CREDIT AGREEMENT
DATED AS OF MAY 31, 2000
AMONG
MICROCHIP TECHNOLOGY INCORPORATED,
A DELAWARE CORPORATION
THE LENDERS,
BANK ONE, NA,
AS LC ISSUER AND AS ADMINISTRATIVE AGENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS SYNDICATION AGENT
BANK OF AMERICA, N.A.
AS DOCUMENTATION AGENT
AND
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK MANAGER
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS....................................................... 1
ARTICLE 2 THE CREDITS....................................................... 14
2.1 COMMITMENT......................................................... 14
2.2 REQUIRED PAYMENTS; TERMINATION..................................... 15
2.3 RATABLE LOANS...................................................... 15
2.4 TYPES OF ADVANCES.................................................. 15
2.5 SWING LINE LOANS................................................... 15
2.6 COMMITMENT FEE; REDUCTIONS IN AGGREGATE COMMITMENT................. 16
2.7 MINIMUM AMOUNT OF EACH ADVANCE..................................... 17
2.8 OPTIONAL PRINCIPAL PAYMENTS........................................ 17
2.9 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.... 17
2.10 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES................ 18
2.11 CHANGES IN INTEREST RATE, ETC...................................... 18
2.12 RATES APPLICABLE AFTER DEFAULT..................................... 19
2.13 METHOD OF PAYMENT.................................................. 19
2.14 NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS....................... 20
2.15 TELEPHONIC NOTICES................................................. 20
2.16 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS..................... 21
2.17 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS............................................ 21
2.18 LENDING INSTALLATIONS.............................................. 21
2.19 FACILITY LCS....................................................... 22
2.20 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT................... 26
2.21 REPLACEMENT OF LENDER.............................................. 26
ARTICLE 3 YIELD PROTECTION; TAXES........................................... 27
3.1 YIELD PROTECTION................................................... 27
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS............................ 28
3.3 AVAILABILITY OF TYPES OF ADVANCES.................................. 29
3.4 FUNDING INDEMNIFICATION............................................ 29
3.5 TAXES.............................................................. 29
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY........................... 31
ARTICLE 4 CONDITIONS PRECEDENT.............................................. 32
4.1 INITIAL CREDIT EXTENSION........................................... 32
4.2 EACH CREDIT EXTENSION.............................................. 33
ARTICLE 5 REPRESENTATIONS AND WARRANTIES.................................... 34
5.1 EXISTENCE AND STANDING............................................. 34
5.2 AUTHORIZATION AND VALIDITY......................................... 34
5.3 NO CONFLICT; GOVERNMENT CONSENT.................................... 34
5.4 FINANCIAL STATEMENTS............................................... 35
5.5 MATERIAL ADVERSE CHANGE............................................ 35
5.6 TAXES.............................................................. 35
5.7 LITIGATION AND CONTINGENT OBLIGATIONS.............................. 35
5.8 SUBSIDIARIES....................................................... 36
5.9 ERISA.............................................................. 36
5.10 ACCURACY OF INFORMATION............................................ 36
5.11 REGULATION U....................................................... 36
5.12 MATERIAL AGREEMENTS................................................ 36
5.13 COMPLIANCE WITH LAWS............................................... 36
5.14 OWNERSHIP OF PROPERTIES............................................ 37
5.15 PLAN ASSETS; PROHIBITED TRANSACTIONS............................... 37
5.16 ENVIRONMENTAL MATTERS.............................................. 37
ARTICLE 6 COVENANTS......................................................... 37
6.1 FINANCIAL REPORTING................................................ 37
6.2 USE OF PROCEEDS.................................................... 39
6.3 NOTICE OF DEFAULT; NOTICE OF MATERIAL ADVERSE EFFECT............... 39
6.4 CONDUCT OF BUSINESS................................................ 39
6.5 TAXES.............................................................. 39
6.6 INSURANCE.......................................................... 39
6.7 COMPLIANCE WITH LAWS............................................... 40
6.8 MAINTENANCE OF PROPERTIES.......................................... 40
6.9 INSPECTION......................................................... 40
6.10 INDEBTEDNESS....................................................... 40
6.11 MERGER............................................................. 40
6.12 SALE OF ASSETS..................................................... 41
6.13 INVESTMENTS AND ACQUISITIONS....................................... 41
6.14 LIENS.............................................................. 42
6.15 AFFILIATES......................................................... 42
6.16 SUBORDINATED INDEBTEDNESS.......................................... 43
6.17 CONTINGENT OBLIGATIONS............................................. 43
6.18 FINANCIAL COVENANTS................................................ 43
6.19 NO NEGATIVE PLEDGE................................................. 43
ARTICLE 7 DEFAULTS.......................................................... 44
ARTICLE 8 ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.................... 46
8.1 ACCELERATION; FACILITY LC COLLATERAL ACCOUNT....................... 46
8.2 AMENDMENTS......................................................... 47
8.3 PRESERVATION OF RIGHTS............................................. 48
ARTICLE 9 GENERAL PROVISIONS................................................ 48
9.1 SURVIVAL OF REPRESENTATIONS........................................ 48
9.2 GOVERNMENTAL REGULATION............................................ 48
9.3 HEADINGS........................................................... 49
9.4 ENTIRE AGREEMENT................................................... 49
9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT.................... 49
9.6 EXPENSES; INDEMNIFICATION.......................................... 49
9.7 NUMBERS OF DOCUMENTS............................................... 51
9.8 ACCOUNTING......................................................... 51
9.9 SEVERABILITY OF PROVISIONS......................................... 51
9.10 NONLIABILITY OF LENDERS............................................ 51
9.11 CONFIDENTIALITY.................................................... 52
9.12 NONRELIANCE........................................................ 52
9.13 DISCLOSURE......................................................... 52
ARTICLE 10 THE ADMINISTRATIVE AGENT......................................... 53
10.1 APPOINTMENT; NATURE OF RELATIONSHIP................................ 53
10.2 POWERS............................................................. 53
10.3 GENERAL IMMUNITY................................................... 53
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC......................... 54
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10.5 ACTION ON INSTRUCTIONS OF LENDERS.................................. 54
10.6 EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL.................... 54
10.7 RELIANCE ON DOCUMENTS; COUNSEL..................................... 55
10.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION........... 55
10.9 NOTICE OF DEFAULT.................................................. 55
10.10 RIGHTS AS A LENDER................................................. 56
10.11 LENDER CREDIT DECISION............................................. 56
10.12 SUCCESSOR ADMINISTRATIVE AGENT..................................... 56
10.13 ADMINISTRATIVE AGENT'S FEE......................................... 57
10.14 DELEGATION TO AFFILIATES........................................... 57
10.15 DOCUMENTATION AGENT AND SYNDICATION AGENT.......................... 57
ARTICLE 11 SETOFF; RATABLE PAYMENTS......................................... 58
11.1 SETOFF............................................................. 58
11.2 RATABLE PAYMENTS................................................... 58
ARTICLE 12 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................ 58
12.1 SUCCESSORS AND ASSIGNS............................................. 58
12.2 PARTICIPATIONS..................................................... 59
12.3 ASSIGNMENTS........................................................ 60
12.4 DISSEMINATION OF INFORMATION....................................... 61
12.5 TAX TREATMENT...................................................... 61
ARTICLE 13 NOTICES.......................................................... 61
13.1 NOTICES............................................................ 61
13.2 CHANGE OF ADDRESS.................................................. 61
ARTICLE 14 COUNTERPARTS..................................................... 62
ARTICLE 15 CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..... 62
15.1 CHOICE OF LAW...................................................... 62
15.2 CONSENT TO JURISDICTION............................................ 62
15.3 WAIVER OF JURY TRIAL............................................... 62
Pricing Schedule
Exhibits:
"A" Form of Opinion
"B" Form of Compliance Certificate
"C" Form of Assignment Agreement
"D" Form of Loan/Credit Related Money Transfer Instructions
"E" Form of Note
"F-1" Form of Swing Line Borrowing Notice
"F-2" Form of Conversion/Continuation Notice
Schedules:
"1" Subsidiaries, Material Subsidiaries and Other Investments
"2" Indebtedness and Liens
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement"), dated as of May 31, 2000, is among
MICROCHIP TECHNOLOGY INCORPORATED, a Delaware corporation, the Lenders, and BANK
ONE, NA, a national banking association, having its principal office in Chicago,
Illinois, as LC Issuer and as Administrative Agent, Xxxxx Fargo Bank, National
Association as Syndication Agent and Bank of America, N.A. as Documentation
Agent. The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise, or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article 10, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article 10.
"Advance" means a borrowing hereunder, (i) made by some or all of the
Lenders on the same Borrowing Date, or (ii) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Loans of the same Type and, in the
case of Eurodollar Loans, for the same Interest Period. The term "Advance" shall
include Swing Line Loans unless otherwise expressly provided.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
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"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day or (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President, CEO, Chief Financial
Officer, or Treasurer of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association, having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Microchip Technology Incorporated, a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.
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"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000.00; PROVIDED in each case
that the same provides for payment of both principal and interest (and not
principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans to, and participate in Facility LCs issued upon the
application of, the Borrower in an aggregate amount not exceeding the amount set
forth opposite its signature below or as set forth in any Notice of Assignment
relating to any assignment that has become effective pursuant to Section 12.3.2,
as such amount may be modified from time to time pursuant to the terms hereof.
3
"Commitment Fee" is defined in Section 2.6(a).
"Consolidated EBIT" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, and (iii)
extraordinary losses incurred other than in the ordinary course of business,
MINUS, to the extent included in Consolidated Net Income, extraordinary gains
realized other than in the ordinary course of business, all calculated for the
Borrower and its Subsidiaries on a consolidated basis.
"Consolidated EBITDA" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, MINUS, to the extent included in Consolidated Net
Income, extraordinary gains realized other than in the ordinary course of
business, all calculated for the Borrower and its Subsidiaries on a consolidated
basis.
"Consolidated Funded Indebtedness" means at any time the aggregate
dollar amount of Consolidated Indebtedness which has actually been funded and is
outstanding at such time, whether or not such amount is due or payable at such
time.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Tangible Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time LESS all intangible assets of Borrower and
its Subsidiaries calculated on a consolidated basis as of such time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, would be treated, if applicable, as a single employer under
Section 414 of the Code.
4
"Conversion/Continuation Notice" is defined in Section 2.10.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article 7.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period, and having a maturity equal to such Interest
Period; PROVIDED that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, and (ii) if no such
British Bankers' Association Interest Settlement Rate is available to the
Administrative Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which Bank One or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period, in the approximate amount of Bank One's
relevant Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurodollar Rate.
5
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, PLUS
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section 2.19.11.
"Facility Termination Date" means May 31, 2003 or any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day PLUS (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.12, bears interest at the Floating Rate.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
6
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease Obligations
and (vii) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person.
"Information" is defined in Section 9.11.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter; PROVIDED, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day; PROVIDED, HOWEVER, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any time deposit accounts and certificate of deposit owned by such
Person; and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person; provided that "Investment" shall
not include any such items with a maturity date, an expiration date or similar
duration provision of less than one year.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time PLUS (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.19.5.
7
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lenders" includes Bank One in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or on a
Schedule or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.18.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Funded Indebtedness outstanding on such date to (ii) Consolidated
EBITDA for the Borrower's then most-recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC Applications and
any Notes issued pursuant to Section 2.14.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Administrative Agent, the LC Issuer or the Lenders
thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Material Division" means any division of the Borrower or a Subsidiary
which (i) represents more than 10% of the consolidated assets of the Borrower as
would be shown in the consolidated financial statements of the Borrower as at
the beginning of the twelve-month period ending with the month in which such
8
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower as
reflected in the financial statements referred to in clause (i) above.
"Material Subsidiary" means a Subsidiary which (i) represents more than
10% of the consolidated assets of the Borrower as would be shown in the
consolidated financial statements of the Borrower as at the beginning of the
twelve-month period ending with the month in which such determination is made,
or (ii) is responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower as reflected in the financial statements
referred to in clause (i) above.
"Modify" and "Modification" are defined in Section 2.19.1.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group might be a party in the future to which more than
one employer is obligated to make contributions.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.14 in the form of Exhibit "E".
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Administrative Agent, the LC
Issuer or any indemnified party arising under the Loan Documents.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under Agreement Accounting
Principles if such Operating Lease were a Capitalized Lease) from the date on
which each fixed lease payment is due under such Operating Lease to such date of
determination, of all fixed lease payments due under all Operating Leases of the
Borrower and its Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Loans outstanding at
such time, PLUS (ii) an amount equal to its Pro Rata Share of the aggregate
principal amount of Swing Line Loans outstanding at such time, PLUS (iii) an
amount equal to its Pro Rata Share of the LC Obligations at such time.
"Participants" is defined in Section 12.2.1.
9
"Payment Date" means as to (i) the commitment fee paid pursuant to
Section 2.6, the first Business Day of each calendar quarter, commencing July 1,
2000; and (ii) a Floating Rate Advance and the LC Fee, on the first Business Day
of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" means any Acquisition made by the Borrower or
any of its Subsidiaries, PROVIDED that (i) as of the date of the consummation of
such Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition, and the representations and
warranties contained in Article 5 shall be true both before and after giving
effect to such Acquisition except to the extent any such representation or
warrant is stated to relate solely to an earlier date, (ii) the business to be
acquired in such Acquisition is reasonably related to one or more of the fields
of enterprise in which the Borrower and its Subsidiaries are engaged on the date
hereof, and (iii) as of the date of the consummation of such Acquisition, all
material approvals required in connection therewith shall have been obtained.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which, if applicable in the future, the Borrower or any member of the
Controlled Group might have any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One, NA or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
10
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.19 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means, if applicable in the future to the Borrower,
a reportable event as defined in Section 4043 of ERISA and the regulations
issued under such section, with respect to a Plan, excluding, however, such
events as to which the PBGC has by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within thirty (30) days of the occurrence
of such event; PROVIDED, HOWEVER, that a failure to meet the minimum funding
standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"Reports" is defined in Section 9.6(i).
"Required Lenders" means Lenders in the aggregate having at least 60%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 60% of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Loan" means, with respect to a Lender, such Lender's loan
made pursuant to its commitment to lend set forth in Section 2.1 (or any
conversion or continuation thereof).
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means any Plan that may be maintained in the
future by the Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
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"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Swing Line Borrowing Notice" is defined in Section 2.5.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender
to make Swing Line Loans up to a maximum principal amount of $10,000,000.00 at
any one time outstanding.
"Swing Line Lender" means Bank One or such other Lender which may
succeed to its rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.5.
"Synthetic Lease Obligations" means all monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Termination" means the payment in full of the principal amount of all
Credit Extensions, all accrued interest thereon and all fees with respect
thereto, coupled with termination of all obligations (if any) of all of the
Lenders and the Swing Line Lender to advance funds or extend credit to or for
12
the benefit, and the LC Issuer to issue or Modify Facility LCs for the account
of Borrower pursuant to this Agreement, and the expiration of all outstanding
Facility LC's.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means, if applicable to the Borrower, the amount
(if any) by which the present value of all vested and unvested accrued benefits
under all Single Employer Plans, if any, exceeds the fair market value of all
such Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions for single
employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled, in either case excluding any de minimis amount of
securities or interest required to be director owned.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE 2
THE CREDITS
2.1 COMMITMENT.
(a) From and including the date of this Agreement and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to (i) make Revolving Loans to the
Borrower and (ii) participate in Facility LCs issued upon the request of the
Borrower provided that after giving effect to the making of each such Revolving
Loan and the issuance of such Facility LC, such Lender's Outstanding Credit
Exposure shall not exceed in the aggregate at any one time outstanding its Pro
Rata Share of the Aggregate Outstanding Credit Exposure, and provided further
that at no time shall the Aggregate Outstanding Credit Exposure exceed the
Aggregate Commitment. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow at any time prior to the Facility Termination Date.
The Commitment to extend credit hereunder shall expire on the Facility
Termination Date. The LC Issuer will issue Facility LCs hereunder on the terms
and conditions set forth in Section 2.19.
(b) If no Default or Unmatured Default has occurred and is continuing,
the Borrower may, by notice to the Administrative Agent, request that, on the
terms and subject to the conditions contained in this Agreement, the Lenders
and/or other financial institutions not then a party to this Agreement that are
satisfactory to the Administrative Agent and the Borrower provide up to an
aggregate amount of $50,000,000 in additional Commitments. Upon receipt of such
notice, the Administrative Agent shall use all commercially reasonable efforts
to arrange for the Lenders or other financial institutions to provide such
additional Commitments; PROVIDED that the Administrative Agent will first offer
each of the Lenders that then has a Commitment a pro rata portion (based upon
the Commitments at such time) of any such additional Commitments. Alternatively,
any Lender may commit to provide the full amount of the requested additional
Commitments and then offer portions of such additional Commitments to the other
Lenders or other financial institutions, subject to the proviso in the
immediately preceding sentence. Nothing contained in this paragraph or otherwise
in this Agreement is intended to commit any Lender or the Administrative Agent
to provide any portion of any such additional Commitments. If and to the extent
that any Lenders and/or other financial institutions agree, in their sole
discretion, to provide any such additional Commitments, (i) the Aggregate
Commitment shall be increased by the amount of the additional Commitments agreed
to be so provided, (ii) the Pro Rata Shares of the respective Lenders in respect
of the Commitments shall be adjusted accordingly, (iii) at such time and in such
manner as the Borrower and the Administrative Agent shall agree (it being
understood that the Borrower and the Administrative Agent will use all
commercially reasonable efforts to avoid the prepayment or assignment of any
Eurodollar Advance on a day other than the last day of the Interest Period
applicable thereto), the Lenders shall assign and assume outstanding Revolving
Loans and participations in L/C Obligations so as to cause the amount of such
Revolving Loans and participations in L/C Obligations held by each Lender to
conform to the respective percentages of the applicable Commitments of the
Lenders and (iv) the Borrower shall execute and deliver any additional Notes or
other amendments or modifications to this Agreement or any other Loan Documents
as the Administrative Agent may reasonably request.
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2.2 REQUIRED PAYMENTS; TERMINATION.
The Aggregate Outstanding Credit Exposure and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.
2.3 RATABLE LOANS.
Each Advance hereunder (other than any Swing Line Loan) shall consist
of Revolving Loans made from the several Lenders ratably according to their Pro
Rata Shares.
2.4 TYPES OF ADVANCES.
The Advances may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the Borrower in accordance with Sections 2.9
and 2.10, or Swing Line Loans selected by the Borrower in accordance with
Section 2.5.
2.5 SWING LINE LOANS.
2.5.1 AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing Line Loan is to
be made on the date of the initial Advance hereunder, the satisfaction of the
conditions precedent set forth in Section 4.1 as well, from and including the
date of this Agreement and prior to the Facility Termination Date, the Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement, to
make Swing Line Loans to the Borrower from time to time in an aggregate
principal amount not to exceed the Swing Line Commitment; PROVIDED that the
Aggregate Outstanding Credit Exposure shall not at any time exceed the Aggregate
Commitment, and PROVIDED FURTHER that at no time shall the sum of (i) the Swing
Line Lender's Pro Rata Share of the Swing Line Loans, PLUS (ii) the outstanding
Revolving Loans made by the Swing Line Lender pursuant to Section 2.1, exceed
the Swing Line Lender's Commitment at such time. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any
time prior to the Facility Termination Date.
2.5.2 BORROWING NOTICE. The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice (a "Swing Line
Borrowing Notice") in the form of Exhibit "F-1" not later than noon (Chicago
time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day), and (ii) the
aggregate amount of the requested Swing Line Loan which shall be an amount not
less than $100,000.00. The Swing Line Loans shall bear interest at the Floating
Rate.
2.5.3 MAKING OF SWING LINE LOANS. Promptly after receipt of a Swing
Line Borrowing Notice, the Administrative Agent shall notify each Lender by fax,
or other similar form of transmission, of the requested Swing Line Loan. Not
later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing
Line Lender shall make available the Swing Line Loan, in funds immediately
available in Chicago, to the Administrative Agent at its address specified
pursuant to Article XIII. The Administrative Agent will promptly make the funds
15
so received from the Swing Line Lender available to the Borrower on the
Borrowing Date at the Administrative Agent's aforesaid address.
2.5.4 REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be paid
in full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall on the fifth (5th) Business Day after the Borrowing
Date of any Swing Line Loan, require each Lender (including the Swing Line
Lender) to make a Revolving Loan in the amount of such Lender's Pro Rata Share
of such Swing Line Loan, for the purpose of repaying such Swing Line Loan. Not
later than noon (Chicago time) on the date of any notice received pursuant to
this Section 2.5.4, each Lender shall make available its required Revolving
Loan, in funds immediately available in Chicago to the Administrative Agent at
its address specified pursuant to Article 13. Revolving Loans made pursuant to
this Section 2.5.4 shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Loans in the
manner provided in Section 2.10 and subject to the other conditions and
limitations set forth in this Article 2. Unless a Lender shall have notified the
Swing Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender's obligation to make Revolving Loans pursuant to this
Section 2.5.4 to repay Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Administrative
Agent, the Swing Line Lender or any other Person, (b) the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Borrower, or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender fails
to make payment to the Administrative Agent of any amount due under this Section
2.5.4, the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.5.4, such Lender
shall be deemed, at the option of the Swing Line Lender, to have unconditionally
and irrevocably purchased from the Swing Line Lender, without recourse or
warranty, an undivided interest and participation in the applicable Swing Line
Loan in the amount of such Revolving Loan, and such interest and participation
may be recovered from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date of
demand and ending on the date such amount is received. On the Facility
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.6 COMMITMENT FEE; REDUCTIONS IN AGGREGATE COMMITMENT.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender according to its Pro Rata Share a commitment fee (the
"Commitment Fee") at a per annum rate equal to the Applicable Fee Rate on the
daily Available Aggregate Commitment from the date hereof to and including the
Facility Termination Date, payable in arrears on each Payment Date hereafter and
16
on the Facility Termination Date. Swing Line Loans shall not count as usage of
any Lender's Commitment for the purpose of calculating the commitment fee due
hereunder.
(b) The Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples of
$5,000,000.00, upon at least three (3) Business Days' written notice to the
Administrative Agent, which notice shall specify the amount of any such
reduction; PROVIDED, HOWEVER, that the amount of the Aggregate Commitment may
not be reduced below the Aggregate Outstanding Credit Exposure. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
2.7 MINIMUM AMOUNT OF EACH ADVANCE.
Each Advance shall be in the minimum amount of $3,000,000.00 (and in
multiples of $1,000,000.00 if in excess thereof); PROVIDED, HOWEVER, that any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
2.8 OPTIONAL PRINCIPAL PAYMENTS.
The Borrower may from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances (other than Swing Line Loans), or, in a
minimum aggregate amount of $3,000,000.00 or any integral multiple of
$1,000,000.00 in excess thereof, any portion of the outstanding Floating Rate
Advances (other than Swing Line Loans) upon one (1) Business Day's prior notice
to the Administrative Agent. The Borrower may at any time pay, without penalty
or premium, all outstanding Swing Line Loans, or, in a minimum amount of
$100,000.00 and increments of $50,000.00 in excess thereof, any portion of the
outstanding Swing Line Loans, with notice to the Administrative Agent and the
Swing Line Lender by noon (Chicago time) on the date of repayment. The Borrower
may from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $3,000,000.00 or any
integral multiple of $1,000,000.00 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three Business Days' prior notice to the
Administrative Agent.
2.9 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time.
The Borrower shall give the Administrative Agent irrevocable notice (a
"Borrowing Notice") not later than noon (Chicago time) on the Borrowing Date of
each Floating Rate Advance (other than a Swing Line Loan) and three (3) Business
Days before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
17
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than 2:00 p.m. (Chicago time) on each Borrowing Date, each Lender
shall make available its Revolving Loan or Revolving Loans in funds immediately
available in Chicago to the Administrative Agent at its address specified
pursuant to Article 13. The Administrative Agent will wire the funds so received
from the Lenders in accordance with instructions received from the Borrower.
2.10 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Floating Rate Advances (other than Swing Line Loans) shall continue as
Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances pursuant to this Section 2.10 or are repaid
in accordance with Section 2.8. Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid
in accordance with Section 2.8 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest Period.
Subject to the terms of Section 2.7, the Borrower may elect from time to time to
convert all or any part of a Floating Rate Advance (other than a Swing Line
Loan) into a Eurodollar Advance. The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") in the form of
Exhibit "F-2" of each conversion of a Floating Rate Advance into a Eurodollar
Advance or continuation of a Eurodollar Advance not later than noon (Chicago
time) at least three (3) Business Days prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.11 CHANGES IN INTEREST RATE, ETC.
Each Floating Rate Advance (other than a Swing Line Loan) shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.10, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.10 hereof, at a rate per annum equal to the Floating Rate for such
18
day. Each Swing Line Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the day such Swing Line Loan is
made to but excluding the date it is paid, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
by the Administrative Agent as applicable to such Eurodollar Advance based upon
the Borrower's selections under Sections 2.9 and 2.10 and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.12 RATES APPLICABLE AFTER DEFAULT.
Notwithstanding anything to the contrary contained in Section 2.9 or
2.10, during the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum, and (ii) each Floating Rate Advance shall
bear interest at a rate per annum equal to the Floating Rate in effect from time
to time plus 2% per annum, and (iii) the LC Fee shall be increased by 2% per
annum; PROVIDED that, during the continuance of a Default under Section 7.6 or
7.7, the interest rates set forth in clauses (i) and (ii) above and the increase
in the LC Fee set forth in clause (iii) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative
Agent or any Lender.
2.13 METHOD OF PAYMENT.
All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the
Administrative Agent at the Administrative Agent's address specified pursuant to
Article 13, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Borrower, by noon (local
time) on the date when due and shall (except with respect to repayments of Swing
Line Loans and except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders, or as otherwise
specifically required hereunder) be applied ratably by the Administrative Agent
among the Lenders. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds that the Administrative Agent received at
its address specified pursuant to Article 13 or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender.
Each reference to the Administrative Agent in this Section 2.13 shall also be
19
deemed to refer, and shall apply equally, to the LC Issuer, in the case of
payments required to be made by the Borrower to the LC Issuer pursuant to
Section 2.19.6.
2.14 NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (c) the original stated amount of each Facility LC and the
amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of the existence and
amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note or, in the case of the Swing Line Lender, promissory notes representing its
Revolving Loans and Swing Line Loans, respectively, substantially in the form of
Exhibit "E", with appropriate changes for notes evidencing Swing Line Loans
(each a "Note"). In such event, the Borrower shall prepare, execute and deliver
to such Lender such Note or Notes payable to the order of such Lender.
Thereafter, the Loans evidenced by each such Note and interest thereon shall at
all times (including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee named therein
or any assignee pursuant to Section 12.3, except to the extent that any such
Lender or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in paragraphs (i)
and (ii) above.
2.15 TELEPHONIC NOTICES.
The Borrower hereby authorizes the Lenders and the Administrative Agent
to extend, convert or continue Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation differs in any
20
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.16 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date hereof
and at maturity. Interest accrued on each Eurodollar Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance is prepaid or converted, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval during such Interest Period. Interest on
Floating Rate Advances shall be calculated for actual days elapsed on the basis
of a 365/366-day year. Interest on Eurodollar Advances, LC Fees and commitment
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.17 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND COMMITMENT
REDUCTIONS.
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Swing Line Borrowing Notice, Conversion/ Continuation Notice,
and repayment notice received by it hereunder. Promptly after notice from the LC
Issuer, the Administrative Agent will notify each Lender of the contents of each
request for issuance of a Facility LC hereunder. The Administrative Agent will
notify each Lender of the interest rate applicable to each Eurodollar Advance
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.18 LENDING INSTALLATIONS.
Each Lender may book its Loans and its participation in any LC
Obligations and the LC Issuer may book the Facility LCs at any Lending
Installation selected by such Lender or the LC Issuer, as the case may be, and
may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility
LCs, participations in LC Obligations and any Notes issued hereunder shall be
deemed held by each Lender or the LC Issuer, as the case may be, for the benefit
of any such Lending Installation. Each Lender and the LC Issuer may, by written
notice to the Administrative Agent and the Borrower in accordance with Article
13, designate replacement or additional Lending Installations through which
Loans will be made by it or Facility LCs will be issued by it and for whose
account Loan payments or payments with respect to Facility LCs are to be made.
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2.19 FACILITY LCS.
2.19.1 ISSUANCE. The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby and commercial letters
of credit (each, a "Facility LC") and to renew, extend, increase, decrease or
otherwise modify each Facility LC ("Modify," and each such action a
"Modification"), from time to time from and including the date of this Agreement
and prior to the Facility Termination Date upon the request of the Borrower;
PROVIDED that immediately after each such Facility LC is issued or Modified, (i)
the aggregate amount of the outstanding LC Obligations shall not exceed
$20,000,000.00 and (ii) the Aggregate Outstanding Credit Exposure shall not
exceed the Aggregate Commitment. No Facility LC shall have an expiry date later
than the earlier of (x) the fifth (5th) Business Day prior to the Facility
Termination Date and (y) one year after its issuance.
2.19.2 PARTICIPATIONS. Upon the issuance or Modification by the LC
Issuer of a Facility LC in accordance with this Section 2.19, the LC Issuer
shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.
2.19.3 NOTICE. Subject to Section 2.19.1, the Borrower shall give the
LC Issuer notice prior to noon (Chicago time) at least five (5) Business Days
prior to the proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or Modification) and
the expiry date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Lender, of the contents thereof and of the amount of such Lender's participation
in such proposed Facility LC. The issuance or Modification by the LC Issuer of
any Facility LC shall, in addition to the conditions precedent set forth in
Article 4 (the satisfaction of which the LC Issuer shall have no duty to
ascertain), be subject to the conditions precedent that such Facility LC shall
be satisfactory to the LC Issuer and that the Borrower shall have executed and
delivered such application agreement and/or such other instruments and
agreements relating to such Facility LC as the LC Issuer shall have reasonably
requested (each, a "Facility LC Application"); PROVIDED, HOWEVER, that the LC
Issuer shall have no obligation to, and shall not, issue or Modify any Facility
LC if the LC Issuer has received written notice from the Administrative Agent,
any Lender or the Borrower on or prior to the Business Day of the proposed
issuance or Modification of such Facility LC that one or more of the conditions
set forth in Article 4 is not then satisfied. In the event of any conflict
between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
2.19.4 LC FEES. The Borrower shall pay to the Administrative Agent, for
the account of the Lenders ratably in accordance with their respective Pro Rata
Shares, with respect to each Facility LC, a letter of credit fee at a per annum
rate equal to the Applicable Margin for Eurodollar Loans in effect from time to
time on the average daily undrawn stated amount under such Facility LC, such fee
to be payable in arrears on each Payment Date (such fee described in this
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sentence an "LC Fee"). The Borrower shall also pay to the LC Issuer for its own
account (x) at the time of issuance of each Facility LC, a fronting fee in an
amount to be agreed upon between the LC Issuer and the Borrower, and (y)
documentary and processing charges in connection with the issuance or
Modification of and draws under Facility LCs in accordance with the LC Issuer's
standard schedule for such charges as in effect from time to time.
2.19.5 ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the LC Issuer shall notify the Administrative Agent and the Administrative Agent
shall promptly notify the Borrower and each other Lender as to the amount to be
paid by the LC Issuer as a result of such demand and the proposed payment date
(the "LC Payment Date"). The responsibility of the LC Issuer to the Borrower and
each Lender shall be only to determine that the documents (including each demand
for payment) delivered under each Facility LC in connection with such
presentment shall be in conformity in all material respects with such Facility
LC. The LC Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs as it does with respect to letters of credit
in which no participations are granted, it being understood that in the absence
of any gross negligence or willful misconduct by the LC Issuer, each Lender
shall be unconditionally and irrevocably liable without regard to the occurrence
of any Default or any condition precedent whatsoever, to reimburse the LC Issuer
on demand for (i) such Lender's Pro Rata Share of the amount of each payment
made by the LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.19.6 below, PLUS (ii) interest
on the foregoing amount to be reimbursed by such Lender, for each day from the
date of the LC Issuer's demand for such reimbursement (or, if such demand is
made after noon (Chicago time) on such date, from the next succeeding Business
Day) to the date on which such Lender pays the amount to be reimbursed by it, at
a rate of interest per annum equal to the Federal Funds Effective Rate for the
first three days and, thereafter, at a rate of interest equal to the rate
applicable to Floating Rate Advances.
2.19.6 REIMBURSEMENT BY BORROWER. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable
LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing
under any Facility LC, without presentment, demand, protest or other formalities
of any kind; PROVIDED that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the Borrower shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to (x) the rate applicable to Floating Rate Advances for such day if such day
falls on or before the applicable LC Payment Date and (y) the sum of 2% plus the
rate applicable to Floating Rate Advances for such day if such day falls after
such LC Payment Date. The LC Issuer will pay to each Lender ratably in
accordance with its Pro Rata Share all amounts received by it from the Borrower
for application in payment, in whole or in part, of the Reimbursement Obligation
in respect of any Facility LC issued by the LC Issuer, but only to the extent
such Lender has made payment to the LC Issuer in respect of such Facility LC
pursuant to Section 2.19.5. Subject to the terms and conditions of this
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Agreement (including without limitation the submission of a Borrowing Notice in
compliance with Section 2.9 and the satisfaction of the applicable conditions
precedent set forth in Article 4), the Borrower may request an Advance hereunder
for the purpose of satisfying any Reimbursement Obligation.
2.19.7 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 2.19 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.19.7 is intended to limit the right of
the Borrower to make a claim against the LC Issuer for damages as contemplated
by the proviso to the first sentence of Section 2.19.6.
2.19.8 ACTIONS OF LC ISSUER. The LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer.
The LC Issuer shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Notwithstanding any other
provision of this Section 2.19, the LC Issuer shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and any future holders of a participation in any Facility LC.
2.19.9 INDEMNIFICATION. Subject to the limitations set forth herein,
the Borrower hereby agrees to indemnify and hold harmless each Lender, the LC
Issuer and the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims and damages, losses,
liabilities, or related costs or expenses which such Lender, the LC Issuer or
the Administrative Agent may reasonably incur (or which may be claimed against
24
such Lender, the LC Issuer or the Administrative Agent by any Person whatsoever)
by reason of or in connection with the issuance, execution and delivery or
transfer of or payment or failure to pay under any Facility LC or any actual or
proposed use of any Facility LC, including, without limitation, any claims,
damages, losses, liabilities, or related costs or expenses which the LC Issuer
may reasonably incur by reason of or in connection with (i) the failure of any
other Lender to fulfill or comply with its obligations to the LC Issuer
hereunder (but nothing herein contained shall affect any rights the Borrower may
have against any defaulting Lender) or (ii) by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the term "Beneficiary"
included therein includes any successor by operation of law of the named
Beneficiary, but which Facility LC does not require that any drawing by any such
successor Beneficiary be accompanied by a copy of a legal document, satisfactory
to the LC Issuer, evidencing the appointment of such successor Beneficiary;
PROVIDED (i) that the Borrower shall not be required to indemnify any Lender,
the LC Issuer or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(x) the willful misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC complied with the terms of
such Facility LC or (y) the LC Issuer's failure to pay under any Facility LC
after the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC; (ii) and further provided that in no event shall
Borrower be liable for any incidental, indirect, exemplary, consequential,
special or punitive damages, or for any loss of revenue, profits, capital or
business or wasted management time, even if Borrower is made aware of the
possibility of such damages or they are foreseeable, and the Administrative
Agent, the Arranger, each Lender and each LC Issuer hereby waives, releases and
agrees not to xxx for, any incidental, indirect, consequential (including but
not limited to loss of revenue and loss of profits), special or punitive damages
that may be suffered by the Administrative Agent, the Arranger, such Lender and
such LC Issuer in connection with, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby, except to the extent
the Administrative Agent, the Arranger, each Lender and each LC Issuer is
subject to a final, nonappealable judgment for claims for incidental, indirect,
consequential, special or punitive damages by other Persons to the extent they
are attributable to actions of the Borrower. Nothing in this Section 2.19.9 is
intended to limit the obligations of the Borrower under any other provision of
this Agreement.
2.19.10 LENDERS' INDEMNIFICATION. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify the LC Issuer, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and conditions
of the Facility LC) that such indemnitees may suffer or incur in connection with
this Section 2.19 or any action taken or omitted by such indemnitees hereunder.
2.19.11 FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees that it
will, upon the request of the Administrative Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as long as any
amount is payable to the LC Issuer or the Lenders in respect of any Facility LC,
maintain a special collateral account pursuant to arrangements satisfactory to
the Administrative Agent (the "Facility LC Collateral Account") at the
Administrative Agent's office at the address specified pursuant to Article 13,
25
in the name of such Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders and in which such Borrower
shall have no interest other than as set forth in Section 8.1. The Borrower
hereby pledges, assigns and grants to the Administrative Agent, on behalf of and
for the ratable benefit of the Lenders and the LC Issuer, a security interest in
all of the Borrower's right, title and interest in and to all funds which may
from time to time be on deposit in the Facility LC Collateral Account to secure
the prompt and complete payment and performance of the Obligations. The
Administrative Agent will invest any funds on deposit from time to time in the
Facility LC Collateral Account in certificates of deposit of Bank One having a
maturity not exceeding thirty (30) days. Nothing in this Section 2.19.11 shall
either obligate the Administrative Agent to require the Borrower to deposit any
funds in the Facility LC Collateral Account or limit the right of the
Administrative Agent to release any funds held in the Facility LC Collateral
Account in each case other than as required by Section 8.1.
2.19.12 RIGHTS AS A LENDER. In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.
2.20 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (i) in the case of a Lender, the proceeds of a
Loan or (ii) in the case of the Borrower, a payment of principal, interest or
fees to the Administrative Agent for the account of the Lenders, that it does
not intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as the case may
be, has not in fact made such payment to the Administrative Agent, the recipient
of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (x) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day for the first
three days and, thereafter, the interest rate applicable to the relevant Loan or
(y) in the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
2.21 REPLACEMENT OF LENDER.
If the Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to make
any additional payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar Advances shall
be suspended pursuant to Section 3.3 (any Lender so affected an "Affected
Lender"), the Borrower may elect, if such amounts continue to be charged or such
suspension is still effective, to replace such Affected Lender as a Lender party
to this Agreement; PROVIDED that no Default or Unmatured Default shall have
occurred and be continuing at the time of such replacement, and PROVIDED FURTHER
that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to the Borrower and the Administrative Agent shall
26
agree, as of such date, to purchase for cash the Advances and other Obligations
due to the Affected Lender pursuant to an assignment substantially in the form
of Exhibit "C" and to become a Lender for all purposes under this Agreement and
to assume all obligations of the Affected Lender to be terminated as of such
date and to comply with the requirements of Section 12.3 applicable to
assignments, and (ii) the Borrower shall pay to such Affected Lender in same day
funds on the day of such replacement (A) all interest, fees and other amounts
then accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Affected Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any,
equal to the payment which would have been due to such Lender on the day of such
replacement under Section 3.4 had the Loans of such Affected Lender been prepaid
on such date rather than sold to the replacement Lender.
ARTICLE 3
YIELD PROTECTION; TAXES
3.1 YIELD PROTECTION.
(a) If, on or after the date of this Agreement, the adoption of any law
or any governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or the
LC Issuer to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender or the LC Issuer in
respect of its Eurodollar Loans, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation or the LC Issuer (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or the LC
Issuer of making, funding or maintaining its Eurodollar Loans, or of
issuing or participating in Facility LCs, or reduces any amount receivable
by any Lender or any applicable Lending Installation or the LC Issuer in
connection with its Eurodollar Loans, Facility LCs or participations
therein, or requires any Lender or any applicable Lending Installation or
the LC Issuer to make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participations therein held or interest
or LC Fees received by it, by an amount deemed in good faith material by
27
such Lender or the LC Issuer as the case may be, and the result of any of
the foregoing is to increase the cost to such Lender or applicable Lending
Installation or the LC Issuer, as the case may be, of making or maintaining
its Eurodollar Loans or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection
with such Eurodollar Loans, Commitment, Facility LCs or participations
therein, then a certificate of a Lender or an LC Issuer, as the case may
be, setting forth such amount or amounts as shall be necessary to
compensate such Lender or LC Issuer, as the case may be, as specified in
this Article 3.1, and setting forth in reasonable detail the manner in
which such amount or amounts have been calculated, shall be delivered to
the Borrower. The Borrower shall pay such Lender or LC Issuer, as the case
may be, the amount shown as due on any such certificate delivered to it
within 15 days of Borrower's receipt of such certificate.
(b) Each Lender or the Administrative Agent on behalf of the Lenders
shall give notification to the Borrower of any event or prospective event which
will give rise to the operation of paragraph (a) of this Section, such
notification to be sent within ninety (90) days of the date of the public
promulgation of the effective date of any such law, rule, regulation, policy,
guideline or directive, or change therein.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS.
(a) If a Lender or the LC Issuer determines the amount of capital
required or expected to be maintained by such Lender or the LC Issuer, any
Lending Installation of such Lender or the LC Issuer, or any corporation
controlling such Lender or the LC Issuer is increased as a result of a Change,
then, the Borrower shall pay such Lender or the LC Issuer, in accordance with
Section 3.2(b), the amount necessary to compensate for any shortfall in the rate
of return on the portion of such increased capital which such Lender or the LC
Issuer determines in good faith is attributable to this Agreement, its
Outstanding Credit Exposure or its Commitment to make Loans and issue or
participate in Facility LCs, as the case may be, hereunder (after taking into
account such Lender's or the LC Issuer's policies as to capital adequacy).
"Change" means (i) any change after the date of this Agreement in the Risk-Based
Capital Guidelines, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or the LC Issuer or any Lending Installation or
any corporation controlling any Lender or the LC Issuer. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.
28
(b) A certificate of a Lender or an LC Issuer, as the case may be,
setting forth such amount or amounts as shall be necessary to compensate such
Lender or LC Issuer, as the case may be, as specified in Article 3.2(a), and
setting forth in reasonable detail the manner in which such amount or amounts
have been calculated, shall be delivered to the Borrower. The Borrower shall pay
such Lender or LC Issuer, as the case may be, the amount shown as due on any
such certificate delivered to it within 15 days of Borrower's receipt of such
certificate.
(c) Each Lender or the Administrative Agent on behalf of the Lenders
shall give notification to the Borrower of any event or prospective event which
will give rise to the operation of paragraph (a) of this Section, such
notification to be sent within ninety (90) days of the date of the public
promulgation of the effective date of any such Change.
3.3 AVAILABILITY OF TYPES OF ADVANCES.
If any Lender determines that maintenance of its Eurodollar Loans at a
suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type and maturity appropriate
to match fund Eurodollar Advances are not available or (ii) the interest rate
applicable to Eurodollar Advances does not accurately reflect the cost of making
or maintaining Eurodollar Advances, then the Administrative Agent shall suspend
the availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4 FUNDING INDEMNIFICATION.
If any payment of a Eurodollar Advance occurs on a date which is not
the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made on the date
specified by the Borrower for any reason other than default by the Lenders, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5 TAXES.
(i) All payments by the Borrower to or for the account of any Lender,
LC Issuer or the Administrative Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, LC Issuer or the
Administrative Agent, (a) the sum payable shall be increased as necessary so
that after making all legally required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender, LC
Issuer or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (b) the
Borrower shall make such deductions to the extent it is legally required to do
so, (c) the Borrower shall pay any amount deducted to the relevant authority in
accordance with applicable law, and (d) the Borrower shall furnish to the
29
Administrative Agent the original copy of a receipt evidencing any payment
thereof within thirty (30) days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) Subject to Sections 3.5(iv), 3.5(v) and 3.5(vi), the Borrower
hereby agrees to indemnify the Administrative Agent, the LC Issuer and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent, the LC Issuer or such Lender and
any liability (including any penalties, interest and expenses due to Borrower's
failure to make such indemnification payments as hereinafter required) arising
therefrom or with respect thereto. Payments due under this indemnification shall
be made within thirty (30) days after the receipt by the Borrower from the
Administrative Agent, the LC Issuer or such Lender of a demand therefor pursuant
to Section 3.6. Included with such demand shall be a certificate setting forth
the amount demanded and in reasonable detail the calculation by which such
amount has been determined.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten (10) Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (ii) deliver to each of the Borrower and the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, UNLESS an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
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occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; PROVIDED
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent under
this subsection, together with all costs and expenses related thereto (including
reasonable attorneys fees and time charges of attorneys for the Administrative
Agent, but excluding any fees or charges of attorneys that may be employees of
the Administrative Agent). The obligations of the Lenders under this Section
3.5(vii) shall survive the payment of the Obligations and termination of this
Agreement.
(viii) Each Lender or the Administrative Agent on behalf of the Lenders
shall give notification to the Borrower of any event or prospective event which
will give rise to the operation of paragraph (iii) of this Section, such
notification to be sent within ninety (90) days of the date of the public
promulgation of the effective date of any such Taxes or Stamp Taxes.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY.
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or
to avoid the unavailability of Eurodollar Advances under Section 3.3, so long as
such designation is not, in the reasonable judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written statement of
such Lender to the Borrower (with a copy to the Administrative Agent) as to the
amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
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under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable within thirty (30) days of
written demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4, 3.5 and this Section
3.6 shall survive payment of the Obligations and termination of this Agreement,
provided that Borrower shall have no further obligation to the Lenders under
said Sections unless a certificate setting forth the amount of such obligation
shall have been delivered by the Lender within ninety (90) calendar days after
the Termination.
ARTICLE 4
CONDITIONS PRECEDENT
4.1 INITIAL CREDIT EXTENSION.
The Lenders shall not be required to make the initial Credit Extension
hereunder unless the Borrower has furnished to the Administrative Agent with
sufficient copies for the Lenders and/or the following conditions are satisfied:
(i) Copies of the certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the execution of the
Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and title
and bear the signatures of the Authorized Officers and any other officers
of the Borrower authorized to sign the Loan Documents to which the Borrower
is a party, upon which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed of any change in writing by the
Borrower.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date no Default or
Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit "A".
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(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable
to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form
of Exhibit "D", addressed to the Administrative Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably requested.
(viii) A certificate, signed by an authorized officer of each Material
Subsidiary of Borrower, stating that among other things, (i) the Material
Subsidiary is validly existing and in good standing under its applicable
laws, (ii) it is not in liquidation or subject to an administration order,
(iii) no receiver or manager has been appointed for its property, and (iv)
it has the power and material governmental licenses, authorizations,
consents and approvals to carry on its business as now conducted.
(ix) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(x) Payments of the fees owed to the Administrative Agent and the
Arranger by the Borrower pursuant to that letter dated February 17, 2000
among them.
(xi) Evidence that the Credit Agreement dated as of October 28, 1997
among Borrower, the Banks named therein, Bank One, Arizona, NA as
Administrative Agent and The First National Bank of Chicago as
Documentation Administrative Agent shall have been terminated and all
loans, fees and costs related thereto paid in full.
(xii) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2 EACH CREDIT EXTENSION.
The Lenders shall not (except as otherwise set forth in Section 2.5.4
with respect to Revolving Loans for the purpose of repaying Swing Line Loans) be
required to make any Credit Extension unless on the applicable Credit Extension
Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article 5 are
true and correct as of such Credit Extension Date except to the extent any
such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date.
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(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice, request for issuance of a Facility LC, or Swing
Line Borrowing Notice, as the case may be, with respect to each such Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Sections 4.2(i) and (ii) have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the
form of Exhibit "B" as a condition to making a Credit Extension.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 EXISTENCE AND STANDING.
Each of the Borrower and its Material Subsidiaries is a corporation,
partnership (in the case of Material Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted if failure could reasonably be expected to have
a Material Adverse Effect.
5.2 AUTHORIZATION AND VALIDITY.
The Borrower has the power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance
of its obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which the Borrower is a party constitute
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3 NO CONFLICT; GOVERNMENT CONSENT.
Neither the execution and delivery by the Borrower of the Loan
Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate (i) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the
Borrower or any of its Material Subsidiaries or (ii) the Borrower's or any
Material Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Material Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
34
thereunder, or result in, or require, the creation or imposition of any Lien
(other than as permitted under Section 6.14) in, of or on the Property of the
Borrower or a Material Subsidiary pursuant to the terms of any such indenture,
instrument or agreement, the violation of which could reasonably be expected to
have a Material Adverse Effect. Except for filing which may be required under
the Securities Exchange Act of 1934, no order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Material Subsidiaries, is required to be obtained by
the Borrower or any of its Material Subsidiaries in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of the Loan
Documents, whose failure to obtain could reasonably be expected to have a
Material Adverse Effect.
5.4 FINANCIAL STATEMENTS.
The March 31, 1999 consolidated financial statements of the Borrower
heretofore delivered to the Lenders were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations
of the Borrower at such date and the consolidated results of its operations for
the period then ended.
5.5 MATERIAL ADVERSE CHANGE.
Since March 31, 1999 there has been no change in the business,
Property, prospects, condition (financial or otherwise) or results of operations
of the Borrower which could reasonably be expected to have a Material Adverse
Effect.
5.6 TAXES.
The Borrower has filed all United States federal tax returns and all
other tax returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by the Borrower
if failure could reasonably be expected to have a Material Adverse Effect,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting
Principles and as to which no Lien exists. No tax liens have been filed and no
claims are being asserted with respect to any such taxes. The charges, accruals
and reserves on the books of the Borrower in respect of any taxes or other
governmental charges are adequate.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS.
Except as set forth in the Borrower's filing with the Securities and
Exchange Commission on Form 10-K for the year ended March 31, 1999 (the "1999
SEC Filing"), there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or threatened against or affecting the Borrower
which could reasonably be expected to have a Material Adverse Effect or which
35
seeks to prevent, enjoin or delay the making of any Credit Extensions. Other
than any liability incident to any litigation, arbitration or proceeding which
(i) could not reasonably be expected to have a Material Adverse Effect, or (ii)
is set forth in the 1999 SEC Filing, the Borrower has no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8 SUBSIDIARIES.
Schedule "1" contains an accurate list of all Subsidiaries of the
Borrower as of the date of this Agreement, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Borrower or other Subsidiaries
and indicating which Subsidiaries are Material Subsidiaries. All of the issued
and outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
5.9 ERISA.
The Borrower has no outstanding Plans.
5.10 ACCURACY OF INFORMATION.
No information, exhibit or report furnished by the Borrower to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
5.11 REGULATION U.
Margin stock (as defined in Regulation U) constitutes less than 25% of
the value of those assets of the Borrower and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
5.12 MATERIAL AGREEMENTS.
The Borrower is not a party to any agreement or instrument or subject
to any charter or other corporate restriction which could reasonably be expected
to have a Material Adverse Effect as to the Borrower. The Borrower is not in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect as
to the Borrower or (ii) any agreement or instrument evidencing or governing
Indebtedness.
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5.13 COMPLIANCE WITH LAWS.
The Borrower and its Subsidiaries have complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
Property except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect as to the Borrower.
5.14 OWNERSHIP OF PROPERTIES.
Except as set forth on Schedule "2", on the date of this Agreement, the
Borrower and its Material Subsidiaries will have good title, free of all Liens
other than those permitted by Section 6.15, to all of the Property and assets
reflected in the Borrower's most recent consolidated financial statements
provided to the Administrative Agent as owned by the Borrower and its Material
Subsidiaries if failure could reasonably be expected to have a Material Adverse
Effect.
5.15 PLAN ASSETS; PROHIBITED TRANSACTIONS.
The Borrower is not an entity deemed to hold "plan assets" within the
meaning of 29 C.F.R. ss. 2510.3-101 of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within
the meaning of Section 4975 of the Code).
5.16 ENVIRONMENTAL MATTERS.
In the ordinary course of its business, the officers of the Borrower
consider the effect of Environmental Laws on the business of the Borrower and
its Subsidiaries, in the course of which they identify and evaluate potential
risks and liabilities accruing to the Borrower due to Environmental Laws. On the
basis of this consideration, the Borrower is not aware of any Material Adverse
Effect reasonably expected to be caused by any existing Environmental Laws.
Neither the Borrower nor any Subsidiary has received any notice to the effect
that its operations are not in material compliance with any of the requirements
of applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
ARTICLE 6
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 FINANCIAL REPORTING.
The Borrower will maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with generally accepted
accounting principles, and furnish to the Lenders:
37
(i) Within ninety (90) days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated and consolidating basis
(consolidating statements need not be certified by such accountants) for
itself and its Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus statements,
and a statement of cash flows, accompanied by any management letter
prepared by said accountants.
(ii) Within forty-five (45) days after the close of the first three
quarterly periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated and consolidating unaudited balance sheets as at
the close of each such period and consolidated and consolidating profit and
loss and reconciliation of surplus statements and a statement of cash flows
for the period from the beginning of such fiscal year to the end of such
quarter, all certified by an Authorized Officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of
Exhibit "B" signed by an Authorized Officer showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) If Borrower has implemented a Plan, within two hundred seventy
(270) days after the close of each fiscal year, a statement of the Unfunded
Liabilities of each Single Employer Plan, certified as correct by an
actuary enrolled under ERISA.
(v) If Borrower has implemented a Plan, as soon as possible and in any
event within ten (10) days after the Borrower knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed by an
Authorized Officer of the Borrower, describing said Reportable Event and
the action which the Borrower proposes to take with respect thereto.
(vi) As soon as possible and in any event within twenty (20) Business
Days after receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation
of any federal, state or local Environmental Law by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be expected to
have a Material Adverse Effect as to the Borrower.
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(vii) Upon request by the Administrative Agent or any Lender, copies
of all financial statements, reports and proxy statements furnished to the
shareholders of the Borrower.
(viii) Upon request by the Administrative Agent or any Lender, copies
of all registration statements and annual, quarterly, monthly or other
regular reports which the Borrower files with the Securities and Exchange
Commission.
(ix) Such other information (including non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably
request.
6.2 USE OF PROCEEDS.
The Borrower will use the proceeds of the Credit Extensions for general
corporate purposes. The Borrower will not, nor will it permit any Subsidiary to,
use any of the proceeds of the Advances to purchase or carry any "margin stock"
(as defined in Regulation U).
6.3 NOTICE OF DEFAULT; NOTICE OF MATERIAL ADVERSE EFFECT.
The Borrower will give prompt notice in writing to the Lenders of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4 CONDUCT OF BUSINESS.
The Borrower will carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and do all things necessary to remain duly incorporated or
organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a domestic corporation, partnership or limited
liability company in its jurisdiction of incorporation or organization, as the
case may be, and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted, except where the failure
to do so would not result in a Material Adverse Effect.
6.5 TAXES.
The Borrower will, and will cause each Subsidiary to, timely file
complete and correct United States federal and applicable foreign, state and
local tax returns required by law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property if
failure to do so could reasonably be expected to have a Material Adverse Effect,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles.
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6.6 INSURANCE.
The Borrower will, and will cause each Material Subsidiary to, maintain
with financially sound and reputable insurance companies insurance on all their
Property in such amounts and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
6.7 COMPLIANCE WITH LAWS.
The Borrower will, and will cause each Subsidiary to, comply with all
applicable (i) laws, rules, regulations and (ii) final, nonappealable orders,
writs, judgments, injunctions, decrees or awards, to which it may be subject
including, without limitation, all Environmental Laws, if failure to do so could
reasonably be expected to have a Material Adverse Effect as to the Borrower.
6.8 MAINTENANCE OF PROPERTIES.
The Borrower will, and will cause each Material Subsidiary to, keep in
good working order and condition, ordinary wear and tear excepted, all of its
assets and properties which are necessary to the conduct of its business.
6.9 INSPECTION.
Upon reasonable notice, the Borrower will permit representatives of the
Administrative Agent and each Lender, at such representatives' sole cost and
expense, to have access to Borrower's financial records and Borrower's premises
at reasonable times during Borrower's normal operating hours, and to make such
excerpts from such records as such representatives may deem necessary, provided
that each person having access to Borrower's financial records and premises
shall hold all Information obtained in accordance with the provisions set forth
in Section 9.11.
6.10 INDEBTEDNESS.
The Borrower will not, nor will it permit any Subsidiary to, create,
incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described in
Schedule "2".
(iii) Indebtedness incurred after the date hereof not greater than
$50,000,000 in the aggregate.
6.11 MERGER.
The Borrower will not, nor will it permit any Subsidiary to, merge or
consolidate with or into any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
40
its assets or the assets of any Material Division, whether now owned or
hereafter acquired, or any capital stock of any Subsidiary (including any sale
or transfer, by merger or otherwise, of one of the Subsidiaries or Material
Divisions); EXCEPT THAT (a) the Borrower and any Subsidiary may sell inventory
in the ordinary course of business and (b) if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any wholly owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Wholly-Owned Subsidiary may merge into or consolidate with any other
Wholly-Owned Subsidiary in a transaction in which the surviving entity is a
Wholly-Owned Subsidiary and no Person other than the Borrower or a Wholly-Owned
Subsidiary receives any consideration, (iii) any other corporation may be merged
with a Subsidiary of the Borrower, provided that the surviving corporation shall
be a Subsidiary of the Borrower and no Default has occurred or would occur as a
result of such merger or acquisition and (iv) any other corporation may be
merged into the Borrower if the Borrower shall be the surviving corporation and
no Default has occurred or would occur as a result of such merger or
acquisition; BUT PROVIDED that in any merger of the Borrower pursuant to (iv)
above, the surviving entity must be at least as creditworthy as the Borrower was
immediately prior to such merger or acquisition and must expressly fully assume
in writing all obligations of the Borrower pursuant to this Agreement.
6.12 SALE OF ASSETS.
The Borrower will not, nor will it permit any Subsidiary to, lease,
sell or otherwise dispose of its Property to any other Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than inventory in the
ordinary course of business) as permitted by this Section during the
twelve-month period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries.
6.13 INVESTMENTS AND ACQUISITIONS.
The Borrower will not, nor will it permit any Subsidiary to, make or
suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor,
or to create any Subsidiary or to become or remain a partner in any partnership
or joint venture, or to make any Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule "1".
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(iii) Permitted Acquisitions not to exceed $100,000,000.00, taking
into account the total consideration received for any such acquisition
(e.g., stock, assumption of debt, etc.), in the aggregate per fiscal year.
6.14 LIENS.
The Borrower will not, nor will it permit any Material Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Material Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than sixty (60) days
past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the business of the Borrower or its Material
Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule "2".
(vi) Additional Liens securing Indebtedness not exceeding
$50,000,000.00 in the aggregate.
6.15 AFFILIATES.
The Borrower will not, and will not permit any Material Subsidiary to,
enter into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Material Subsidiary's business
and upon fair and reasonable terms no less favorable to the Borrower or such
Material Subsidiary than the Borrower or such Material Subsidiary would obtain
in a comparable arms-length transaction.
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6.16 SUBORDINATED INDEBTEDNESS.
The Borrower will not, and will not permit any Subsidiary to, make any
material amendment or modification to the indenture, note or other agreement
evidencing or governing any Subordinated Indebtedness, or directly or indirectly
voluntarily prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Subordinated Indebtedness.
6.17 CONTINGENT OBLIGATIONS.
The Borrower will not, nor will it permit any Subsidiary to, make or
suffer to exist any Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a Subsidiary and any
Synthetic Lease Obligations), except (i) by endorsement of instruments for
deposit or collection in the ordinary course of business, (ii) the Reimbursement
Obligations, and (iii) Contingent Obligations and Synthetic Lease Obligations
not exceeding $20,000,000.00 in the aggregate.
6.18 FINANCIAL COVENANTS.
6.18.1 INTEREST COVERAGE RATIO. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters, of (i) Consolidated EBIT to (ii)
Consolidated Interest Expense to be less than 5.00 to 1.0.
6.18.2 MINIMUM TANGIBLE NET WORTH. The Borrower will at all times
maintain Consolidated Tangible Net Worth of not less than the sum of (i)
$412,000,000.00, PLUS (ii) 50% of its Consolidated Net Income earned in each
fiscal quarter beginning with the quarter ending March 31, 2000 (without
deduction for losses), PLUS (iii) 100% of any future equity issuance after the
date hereof.
6.18.3 LEVERAGE RATIO. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i) Consolidated
Funded Indebtedness to (ii) Consolidated EBITDA for the then most-recently ended
four fiscal quarters to be greater than 1.50 to 1.0.
6.18.4 EBITDA. The Borrower will not permit its Consolidated EBITDA as
of the end of any fiscal quarter for the then most recently ended four fiscal
quarters to be less than $100,000,000.00.
6.19 NO NEGATIVE PLEDGE.
The Borrower will not, nor will it permit any Material Subsidiary to,
enter into any material agreement that would prevent the Borrower or any
Material Subsidiary from granting a Lien in, of or on the Property of the
Borrower or any of its Material Subsidiaries for the benefit of the Lenders.
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ARTICLE 7
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Material Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2 Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one (1) Business Day after the same becomes due,
or nonpayment of interest upon any Loan or of any commitment fee, LC Fee or
other obligations under any of the Loan Documents within five (5) days after the
same becomes due.
7.3 The breach by the Borrower of the terms or provisions of Sections
6.10, 6.11, 6.12, 6.16, 6.17 or 6.19. The breach by the Borrower of any of the
other terms or provisions of Article 6 which is not remedied within thirty (30)
calendar days after the earlier of (i) the day on which an Authorized Officer
knows or should have known of such default in the exercise of prudent business
practices customary to the industry and (ii) receipt by the Borrower of written
or telecopy notice from the Administrative Agent of such default.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article 7) of any of the terms or
provisions of this Agreement which is not remedied within thirty (30) days after
written notice from the Administrative Agent or any Lender.
7.5 Failure of the Borrower or any of its Subsidiaries to pay when due
any Indebtedness aggregating in excess of $10,000,000.00 ("Material
Indebtedness"); or the default by the Borrower or any of its Subsidiaries in the
performance of any term, provision or condition contained in any agreement under
which any such Material Indebtedness was created or is governed, or any other
event shall occur or condition exist, the effect of which default or event is to
cause, or to permit the holder or holders of such Material Indebtedness to
cause, such Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6 The Borrower or any of its Material Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
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7.7 Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of thirty (30) consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Borrower and its Subsidiaries which, when taken together
with all other Property of the Borrower and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
7.9 The entry of any non-appealable judgments in excess of seven and
one-half percent (7.5%) of Borrower's Consolidated Tangible Net Worth in the
aggregate against the Borrower and any Material Subsidiary that are not
adequately covered by insurance.
7.10 If Borrower has implemented any such Plan, the Unfunded
Liabilities of all Single Employer Plans shall exceed in the aggregate
$10,000,000.00 or any Reportable Event shall occur in connection with any Plan.
7.11 If Borrower has implemented any such Plan, the Borrower or any
other member of the Controlled Group shall have been notified by the sponsor of
a Multiemployer Plan that it has incurred withdrawal liability to such
Multiemployer Plan in an amount which, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Borrower or any other member
of the Controlled Group as withdrawal liability (determined as of the date of
such notification), exceeds $10,000,000.00 or requires payments exceeding
$10,000,000.00 per annum.
7.12 If Borrower has implemented any such Plan, the Borrower or any
other member of the Controlled Group shall have been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, if as a result of
such reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Controlled Group (taken as a whole) to all
Multiemployer Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan years of each such Multiemployer Plan immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $10,000,000.00.
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7.13 The Borrower or any of its Subsidiaries shall (i) be the subject
of any proceeding or investigation pertaining to the release by the Borrower,
any of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect as to the Borrower.
7.14 Any Change in Control shall occur.
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 ACCELERATION; FACILITY LC COLLATERAL ACCOUNT.
(i) If any Default described in Section 7.6 or 7.7 occurs with respect
to the Borrower, the obligations of the Lenders to make Loans hereunder and the
obligation and power of the LC Issuer to issue Facility LCs shall automatically
terminate and the Obligations shall immediately become due and payable without
any election or action on the part of the Administrative Agent, the LC Issuer or
any Lender and the Borrower will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of (x)
the amount of LC Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all
rights and claims of third parties and has not been applied against the
Obligations (such difference, the "Collateral Shortfall Amount"). If any other
Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may (a) terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives, and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under
this Agreement, make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall from time
46
to time have become due and payable by the Borrower to the Lenders or the LC
Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Administrative Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within thirty (30) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuer to issue Facility LCs hereunder as
a result of any Default (other than any Default as described in Section 7.6 or
7.7 with respect to the Borrower) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent
shall, by notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2 AMENDMENTS.
(a) Subject to the provisions of this Article 8, the Required Lenders
(or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; PROVIDED, HOWEVER, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry date
of any Facility LC to a date after the Facility Termination Date or forgive
all or any portion of the principal amount thereof or any Reimbursement
Obligation related thereto, or reduce the rate of interest, or fees (other
than those fees directly agreed upon between the Borrower and the
Administrative Agent), or amounts payable by Borrower under Article 3
hereof, or extend the time of payment of interest or fees thereon or
Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required under Section
2.2, or increase the amount of the Commitment of any Lender hereunder,
except as expressly provided in Section 2.1(b), or the commitment to issue
Facility LCs, or permit the Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
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(v) Release any collateral held in the Facility LC Collateral Account
(except in accordance with the terms hereof), or all or substantially all
of any other collateral, if any, securing any such Credit Extension.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, no amendment of any provision of this Agreement relating to the Swing
Line Lender or any Swing Line Loans shall be effective without the written
consent of the Swing Line Lender and no amendment of any provision relating to
the LC Issuer shall be effective without the written consent of the LC Issuer.
The Administrative Agent may waive payment of the fee required under Section
12.3.2 without obtaining the consent of any other party to this Agreement.
(b) The Lenders hereby agree to make commercially reasonable efforts to
respond promptly to any such written notice given by the Administrative Agent to
the Lenders.
8.3 PRESERVATION OF RIGHTS.
No delay or omission of a party hereto to exercise any right under the
Loan Documents shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Credit Extension
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Credit Extension shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Borrower and by the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing specifically set forth.
All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Borrower, the Administrative Agent,
the LC Issuer and the Lenders until the Obligations have been paid in full.
ARTICLE 9
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS.
All representations and warranties of the Borrower contained in this
Agreement shall survive the making of the Credit Extensions herein contemplated,
and shall continue in full force and effect until Termination has occurred.
9.2 GOVERNMENTAL REGULATION.
Anything contained in this Agreement to the contrary notwithstanding,
neither the LC Issuer nor any Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
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9.3 HEADINGS.
Section headings in the Loan Documents are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of the
Loan Documents.
9.4 ENTIRE AGREEMENT.
The Loan Documents embody the entire agreement and understanding among
the Borrower, the Administrative Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent, the LC Issuer and the Lenders relating to the subject
matter thereof other than the fee letter described in Section 10.13.
9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not
relieve any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns; PROVIDED, HOWEVER, that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and
10.11 to the extent specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to the same extent
as if it were a party to this Agreement.
9.6 EXPENSES; INDEMNIFICATION.
(i) Subject to the limitations set forth herein, the Borrower shall
reimburse the Administrative Agent and the Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys'
fees and time charges of attorneys for the Administrative Agent, but excluding
any fees or charges of attorneys that may be employees of the Administrative
Agent) paid or reasonably incurred by the Administrative Agent or the Arranger
in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Administrative Agent, the
Arranger, the LC Issuer and the Lenders for any reasonable costs, internal
charges and out-of-pocket expenses (including attorneys' fees and time charges
of attorneys for the Administrative Agent, the Arranger, the LC Issuer and the
Lenders, but excluding any fees or charges of attorneys that may be employees of
the Administrative Agent, the Arranger, the LC Issuer or the Lenders) paid or
reasonably incurred by the Administrative Agent, the Arranger, the LC Issuer or
any Lender in connection with the collection and enforcement of the Loan
Documents; provided, however, Borrower shall have no liability for such costs or
expenses if Borrower is the prevailing party in any action to collect or to
enforce the Loan Documents. Expenses being reimbursed by the Borrower under this
Section include, without limitation, reasonable costs and expenses reasonably
incurred in connection with the Reports described in the following sentence. The
Borrower acknowledges that from time to time Bank One may prepare and may
49
distribute to the Lenders (but shall have no obligation or duty to prepare or to
distribute to the Lenders) certain audit reports (the "Reports") pertaining to
the Borrower's assets for internal use by Bank One from information furnished to
it by or on behalf of the Borrower, after Bank One has exercised its rights of
inspection pursuant to this Agreement. Borrower shall not be obligated to
reimburse the costs and expenses of more than one (1) such Report per fiscal
year of the Borrower.
(ii) Subject to the limitations set forth herein, the Borrower hereby
further agrees to indemnify the Administrative Agent, the Arranger, the LC
Issuer and each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without
limitation, all reasonable expenses of litigation or preparation therefor
whether or not the Administrative Agent, the Arranger, the LC Issuer, any Lender
or any affiliate is a party thereto) which any of them may pay or reasonably
incur arising out of or directly relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. To receive indemnification under this Section 9.6(ii), the
Administrative Agent, the Arranger, the Lender or the LC Issuer, as the case may
be, shall (a) notify Borrower of the claim promptly in writing and furnish
Borrower with a copy of each material communication, notice or other action
relating to the claim; (b) provide Borrower with all authority, information and
assistance (for which Borrower will bear the reasonable expense) Borrower deems
reasonably necessary to defend or settle the claim, suit or proceeding, (c) not
make any admission, compromise, accept or settle any claim, suit or proceedings,
and (d) give Borrower exclusive control of the defense, including the right to
select counsel and to enter into a settlement.
(iii) Notwithstanding any other provision herein to the contrary,
including but not limited to this Section 9.6, in no event shall Borrower have
any liability under the Loan Documents or the transactions contemplated thereby,
with respect to, and the Administrative Agent, the Arranger, each Lender and
each LC Issuer hereby waives, releases and agrees not to xxx for, any
incidental, indirect, exemplary, consequential, special or punitive damages, or
for any loss of revenue, profits, capital or business or wasted management time,
even if Borrower is made aware of the possibility of such damages or they are
foreseeable, suffered by the Administrative Agent, the Arranger, each Lender and
each LC Issuer in connection with, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby, except to the extent
the Administrative Agent, the Arranger, each Lender and each LC Issuer is
subject to a final, nonappealable judgment for claims for incidental, indirect,
consequential, special or punitive damages by other Persons to the extent they
are attributable to actions of the Borrower.
(iv) The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement and shall continue in full force and
effect until Termination has occurred.
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9.7 NUMBERS OF DOCUMENTS.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
9.8 ACCOUNTING.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with Agreement Accounting Principles.
9.9 SEVERABILITY OF PROVISIONS.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
9.10 NONLIABILITY OF LENDERS.
The relationship between the Borrower on the one hand and the Lenders,
the LC Issuer and the Administrative Agent on the other hand shall be solely
that of borrower and lender. Neither the Administrative Agent, the Arranger, the
LC Issuer nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Administrative Agent, the Arranger, the LC Issuer nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that neither the Administrative Agent, the
Arranger, the LC Issuer nor any Lender shall have liability to the Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
liability with respect to, and the Borrower hereby waives, releases and agrees
not to xxx for, any incidental, indirect, exemplary, consequential, special or
punitive damages, or for any loss of revenue, profits, capital or business or
wasted management time, even if such Person is made aware of the possibility of
such damages or they are foreseeable, suffered by the Borrower in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby, except to the extent the Borrower, its
Subsidiaries or Affiliates is subject to a final, nonappealable judgment for
claims for incidental, indirect, consequential, special or punitive damages by
other Persons to the extent they are attributable to actions of the
Administrative Agent, the Arranger, a Lender or an LC Issuer.
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9.11 CONFIDENTIALITY.
Each Lender agrees to hold any confidential information (the
"Information") which it may receive from the Borrower pursuant to this Agreement
in confidence, except for disclosure (i) to such of its and its Affiliates'
officers, directors, employees, agents and representatives (including outside
counsel) as need to know such Information; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal process, or
requested by any bank regulatory authority (provided that such Lender shall,
except for Information requested by any such bank regulatory authority, promptly
notify Borrower (to the extent practicable and lawful, notice shall be given to
the Borrower before such disclosure is made so as to permit Borrower to seek a
protective order) of the circumstances and content of each such disclosure and
shall request confidential treatment of any Information so disclosed); (iii) to
the extent such Information (A) becomes publicly available other than as a
result of a breach of this Agreement, (B) becomes available to such Lender on a
non-confidential basis without a breach of confidence from a source other than
the Borrower or its Affiliates or (C) was available to such Lender on a
non-confidential basis prior to its disclosure to such Lender by the Borrower or
its Affiliates; (iv) to the extent the Borrower shall have consented to such
disclosure in writing, (v) to any Person in connection with any legal proceeding
to which such Lender is a party (provided that such Lender, unless legally
prevented from doing so, shall promptly notify Borrower as to any such
disclosure so as to permit Borrower to seek a protective order), (vi) to such
Lender's direct or indirect contractual counterparties in swap agreements or to
legal counsel, accountants and other professional advisors to such
counterparties, subject to such entities and persons having agreed in writing to
abide by the provisions of this Section 9.11, and (vii) permitted by Section
12.4. As used in this Agreement, Information includes by way of illustration and
not of limitation, any financial statements, reports, materials, documents,
certificates, plans, and any other information that the Borrower or any of its
Subsidiaries, Divisions or Affiliates may have furnished or may hereafter
furnish to the Administrative Agent or any Lender under the Loan Documents or in
connection with the transactions contemplated thereby.
9.12 NONRELIANCE.
Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) for the repayment of the Credit Extensions provided for
herein.
9.13 DISCLOSURE.
The Borrower and each Lender hereby (i) acknowledge and agree that Bank
One and/or its Affiliates from time to time may hold investments in, make other
loans to or have other relationships with the Borrower and its Affiliates, and
(ii) waive any liability of Bank One or such Affiliate of Bank One to the
Borrower or any Lender, respectively, arising out of or resulting from such
investments, loans or relationships other than liabilities arising out of the
gross negligence or willful misconduct of Bank One or its Affiliates.
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ARTICLE 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT; NATURE OF RELATIONSHIP.
Bank One, NA is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Administrative Agent")
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees to act
as such contractual representative upon the express conditions contained in this
Article 10. Notwithstanding the use of the defined term "Administrative Agent,"
it is expressly understood and agreed that the Administrative Agent shall not
have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Administrative Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code, and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 POWERS.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3 GENERAL IMMUNITY.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
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10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article 4, except receipt of items required to be
delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any collateral
security; or (g) the financial condition of the Borrower or any guarantor of any
of the Obligations or of any of the Borrower's or any such guarantor's
respective Subsidiaries. The Administrative Agent shall have no duty to disclose
to the Lenders information that is not required to be furnished by the Borrower
to the Administrative Agent at such time, but is voluntarily furnished by the
Borrower to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).
10.5 ACTION ON INSTRUCTIONS OF LENDERS.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders
or, as may be expressly required herein, all Lenders, and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders. The Lenders hereby acknowledge that the Administrative Agent shall
be under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6 EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL.
The Administrative Agent may execute any of its duties as
Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
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10.7 RELIANCE ON DOCUMENTS; COUNSEL.
The Administrative Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel may be
employees of the Administrative Agent.
10.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately prior to
such termination) (i) for any amounts not reimbursed by the Borrower for which
the Administrative Agent is entitled to reimbursement by the Borrower under the
Loan Documents, (ii) for any other expenses incurred by the Administrative Agent
on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including,
without limitation, for any expenses incurred by the Administrative Agent in
connection with any dispute between two or more of the Lenders), and (iii) for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred by or asserted
against the Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the Lenders), or
the enforcement of any of the terms of the Loan Documents or of any such other
documents; PROVIDED that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Administrative Agent and (ii) any indemnification
required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement.
10.9 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Administrative Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders.
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10.10 RIGHTS AS A LENDER.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person.
10.11 LENDER CREDIT DECISION.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Arranger or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Arranger or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.12 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five (45) days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders within thirty (30) days after the resigning Administrative Agent's
giving notice of its intention to resign, then the resigning Administrative
Agent may appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. Notwithstanding the previous sentence, the Administrative
Agent may at any time without the consent of the Borrower or any Lender, appoint
any of its Affiliates which is a commercial bank as a successor Administrative
Agent hereunder. If the Administrative Agent has resigned or been removed and no
successor Administrative Agent has been appointed, the Lenders may perform all
the duties of the Administrative Agent hereunder and the Borrower shall make all
payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with the Lenders. No successor Administrative
Agent shall be deemed to be appointed hereunder until such successor
56
Administrative Agent has accepted the appointment. Any such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $100,000,000.00. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning or removed
Administrative Agent. Upon the effectiveness of the resignation or removal of
the Administrative Agent, the resigning or removed Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article X shall continue in effect
for the benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant to this Section
10.12, then the term "Prime Rate" as used in this Agreement shall mean the prime
rate, base rate or other analogous rate of the new Administrative Agent.
10.13 ADMINISTRATIVE AGENT'S FEE.
The Borrower agrees to pay to the Administrative Agent, for its own
account, the fees agreed to by the Borrower and the Administrative Agent
pursuant to that certain letter agreement dated February 17, 2000, or as
otherwise agreed from time to time.
10.14 DELEGATION TO AFFILIATES.
The Borrower and the Lenders agree that the Administrative Agent may
delegate any of its duties under this Agreement to any of its Affiliates. Any
such Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the
same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles 9 and 10.
10.15 DOCUMENTATION AGENT AND SYNDICATION AGENT.
Neither the Documentation Agent nor the Syndication Agent shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgements
with respect to such Lenders as it makes with respect to the Administrative
Agent in Section 10.11.
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ARTICLE 11
SETOFF; RATABLE PAYMENTS
11.1 SETOFF.
In addition to, and without limitation of, any rights of the Lenders
under applicable law, if the Borrower becomes insolvent, however evidenced, or
any Default occurs after the passage of any cure or notice period, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or any Affiliate of any Lender to or for the credit
or account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part
thereof, shall then be due; provided that such right of setoff shall not apply
to amounts which may be held in (i) trust accounts or (ii) asset management
accounts, including without limitation brokerage accounts, cash management
accounts (other than depository accounts) or other money management or
investment accounts of a non-depository nature with any Lender.
11.2 RATABLE PAYMENTS.
If any Lender, whether by setoff or otherwise, has payment made to it
upon its Outstanding Credit Exposure (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Aggregate Outstanding Credit Exposure held by the other Lenders so that
after such purchase each Lender will hold its Pro Rata Share of the Aggregate
Outstanding Credit Exposure. If any Lender, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action necessary
such that all Lenders share in the benefits of such collateral ratably in
proportion to their respective Pro Rata Share of the Aggregate Outstanding
Credit Exposure. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 SUCCESSORS AND ASSIGNS.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents, and (ii) any
assignment by any Lender must be made in compliance with Section 12.3. The
parties to this Agreement acknowledge that clause (ii) of this Section 12.1
relates only to absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment by
any Lender of all or any portion of its rights under this Agreement and any Note
to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
58
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
PROVIDED, HOWEVER, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
12.2 PARTICIPATIONS.
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Outstanding Credit Exposure of such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which forgives principal, interest, fees
or any Reimbursement Obligation or reduces the interest rate or fees payable
with respect to any such Credit Extension or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of, or interest on any Loan in which such Participant has an
interest, or any regularly-scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such Credit Extension or
releases any collateral held in the Facility LC Collateral Account (except in
accordance with the terms hereof) or all or substantially all of any other
collateral, if any, securing any such Credit Extension.
12.2.3 BENEFIT OF SETOFF. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents; PROVIDED that each Lender shall
59
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
12.3 ASSIGNMENTS.
12.3.1 PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in
the form of Exhibit "C" or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower, the Administrative Agent and the LC Issuer
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof; PROVIDED, HOWEVER, that
if a Default has occurred and is continuing, the consent of the Borrower shall
not be required. Such consents shall not be unreasonably withheld or delayed.
Each such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrower and the Administrative
Agent otherwise consents) be in an amount not less than the lesser of (i)
$5,000,000.00, or (ii) the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment) or outstanding Loans (if the
applicable Commitment has been terminated).
12.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery ("Notice of
Assignment") to the Administrative Agent of an assignment, together with any
consents required by Section 12.3.1, and (ii) payment of a $3,500.00 fee to the
Administrative Agent for processing such assignment (unless such fee is waived
by the Administrative Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable assignment agreement constitutes "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender party
to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Outstanding Credit Exposure assigned
to such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3.2, the transferor Lender, the Administrative Agent
and the Borrower shall, if the transferor Lender or the Purchaser desires that
its Loans be evidenced by Notes, make appropriate arrangements so that new Notes
or, as appropriate, replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignment.
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12.4 DISSEMINATION OF INFORMATION.
Provided that each Transferee and prospective Transferee agrees to be
bound by Section 9.11 of this Agreement, the Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports.
12.5 TAX TREATMENT.
If any interest in any Loan Document is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
ARTICLE 13
NOTICES
13.1 NOTICES.
Except as otherwise permitted by Section 2.15 with respect to borrowing
notices, all notices, requests and other communications to any party hereunder
shall be in writing (including electronic transmission, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrower or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or in its
administrative questionnaire, or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the Administrative Agent and the Borrower in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, five (5) Business Days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the
Administrative Agent under Article 2 shall not be effective until received.
13.2 CHANGE OF ADDRESS.
The Borrower, the Administrative Agent and any Lender may each change
the address for service of notice upon it by a notice in writing to the other
parties hereto.
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ARTICLE 14
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent, the LC Issuer and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone that it has
taken such action.
ARTICLE 15
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ARIZONA, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ARIZONA STATE COURT
SITTING IN PHOENIX, ARIZONA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
15.3 WAIVER OF JURY TRIAL.
THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
MICROCHIP TECHNOLOGY INCORPORATED,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Title: President and Chief Executive Officer
---------------------------------------
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
FAX: (000) 000-0000
COMMITMENTS
$30,000,000.00 BANK ONE, NA,
Individually, as LC Issuer and as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Title: First Vice President
---------------------------------------
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
63
$22,500,000.00 XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Individually and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Title: Vice President
---------------------------------------
000 Xxxx Xxxxxxxxxx, 25th Floor
MAC S4101-251
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
$22,500,000.00 BANK OF AMERICA, N.A.,
Individually and as Documentation Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Title: Vice President
---------------------------------------
CA5-705-41-02
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
$15,000,000.00 BANCA DI ROMA
By: /s/ Xxxxxx X. Xxxxxxxx/Xxxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
---------------------------------------
Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
$10,000,000.00 THE NORTHERN TRUST COMPANY
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: Second Vice President
--------------------------------
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
64
