Off; Security Interest in Deposit
Accounts 134
10.5 Ratable Sharing 134
10.6 Amendments and Waivers 135
10.7 Independence of Covenants 136
10.8 Notices; Effectiveness of Signatures 136
10.9 Survival of Representations, Warranties and
Agreements 137
10.10 Failure or Indulgence Not Waiver; Remedies
Cumulative 137
10.11 Marshalling; Payments Set Aside 138
10.12 Severability 138
10.13 Obligations Several; Independent Nature of
Lenders' Rights 138
10.14 Release of Security Interest or Guaranty 138
10.15 Applicable Law 139
10.16 Successors and Assigns 139
10.17 Consent to Jurisdiction and Service of
Process 139
10.18 Waiver of Jury Trial 140
10.19 Confidentiality 141
10.20 Lead Arranger 141
10.21 Counterparts; Effectiveness 142
Signature pages S-1
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF BORROWING BASE CERTIFICATE
V FORM OF TRANCHE A TERM NOTE
VI FORM OF TRANCHE B TERM NOTE
VII FORM OF REVOLVING NOTE
VIII Intentionally Deleted
IX FORM OF COMPLIANCE CERTIFICATE
X FORM OF OPINION OF BORROWER COUNSEL
XI FORM OF OPINION OF O'MELVENY & XXXXX LLP
XII FORM OF ASSIGNMENT AGREEMENT
XIII FORM OF FINANCIAL CONDITION CERTIFICATE OF BORROWER
XIV FORM OF SUBSIDIARY GUARANTY
XV FORM OF SECURITY AGREEMENT
XVI FORM OF COLLATERAL ACCESS AGREEMENT
XVII FORM OF MORTGAGE
XVIII FORM OF ENVIRONMENTAL INDEMNITY
XIX FORM OF SURVEYOR'S CERTIFICATE
XX FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
XXI FORM OF CERTIFICATE OF NON-BANK STATUS
XXII FORM OF INSTRUMENT OF ASSIGNMENT
XXIII-A FORM OF INSTRUMENT OF JOINDER
XXIII-B FORM OF NOTICE TO INCREASING AND NEW LENDERS
XXIII-C FORM OF OFFICER'S CERTIFICATE
XXIV FORM OF MASTER CONFIRMATION
SCHEDULES
4.1D CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP;
MANAGEMENT
I Corporate Organizational Structure of Loan Parties
II Capital Structure of Borrower and its Subsidiaries
5.5B REAL PROPERTY
A-1 Owned Real Property Acquired Subsequent to the
Original Date
A-2 Owned Real Property Acquired Prior to the
Original Closing Date
B Leasehold Properties
5.5C INTELLECTUAL PROPERTY
5.6 LITIGATION
5.7 CERTAIN UNPAID TAXES
5.8C MATERIAL CONTRACTS
I Customer Contracts and Purchase Orders
Greater Than $5,000,000 Per Annum
II Contracts with Remaining Payments Greater
Than $1,000,000
5.8D GOVERNMENT CONTRACTS; ASSIGNABILITY PURSUANT TO
ASSIGNMENT OF CLAIMS ACT
5.8E GOVERNMENT CONTRACTS RELATED TO THE ACQUISITION
5.11 CERTAIN EMPLOYEE BENEFIT PLANS
5.13 ENVIRONMENTAL MATTERS
5.14 COLLECTIVE BARGAINING AGREEMENTS
6.11 DEPOSIT ACCOUNTS
7.1 CERTAIN OUTSTANDING INDEBTEDNESS AND CAPITAL LEASE
OBLIGATIONS
I Outstanding Indebtedness
II Outstanding Indebtedness In Respect of
Capital Leases
7.2A CERTAIN EXISTING LIENS
7.4 CONTINGENT OBLIGATIONS
