Exhibit 10.0
EXECUTION COPY
AMENDED & RESTATED
CREDIT AGREEMENT
Dated as of March 6, 2002
among
XXXXXXX DENVER, INC.,
THE NON-U.S. SUBSIDIARY BORROWER THAT IS OR MAY HEREAFTER BECOME A
PARTY HERETO,
THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS
BANK ONE, NA (MAIN OFFICE CHICAGO),
(formerly known as The First National Bank of Chicago)
individually, as LC Issuer, the Swing Line Lender and as Agent for the Lenders
and
U.S. BANK NATIONAL ASSOCIATION,
individually and as Syndication Agent for the Lenders
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BANC ONE CAPITAL MARKETS, INC.
as Lead Arranger and Sole Book Runner
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Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS.........................................................................1
ARTICLE II: THE CREDITS.......................................................................23
2.1. Revolving Loans.....................................................................23
2.2. Swing Line Loans....................................................................24
2.3. Term Loan...........................................................................26
2.4. Repayments and Prepayments of Advances..............................................27
2.5. Ratable Loans.......................................................................29
2.6. Types of Advances...................................................................29
2.7. Facility Fee; Reductions in Aggregate Revolving Loan Commitment.....................29
2.8. Minimum Amount of Each Advance; Maximum Interest Periods............................29
2.9. Method of Selecting New Advances....................................................30
2.10. Conversion and Continuation of Outstanding Advances................................30
2.11. Changes in Interest Rate, etc......................................................31
2.12. Rates Applicable After Default.....................................................32
2.13. Method of Payment..................................................................32
2.14. Noteless Agreement; Evidence of Indebtedness.......................................33
2.15. Telephonic Notices.................................................................33
2.16. Interest Payment Dates; Interest and Fee Basis.....................................34
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions.......................................................................34
2.18. Lending Installations..............................................................34
2.19. Non-U.S. Subsidiary Borrower.......................................................35
2.20. Non-Receipt of Funds by the Agent..................................................35
2.21. Extension of Revolving Loan Termination Date.......................................35
2.22. Withholding Tax Exemption..........................................................36
2.23. Facility LCs.......................................................................37
2.24. Transitional Letter of Credit Provisions...........................................43
2.25. Judgment Currency..................................................................43
2.26. Market Disruption..................................................................43
ARTICLE III: CHANGE IN CIRCUMSTANCES..........................................................44
3.1. Yield Protection....................................................................44
3.2. Changes in Capital Adequacy Regulations.............................................44
3.3. Availability of Types of Advances...................................................45
3.4. Funding Indemnification.............................................................45
3.5. Lender Statements; Survival of Indemnity............................................45
3.6. Replacement Lenders.................................................................46
3.7. Payments by Non-U.S. Subsidiary Borrower............................................46
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ARTICLE IV: CONDITIONS PRECEDENT..............................................................46
4.1. Initial Credit Extension............................................................46
4.2. Initial Advance to the Non-U.S. Subsidiary Borrower.................................48
4.3. Each Credit Extension...............................................................49
ARTICLE V: REPRESENTATIONS AND WARRANTIES.....................................................50
5.1. Existence and Standing..............................................................50
5.2. Authorization and Validity..........................................................50
5.3. No Conflict; Government Consent.....................................................50
5.4. Financial Statements................................................................51
5.5. Material Adverse Change.............................................................51
5.6. Taxes...............................................................................51
5.7. Litigation and Contingent Obligations...............................................51
5.8. Subsidiaries........................................................................51
5.9. ERISA...............................................................................51
5.10. Accuracy of Information............................................................52
5.11. Regulation U.......................................................................52
5.12. Material Agreements................................................................52
5.13. Compliance With Laws...............................................................52
5.14. Ownership of Property..............................................................52
5.15. Labor Matters......................................................................53
5.16. Investment Company Act.............................................................53
5.17. Public Utility Holding Company Act.................................................53
5.18. Insurance..........................................................................53
5.19. Special Representations and Warranties of the Non-U.S. Subsidiary Borrower.........53
ARTICLE VI: COVENANTS.........................................................................55
6.1. Financial Reporting.................................................................55
6.2. Use of Proceeds.....................................................................56
6.3. Notice of Default...................................................................57
6.4. Conduct of Business.................................................................57
6.5. Taxes...............................................................................57
6.6. Insurance...........................................................................57
6.7. Compliance with Laws................................................................57
6.8. Maintenance of Property.............................................................58
6.9. Inspection..........................................................................58
6.10. Subsidiaries.......................................................................58
6.11. Dividends..........................................................................58
6.12. Indebtedness.......................................................................59
6.13. Merger.............................................................................59
6.14. Sale of Assets.....................................................................60
6.15. Investments and Acquisitions; Guaranty or Pledge Documentation for New
Subsidiaries.....................................................................60
6.16. Contingent Obligations and Off Balance Sheet Liabilities...........................63
6.17. Liens..............................................................................63
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6.18. Rentals............................................................................65
6.19. Affiliates.........................................................................65
6.20. Minimum Consolidated Interest Coverage Ratio.......................................66
6.21. Minimum Consolidated Net Worth.....................................................66
6.22. Maximum Leverage Ratio.............................................................66
6.23. Capital Expenditures...............................................................66
6.24. Pledge Agreements..................................................................66
ARTICLE VII: DEFAULTS.........................................................................66
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS, WAIVERS, AMENDMENTS AND REMEDIES..............69
8.1. Remedies............................................................................69
8.2. Defaulting Lender...................................................................70
8.3. Amendments..........................................................................71
8.4. Preservation of Rights..............................................................72
ARTICLE IX: GENERAL PROVISIONS................................................................72
9.1. Survival of Representations.........................................................72
9.2. Governmental Regulation.............................................................73
9.3. Taxes...............................................................................73
9.4. Headings............................................................................73
9.5. Entire Agreement....................................................................73
9.6. Several Obligations; Benefits of this Agreement.....................................73
9.7. Expenses; Indemnification...........................................................73
9.8. Numbers of Documents................................................................74
9.9. Accounting..........................................................................74
9.10. Prior Agreement....................................................................74
9.11. Severability of Provisions.........................................................75
9.12. Nonliability of Lenders............................................................75
9.13. CHOICE OF LAW......................................................................75
9.14. CONSENT TO JURISDICTION............................................................75
9.15. WAIVER OF JURY TRIAL...............................................................75
9.16. Agent for Service of Process.......................................................76
9.17. Confidentiality....................................................................76
ARTICLE X: THE AGENT..........................................................................76
10.1. Appointment........................................................................76
10.2. Powers.............................................................................76
10.3. General Immunity...................................................................76
10.4. No Responsibility for Loans, Recitals, etc.........................................76
10.5. Action on Instructions of Lenders..................................................77
10.6. Employment of Agents and Counsel...................................................77
10.7. Reliance on Documents; Counsel.....................................................77
10.8. Agent's Reimbursement and Indemnification..........................................77
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10.9. Rights as a Lender.................................................................78
10.10. Lender Credit Decision............................................................78
10.11. Successor Agent...................................................................78
10.12. Agent's Fees......................................................................79
10.13. Execution of Guaranty Collateral Documents........................................79
10.14. Collateral and Guaranty Releases..................................................79
10.15. No Duties Imposed on Syndication Agent or Arranger................................79
ARTICLE XI: SETOFF; RATABLE PAYMENTS..........................................................79
11.1. Setoff.............................................................................79
11.2. Ratable Payments...................................................................80
11.3. Relations Among Lenders............................................................80
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION.................................80
12.1. Successors and Assigns.............................................................80
12.2. Participation......................................................................81
12.2.1. Permitted Participants; Effect...............................................81
12.2.2. Voting Rights................................................................81
12.2.3. Benefit of Setoff............................................................81
12.3. Assignments........................................................................81
12.3.1. Permitted Assignments........................................................81
12.3.2. Effect; Effective Date.......................................................82
12.3.3. Register.....................................................................82
12.4. Dissemination of Information.......................................................82
12.5. Tax Treatment......................................................................83
ARTICLE XIII: NOTICES.........................................................................83
13.1. Giving Notice......................................................................83
13.2. Change of Address..................................................................83
ARTICLE XIV: COUNTERPARTS.....................................................................83
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EXHIBITS AND SCHEDULES
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Exhibit A -- Form of Assumption Letter
Exhibit B -- Form of Parent Guaranty
Exhibit C -- Form of Subsidiary Guaranty
Exhibit D -- Forms of Notes (if requested)
Exhibit E -- Forms of Legal Opinion
Exhibit F -- Form of Compliance Certificate
Exhibit G -- Loan/Credit Related Money Transfer Instructions
Exhibit H -- List of Closing Documents
Exhibit I -- Form of Assignment Agreement
Schedule 1 -- Commitments
Schedule 2 -- Eurocurrency Payment Offices
Schedule 3 -- Existing LCs
Schedule 4 -- Litigation
Schedule 5 -- Subsidiaries
Schedule 6 -- Environmental Matters
Schedule 7 -- Existing Indebtedness
Schedule 8 -- Existing Investments
Schedule 9 -- Existing Liens
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AMENDED AND RESTATED
CREDIT AGREEMENT
This Amended and Restated Credit Agreement (this "AGREEMENT"),
dated as of March 6, 2002, is among Xxxxxxx Denver, Inc., a Delaware
corporation (formerly known as Xxxxxxx Denver Machinery Inc.) (the
"BORROWER"), a Foreign Subsidiary of the Borrower that is, or may hereafter
become, a party hereto (whether now existing or hereafter formed, the
"NON-U.S. SUBSIDIARY BORROWER" and, together with the Borrower, collectively
referred to as the "BORROWERS"), the institutions from time to time parties
hereto as Lenders, Bank One, NA (formerly known as The First National Bank
of Chicago), having its principal place of business in Chicago, Illinois, as
an LC Issuer, the Swing Line Lender and as Agent for the Lenders and U.S.
Bank National Association, as Syndication Agent for the Lenders. The parties
hereto agree as follows:
WHEREAS, the Borrower, certain of the Lenders party hereto, certain
other lenders and the Agent are parties to that certain Credit Agreement,
dated as of January 20, 1998 (as amended, restated, supplemented or
otherwise modified prior to the date hereof, the "EXISTING CREDIT
AGREEMENT") and that certain Interim Credit Agreement, dated as of August
31, 2001 (as amended, restated, supplemented or otherwise modified prior to
the date hereof, the "INTERIM CREDIT AGREEMENT"); and
WHEREAS, the Borrower, the Lenders, and the Agent desire to amend
and restate the Existing Credit Agreement in certain respects and to
terminate the Interim Credit Agreement;
NOW THEREFORE, the Borrower, the Lenders, and the Agent have agreed
to amend and restate the Existing Credit Agreement on the terms and
conditions set forth herein:
ARTICLE I: 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
concern or all or substantially all of the assets of any firm, corporation
or other business entity, or division thereof (other than the Borrower or
any of its Subsidiaries), whether through purchase of assets, a
reorganization, 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 (other than a Subsidiary formed for the purpose of carrying forward
a business theretofore operated by the Borrower or any of its Subsidiaries).
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders on the same Borrowing Date
to any Borrower of the same Type and, in the case of Eurocurrency Advances,
in the same currency and for the same Eurocurrency Interest Period.
"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.
"AGENT" means Bank One in its capacity as contractual
representative for the Lenders pursuant to Article X, and not in its
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individual capacity as a Lender, and any successor Agent appointed pursuant
to Article X.
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"AGGREGATE OUTSTANDING CREDIT EXPOSURE" means, as of any day, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"AGGREGATE OUTSTANDING LC EXPOSURE" means, as of any day, the
aggregate of the Outstanding LC Exposure of all the Lenders.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be adjusted from time
to time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is One Hundred Fifty Million and 00/100 Dollars ($150,000,000).
"AGGREGATE REVOLVING LOAN COMMITMENT REDUCTION NOTICE" is defined
in Section 2.7.
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"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Term
Loan Commitments of all of the Term Loan Lenders, which shall equal
$50,000,000 on the Closing Date.
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such
currencies remain Eligible Currencies, Pounds Sterling, Canadian Dollars and
euro; and (iii) with respect to Facility LCs, any other Eligible Currency
which the Borrower requests the Agent to include as an Agreed Currency
hereunder and which is acceptable to the Agent and one-hundred percent
(100%) of the Lenders; provided, that the Agent shall promptly notify each
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Lender of each such request and each Lender shall be deemed not to have
agreed to each such request unless its written consent thereto has been
received by the Agent within five (5) Business Days from the date of such
notification by the Agent to such Lender.
"AGREEMENT" means this Amended and Restated Credit Agreement, as it
may be amended or modified and in effect from time to time.
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"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted
accounting principles as in effect in the United States from time to time;
provided, however, that if the Borrower notifies the Agent that the Borrower
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wishes to amend any covenant in Article VI to eliminate the effect of any
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change in generally accepted accounting principles on the operation of such
covenant (or if the Agent notifies the Borrower that the Required Lenders
wish to amend Article VI for such purpose), then the Borrower's compliance
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with such covenant shall be determined on the basis of generally accepted
accounting principles in effect immediately before the relevant change in
generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
"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 and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"APPLICABLE COMMERCIAL FACILITY LC MARGIN" means, with respect to
any commercial Facility LC, for any day, the percentage rate per annum set
forth below opposite the Leverage Ratio in effect on such day:
LEVERAGE APPLICABLE
RATIO: COMMERCIAL FACILITY LC MARGIN:
GREATER THAN BUT LESS THAN
OR EQUAL TO
-- 1.5 0.375%
1.5 2.0 0.50%
2.0 2.5 0.625%
2.5 3.0 0.75%
3.0 -- 0.875%
The Applicable Commercial Facility LC Margin shall be adjusted (upward or
downward) effective five Business Days after the Agent has received (and
such adjustment, if any, shall be based upon) the Borrower's compliance
certificate delivered with the Borrower's financial statements pursuant to
clauses (i) and (ii) of Section 6.1; provided, however, that before receipt
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by the Agent of the Borrower's compliance certificate delivered with the
Borrower's financial statements pursuant to clauses (i) and (ii) of Section
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6.1 for the fiscal quarter ended on December 31, 2001, the Applicable
---
Commercial Facility LC Margin shall be 0.75% per annum or higher; and
provided, further, that if the Borrower fails to deliver to the Agent a
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compliance certificate and financial statements pursuant to clauses (i) and
-----------
(ii) of Section 6.1 for any reason, then the Applicable Commercial Facility
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LC Margin shall be 0.875%, effective until five Business Days after such
compliance certificate and financial statements are received by the Agent.
"APPLICABLE FACILITY FEE" means for any day, the percentage rate
per annum set forth below opposite the Leverage Ratio in effect on such day:
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LEVERAGE APPLICABLE
RATIO: FACILITY FEE:
GREATER THAN BUT LESS THAN
OR EQUAL TO
-- 1.5 0.175%
1.5 2.0 0.20%
2.0 2.5 0.225%
2.5 3.0 0.25%
3.0 -- 0.30%
The Applicable Facility Fee shall be adjusted (upward or downward) effective
five Business Days after the Agent has received (and such adjustment, if
any, shall be based upon) the Borrower's compliance certificate delivered
with the Borrower's financial statements pursuant to clauses (i) and (ii) of
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Section 6.1; provided, however, that before receipt by the Agent of the
----------- -------- -------
Borrower's compliance certificate delivered with the Borrower's financial
statements pursuant to clauses (i) and (ii) of Section 6.1 for the fiscal
----------- ---- -----------
quarter ended on December 31, 2001, the Applicable Facility Fee shall be
0.25% per annum or higher; and provided, further, that if the Borrower fails
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to deliver to the Agent a compliance certificate and financial statements
pursuant to clauses (i) and (ii) of Section 6.1 for any reason, then the
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Applicable Facility Fee shall be 0.30%, effective until five Business Days
after such compliance certificate and financial statements are received by
the Agent.
"APPLICABLE MARGIN" means, with respect to a Eurocurrency Advance
for any day, the percentage rate per annum set forth below opposite the
Leverage Ratio in effect on such day:
LEVERAGE RATIO: APPLICABLE MARGIN:
GREATER THAN BUT LESS THAN EUROCURRENCY LOANS
OR EQUAL TO
-- 1.5 0.575%
1.5 2.0 0.80%
2.0 2.5 1.025%
2.5 3.0 1.25%
3.0 -- 1.45%
The Applicable Margin for new as well as outstanding Eurocurrency Advances
shall be adjusted (upward or downward) effective five Business Days after
the Agent has received (and such adjustment, if any, shall be based upon)
the Borrower's compliance certificate delivered with the Borrower's
financial statements pursuant to clauses (i) and (ii) of Section 6.1;
----------- ---- -----------
provided, however, that before receipt by the Agent of the Borrower's
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compliance certificate delivered with the Borrower's financial statements
pursuant to clauses (i) and (ii) of Section 6.1 for the fiscal quarter ended
----------- ---- -----------
on December 31, 2001, the Applicable Margin shall be 1.25% or higher; and
provided, further, that if the Borrower fails to deliver to the Agent a
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compliance certificate and
4
financial statements pursuant to clauses (i) and (ii) of Section 6.1 for any
----------- ---- -----------
reason, then the Applicable Margin shall be 1.45%, effective until five
Business Days after such compliance certificate and financial statements are
received by the Agent.
"APPLICABLE STAND-BY FACILITY LC MARGIN" means, with respect to any
stand-by Facility LC, for any day, the percentage rate per annum set forth
below opposite the Leverage Ratio in effect on such day:
LEVERAGE APPLICABLE
RATIO: STAND-BY FACILITY LC MARGIN:
GREATER THAN BUT LESS THAN
OR EQUAL TO
-- 1.5 0.75%
1.5 2.0 1.00%
2.0 2.5 1.25%
2.5 3.0 1.50%
3.0 -- 1.75%
The Applicable Stand-by Facility LC Margin shall be adjusted (upward or
downward) effective five Business Days after the Agent has received (and
such adjustment, if any, shall be based upon) the Borrower's compliance
certificate delivered with the Borrower's financial statements pursuant to
clauses (i) and (ii) of Section 6.1; provided, however, that before receipt
----------- ---- ----------- -------- -------
by the Agent of the Borrower's compliance certificate delivered with the
Borrower's financial statements pursuant to clauses (i) and (ii) of Section
----------- ---- -------
6.1 for the fiscal quarter ended on December 31, 2001, the Applicable
---
Stand-by Facility LC Margin shall be 1.50% per annum or higher; and
provided, further, that if the Borrower fails to deliver to the Agent a
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compliance certificate and financial statements pursuant to clauses (i) and
-----------
(ii) of Section 6.1 for any reason, then the Applicable Stand-by Facility LC
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Margin shall be 1.75%, effective until five Business Days after such
compliance certificate and financial statements are received by the Agent.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars at such date, rounded up to the nearest
amount of such currency as determined by the Agent from time to time.
"ARRANGER" means Banc One Capital Markets, Inc.
"ARTICLE" means an article of this Agreement unless another
document is specifically referenced.
"ASSUMPTION LETTER" means a letter of a Foreign Subsidiary of the
Borrower, addressed to the Lenders in substantially the form of Exhibit A
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hereto pursuant to which such Subsidiary
5
agrees to become the "Non-U.S. Subsidiary Borrower" and agrees to be bound
by the terms and conditions hereof.
"AUTHORIZED OFFICER" means (i) with respect to the Borrower, any of
the President, the Chief Executive Officer or the Chief Financial Officer of
the applicable Borrower, acting singly; provided, that with respect to
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Borrowing Notices, Conversion/Continuation Notices, requests for the
issuance or modifications of Facility LCs, commitment reduction notices and
prepayment notices, the Treasurer, Assistant Treasurer or Corporate
Controller of the applicable Borrower, acting singly, shall also be deemed
an Authorized Officer and (ii) with respect to the Non-U.S. Subsidiary
Borrower, such officers of the Non-U.S. Subsidiary Borrower as the
President, the Chief Executive Officer or the Chief Financial Officer of the
Borrower may designate in the Assumption Letter to which such Non-U.S.
Subsidiary Borrower is a party.
"BANK ONE" means Bank One, NA, with its main office in Chicago,
Illinois, in its individual capacity, and its successors.
"BORROWER" means Xxxxxxx Denver, Inc. (formerly known as Xxxxxxx
Denver Machinery Inc.), a Delaware corporation, and its successors and
permitted assigns.
"BORROWER CREDIT DOCUMENTS" means this Agreement, the Parent
Guaranty, any Pledge Agreements executed by the Borrower and any and all
Facility LC Application Agreements executed by the Borrower.
"BORROWERS" means, collectively, the Borrower and, after it has
become a party hereto, the Non-U.S. Subsidiary Borrower.
"BORROWING DATE" means a date on which an Advance or a Swing Line
Loan 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 Eurocurrency 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, and on
which dealings in United States Dollars and the other Agreed Currencies are
carried on in the London interbank market and (ii) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of their
commercial lending activities.
"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.
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"CHANGE" is defined in Section 3.2.
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"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 either Borrower.
"CLOSING DATE" means March 6, 2002.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means, collectively, each of the Pledge
Agreements and the Intercreditor Agreement, together with the documents,
instruments and agreements executed in connection therewith.
"COMMISSION" means the Securities and Exchange Commission, an
agency of the United States government, or its successor.
"COMMITMENT" means, for each Lender, the obligation of such Lender
to make Revolving Loans and Term Loans and participate in Facility LCs and
Swing Line Loans in the aggregate not exceeding the amount set forth
opposite its name on Schedule 1 hereto or as set forth in any Notice of
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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
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the terms hereof.
"CONDEMNATION" is defined in Section 7.8.
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"CONSOLIDATED ADJUSTED EBITDA" means, for any period of four
consecutive fiscal quarters of the Borrower, on a consolidated basis for the
Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles, the sum of the amounts for such period, without duplication, of
(i) Consolidated EBIT, plus (ii) depreciation expense to the extent deducted
----
in computing Net Income, plus (iii) amortization expense, including, without
----
limitation, amortization of goodwill and other intangible assets, to the
extent deducted in computing Net Income, plus (iv) other non-cash charges to
----
the extent deducted in computing Net Income, plus (v) extraordinary losses
----
incurred other than in the ordinary course of business to the extent
deducted in computing Net Income, minus (vi) extraordinary gains realized
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other than in the ordinary course of business to the extent added in
computing Net Income (vii) plus (minus) any increases (decreases) in the
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LIFO reserve to the extent deducted (added) in computing Net Income.
"Consolidated Adjusted EBITDA" for any period shall be calculated to be the
actual amount for such period for the Borrower and its Subsidiaries;
provided, upon the consummation of any Acquisition, for calculations made
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from and after such Acquisition, Consolidated Adjusted EBITDA shall be
calculated on a pro forma basis including the target's historical
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Consolidated Adjusted EBITDA for the applicable period using historical
financial statements obtained from the seller, broken down by fiscal quarter
in the Borrower's reasonable judgment
7
(the amounts from which may be adjusted solely as may be necessary to comply
with Agreement Accounting Principals).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period of four
consecutive fiscal quarters of the Borrower, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
that portion of Capital Leases which is capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries) by the Borrower and its
Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by the
property, plant or equipment or similar fixed asset accounts reflected in
the consolidated balance sheet of the Borrower and its Subsidiaries.
"CONSOLIDATED EBIT" means, for any period of four consecutive
fiscal quarters of the Borrower, on a consolidated basis for the Borrower
and its Subsidiaries in accordance with Agreement Accounting Principles, the
sum of the amounts for such period, without duplication, of (i) Consolidated
Net Income, plus (ii) Consolidated Interest Expense to the extent deducted
----
in computing Net Income, plus (iii) charges against income for all domestic
----
and foreign, federal, state and local taxes to the extent deducted in
computing Net Income.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of (i)
Consolidated EBIT for such period to (ii) Consolidated Interest Expense for
such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period of four
consecutive fiscal quarters of the Borrower, total interest expense (whether
paid or accrued) of the Borrower and its Subsidiaries for such period
determined in accordance with Agreement Accounting Principles including,
without limitation, such interest expense as may be attributable to
Capitalized Leases, Receivables Facility Financing Costs, the discount or
implied interest component of Off-Balance Sheet Liabilities as well as all
commissions, discounts and other fees and charges owed with respect to
Letters of Credit and net costs (net of any revenues) under any interest
rate swap, exchange or cap agreements.
"CONSOLIDATED NET INCOME" means, for any fiscal quarter of the
Borrower, the positive consolidated net income of the Borrower and its
Subsidiaries for such quarter determined in accordance with Agreement
Accounting Principles; provided, that there shall be excluded (i) the income
--------
(or loss) of any Affiliate of the Borrower or other Person (other than a
Subsidiary of the Borrower) in which any Person (other than the Borrower or
any of its Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to the Borrower, or
any of its Subsidiaries by such Affiliate or other Person during such
period, (ii) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries or that Person's assets are acquired
by the Borrower or any of its Subsidiaries and (iii) the income of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
8
"CONSOLIDATED NET WORTH" means, as of any date of determination,
the consolidated total stockholders' equity (including capital stock,
additional paid-in capital and retained earnings) of the Borrower and its
Subsidiaries determined in accordance with Agreement Accounting Principles.
"CONSOLIDATED TOTAL DEBT" means the aggregate amount of all
Indebtedness (other than Hedging Obligations) on a consolidated basis for
the Borrower and its Subsidiaries as of a referenced date.
"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 contingent reimbursement obligations of such Person
with respect to any Letter of Credit, as well as any comfort letter,
operating agreement or take-or-pay contract (but, in the case of each such
Contingent Obligation, only to the extent that a monetary value can
reasonably be attributed thereto; it being understood, for the avoidance of
doubt, however, that with respect to any Contingent Obligation which is
either a guaranty of a monetary obligation of another Person or a
reimbursement obligation with respect to a Letter of Credit, the amount of
such Contingent Obligation shall be deemed equal to the amount of such
monetary obligation or Letter of Credit, as the case may be).
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10.
------------
"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, are treated as a single employer under
Section 414 of the Code.
"XXXXXX" means Xxxxxx Industries, Inc., an Ohio corporation.
"CREDIT DOCUMENTS" means, collectively, the Borrower Credit
Documents, the Non-U.S. Subsidiary Borrower Credit Documents, the Collateral
Documents, the Parent Guaranty and the Subsidiary Guaranties and any other
instruments, agreements or documents delivered pursuant thereto or in
connection therewith, in each case, as the same has been amended, restated,
supplemented or otherwise modified from time to time.
"CREDIT EXTENSION" means either the funding of an Advance or Swing
Line Loan or the issuance of or amendment to a Facility LC hereunder.
"CREDIT EXTENSION DATE" means the Borrowing Date for an Advance or
Swing Line Loan or the issuance date for a Facility LC.
"CURE LOAN" is defined in Section 8.2 hereof.
-----------
9
"DEFAULT" means an event described in Article VII.
-----------
"DISQUALIFIED STOCK" means any capital stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the date that is ninety-one (91) days after the Revolving Loan
Termination Date.
"DOLLAR" and "$" means the lawful currency of the United States of
-
America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the
amount of such currency if such currency is Dollars or (ii) the Equivalent
Amount of Dollars if such currency is any currency other than Dollars,
calculated on the basis of the arithmetical mean of the buy and sell spot
rates of exchange of the Agent for such currency on the London market at
11:00 a.m., London time, two Business Days prior to the date on which such
amount is to be determined.
"ELIGIBLE CURRENCY" means any currency other than Dollars that is
readily available, freely traded, in which deposits are customarily offered
to banks in the London interbank market, convertible into Dollars in the
international interbank market available to the Lenders in such market and
as to which an Equivalent Amount may be readily calculated. If, after the
designation by the Lenders of any currency as an Agreed Currency, currency
control or other exchange regulations are imposed in the country in which
such currency is issued with the result that different types of such
currency are introduced, such country's currency is, in the determination of
the Agent, (i) no longer readily available or freely traded or (ii) as to
which, in the determination of the Agent, an Equivalent Amount is not
readily calculable ((i) and (ii) a "DISQUALIFYING EVENT"), then the Agent
shall promptly notify the Lenders and the Borrowers, and such country's
currency shall no longer be an Agreed Currency until such time as the
Disqualifying Event(s) no longer exist, but in any event within five (5)
Business Days of receipt of such notice from the Agent, each Borrower shall
repay all Loans in such currency to which the Disqualifying Event applies or
convert such Loans into the Equivalent Amount of Loans in Dollars or another
Agreed Currency, subject to the other terms contained in Article II (it
----------
being understood and agreed that the Non-U.S. Subsidiary Borrower shall not
be liable to repay any Loans made to the Borrower).
"EQUIVALENT AMOUNT" of any Agreed Currency with respect to any
amount of Dollars at any date shall mean the equivalent in such Agreed
Currency of such amount of Dollars, calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the Agent
for such other Agreed Currency at 11:00 a.m., London time, two Business Days
prior to the date on which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any rule or regulation issued thereunder.
"EUROCURRENCY ADVANCE" means an Advance which bears interest at a
Eurocurrency Rate.
10
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency
Advance for the relevant Eurocurrency Interest Period, the applicable
British Bankers' Association Interest Settlement Rate for deposits in the
applicable Agreed Currency appearing on Reuters Screen FRBD or the
applicable Reuters Screen for such Agreed Currency as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Eurocurrency Interest
Period, and having a maturity equal to such Eurocurrency Interest Period,
provided that, (i) if Reuters Screen FRBD or the applicable Reuters Screen
--------
for such Agreed Currency is not available to the Agent for any reason, the
applicable Eurocurrency Base Rate for the relevant Eurocurrency Interest
Period shall instead be the applicable British Bankers' Association Interest
Settlement Rate for deposits in the applicable Agreed Currency as reported
by any other generally recognized financial information service as of 11:00
a.m. (London time) two Business Days prior to the first day of such
Eurocurrency Interest Period, and having a maturity equal to such
Eurocurrency Interest Period, and (ii) if no such British Bankers'
Association Interest Settlement Rate is available, the applicable
Eurocurrency Base Rate for the relevant Eurocurrency Interest Period shall
instead be the rate determined by the Agent to be the rate at which Bank One
offers to place deposits in the applicable Agreed Currency with first-class
banks in the London interbank market at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Eurocurrency Interest
Period, in the approximate amount of Bank One's relevant Eurocurrency Loan
and having a maturity equal to such Eurocurrency Interest Period.
"EUROCURRENCY INTEREST PERIOD" means, with respect to a
Eurocurrency Advance, a period as the applicable Borrower may choose, of one
week, one, two, three or six months, or of nine or twelve months if the
Agent determines that a nine or twelve month period, as the case may be, is
reasonably available, each such period to commence on a Business Day
selected by the applicable Borrower on which a Eurocurrency Advance is made
to such Borrower pursuant to this Agreement. Such Eurocurrency Interest
Period shall end on (but exclude) the day which corresponds numerically to
such date one week or one, two, three, six, nine or twelve months
thereafter, as the case may be, provided, however, that if there is no such
-------- -------
numerically corresponding day in such next week or next, second, third,
sixth, ninth or twelfth succeeding month, as applicable, such Eurocurrency
Interest Period shall end on the last Business Day of such next week or
next, second, third, sixth, ninth or twelfth succeeding month, as
applicable. If a Eurocurrency Interest Period would otherwise end on a day
which is not a Business Day, such Eurocurrency 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 Eurocurrency
Interest Period shall end on the immediately preceding Business Day.
"EUROCURRENCY LOAN" means a Loan which bears interest at a
Eurocurrency Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Agent shall mean, for each of
the Agreed Currencies, the office, branch or affiliate of the Agent,
specified as the "EUROCURRENCY PAYMENT OFFICE" for such Agreed Currency in
Schedule 2 hereto or such other office, branch, affiliate or correspondent
----------
bank of the Agent, as it may from time to time specify to the Borrower and
each Lender as its Eurocurrency Payment Office.
11
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Advance
for the relevant Eurocurrency Interest Period, a rate per annum equal to the
sum of (i) the quotient of (a) the Eurocurrency Base Rate applicable to such
Eurocurrency Interest Period, divided by (b) one minus the Reserve
------- -----
Requirement (expressed as a decimal) applicable to such Eurocurrency
Interest Period, plus (ii) the then Applicable Margin, changing as and when
----
the Applicable Margin changes. The Eurocurrency Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"EXISTING CREDIT AGREEMENT" is defined in the first recital.
"EXISTING INDEBTEDNESS" means any and all Indebtedness of the
Borrower and its Subsidiaries under the Existing Credit Agreement.
"EXISTING LCS" means each of the stand-by or commercial Letters of
Credit issued under and pursuant to the Existing Credit Agreement and which
are described in Schedule 3 hereto.
----------
"FACILITY FEE" is defined in Section 2.7.
-----------
"FACILITY LC" means each Existing LC and each stand-by or
commercial Letter of Credit issued under Section 2.23(a).
---------------
"FACILITY LC APPLICATION AGREEMENT" means each and every
application agreement or other instrument or agreement requested by the LC
Issuer pursuant to Section 2.23(c).
---------------
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent in its sole discretion.
"FLOATING RATE" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at
the Floating Rate.
"FLOATING RATE LOAN" means a Loan which bears interest at the
Floating Rate.
"FOREIGN SUBSIDIARY" is defined in Section 6.10.
------------
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least
12
one of the parties thereto from the fluctuations of interest rates, exchange
rates or forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"HOME COUNTRY" is defined in Section 5.19(a).
---------------
"INDEBTEDNESS" of a Person means, without duplication, 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 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) Capitalized
Lease Obligations, (vi) Hedging Obligations, (vii) Contingent Obligations
and (viii) Off Balance Sheet Liabilities, (ix) Receivables Facility
Attributed Indebtedness and (x) Disqualified Stock.
"INTELLECTUAL PROPERTY" means (i) any and all intangible personal
property consisting of intellectual property, whether or not registered with
any governmental entity, including, without limitation, franchises,
licenses, patents, technology and know-how, copyrights, trademarks, trade
secrets, service marks, logos and trade names and (ii) any and all contract
rights (including, without limitation, applications for governmental
registrations, license agreements, trust agreements and assignment
agreements) creating, evidencing or conveying an interest or right in or to
any of the intellectual property described in the preceding clause (i).
----------
"INTERCREDITOR AGREEMENT" means that certain Intercreditor
Agreement, dated as of October 31, 2001, among the Agent (on behalf of
itself and the Lenders), the Senior Noteholders and Bank One, in its
capacity as "Collateral Agent" for the Agent, the Lenders and the Senior
Noteholders, as the same may be amended, restated, supplemented or otherwise
modified and in effect from time to time.
"INTERIM CREDIT AGREEMENT" is defined in the first recital.
"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, deposit account (in
the nature of, or similar to, a bank account) or contribution of capital by
such Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, notes, debentures or other
securities of any other Person made by such Person.
"LC DRAFT" means a draft, or other form of demand, drawn or made on
a LC Issuer pursuant to a Facility LC.
13
"LC ISSUER" means (i) Bank One or any of its Lending Installations
or Affiliates in its capacity as LC Issuer hereunder with respect to each
Facility LC issued by Bank One or such Lending Installation or Affiliate and
(ii) any Lender (other than Bank One or any Lending Installation or
Affiliate thereof) reasonably acceptable to the Agent, in such Lender's
capacity as LC Issuer hereunder with respect to any and all Facility LCs
issued by such Lender in its sole discretion upon the applicable Borrower's
request. All references contained in this Agreement and the other Credit
Documents to the "LC Issuer" shall be deemed to apply equally to each of the
institutions referred to in clauses (i) and (ii) of this definition in their
----------- ----
respective capacities as LC Issuer of any and all Facility LCs issued by
each such institution.
"LC OBLIGATIONS" means, at any time, the sum, without duplication,
of (i) the aggregate amount then available for drawing under all Facility
LCs outstanding at such time plus (ii) the face amount of all LC Drafts
----
corresponding to the Facility LCs, which drafts have been accepted by the
applicable LC Issuer plus (iii) the aggregate unpaid amount at such time of
----
all Reimbursement Obligations in respect of previous drawings made under
Facility LCs.
"LC PAYMENT DATE" is defined in Section 2.23(e).
---------------
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and permitted
assigns.
"LENDING INSTALLATION" means, with respect to a Lender, LC Issuer
or the Agent, any office, branch, subsidiary or affiliate of such Lender,
the LC Issuer or the Agent.
"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 the last day of any fiscal quarter of
the Borrower, the ratio of (i) Consolidated Total Debt to (ii) Consolidated
Adjusted EBITDA. The Leverage Ratio shall be calculated based upon (a) for
Consolidated Total Debt, Consolidated Total Debt as of the last day of each
such fiscal quarter, and (b) for Consolidated Adjusted EBITDA, the actual
amount for the period of four consecutive fiscal quarters of the Borrower
ending on such day.
"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, with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.1, and in the case of the Swing Line
-----------
Lender, any Swing Line Loan made pursuant to Section 2.2 hereof, and
-----------
collectively all Term Loans, Revolving Loans and Swing Line Loans, whether
made or continued as or converted to Floating Rate Loans, Eurocurrency Loans
or otherwise.
14
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, Property, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of either Borrower or any Subsidiary to perform its respective
obligations under the Credit Documents to which it is a party or (c) the
validity or enforceability of any of the Credit Documents or any material
rights or remedies of the Agent, the Swing Line Lender, the LC Issuer or the
Lenders thereunder.
"MATERIAL FOREIGN SUBSIDIARY(IES)" means (i) the Non-U.S.
Subsidiary Borrower and (ii) each other Foreign Subsidiary of the Borrower
(other than any SPV), the total assets of which exceed, at any time, ten
percent (10.0%) of the consolidated total assets of the Borrower and its
consolidated Subsidiaries (other than SPVs); provided, however, in the event
that one of more of such Foreign Subsidiaries are owned through another
Foreign Subsidiary, then the Agent shall notify the Borrower whether the
"Material Foreign Subsidiary" shall be the holding company Foreign
Subsidiary or such holding company's Foreign Subsidiary or Subsidiaries, it
being the intention of the parties that the Agent and the Lenders shall be
provided with the maximum collateral protection without resulting in any
undistributed earnings of any such Foreign Subsidiary being deemed to have
been repatriated under the provisions of the Code.
"MATERIAL INDEBTEDNESS" means any Indebtedness, or group of
different Indebtedness, in an aggregate principal amount of at least
$10,000,000.
"MAXIMUM EUROCURRENCY AMOUNT" means the Equivalent Amount of
$75,000,000 or such other greater amount as the Borrower may from time to
time designate in writing to the Agent provided such designated amount shall
be agreed to by the Required Lenders.
"MAXIMUM NON-U.S. SUBSIDIARY BORROWER AMOUNT" means the Equivalent
Amount of $75,000,000 or such other greater amount as the Borrower may from
time to time designate in writing to the Agent provided such designated
amount shall be agreed to by the Required Lenders.
"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 is a party to which more than
one employer is obligated to make contributions.
"NEW SUBSIDIARY" is defined in Section 6.15.
------------
"NON PRO RATA LOAN" is defined in Section 8.2 hereof.
-----------
"NON-U.S. SUBSIDIARY BORROWER" means, upon satisfaction of the
requirements set forth in Section 2.19, a Subsidiary of the Borrower,
------------
whether now existing or hereafter formed, which shall have delivered to the
Agent an Assumption Letter in accordance with Section 2.19 and such other
------------
documents, instruments and agreements as may be required pursuant to the
terms of this Agreement (including Section 4.2), together with its
-----------
successors and permitted assigns.
"NON-U.S. SUBSIDIARY BORROWER CREDIT DOCUMENTS" means this
Agreement or, as the case may be, the Assumption Letter pursuant to which
the Non-U.S. Subsidiary Borrower
15
becomes a party to this Agreement, any Pledge Agreements executed by the
Non-U.S. Subsidiary Borrower and any and all Facility LC Application
Agreements executed by the Non-U.S. Subsidiary Borrower.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase
Agreement dated as of September 26, 1996 with respect to the Borrower's
$35,000,000 7.32% Senior Notes due September 26, 2006 (the "SENIOR NOTES"),
as such Note Purchase Agreement may be amended from time to time.
"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 LC Obligations, all accrued and unpaid fees and
all expenses, reimbursements, indemnities and other obligations of each
Borrower, respectively, to the Lenders or to any Lender (including the Swing
Line Lender), the LC Issuer, the Agent or any indemnified party hereunder
arising under the Credit Documents (whether or not allowed as a claim in any
insolvency proceeding of either Borrower).
"OBLIGOR SUBSIDIARY" means (i) a Subsidiary which is a party to a
Subsidiary Guaranty or (ii) a Material Foreign Subsidiary in connection with
which a Pledge Agreement has been executed.
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any
Receivables Facility Attributed Indebtedness, (b) any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to
accounts or notes receivable sold by such Person or any of its Subsidiaries,
including pursuant to any Receivables Purchase Facility, (c) any liability
under any sale and leaseback transactions which do not create a liability on
the consolidated balance sheet of such Person prepared in accordance with
the Agreement Accounting Principles, (d) any liability under any financing
lease or so-called "synthetic" lease transaction, or (e) any obligations
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute
a liability on the consolidated balance sheets of such Person and its
Subsidiaries, prepared in accordance with Agreement Accounting Principles.
"ORIGINATORS" means the Borrower and/or any of its Subsidiaries in
their respective capacities as parties to any Receivables Purchase
Documents, as sellers or transferors of any Receivables and Related Security
in connection with a Permitted Receivables Transfer.
"OUTSTANDING CREDIT EXPOSURE" means, as to any Lender at any time,
the sum of (i) the aggregate principal amount of its Loans outstanding at
such time plus (ii) its Outstanding LC Exposure at such time.
"OUTSTANDING LC EXPOSURE" means, as to any Lender at any time, an
amount equal to its Revolving Loan Percentage of the LC Obligations at such
time.
16
"PARENT GUARANTY" means a Guaranty, substantially in the form of
Exhibit B hereto, duly executed and delivered by the Borrower to and in
---------
favor of the Agent, the LC Issuer and the Lenders, as it may from time to
time be amended, supplemented or otherwise modified.
"PARTICIPANTS" is defined in Section 12.2.1.
--------------
"PAYMENT DATE" means the last day of each March, June, September
and December, commencing June 30, 2002.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERCENTAGE" means, with respect to any Lender, (i) at any time
prior to the Closing Date, the percentage obtained by dividing (A) such
Lender's Commitments at such time (in each case, as adjusted from time to
time in accordance with the provisions of this Agreement) by (B) the sum of
the Aggregate Term Loan Commitment and the Aggregate Revolving Loan
Commitment at such time and (ii) at any time after the Closing Date, the
percentage obtained by dividing (A) the sum of such Lender's Term Loans and
Revolving Loan Commitment at such time (in each case, as adjusted from time
to time in accordance with the provisions of this Agreement) by (B) the sum
of the aggregate amount of all of the Term Loans and the Aggregate Revolving
Loan Commitment at such time; provided, however, if all of the Commitments
-------- -------
are terminated pursuant to the terms of this Agreement, then "Percentage"
means the percentage obtained by dividing (i) the sum of (a) such Lender's
Term Loans and the Dollar Amount of such Lender's Revolving Loans, plus (b)
----
such Lender's share of the obligation to purchase participations in Swing
Line Loans, plus (c) such Lender's share of the obligation to purchase
----
participations in Facility LCs by (ii) the sum of (a) the aggregate amount
of all Term Loans and the Dollar Amount of Revolving Loans plus (b) the
----
aggregate amount of all Swing Line Loans, plus (c) the aggregate outstanding
----
Dollar Amount of all Facility LCs.
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer
by an Originator to a SPV of Receivables and Related Security for fair
market value and without recourse (except for limited recourse typical of
such structured finance transactions), and/or (ii) a sale or other transfer
by a SPV to (a) purchasers of or other investors in such Receivables and
Related Security or (b) any other Person (including a SPV) in a transaction
in which purchasers or other investors purchase or are otherwise transferred
such Receivables and Related Security, in each case pursuant to and in
accordance with the terms of the Receivables Purchase Documents.
"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 the Borrower or any member of the Controlled
Group may have any liability.
"PLEDGE AGREEMENT" means a Pledge Agreement on terms and conditions
reasonably acceptable to the Agent duly executed and delivered by the
Borrower and/or any of its
17
Subsidiaries to and in favor of the Agent, the Swing Line Lender, the LC
Issuer and the Lenders, as it may from time to time be amended, supplemented
or otherwise modified with respect to sixty-five percent (65%) of the
outstanding capital stock of each of the Borrower's Material Foreign
Subsidiaries including, but not limited to, after it has become a party
hereto, the Non-U.S. Subsidiary Borrower.
"PREPAYMENT NOTICE" is defined in Section 2.4(b).
--------------
"PRIME RATE" means a rate per annum equal to the prime rate of
interest announced by the Agent or its parent from time to time (which is
not necessarily the lowest rate of interest charged to any customer),
changing when and as said prime rate changes.
"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, including, without limitation,
Intellectual Property.
"PURCHASERS" is defined in Section 12.3.1.
--------------
"RECEIVABLE(S)" means and includes all of the applicable
Originator's or SPV's presently existing and hereafter arising or acquired
accounts, accounts receivable, and all present and future rights of such
Originator or SPV, as applicable, to payment for goods sold or leased or for
services rendered (except those evidenced by instruments or chattel paper),
whether or not they have been earned by performance, and all rights in any
merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing,
including, without limitation, any right of stoppage in transit.
"RECEIVABLES AND RELATED SECURITY" means the Receivables and the
related security and collections with respect thereto which are sold or
transferred by any Originator or SPV in connection with any Permitted
Receivables Transfer.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of
obligations outstanding under a Receivables Purchase Facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
"RECEIVABLES FACILITY FINANCING COST" means such portion of the
cash fees, service charges, and other costs, as well as all collections or
other amounts retained by purchasers of Receivables pursuant to a
Receivables Purchase Facility, which are in excess of amounts paid to the
Borrower and its consolidated Subsidiaries under any Receivables Purchase
Facility for the purchase of Receivables pursuant to such facility and are
the equivalent of the interest component of the financing if the transaction
were characterized as an on-balance sheet transaction.
"RECEIVABLES PURCHASE DOCUMENTS" means any series of receivables
purchase or sale agreements generally consistent with terms contained in
comparable structured finance transactions pursuant to which an Originator
or Originators sell or transfer to SPVs all of their
18
respective right, title and interest in and to certain Receivables and
Related Security for further sale or transfer to other purchasers of or
investors in such assets (and the other documents, instruments and
agreements executed in connection therewith), as any such agreements may be
amended, restated, supplemented or otherwise modified from time to time, or
any replacement or substitution therefor.
"RECEIVABLES PURCHASE FACILITY" means the securitization facility
made available to the Borrower, pursuant to which the Receivables and
Related Security of the Originators are transferred to one or more SPVs, and
thereafter to certain investors, pursuant to the terms and conditions of the
Receivables Purchase Documents.
"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 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 each Borrower then outstanding under Section 2.23 to
------------
reimburse any LC Issuer for amounts paid by any such 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 lease of Property having an original term (including
any required renewals or any renewals at the option of the lessor or lessee)
of one year or more (but does not include any amounts payable under
Capitalized Leases of such Person).
"REPORTABLE EVENT" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to
a Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 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.
"REQUIRED LENDERS" means, as of the date of determination thereof,
Lenders having, in the aggregate, Percentages of at least 51%; provided,
--------
however, that, if any of the Lenders shall have failed to fund its Revolving
-------
Loan Percentage of (i) any Revolving Loan requested by either Borrower, (ii)
any Revolving Loans required to be made in connection with reimbursement for
any LC Obligations, or (iii) any participation in any Swing Line Loan as
requested by the Agent, which such Lenders are obligated to fund under the
terms of this Agreement and any such failure
19
has not been cured, then for so long as such failure continues, "REQUIRED
LENDERS" means Lenders (excluding all Lenders whose failure to fund their
respective Revolving Loan Percentages of such Revolving Loans or to purchase
participations have not been so cured) whose Percentages equal at least 51%
of the aggregate Percentages of such Lenders; provided, further, however,
-------- ------- -------
that, if the Commitments have been terminated pursuant to the terms of this
Agreement, "REQUIRED LENDERS" means Lenders (without regard to such Lenders'
performance of their respective obligations hereunder) in the aggregate
holding at least 51% of the Aggregate Outstanding Credit Exposure.
"RESERVE REQUIREMENT" means, with respect to and during a
Eurocurrency Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on Eurocurrency liabilities. For purposes of this
definition, all Eurocurrency Loans shall be deemed to be "Eurocurrency
liabilities" as defined in Regulation D.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (i) the Aggregate Revolving Loan Commitment at such time
exceeds (ii) the Dollar Amount of the Revolving Credit Obligations
outstanding at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the
sum of (i) the Dollar Amount of the Revolving Loans outstanding at such
time, plus (ii) the amount of the Swing Line Loans outstanding at such time,
----
plus (iii) the Dollar Amount of LC Obligations outstanding at such time.
----
"REVOLVING LOAN" is defined in Section 2.1(a).
--------------
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make Revolving Loans and to purchase participations in
Facility LCs and to participate in Swing Line Loans in an amount not
exceeding the amount set forth opposite its name on Schedule 1 hereto under
----------
the heading "Revolving Loan Commitment" or in the Assignment Agreement by
which it became a Lender, as such amount may be modified from time to time
pursuant to the terms of this Agreement, or to give effect to any applicable
Assignment Agreement.
"REVOLVING LOAN PERCENTAGE" means, with respect to any Lender, the
percentage obtained by dividing (A) the amount of such Lender's Revolving
Loan Commitment (as adjusted from time to time in accordance with the
provisions of this Agreement) by (B) the Aggregate Revolving Loan Commitment
at such time; provided, however, if all of the Commitments are terminated
-------- -------
pursuant to the terms of this Agreement, then "Revolving Loan Percentage"
means the percentage obtained by dividing (i) the sum of (a) the Dollar
Amount of such Lender's Revolving Loans, plus (b) such Lender's share of the
----
obligation to purchase participations in Swing Line Loans, plus (c) such
----
Lender's share of the obligation to purchase participations in Facility LCs
by (ii) the sum of (a) the aggregate Dollar Amount of all Revolving Loans,
plus (b) the aggregate amount of all Swing Line Loans, plus (c) the
---- ----
aggregate outstanding Dollar Amount of all Letters of Credit.
20
"REVOLVING LOAN TERMINATION DATE" means March 6, 2005, as such date
may be extended pursuant to Section 2.21.
------------
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 3.2.
-----------
"SECTION" means a numbered section of this Agreement, unless
another document is specifically referenced.
"SENIOR NOTES" is defined in the definition of Note Purchase
Agreement above.
"SENIOR NOTEHOLDERS" means each of the holders of the Senior Notes.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or
any member of the Controlled Group for employees of the Borrower or any
member of the Controlled Group.
"SPV" means any special purpose entity established for the purpose
of purchasing Receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"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.
"SUBSIDIARY GUARANTY" means a Guaranty, substantially in the form
of Exhibit C hereto, duly executed and delivered by each domestic Subsidiary
---------
of the Borrower to and in favor of the Agent, the LC Issuer and the Lenders,
as it may from time to time be amended, supplemented or otherwise modified.
"SUBSTANTIAL PORTION" means, with respect to the Property of any
Person and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of such Person and its Subsidiaries as would be
shown in the consolidated financial statements of such Person 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
such Person and its Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
----------
"SWING LINE COMMITMENT" means the obligation of the Swing Line
Lender to make Swing Line Loans up to a maximum principal amount of
$5,000,000 at any one time outstanding.
21
"SWING LINE LENDER" means Bank One or any other Lender as a
successor Swing Line Lender.
"SWING LINE LOAN" means a Loan made available to the Borrower by
the Swing Line Lender pursuant to Section 2.2(a) hereof.
--------------
"TERM LOAN" is defined in Section 2.3(a) hereof.
--------------
"TERM LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make its Term Loan pursuant to the terms and conditions of
this Agreement, and which shall not exceed the principal amount set forth
opposite its name on Schedule 1 hereto under the heading "Term Loan
----------
Commitment," as such amount may be modified from time to time pursuant to
the terms hereof.
"TERM LOAN FINAL MATURITY DATE" means March 6, 2007.
"TERM LOAN LENDER" means any Lender with a Term Loan Commitment.
"TERM LOAN PERCENTAGE" means, with respect to any Term Loan Lender,
(i) at any time prior to the Closing Date, the percentage obtained by
dividing (A) such Term Loan Lender's Term Loan Commitment by (B) the
Aggregate Term Loan Commitment, and (ii) at any time after the Closing Date,
the percentage obtained by dividing (A) the sum of such Term Loan Lender's
Term Loans at such time by (B) the sum of the aggregate amount of all of the
Term Loans at such time.
"TRANSFEREE" is defined in Section 12.4.
------------
"TYPE" means, with respect to any Advance or Loan, its nature as a
Floating Rate Advance or Floating Rate Loan, as applicable, or a
Eurocurrency Advance or Eurocurrency Loan.
"UNFUNDED LIABILITIES" means the amount (if any) by which the
present value of all vested nonforfeitable benefits under all Single
Employer Plans exceeds the fair market value of all such Plan assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plans, but only to the extent that such excess
represents a potential liability of the Borrower or a member of the
Controlled Group to the PBGC or such Plan under Title IV of ERISA.
"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 (except securities required as
directors' qualifying shares) 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,
association, joint venture or similar business
22
organization 100% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II: THE CREDITS
2.1. Revolving Loans. (a) Amount of Revolving Loans. Upon the
--------------- -------------------------
satisfaction of the conditions precedent contained in Section 4.1, Section
----------- -------
4.3, and, with respect to the Non-U.S. Subsidiary Borrower, Section 4.2,
--- -----------
from and including the date of this Agreement and prior to the Revolving
Loan Termination Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or
-----------
the Commitments pursuant to Section 8.1 hereof), each Lender severally
-----------
agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans to the applicable Borrower from time to time in Agreed
Currencies in an aggregate Dollar Amount with respect to any such Loan not
to exceed such Lender's Revolving Loan Percentage of Revolving Credit
Availability, or, if less, such Lender's Revolving Loan Commitment, at such
time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); provided, however, that (i) at no time shall the
-------- -------
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment,
(ii) upon giving effect to each Revolving Loan, the aggregate outstanding
principal Dollar Amount of all Eurocurrency Advances and Facility LCs in
Agreed Currencies other than Dollars shall not exceed the Maximum
Eurocurrency Amount and (iii) upon giving effect to each Revolving Loan, the
aggregate outstanding principal Dollar Amount of all Revolving Loans and
Facility LCs made to or issued for the account of the Non-U.S. Subsidiary
Borrower shall not exceed the Maximum Non-U.S. Subsidiary Borrower Amount.
Subject to the terms of this Agreement, a Borrower may borrow, repay and
reborrow Revolving Loans at any time prior to the Revolving Loan Termination
Date (or, if earlier, the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.7 hereof or the Commitments
-----------
pursuant to Section 8.1 hereof). The Revolving Loan Commitments to lend
-----------
hereunder shall expire on the Revolving Loan Termination Date (or, if
earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to
-----------
Section 8.1 hereof). On the Revolving Loan Termination Date (or, if earlier,
-----------
the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1
----------- -----------
hereof), each Borrower shall repay in full the outstanding principal balance
of its Revolving Loans (it being understood and agreed that the Non-U.S.
Subsidiary Borrower shall be liable only to repay Loans made to the Non-U.S.
Subsidiary Borrower). Each Advance under this Section 2.1 shall consist of
-----------
Revolving Loans made by each Lender ratably in proportion to such Lender's
Revolving Loan Percentage.
(b) Dollar Equivalent Calculations. For so long as the aggregate
------------------------------
outstanding amount of Revolving Loans, Swing Line Loans and the Aggregate
Outstanding LC Exposure is less than 95% of the Aggregate Revolving Loan
Commitment, the Dollar Amount of each Eurocurrency Advance and Facility LC
in an Agreed Currency other than Dollars for all
23
purposes under this Agreement (other than Section 2.25) shall be the Dollar
------------
Amount thereof as of the date such Eurocurrency Advance was made or Facility
LC was issued. For so long as the aggregate outstanding amount of Revolving
Loans, Swing Line Loans and the Aggregate Outstanding LC Exposure is equal
to or greater than 95% of the Aggregate Revolving Loan Commitment, the Agent
shall determine the Dollar Amount of all Eurocurrency Advances and Facility
LCs in Agreed Currencies other than Dollars as of the first Business Day in
each week, and the availability of Loans and Facility LCs under this
Agreement shall be determined on the basis of such Dollar Amount most
recently determined.
(c) Borrowing Notice. In connection with each Revolving Loan
----------------
request, the applicable Borrower shall deliver to the Agent a Borrowing
Notice, signed by it, in accordance with the terms of Section 2.9.
-----------
(d) Making of Revolving Loans. Promptly after receipt of the
-------------------------
Borrowing Notice under Section 2.9 in respect of Revolving Loans, the Agent
-----------
shall notify each Lender with a Revolving Loan Commitment greater than zero
by telecopy, or other similar form of transmission, of the requested
Revolving Loan. Each Lender with a Revolving Loan Commitment greater than
zero shall make available its Revolving Loan in accordance with the terms of
Section 2.9 and the Agent will promptly make the funds so received from the
-----------
Lenders available to the applicable Borrower in accordance with Section 2.9.
-----------
The failure of any Lender to deposit the amount described above with the
Agent on the applicable Borrowing Date shall not relieve any other Lender of
its obligations hereunder to make its Revolving Loan on such Borrowing Date.
2.2. Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
---------------- --------------------------
satisfaction of the conditions precedent set forth in Section 4.1 and 4.3,
----------- ---
from and including the date of this Agreement and prior to the Revolving
Loan Termination Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or
-----------
the Commitments pursuant to Section 8.1 hereof), the Swing Line Lender
-----------
agrees, on the terms and conditions set forth in this Agreement, to make
swing line loans to the Borrower (but not to the Non-U.S. Subsidiary
Borrower) from time to time, in Dollars, in an aggregate amount outstanding
at any time not to exceed the Swing Line Commitment (each, individually, a
"SWING LINE LOAN" and collectively, the "SWING LINE LOANS"); provided,
--------
however, that at no time shall the amount of Revolving Credit Obligations
-------
exceed the Aggregate Revolving Loan Commitment; and provided, further, that
-------- -------
at no time shall the sum of (a) the outstanding amount of the Swing Line
Loans made by the Swing Line Lender and not risk participated to other
Lenders in accordance with Section 2.2(d) of this Agreement, plus (b) the
-------------- ----
outstanding amount of Revolving Loans made by the Swing Line Lender pursuant
to Section 2.1 (after giving effect to any concurrent repayment of Loans)
-----------
plus (c) the Swing Line Lender's Outstanding LC Exposure, exceed the Swing
----
Line Lender's Revolving 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 Revolving Loan Termination Date (or, if earlier,
the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1
----------- -----------
hereof).
24
(b) Borrowing Notice; Applicable Interest Rate; Minimums. The
----------------------------------------------------
Borrower shall deliver to the Agent and the Swing Line Lender a Borrowing
Notice, signed by it, not later than 11:00 a.m. (Chicago time) on the
Borrowing Date of each Swing Line Loan, specifying (i) the applicable Credit
Extension Date (which shall be a Business Day), and (ii) the aggregate
amount of the requested Swing Line Loan. The Swing Line Loans shall bear
interest at such rate as shall have been agreed to between the Borrower and
the Swing Line Lender or, if no such rate has been agreed to, at the
Floating Rate but, in any case, shall otherwise be subject to the terms
applicable to Floating Rate Loans hereunder. The Swing Line Loans shall be
in an amount not less than $250,000 and multiples of $100,000 in excess
thereof.
(c) Making of Swing Line Loans. Promptly after receipt of the
--------------------------
Borrowing Notice under Section 2.2(b) in respect of Swing Line Loans, the
--------------
Agent shall notify each Lender by telex or telecopy, or other similar form
of transmission, of the requested Swing Line Loan. Not later than 2:00 p.m.
(Chicago time) on the applicable Borrowing Date, the Swing Line Lender shall
make available its Swing Line Loan, in funds immediately available in
Chicago to the Agent at its address specified pursuant to Article XIV. The
-----------
Agent will promptly make the funds so received from the Swing Line Lender
available to the Borrower at the Agent's aforesaid address.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall be
-----------------------------
paid in full by the Borrower on or before the fifth (5th) Business Day after
the Borrowing Date for such Swing Line Loan (it being understood and agreed
that the Non-U.S. Subsidiary Borrower shall not be liable to repay any Swing
Line Loans). The Borrower may at any time repay or prepay, without penalty
or premium, all outstanding Swing Line Loans or, in a minimum amount of
$100,000 (with increments of $100,000 in excess thereof), any portion of the
outstanding Swing Line Loans, upon notice to the Agent and the Swing Line
Lender. In addition, the Agent (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 in its capacity as a Lender) to
make a Revolving Loan under Section 2.1 in the amount of such Lender's
-----------
Revolving Loan Percentage of such Swing Line Loan, for the purpose of
repaying such Swing Line Loan. Not later than 3:00 p.m. (Chicago time) on
the date of any notice received pursuant to this Section 2.2(d), each Lender
--------------
shall make available its required Revolving Loan or Revolving Loans, in
funds immediately available in Chicago to the Agent at its address specified
pursuant to Article XIV. Revolving Loans made pursuant to this Section
----------- -------
2.2(d) shall be Floating Rate Loans. 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 Section 4.1 or 4.3 had not then
----------- ---
been satisfied, such Lender's obligation to make Revolving Loans pursuant to
this Section 2.2(d) to repay Swing Line Loans shall be unconditional,
--------------
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Agent, the Swing Line 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 any of its
Subsidiaries, or (D) any other circumstances, happening or event whatsoever.
In the event that any Lender fails to make payment to the Agent of any
amount due under this Section 2.2(d), the Agent shall be entitled to
--------------
receive, retain and apply against such obligation the principal and
25
interest otherwise payable to such Lender hereunder until the Agent receives
such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender fails
to make payment to the Agent of any amount due under this Section 2.2(d),
--------------
such Lender shall be deemed, at the option of the Agent, 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 Revolving Loan Termination Date (or, if earlier, the
date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1
----------- -----------
hereof), the Borrower shall repay in full the outstanding principal balance
of the Swing Line Loans (it being understood and agreed that the Non-U.S.
Subsidiary Borrower shall not be liable to repay any Swing Line Loans).
2.3. Term Loan.
---------
(a) Amounts of Term Loans. Subject to the terms and conditions set
---------------------
forth in this Agreement, each Term Loan Lender on the Closing Date severally
agrees to make on the Closing Date a term loan in Dollars to the Borrower in
an aggregate amount equal to such Lender's Term Loan Commitment (each
individually, a "TERM LOAN" and, collectively, the "TERM LOANS"). All Term
Loans shall be made by the Term Loan Lenders on the Closing Date
simultaneously and proportionately to their respective Term Loan
Percentages, it being understood that no Term Loan Lender shall be
responsible for any failure by any other Term Loan Lender to perform its
obligation to make any Term Loan hereunder nor shall the Term Loan
Commitment of any Lender be increased or decreased as a result of any such
failure.
(b) Borrowing Notice. The Borrower shall execute and deliver to the
----------------
Agent a Borrowing Notice on the Closing Date. Such Borrowing Notice shall
specify (i) the aggregate amount of the Term Loans being requested (which
shall be equal to the Aggregate Term Loan Commitment) and (ii) instructions
for the disbursement of proceeds of such Term Loans. Any Borrowing Notice
given pursuant to this Section 2.3(b) shall be irrevocable.
--------------
(c) Making of Term Loans. Promptly after receipt of the Borrowing
--------------------
Notice under Section 2.3(b) in respect of the Term Loans, the Agent shall
--------------
notify each Term Loan Lender by telecopy, or other similar form of
transmission, of the proposed Advance. Each Term Loan Lender shall deposit
an amount equal to its Term Loan Percentage of the Term Loans with the Agent
at its office in Chicago, Illinois, in immediately available funds, on the
Closing Date, as specified in the Borrowing Notice. Subject to the
fulfillment of the conditions precedent set forth in Sections 4.1 and 4.3,
------------ ---
as applicable, the Agent shall make the proceeds of such amounts received by
it available to the Borrower at the Agent's office in Chicago, Illinois on
such date and shall disburse such proceeds in accordance with the Borrower's
disbursement instructions set forth in such Borrowing Notice. The failure of
any Term Loan Lender to deposit the amount described above with the Agent on
such date shall not relieve any other Term Loan Lender of its obligations
hereunder to make its Term Loan on such date.
26
(d) Repayment of the Term Loans. The Term Loans shall be repaid in
---------------------------
nineteen (19) consecutive quarterly installments (it being understood and
agreed that the Non-U.S. Subsidiary Borrower shall not be liable to repay
any Term Loans). Each payment shall be due and payable on the last Business
Day of the applicable calendar quarter. The first Term Loan installment
shall be due and payable on the last Business Day of the calendar quarter
ending June 30, 2002 and such installments shall continue on the last
Business Day of each calendar quarter thereafter through and including the
Term Loan Final Maturity Date. The Term Loans shall be permanently reduced
by the amount of each installment on the date payment thereof is made
hereunder. The installments shall be in the aggregate amounts set forth
below:
Installment Amount Due and Payable on the Last
----------------------------------------------
Calendar Quarter Ended: Business Day of such Calendar Quarter:
---------------------- -------------------------------------
June 30, 2002 $625,000
September 30, 2002 $625,000
December 31, 2002 $625,000
March 31, 2003 $625,000
June 30, 2003 $625,000
September 30, 2003 $625,000
December 31, 2003 $625,000
March 31, 2004 $625,000
June 30, 2004 $3,750,000
September 30, 2004 $3,750,000
December 31, 2004 $3,750,000
March 31, 2005 $3,750,000
June 30, 2005 $3,750,000
September 30, 2005 $3,750,000
December 31, 2005 $3,750,000
March 31, 2006 $3,750,000
June 30, 2006 $3,750,000
September 30, 2006 $3,750,000
December 31, 2006 $3,750,000
Term Loan Final Maturity Date Balance of the Term Loans
No installment of any Term Loan shall be reborrowed once repaid.
(e) Voluntary Prepayments. In addition to the scheduled payments on
---------------------
the Term Loans, the Borrower may make the voluntary prepayments described in
Section 2.4(b), with such prepayments applied ratably to reduce all
--------------
outstanding installments under the Term Loans.
2.4. Repayments and Prepayments of Advances.
--------------------------------------
(a) Repayment at Maturity. Any outstanding Advances and Loans
---------------------
(other than the Term Loans) and all other unpaid Obligations shall be paid
in full by the applicable Borrower on the Revolving Loan Termination Date
(or, if earlier, the date of termination in whole of the
27
Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or the
-----------
Commitments pursuant to Section 8.1 hereof) (it being understood and agreed
-----------
that the Non-U.S. Subsidiary Borrower shall be obligated to repay only the
Loans made to it and to pay only the other Obligations incurred by it).
(b) Optional Prepayments. Subject to Section 3.4 and the
-------------------- -----------
requirements of this Section 2.4(b), either Borrower may (a) following
--------------
notice given to the Agent by such Borrower, by not later than 10:00 a.m.
(Chicago time) one Business Day prior to the date of the proposed
prepayment, such notice specifying the aggregate principal amount of and the
proposed date of the prepayment (the "PREPAYMENT NOTICE"), and if such
notice is given such Borrower shall, prepay in an aggregate minimum amount
of $3,000,000 the outstanding principal amounts of the Floating Rate Loans
comprising part of the same Advance in whole or ratably in part without
penalty or premium and (b) following notice given to the Agent by either
Borrower by not later than 10:00 a.m. (Chicago time) on, if the Advance to
be prepaid is a Eurocurrency Advance, the third Business Day preceding the
date of the proposed prepayment, such notice specifying the Eurocurrency
Advance to be prepaid and the proposed date of the prepayment, and, if such
notice is given, such Borrower shall, prepay in a minimum amount of
$3,000,000 and in multiples of $1,000,000 in excess thereof the outstanding
principal amounts of the Eurocurrency Loans comprising a Eurocurrency
Advance without penalty or premium, except as otherwise provided in Section
-------
3.4, together with accrued interest to the date of such prepayment on the
---
principal amount prepaid.
(c) Mandatory Prepayments. If at any time, (a) the Dollar Amount of
---------------------
the Revolving Credit Obligations exceeds 105% of the Aggregate Revolving
Loan Commitment, (b) the Dollar Amount of all Eurocurrency Loans and
Facility LCs in Agreed Currencies other than Dollars exceeds 105% of the
Maximum Eurocurrency Amount (utilizing the exchange rates determined in
accordance with Section 2.1), (c) the aggregate amount of the outstanding
-----------
Swing Line Loans exceeds 105% of the Swing Line Commitment or (d) the Dollar
Amount of Revolving Loans and Facility LCs made to or issued for the account
of the Non-U.S. Subsidiary Borrower exceeds 105% of the Maximum Non-U.S.
Subsidiary Borrower Amount, the applicable Borrower for the ratable benefit
of the Lenders shall immediately prepay Revolving Loans (to be applied to
such Loans as the applicable Borrower shall direct at the time of such
payment) in an aggregate amount such that after giving effect thereto (w)
the Dollar Amount of the Revolving Credit Obligations is less than or equal
to the Aggregate Revolving Loan Commitment, (x) the Dollar Amount of all
Eurocurrency Loans and Facility LCs in Agreed Currencies other than Dollars
is less than or equal to the Maximum Eurocurrency Amount, (y) the amount of
outstanding Swing Line Loans is less than or equal to the Swing Line
Commitment and (z) the Dollar Amount of Revolving Loans and Facility LCs
made to or issued for the account of the Non-U.S. Subsidiary Borrower is
less than or equal to the Maximum Non-U.S. Subsidiary Borrower Amount (it
being understood and agreed that the Non-U.S. Subsidiary Borrower shall not
be liable for any Loans made to, or Obligations incurred by, the Borrower).
(d) Subject to the terms and conditions of this Agreement, any
amount paid or prepaid before the Revolving Loan Termination Date (or, if
earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the
-----------
28
Commitments pursuant to Section 8.1 hereof) with respect to Loans other than
-----------
the Term Loans may be borrowed, repaid and borrowed again prior to the
Revolving Loan Termination Date (or, if earlier, the date of termination in
whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7
-----------
hereof or the Commitments pursuant to Section 8.1 hereof).
-----------
2.5. Ratable Loans. Each Advance hereunder shall consist of Loans
-------------
made from the several Lenders ratably in proportion to their respective
Revolving Loan Percentages or Term Loan Percentages, as applicable.
2.6. Types of Advances. The Advances may be Floating Rate Advances
-----------------
or Eurocurrency Advances, or a combination thereof, selected by the
applicable Borrower in accordance with Sections 2.8 and 2.9.
------------ ---
2.7. Facility Fee; Reductions in Aggregate Revolving Loan
----------------------------------------------------
Commitment. The Borrowers agree to pay to the Agent for the pro rata account
----------
of the Lenders according to their Percentages (except as set forth in
Section 8.2), a facility fee accruing at the rate of the Applicable Facility
-----------
Fee per annum based on the sum of the Aggregate Revolving Loan Commitment
(without regards to usage thereof) plus the Aggregate Term Loan Commitment
as of the Closing Date, from the date hereof to and including the Revolving
Loan Termination Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or
-----------
the Commitments pursuant to Section 8.1 hereof), payable on each Payment
-----------
Date hereafter and on the Revolving Loan Termination Date (or, if earlier,
the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.7 hereof or the Commitments pursuant to Section 8.1
----------- -----------
hereof) (it being understood and agreed that the Non-U.S. Subsidiary
Borrower shall not be liable to pay any Facility Fees determined to be
attributable to the Borrower). The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders in integral multiples of $5,000,000 upon at least three Business
Days' written notice to the Agent, which notice shall specify the amount of
any such reduction (the "AGGREGATE REVOLVING LOAN COMMITMENT REDUCTION
NOTICE"); provided, that the amount of the Aggregate Revolving Loan
--------
Commitment may not be reduced below the Dollar Amount of the Aggregate
Outstanding Credit Exposure not attributable to Term Loans. All accrued
Facility Fees shall be payable on the effective date of any termination of
the Revolving Loan Commitments of the Lenders and the obligation of the
Borrowers to pay facility fees with respect to any Revolving Loan
Commitments shall terminate on the date of any termination of the Revolving
Loan Commitments.
2.8. Minimum Amount of Each Advance; Maximum Interest Periods. Each
--------------------------------------------------------
Eurocurrency Advance shall be in the minimum amount of $3,000,000 or the
Approximate Equivalent Amount of any Agreed Currency other than Dollars (and
in multiples of $1,000,000 or the Approximate Equivalent Amount of any
Agreed Currency other than Dollars if in excess thereof), and each Floating
Rate Advance (other than an Advance to repay Swing Line Loans or
Reimbursement Obligations) shall be in the minimum amount of $3,000,000 (and
a multiple of $1,000,000 if in excess thereof); provided, that any Floating
--------
Rate Advance may be in the amount of the Revolving Credit Availability. In
addition, the Borrowers shall select Eurocurrency
29
Interest Periods under Sections 2.9 and 2.10 so that no more than ten (10)
------------ ----
Eurocurrency Interest Periods shall be outstanding at any one time.
2.9. Method of Selecting New Advances. The applicable Borrower
--------------------------------
shall select the Type of Advance and, in the case of each Eurocurrency
Advance, the Eurocurrency Interest Period and Agreed Currency applicable to
each Advance from time to time. The applicable Borrower shall give the Agent
irrevocable notice (a "BORROWING NOTICE") or, in the case of the Non-U.S.
Subsidiary Borrower, the Borrower may give the Agent a Borrowing Notice on
its behalf, by telephone or telefax not later than 9:00 a.m. (Chicago time)
on the proposed Borrowing Date of each Floating Rate Advance and four
Business Days before the Borrowing Date for each Eurocurrency Advance,
specifying:
(i) the applicable Borrower;
(ii) Borrowing Date, which shall be a Business Day, of such
Advance,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected, and
(v) in the case of each Eurocurrency Advance, the Agreed Currency
and the Eurocurrency Interest Period applicable thereto.
With respect to the Term Loans, the Borrower may not select a Eurocurrency
Interest Period that ends after the Term Loan Final Maturity Date. With
respect to the Revolving Loans, the applicable Borrower may not select a
Eurocurrency Interest Period that ends after the Revolving Loan Termination
Date. Not later than (i) 1:00 p.m. (Chicago time) on each Borrowing Date
with respect to Floating Rate Advances and (ii) noon (Chicago time) on each
Borrowing Date for Eurocurrency Advances, each Lender shall make available
its Loan or Loans, in funds immediately available funds in the Agreed
Currency to the Agent at its address specified pursuant to Article XIII,
------------
unless the Agent has notified the Lenders that such Loan is to be made
available to the applicable Borrower at the Agent's Eurocurrency Payment
Office, in which case each Lender shall make available its Loan or Loans, in
funds immediately available to the Agent at its Eurocurrency Payment Office,
not later than 1:00 p.m. (local time in the city of the Agent's Eurocurrency
Payment Office) in the Agreed Currency designated by the Agent. The Agent
will make the funds so received from the Lenders available to the applicable
Borrower at the Agent's aforesaid address.
2.10. Conversion and Continuation of Outstanding Advances. Floating
---------------------------------------------------
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurocurrency Advances. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance of such Type
until the end of the then applicable Eurocurrency Interest Period therefor,
at which time such Eurocurrency Advance (other than Eurocurrency Advances in
Agreed Currencies other than Dollars) shall be automatically converted into
a Floating Rate Advance unless the applicable Borrower shall have given the
Agent a Conversion/Continuation Notice (which, in the case of the Non-U.S.
Subsidiary Borrower, may be delivered the Borrower
30
may on its behalf) Conversion/Continuation Notice, in accordance with the
terms of this Section 2.10 requesting that, at the end of such Eurocurrency
------------
Interest Period, such Eurocurrency Advance continue as a Eurocurrency
Advance for the same or another Eurocurrency Interest Period. Unless a
Conversion/Continuation Notice shall have timely been given in accordance
with the terms of this Section 2.10, Eurocurrency Advances in an Agreed
------------
Currency other than Dollars shall automatically continue as Eurocurrency
Advances in the same Agreed Currency with an Eurocurrency Interest Period of
one (1) month. Subject to the terms of Section 2.8, the applicable Borrower
-----------
may elect from time to time to convert all or any part of the Term Loan or
the Revolving Loans from any Type into any other Type of Loan or Types of
Loans; provided that any conversion of any Eurocurrency Advance shall be
--------
made on, and only on, the last day of the Eurocurrency Interest Period
applicable thereto. The applicable Borrower shall give the Agent irrevocable
notice (a "CONVERSION/CONTINUATION NOTICE") or, in the case of the Non-U.S.
Subsidiary Borrower, the Borrower may give the Agent a Conversion/
Continuation Notice on its behalf, of each conversion of a Floating Rate
Advance or continuation of a Eurocurrency Advance not later than 10:00 a.m.
(Chicago time) at least four 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 and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance,
the duration of the Eurocurrency Interest Period applicable
thereto.
Notwithstanding anything herein to the contrary, Eurocurrency Advances in an
Agreed Currency may be converted and/or continued as Eurocurrency Advances
only in the same Agreed Currency. Promptly after receipt of any
Conversion/Continuation Notice, the Agent shall provide the Lenders with
notice thereof.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance and
------------------------------
Swing Line Loan shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance or Swing Line
Loan is made or, in the case of a Floating Rate Advance, is converted from a
Eurocurrency Advance into a Floating Rate Advance pursuant to Section 2.10
------------
to but excluding the date it becomes due or, in the case of a Floating Rate
Advance, is converted into a Eurocurrency Advance pursuant to Section 2.10
------------
hereof, at a rate per annum equal to the Floating Rate for such day or, in
the case of the Swing Line Loans, such other rate as may have been agreed to
between the Borrower and the Swing Line Lender. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate
Advance and each Swing Line Loan bearing interest by reference to the
Floating Rate will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurocurrency Advance shall bear interest from and
including the first day of the Eurocurrency Interest Period applicable
thereto to (but not
31
including) the last day of such Eurocurrency Interest Period at the
Eurocurrency Rate determined as applicable to such Eurocurrency Advance.
Changes in the rate of interest on any Eurocurrency Advance will take effect
simultaneously with each change in the Applicable Margin. No Eurocurrency
Interest Period may end after the Revolving Loan Termination Date (or, if
earlier, the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.7 hereof or the Commitments pursuant to
-----------
Section 8.1 hereof).
-----------
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 Borrowers, declare that no Advance may be made as, converted
into or continued as a Eurocurrency Advance. During the continuance of any
Default under Section 7.2, the Required Lenders may, at their option, by
-----------
notice to the Borrowers, declare that each Advance shall bear interest at a
rate per annum equal to the Floating Rate plus 2% per annum.
2.13. Method of Payment. All payments of the Obligations hereunder
-----------------
shall be made, without setoff, deduction, or counterclaim, to the Agent (i)
at the Agent's address specified pursuant to Article XIII in immediately
------------
available funds with respect to Advances or other Obligations denominated in
Dollars and (ii) at the Agent's Eurocurrency Payment Office in immediately
available funds with respect to any Advance or other Obligations denominated
in an Agreed Currency other than Dollars, or at any other Lending
Installation of the Agent specified in writing by the Agent to the
Borrowers, by noon (local time) on the date when due and shall be applied
ratably by the Agent among the Lenders (unless such amount is not to be
shared ratably in accordance with the express terms hereof). Any payment
received by the Agent after such time shall be deemed to have been received
on the next Business Day. Each Advance shall be repaid or prepaid in the
Agreed Currency in which it was made in the amount borrowed and interest
payable thereon shall also be paid in such Agreed Currency. Each payment
delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the
Agent received at its address specified pursuant to Article XIII or at any
------------
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the
applicable Borrower maintained with Bank One for each payment of principal,
interest and fees as it becomes due hereunder (it being understood and
agreed that the Agent shall not charge the account of the Non-U.S.
Subsidiary Borrower for any payment of principal or interest on Loans made
to the Borrower, or for fees incurred by the Borrower). Any payment by
either Borrower to the Agent for the account of the Lenders in accordance
with the terms hereof shall, to the extent of such payment, discharge such
Borrower's obligation to make such payment to the Lenders. Each reference to
the Agent in this Section 2.13 shall also be deemed to refer, and shall
------------
apply equally, to the LC Issuer, in the case of payments required to be made
by either Borrower to the LC Issuer pursuant to Section 2.23.
------------
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such
currency with the result that different types of such Agreed Currency (the
"NEW CURRENCY") are introduced and the type of currency in which the Advance
was made (the "ORIGINAL CURRENCY") no longer exists or the applicable
Borrower is not able to make payment to the Agent for the account of the
Lenders in such Original Currency, then all
32
payments to be made by such Borrower hereunder in such currency shall be
made to the Agent in such amount and such type of the New Currency or
Dollars as shall be equivalent to the amount of such payment otherwise due
hereunder in the Original Currency, it being the intention of the parties
hereto that the applicable Borrower take all risks of the imposition of any
such currency control or exchange regulations. In addition, notwithstanding
the foregoing provisions of this Section, if, after the making of any
Advance in any currency other than Dollars, either Borrower is not able to
make payment to the Agent for the account of the Lenders in the type of
currency in which such Advance was made because of the imposition of any
such currency control or exchange regulation, then such Advance shall
instead be repaid when due in Dollars in a principal amount equal to the
Dollar Amount (as of the date of repayment) of such Advance.
2.14. Noteless Agreement; Evidence of Indebtedness.
--------------------------------------------
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from the Loans 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 Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Type
thereof and the Eurocurrency Interest Period with respect thereto,
(b) the amount of any principal or interest due and payable or to
become due and payable from each Borrower, respectively, to each
Lender hereunder and (c) the amount of any sum received by the
Agent hereunder from each Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be binding and
conclusive evidence, absent manifest error, of the existence and
amounts of the Obligations therein recorded; provided, however,
-------- -------
that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the applicable Borrower to repay the Obligations
incurred by it in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by
a promissory note in substantially the form of Exhibit D hereto. In
---------
such event, the Borrowers shall execute and deliver to such Lender
promissory notes payable to the order of such Lender in a form
approved by the Agent and consistent with the terms of this
Agreement. Thereafter, the Loans evidenced by such promissory notes
and interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by one or more
------------
promissory 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
promissory note for cancellation and requests that such Loans once
again be evidenced as described in paragraphs (i) and (ii) above.
2.15. Telephonic Notices. Each Borrower hereby authorizes the
------------------
Lenders and the Agent to extend, convert or continue Advances and Swing Line
Loans, as applicable, effect selections
33
of Types of Advances and to transfer funds based on telephonic notices made
by any person or persons the Agent, the Swing Line Lender or any Lender in
good faith believes to be an Authorized Officer of such Borrower. Each
Borrower agrees to deliver promptly to the Agent a written confirmation, if
such confirmation is requested by the Agent, the Swing Line Lender or any
Lender, of each telephonic notice, signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken
by the Agent, the Swing Line Lender and the Lenders, the records of the
Agent, the Swing Line Lender and the Lenders shall govern absent manifest
error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest
----------------------------------------------
accrued on each Floating Rate Advance and Swing Line Loan shall be payable
on each Payment Date, commencing with the first such date to occur after the
date hereof, on any date on which the Floating Rate Advance or Swing Line
Loan is prepaid and at maturity (whether due to acceleration or otherwise).
Interest accrued on that portion of the outstanding principal amount of any
Floating Rate Advance converted into a Eurocurrency Advance on a day other
than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurocurrency Advance shall be payable on the last day of its
applicable Eurocurrency Interest Period, on any date on which the
Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and
at maturity. Interest accrued on each Eurocurrency Advance having an
Eurocurrency Interest Period longer than three months shall also be payable
on the last Business Day of each three-month interval during such
Eurocurrency Interest Period. Interest accrued on all Loans for which the
Prime Rate is the basis shall be calculated for actual days elapsed on the
basis of a year of 365 or, when appropriate, 366 days. Interest accrued on
all Loans for which the Eurocurrency Rate is the basis and all fees shall be
calculated for actual days elapsed on the basis of a year of 360 days.
Interest shall be payable for the day an Advance or Swing Line Loan 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 or Swing Line Loan or any fee 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. The Agent will promptly notify each Lender of the
---------------------
contents of each Aggregate Revolving Loan Commitment Reduction Notice,
Borrowing Notice, Conversion/Continuation Notice, and Prepayment Notice
received by it hereunder. The Agent will notify each Lender of the interest
rate applicable to each Eurocurrency Advance promptly upon determination of
such interest rate and will give each Borrower and each Lender prompt notice
of each change in the Alternate Base Rate.
2.18. Lending Installations. Each Lender may book its Loans at any
---------------------
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to
any such Lending Installation and any promissory notes requested to be
issued hereunder shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written or facsimile notice to the
Agent and the Borrowers,
34
designate a Lending Installation through which Loans will be made by it and
for whose account Loan payments and/or payments of LC Obligations are to be
made.
2.19. Non-U.S. Subsidiary Borrower. The Borrower may at any time,
----------------------------
with the consent of the Agent, add as a party to this Agreement a Foreign
Subsidiary to be the "Non-U.S. Subsidiary Borrower" hereunder by (a) the
execution and delivery to the Agent of a duly completed Assumption Letter by
such Subsidiary, with the written consent of the Borrower at the foot
thereof and (b) the execution and delivery to the Agent of such other
guaranties, security documents, pledge agreements and legal opinions from
counsel as may be reasonably required by the Agent. Upon such execution,
delivery and consent, such Subsidiary shall for all purposes be a party
hereto as the Non-U.S. Subsidiary Borrower as fully as if it had executed
and delivered this Agreement.
2.20. Non-Receipt of Funds by the Agent. Unless either Borrower or
---------------------------------
a Lender, as the case may be, notifies the Agent prior to the date on which
it is scheduled to make payment to the Agent of (i) in the case of a Lender,
the proceeds of a Loan or (ii) in the case of either Borrower, a payment of
principal, interest or fees to the Agent for the account of any of the
Lenders or, in the case of the Borrower, the Swing Line Lender, that it does
not intend to make such payment, the Agent may assume that such payment has
been made. The Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or such Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent until
the date the Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such
day or (ii) in the case of payment by such Borrower, the interest rate
applicable to the relevant Loan.
2.21. Extension of Revolving Loan Termination Date. (a) The
--------------------------------------------
Borrower may request two extensions of the Revolving Loan Termination Date
by submitting a request for an extension to the Agent (an "EXTENSION
REQUEST") not more than 180 days and not less than 60 days prior to the then
effective Revolving Loan Termination Date. The Extension Request must
specify the new Revolving Loan Termination Date requested by the Borrower,
which shall be the day that is one year after the then Effective Revolving
Loan Termination Date. The new Revolving Loan Termination Date shall be
effective as of the then effective Revolving Loan Termination Date (the
"EXTENSION DATE"). The Revolving Loan Termination Date may not be extended
more than two times hereunder. Promptly upon receipt of an Extension
Request, the Agent shall notify each Lender of the contents thereof and
shall request each Lender to approve the Extension Request. Each Lender
approving the Extension Request shall deliver its written consent no later
than the Extension Date. If and only if the consent of Lenders having, in
the aggregate, Revolving Loan Percentages of greater than 75% is received by
the Agent, and no Default or Unmatured Default has occurred and is
continuing on the Extension Date, such date specified in the Extension
Request as the new Revolving Loan Termination Date shall become effective on
the Extension Date, but only with respect to each Lender that has approved
the Extension Request. The Agent shall promptly notify the Borrower and each
Lender of the new Revolving
35
Loan Termination Date. If any of the conditions precedent to a Credit
Extension set forth in Section 4.3 have not been satisfied on the Extension
-----------
Date, then such Extension Request shall be deemed withdrawn and terminated
on such date. Failure of a Lender to respond to an Extension Request after
such Lender's receipt of the Extension Request from the Agent shall be
deemed a denial of such request.
(b) If any Lender denies the Extension Request, then on the then
effective Revolving Loan Termination Date (without giving effect to the
Extension Request), (i) each Borrower shall pay to such Lender all amounts
of principal, interest and fees accrued to the Extension Date that are
payable to such Lender under this Agreement (it being understood and agreed
that the Non-U.S. Subsidiary Borrower shall not be liable to pay to such
Lender any amounts in respect of Obligations incurred by the Borrower), (ii)
the Extension Date shall also be deemed to be such Lender's Revolving Loan
Termination Date and the Loans provided for in Section 2 hereof will not be
---------
available to either Borrower from such Lender and (iii) such Lender's
Commitments shall terminate.
(c) The Borrower shall have the right, upon at least five (5)
Business Days' notice to the Agent (i) to increase the Revolving Loan
Commitment of one or more Lenders and (ii) to add one or more financial
institutions as new Lenders (any such addition being referred to as a
"LENDER ADDITION"); provided, however, that in order for any increase in the
-------- -------
Revolving Loan Commitments or any Lender Addition to be effective, the
applicable Lender or financial institution and the Agent must consent to any
such increase and/or Lender Addition (such consent by the Agent not to be
unreasonably withheld); and provided, further, that no such increase in any
-------- -------
Revolving Loan Commitment or any Lender Addition shall result in an
Aggregate Revolving Loan Commitment in excess of that in effect prior to the
Extension Date.
2.22. Withholding Tax Exemption. (i) At least five Business Days
-------------------------
prior to the first date on which interest or fees are payable hereunder for
the account of any Lender, each Lender that is not incorporated or otherwise
organized under the laws of the United States of America, or a state thereof
(a "NON-U.S. LENDER") agrees that it will deliver to each of the Borrower
and the Agent two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, certifying in either case that such Non-U.S.
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 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 Agent
(x) two renewals or additional copies of such form (or a 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 amendments thereto as may be reasonably requested by
the Borrower or the 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 Non-U.S.
36
Lender from duly completing and delivering any such form with respect to it
and such Non-U.S. Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax. For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to this
Section 2.22, 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, 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 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 this Section 2.22,
------------
the Borrowers, respectively, shall take such steps as such Non-U.S. Lender
shall reasonably request to assist such Non-U.S. Lender to recover such
taxes.
2.23. Facility LCs.
------------
(a) The LC Issuer hereby agrees, on the terms and conditions set
forth in this Agreement, to issue stand-by and commercial Facility LCs in
Dollars or an Agreed Currency for the account of the applicable Borrower
(each, a "FACILITY LC") and to renew, extend, increase, decrease or
otherwise modify each Facility LC (each a "MODIFICATION"), from time to time
from and including the date of this Agreement and prior to the Revolving
Loan Termination Date (or, if earlier, the date of termination in whole of
the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or
-----------
the Commitments pursuant to Section 8.1 hereof) upon the request of the
-----------
applicable Borrower or, in the case of the Non-U.S. Subsidiary Borrower,
upon the request of the Borrower on its behalf; provided, that immediately
--------
after each such Facility LC is issued or Modified, (i) the aggregate Dollar
Amount of the outstanding LC Obligations shall not exceed $20,000,000, (ii)
the Dollar Amount of all Eurocurrency Loans and Facility LCs in Agreed
Currencies other than Dollars is less than or equal to the Maximum
Eurocurrency Amount, (iii) the Revolving Credit Obligations shall not exceed
the Aggregate Revolving Loan Commitment, (iv) the aggregate outstanding
principal Dollar Amount of all Revolving Loans and Facility LCs made to or
issued for the account of the Non-U.S. Subsidiary Borrower shall not exceed
the Maximum Non-U.S. Subsidiary Borrower Amount and (v) the conditions
precedent set forth in Section 4.3 shall have been satisfied; provided,
----------- --------
further, that if the applicable Borrower has requested a Lender other than
-------
Bank One to act as LC Issuer with respect to the issuance or Modification of
a particular Facility LC, such issuance or Modification shall be made only
in the sole discretion of such Lender. No Facility LC shall have an expiry
date later than the day which is two years after the Revolving Loan
Termination Date (which, for purposes of clarification, shall include any
and all extensions pursuant to Section 2.21 hereof).
------------
(b) On the date hereof with respect to the Existing LCs and upon
the issuance or Modification by the LC Issuer of a Facility LC in accordance
with this Section 2.23, the LC Issuer shall be deemed, without further
------------
action by any party hereto, to have sold to each Lender, and each Lender
shall be deemed, without further action by any party hereto, to have
purchased from the LC Issuer, a participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in an amount equal to
the stated amount available for drawing under the applicable Facility LC and
any such related LC Obligations, multiplied by such Lender's
37
Revolving Loan Percentage, provided, however, that no Lender's participation
-------- -------
shall extend to Reimbursement Obligations or amounts available for drawing
under outstanding Facility LCs (i) to the extent such Obligations and
amounts have been cash collateralized in accordance with the terms of
Section 2.23(m) or (ii) if such Lender's Revolving Loan Commitment has been
---------------
terminated pursuant to Section 2.21(b). Such participation shall constitute
---------------
usage of each such Lenders' Revolving Loan Commitment.
(c) Subject to subsection (a), the applicable Borrower (or in the
case of the Non-U.S. Subsidiary Borrower, the Borrower on its behalf) shall
give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least (i)
three Business Days for Dollar denominated Facility LCs and (ii) five
Business Days for Facility LCs denominated in any Agreed Currency other than
Dollars prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the Agreed Currency in which the
Facility LC is to be denominated, 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 Agent, and the 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 IV (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
applicable 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 AGREEMENT"). In the event of any conflict between
the terms of this Agreement and the terms of any Facility LC Application
Agreement, the terms of this Agreement shall control.
(d) The Borrowers shall pay to the Agent, for the account of the
Lenders ratably in accordance with their respective Revolving Loan
Percentages (except as provided in Section 8.2), a letter of credit fee
-----------
equal to (i) a percentage per annum equal to the Applicable Stand-by
Facility LC Margin in effect from time to time on the average daily
aggregate amount available for drawings under all stand-by Facility LCs
outstanding during such quarter and (ii) a percentage per annum equal to the
Applicable Commercial Facility LC Margin in effect from time to time on the
average daily aggregate amount available for drawings under all commercial
Facility LCs outstanding during such quarter (it being understood and agreed
that the Non-U.S. Subsidiary Borrower shall be liable to pay such fees only
with respect to Facility LCs issued for its account). Each such fee under
clauses (i) and (ii) shall be payable in arrears on each Payment Date and on
----------- ----
the Revolving Loan Termination Date (or, if earlier, the date of termination
in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7
-----------
hereof or the Commitments pursuant to Section 8.1 hereof). The applicable
-----------
Borrower shall pay to the LC Issuer on the date of issuance of each Facility
LC, a Facility LC fronting fee equal to 0.125% of the stated amount
available for drawing under each such Facility LC, and such additional fees
and expenses relating to the issuance, Modification, and payment of Facility
LCs in the amounts and at the times agreed between the Borrower and the LC
Issuer (it being understood and agreed that the Non-U.S. Subsidiary Borrower
shall be liable to pay such fronting fee only with respect
38
to Facility LCs issued for its account). The LC Issuer shall furnish to the
Agent upon request its calculations with respect to the amount of any fee
payable under this subsection (d).
(e) Upon receipt from the beneficiary of any Facility LC of any
demand for payment under such Facility LC, the LC Issuer shall notify the
Agent and the Agent shall promptly notify the applicable 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 applicable 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 Revolving Loan Percentage 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 applicable Borrower pursuant to subsection (f) 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 11:00 a.m. (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 such day; provided, however, that upon any
-------- -------
such demand by the LC Issuer for reimbursement from the Lenders of the
amounts described in clauses (i) and (ii) above (the "LC REIMBURSEMENT
----------- ----
AMOUNTS"), the LC Reimbursement Amounts shall be immediately and
automatically converted to and redenominated in Dollars equal to the Dollar
Amount of such LC Reimbursement Amounts determined as of the date of such
conversion.
(f) The applicable Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or by 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 (it being understood and agreed that the Non-U.S.
Subsidiary Borrower shall not be liable to reimburse any LC Issuer for any
amounts attributable to drawings under Facility LCs issued for the account
of the Borrower); provided, that neither the Borrowers nor any Lender shall
--------
hereby be precluded from asserting any claim for direct (but not
consequential) damages suffered by the applicable 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 applicable Borrower after the applicable LC
Payment Date shall bear interest, payable on demand, for each day until
paid, at a rate per annum equal to the sum of 2% plus the rate applicable to
Floating Rate Advances for such day. The LC Issuer will pay to each Lender
ratably in accordance with its Revolving Loan Percentage all amounts
received by it from the applicable Borrower for
39
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 subsection (e). Subject to the terms and conditions
of this 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 IV), either Borrower
----------
may request an Advance or, in the case of the Borrower only, a Swing Line
Loan hereunder for the purpose of satisfying any Reimbursement Obligation.
(g) If after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the LC Issuer or
any Lender with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall impose,
modify or deem applicable any tax, reserve, special deposit or similar
requirement against or with respect to or measured by reference to Facility
LCs issued or to be issued hereunder or participation therein, and the
result shall be to increase the cost to the LC Issuer or any Lender of
issuing or maintaining any Facility LC or any participation therein, or
reduce any amount receivable hereunder by the LC Issuer or any Lender in
respect of any Facility LC (which increase in cost, or reduction in amount
receivable, shall be the result of such Lender's or the LC Issuer's
reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by the LC Issuer or such
Lender, each Borrower agrees, as applicable, to pay to the LC Issuer or such
Lender, from time to time as specified by the LC Issuer or such Lender, such
additional amounts as shall be sufficient to compensate the LC Issuer or
such Lender for such increased costs or reductions in amounts received by
the LC Issuer or such Lender (it being understood and agreed that the
Non-U.S. Subsidiary Borrower shall not be liable to compensate any LC Issuer
for any such costs or reductions in amounts received with respect to
Facility LCs issued for the account of the Borrower). A certificate of the
LC Issuer or such Lender submitted by the LC Issuer or such Lender to the
applicable Borrower shall be conclusive as to the amount thereof in the
absence of manifest error.
(h) The Borrowers' obligations under this Section 2.23 shall be
------------
absolute and unconditional under any and all circumstances and irrespective
of any set off, counterclaim or defense to payment which the applicable
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. Each Borrower further agrees with the LC
Issuer and the Lenders that the LC Issuer and the Lenders shall not be
responsible for, and such 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 such Borrower, any of
its Subsidiaries, 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 such Borrower or of any of its Subsidiaries
against the beneficiary of any Facility LC or any such transferee. Absent
willful misconduct or gross negligence, 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
40
connection with any Facility LC. Each 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 such Borrower and
shall not put the LC Issuer or any Lender under any liability to such
Borrower. Nothing in this subsection (h) is intended to limit the right of
either Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of subsection (f) above.
(i) To the extent not inconsistent with subsection (h) above, 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 2.23, 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 (or all of
the Lenders, if required hereunder), and such request and any action taken
or failure to act pursuant thereto shall be binding upon the Lenders and all
future holders of participations in any Facility LCs.
(j) Each Borrower hereby agrees to indemnify and hold harmless each
Lender, the LC Issuer and the Agent, and their respective directors,
officers, agents and employees from and against any and all claims and
damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed against such Lender,
the LC Issuer or the Agent by any Person whatsoever) by reason of or in
connection with the 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, costs or expenses which the LC Issuer may 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 such 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 (it being understood and agreed that the Non-U.S. Subsidiary
Borrower shall not be liable pursuant to this subsection (j) with respect to
any Facility LCs issued for the account of the Borrower); provided, that
--------
such Borrower shall not be required to indemnify the LC Issuer for any
claims, damages, losses, liabilities, costs or expenses 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
41
under any Facility LC complied with the terms of such Facility LC or (ii)
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. Nothing in this subsection (j) is intended to limit the
obligations of either Borrower under any other provision of this Agreement.
(k) Each Lender shall, ratably in accordance with its Revolving
Loan Percentage, indemnify the LC Issuer, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the applicable 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.
(l) In its capacity as a Lender, the LC Issuer shall have the same
rights and obligations as any other Lender.
(m) Notwithstanding anything to the contrary herein or in any
application for a Facility LC, the applicable Borrower shall, not later than
the Revolving Loan Termination Date (or, if earlier, the date of termination
in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7
-----------
hereof or the Commitments pursuant to Section 8.1 hereof) or on any earlier
-----------
Business Day after the occurrence and continuance of a Default or Unmatured
Default that it receives the Agent's demand, deliver to the Agent for the
benefit of the Lenders and the LC Issuer, cash having a value, as determined
by the Agent, equal to one hundred and five percent (105%) of each of the
aggregate amount of the outstanding Reimbursement Obligations and the
aggregate amount available for drawing under Facility LCs that are
outstanding. Any such collateral shall be held by the Agent in a separate
account appropriately designated as a cash collateral account in relation to
this Agreement and the Facility LCs and retained by the Agent for the
benefit of the Lenders and the LC Issuer as collateral security for such
Borrower's obligations in respect of this Agreement and each of the Facility
LCs and LC Drafts. Such amounts shall be applied to reimburse the LC Issuer
for drawings or payments under or pursuant to Facility LCs or LC Drafts, or
if no such reimbursement is required, to payment of such of the other
Obligations as the Agent shall determine (it being understood and agreed
that the Non-U.S. Subsidiary Borrower shall not be required to provide
collateral in connection with any Facility LCs issued for the account of the
Borrower, nor shall any collateral provided by the Non-U.S. Subsidiary
Borrower pursuant to this subsection (m) be applied toward drawings or
payments under or in connection with Facility LCs issued for the account of
the Borrower or Obligations incurred by the Borrower). Amounts remaining in
any cash collateral account established pursuant to this Section 2.23 which
------------
are not to be applied to reimburse the Agent or any LC Issuer for amounts
actually paid or to be paid by the Agent or any LC Issuer in respect of
Obligations hereunder shall be promptly returned to the applicable Borrower
upon the payment in full of all Obligations hereunder, after deduction of
the Agent's reasonable expenses incurred in connection with such cash
collateral account.
42
2.24. Transitional Letter of Credit Provisions. From and after the
----------------------------------------
Closing Date, the Existing LCs shall be deemed to constitute Facility LCs
issued pursuant to Section 2.23 in which the Lenders participate. Fees shall
------------
accrue in respect of the Existing LCs as provided in Section 2.23(d)
---------------
beginning as of the date of this Agreement.
2.25. Judgment Currency. If, for the purposes of obtaining judgment
-----------------
in any court, it is necessary to convert a sum due from either Borrower
hereunder in the currency expressed to be payable herein (the "SPECIFIED
CURRENCY") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Agent
could purchase the specified currency with such other currency at the
Agent's main office in Chicago, Illinois on the Business Day preceding that
on which the final, non-appealable judgment is given. The obligations of the
applicable Borrower in respect of any sum due to any Lender or the Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business
Day following receipt by such Lender or the Agent (as the case may be) of
any sum adjudged to be so due in such other currency such Lender or the
Agent (as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum
originally due to such Lender or the Agent, as the case may be, in the
specified currency, such Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent, as the case may be, against
such loss, and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or the Agent, as the case may be,
in the specified currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such
Lender under Section 11.2, such Lender or the Agent, as the case may be,
------------
agrees to remit such excess to the applicable Borrower (it being understood
and agreed that the Non-U.S. Subsidiary Borrower shall not be liable under
this Section 2.25 in connection with any Obligations incurred by the
------------
Borrower).
2.26. Market Disruption. Notwithstanding the satisfaction of all
-----------------
conditions referred to in Article II with respect to any Advance in any
----------
Agreed Currency other than Dollars, if there shall occur on or prior to the
date of such Advance any change in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls which would in the reasonable opinion of the applicable Borrower,
the Agent or the Required Lenders make it impracticable for the Eurocurrency
Loans comprising such Advance to be denominated in the Agreed Currency
specified by the applicable Borrower, then the Agent shall forthwith give
notice thereof to such Borrower and the Lenders or such Borrower shall give
notice thereof to the Lenders, as the case may be, and such Eurocurrency
Loans shall not be denominated in such currency but shall be made on such
Borrowing Date in Dollars, in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice, as Floating Rate Loans, unless the applicable Borrower
notifies the Agent at least one Business Day before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date
in a different Agreed Currency, as the case may be, in which the
denomination of such Eurocurrency Loans would in the opinion of the Agent
and the Required
43
Lenders be practicable and in an aggregate principal amount equal to the
Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice.
ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If, after the date of this Agreement, the
----------------
adoption of or change in, any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, or the compliance of any
Lender therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from either Borrower (excluding taxation of the
overall net income of any Lender or applicable Lending
Installation), or changes the basis of taxation of payments to any
Lender in respect of its Revolving Loan Commitment, Loans, LC
Obligations or other amounts due it hereunder, 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 (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency
Advances) in respect of its Revolving Loan Commitment, Loans, LC
Obligations or other amounts due it hereunder, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its Revolving Loan
Commitment, Loans or LC Obligations or reduces any amount
receivable by any Lender or any applicable Lending Installation in
connection with Loans under this Agreement or its LC Obligations,
or requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of its
Revolving Loan Commitment, Loans or LC Obligations held or interest
received by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the applicable Borrower shall
pay such Lender that portion of such increased expense incurred or reduction
in an amount received which such Lender determines is attributable to
making, funding and maintaining its Loans, LC Obligations and its Revolving
Loan Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender
---------------------------------------
determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a "Change" (as defined
below), then, within 15 days of demand by such Lender the applicable
Borrower shall pay such Lender the amount necessary to compensate, on an
after-tax basis, for any shortfall in the rate of return on the portion of
such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitments (after taking into account such Lender's policies as to capital
adequacy and the
44
Change). "CHANGE" means (i) any change after the date of this Agreement in
the "Risk-Based Capital Guidelines" (as defined below) 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 any
Lending Installation or any corporation controlling any Lender. "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.
3.3. Availability of Types of Advances. If any Lender determines
---------------------------------
that maintenance of any of its Eurocurrency Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, such Lender shall
promptly give notice thereof to the Borrowers and the Agent shall suspend
the availability of Eurocurrency Advances and require any and all
outstanding Eurocurrency Advances to be repaid. If the Required Lenders
determine that (i) deposits of a type, currency or maturity appropriate to
match fund Eurocurrency Advances are not available or (ii) the interest rate
applicable to Eurocurrency Advance does not accurately reflect the cost of
making Eurocurrency Advances, then the Agent shall promptly give notice
thereof to the Borrowers and the Lenders shall suspend the availability of
Eurocurrency Advances until such time as the circumstances giving rise to
such suspension no longer exist.
3.4. Funding Indemnification. If any payment of a Eurocurrency
-----------------------
Advance occurs on a date which is not the last day of the applicable
Eurocurrency Interest Period, whether because of acceleration, prepayment or
otherwise (but excluding any such prepayment arising pursuant to Section
-------
3.3), or a Eurocurrency Advance is not made or prepaid on the date specified
---
by the applicable Borrower for any reason other than default by the Lenders,
the applicable 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 Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent
----------------------------------------
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurocurrency Loans to reduce any liability
of either Borrower to such Lender under Sections 3.1 and 3.2 or to avoid the
------------ ---
unavailability of a Type of Advance under Section 3.3, so long as such
-----------
designation is not disadvantageous to such Lender. Each Lender shall deliver
to the applicable Borrower a written statement of such Lender as to the
amount due, if any, under Sections 3.1, 3.2 or 3.4. 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
applicable Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurocurrency Loan
shall be calculated as though each Lender funded its Eurocurrency Loan
through the purchase of a deposit of the type, currency and maturity
45
corresponding to the deposit used as a reference in determining the
Eurocurrency Rate applicable to such Loan, whether in fact that is the case
or not. Unless otherwise provided herein, the amount specified in the
written statement or certificate shall be payable on demand after receipt by
the applicable Borrower of the written statement. The obligations of the
Borrowers under Sections 3.1, 3.2 and 3.4 shall survive payment of the
------------ --- ---
Obligations and termination of this Agreement.
3.6. Replacement Lenders. If any Lender either (i) failed to fund
-------------------
its Revolving Loan Percentage or Term Loan Percentage, as applicable, of any
Advance requested by either Borrower, or to fund a Revolving Loan in order
to repay Swing Line Loans or Reimbursement Obligations or participations
with respect to Letters of Credit, which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured; (ii)
makes a demand for compensation pursuant to Section 2.23(g), Section 3.1 or
--------------- -----------
Section 3.2, (iii) is unable to fund at the Eurocurrency Rate or determines
-----------
that such rate is unavailable or does not accurately reflect its cost of
making or maintaining any Eurocurrency Loan pursuant to Section 3.3 for
-----------
reasons not generally applicable to the other Lenders or (iv) invokes the
provisions of Section 9.2, the Borrower may require and have such Lender
-----------
transfer, pursuant to and in accordance with Section 12.3, all of its rights
------------
and obligations under the Credit Documents to one or more Purchasers
selected by the Borrower, acceptable to the Agent and the LC Issuer, and
willing to accept such assignment provided such Lender is paid upon such
assignment all amounts of principal, interest and fees accrued hereunder to
the date of such assignment. No such assignment shall affect (a) any
liability or obligation of either Borrower or any other Lender to such
replaced Lender, which accrued on or prior to the date of such assignment or
(b) such replaced Lender's rights or obligations hereunder in respect of any
such liability or obligation.
3.7. Payments by Non-U.S. Subsidiary Borrower. Notwithstanding
----------------------------------------
anything herein to the contrary, the Non-U.S. Subsidiary Borrower shall not
be liable under Sections 3.1, 3.2 and 3.4 with respect to payments required
------------ --- ---
in connection with Loans made to, or Obligations incurred by or on behalf
of, the Borrower.
ARTICLE IV: CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to
------------------------
make the Term Loans or any initial Revolving Credit Advance, the Swing Line
Lender shall not be required to make Swing Line Loans and no LC Issuer shall
be required to issue a Facility LC hereunder, unless the Borrower has
furnished to the Agent, with sufficient copies for the Lenders, all in form
and substance satisfactory to the Agent:
(a) Copies of the articles or certificate of incorporation (or
other comparable constituent document) of each of the
Borrower and its Subsidiaries, together, in each case, with
all amendments, and a certificate of good standing, both
certified by the appropriate governmental officer in its
jurisdiction of organization.
46
(b) Copies, certified by the Secretary or Assistant Secretary of
each of the Borrower and its Subsidiaries, of its by-laws
(or other comparable governing document) and of its Board of
Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender)
authorizing the execution of the Borrower Credit Documents
and Subsidiary Guaranties, as applicable.
(c) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each of the Borrower and its
Subsidiaries, which shall identify by name and title and
bear the signature of the officers of the Borrower and each
Subsidiary, as applicable, authorized to sign the Borrower
Credit Documents and Subsidiary Guaranties, as applicable,
and, in the case of the Borrower, to make Credit Extensions
hereunder, upon which certificate the Agent and, the LC
Issuer, the Swing Line Lender and the Lenders shall be
entitled to rely until informed of any change in writing by
the Borrower.
(d) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date
(i) no Default or Unmatured Default has occurred and is
continuing and (ii) no material adverse change in the
business, financial condition, operations or prospects of
the Borrower's or any of the Borrower's Subsidiaries' has
occurred since the Borrower's consolidated financial
statements as of December 31, 2000.
(e) The written opinions of Xxxxx Xxxx LLP, U.S. counsel to the
Borrower and its Subsidiaries, and each Material Foreign
Subsidiary's foreign counsel (if any), in the forms of the
opinions attached hereto as Exhibit E, in each case
---------
addressed to the Agent and the Lenders, with respect to the
(without limitation) due authorization, execution and
enforceability of this Agreement and the other Credit
Documents, as applicable.
(f) A written opinion of foreign counsel with respect to each
Pledge Agreement (if any) to be delivered on the Closing
Date, addressed to the Agent and the Lenders, in form and
substance satisfactory to the Agent.
(g) A compliance certificate in substantially the form of
Exhibit F hereto signed by the Borrower's chief financial
---------
officer showing the calculations necessary to determine
compliance with Sections 6.20, 6.21 and 6.22 of this
------------- ---- ----
Agreement.
(h) Written money transfer instructions, in substantially the
form of Exhibit G hereto, addressed to the Agent and signed
---------
by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have
reasonably requested.
(i) Evidence satisfactory to the Agent and its counsel that,
concurrently with the Borrower's receipt of the initial
Advance hereunder: (1) the entire principal amount (together
with accrued interest and premium, if any) of the Existing
47
Indebtedness shall be repaid in full (other than the
Existing LCs) and (2) any and all lender commitments under
the Existing Credit Agreement shall have been terminated.
(j) Evidence satisfactory to the Agent and its counsel that,
concurrently with the Borrower's receipt of the initial
Advances hereunder: (1) the entire principal amount
(together with accrued interest and premium, if any) of
Indebtedness of the Borrower and its Subsidiaries under the
Interim Credit Agreement shall be repaid in full and (2) any
and all lender commitments under the Interim Credit
Agreement shall have been terminated.
(k) Promissory notes payable to each of the Lenders requesting
promissory notes pursuant to Section 2.14(iv) hereof.
----------------
(l) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested including, without
limitation, the Parent Guaranty, the Subsidiary Guaranty,
Pledge Agreements, and each other document reflected on the
List of Closing Documents attached in Exhibit H to this
---------
Agreement.
4.2. Initial Advance to the Non-U.S. Subsidiary Borrower. The
---------------------------------------------------
Lenders shall not be required to make a Revolving Credit Advance hereunder
and no LC Issuer shall be required to issue a Facility LC hereunder, in each
case, to or with respect to the Non-U.S. Subsidiary Borrower, which may be a
party hereto or which may become a party hereto after the Closing Date,
unless (a) all such documents, instruments and agreements required by the
Agent granting a first priority security interest in 65% of the issued and
outstanding capital stock or other ownership interests in the Non-U.S.
Subsidiary Borrower in favor of the Agent on behalf of the Lenders shall
have been executed and ready to be filed in the appropriate jurisdictions
and (b) the Borrower or the Non-U.S. Subsidiary Borrower has furnished or
caused to be furnished to the Agent with sufficient copies for the Lenders:
(i) The Assumption Letter executed and delivered by the Non-U.S.
Subsidiary Borrower and containing the written consent of the Borrower at
the foot thereof, as contemplated by Section 2.19.
------------
(ii) Copies, certified by the Secretary or Assistant Secretary of
the Non-U.S. Subsidiary Borrower, of its Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed necessary by counsel for
any Lender) approving the Assumption Letter and the other Non-U.S.
Subsidiary Borrower Credit Documents.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Non-U.S. Subsidiary Borrower, which shall
identify by name and title and bear the signature of the officers of the
Non-U.S. Subsidiary Borrower authorized to sign the Assumption Letter and
the other Non-U.S. Subsidiary Borrower Credit Documents, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
48
(iv) An opinion of counsel to the Non-U.S. Subsidiary Borrower,
with respect to the laws of its jurisdiction of organization, addressed to
the Agent and the Lenders, substantially in the pertinent form attached as
part of Exhibit E hereto.
---------
(v) Promissory notes payable to each of the Lenders requesting
promissory notes pursuant to Section 2.14(iv) hereof.
----------------
4.3. Each Credit Extension. The Lenders shall not be required to
---------------------
make any Advance (other than an Advance that, after giving effect thereto
and to the application of the proceeds thereof, does not increase the
aggregate amount of outstanding Advances), the Swing Line Lender shall not
be obligated to make a Swing Line Loan, and no LC Issuer shall be required
to issue any Facility LC, unless on the applicable Credit Extension Date,
both immediately prior to, and immediately after giving effect to, such
Credit Extension:
(a) Either (i) in the case of an Advance, the Agent shall have
received a Notice of Borrowing in compliance with Section
-------
2.9, (ii) in the case of a Swing Line Loan, the Swing Line
---
Lender shall have received a notice of borrowing in
compliance with Section 2.2(b) or (iii) in the case of a
--------------
Facility LC, the LC Issuer shall have received a request for
the issuance of a Facility LC in compliance with Section 2.23
------------
(together with any Facility LC Application Agreement
requested by the LC Issuer pursuant to Section 2.23(c)).
---------------
(b) The Revolving Credit Obligations do not and would not exceed
the Aggregate Revolving Loan Commitment.
(c) The aggregate outstanding principal Dollar Amount of all
Eurocurrency Advances in currencies other than Dollars does
not and would not exceed the Maximum Eurocurrency Amount.
(d) In the case of an Advance proposed to be made to the Non-U.S.
Subsidiary Borrower, the aggregate principal Dollar Amount of
Revolving Loans and Facility LCs made to or issued for the
account of the Non-U.S. Subsidiary Borrower do not and would
not exceed the Maximum Non-U.S. Subsidiary Borrower Amount.
(e) There exists no Default or Unmatured Default.
(f) The representations and warranties contained in Article V are
---------
true and correct as of such Borrowing 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.
(g) There exists no material adverse change in the business,
financial condition, operations or prospects of the Borrowers
or any of the Borrower's Subsidiaries since the Borrower's
consolidated financial statements as of December 31, 2000.
49
(h) There exists no litigation which would reasonably be expected
to result in a Material Adverse Effect.
(i) All legal matters incident to the making of such Credit
Extension shall be reasonably satisfactory to the Lenders and
their counsel.
Each Borrowing Notice with respect to each such Advance, each
notice of borrowing with respect to any Swing Line Loan and each request for
the issuance of a Facility LC pursuant to Section 2.23, shall constitute a
------------
representation and warranty by the applicable Borrower that the conditions
contained in Sections 4.3(b), (c), (d), (e) and (f) have been satisfied.
--------------- --- --- --- ---
ARTICLE V: REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and its
----------------------
Subsidiaries is a corporation or limited liability company duly 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.
5.2. Authorization and Validity. The Borrower has the corporate
--------------------------
power and authority and legal right to execute and deliver the Borrower
Credit Documents and to perform its obligations thereunder. The execution
and delivery by the Borrower of the Borrower Credit Documents and the
performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Borrower Credit Documents 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 Borrower Credit 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 Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation (or other comparable constituent document) or
by-laws (or other comparable governing document) or (iii) the provisions of
any indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of the Borrower
or a Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Borrower Credit Documents.
50
5.4. Financial Statements. The December 31, 2000 audited and
--------------------
September 30, 2001 unaudited consolidated financial statements of the
Borrower and its Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with generally accepted accounting principles in
effect on the respective dates such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower
and its Subsidiaries at such dates and the consolidated results of their
operations for the respective periods then ended.
5.5. Material Adverse Change. Since December 31, 2000, there has
-----------------------
been no change in the business, Property, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have 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 or any of its Subsidiaries, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. As of the date of this Agreement, the
United States income tax returns of the Borrower and its Subsidiaries have
been audited by the Internal Revenue Service through the fiscal year ended
December 31, 1996. 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 and its Subsidiaries in respect of any taxes or
other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on
-------------------------------------
Schedule 4 hereto, there is no litigation, arbitration, governmental
----------
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which, if adversely determined, could have a Material Adverse
Effect. Other than any liability incident to any litigation, arbitration or
proceedings which could not reasonably be expected to have a Material Adverse
Effect, neither Borrower has material contingent obligations not provided for
or disclosed in the financial statements referred to in Section 5.4.
-----------
5.8. Subsidiaries. Schedule 5 hereto contains an accurate list of
------------ ----------
all of the presently existing Subsidiaries of the Borrower, 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 together with a calculation, in the case of Foreign
Subsidiaries, as of the quarter ended immediately prior to the Closing Date,
of such Subsidiaries' total assets as a percentage of consolidated total
assets. 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 Unfunded Liabilities of all Single Employer Plans
-----
do not in the aggregate exceed $1,000,000. Neither the Borrower nor any
other member of the Controlled Group has failed to make a required
contribution or payment to any Multiemployer Plan or made a complete or
partial withdrawal from a Multiemployer Plan. Each Plan complies in all
material respects with all applicable requirements of law and regulations,
no Reportable Event has
51
occurred with respect to any Plan, neither the Borrower nor any other
members of the Controlled Group has withdrawn from any Plan or initiated
steps to do so, and no steps have been taken to reorganize or terminate any
Plan.
5.10. Accuracy of Information. No information, exhibit or report
-----------------------
furnished by the Borrower or any of its Subsidiaries to the Agent, the LC
Issuer, the Swing Line Lender or to any Lender in connection with the
negotiation of, or compliance with, the Credit 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 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. Neither the Borrower nor any Subsidiary
-------------------
is 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. Neither the Borrower nor any Subsidiary is 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 or
(ii) any agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
--------------------
complied in all material respects 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 matters identified on Schedule 6 hereto, 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 federal, state and local environmental, health and safety
statutes and regulations or 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.
5.14. Ownership of Property. On the date of this Agreement, the
---------------------
Borrower and its Subsidiaries have good title, free of all Liens other than
those permitted by Section 6.17, to all of the Property and assets reflected
------------
in the financial statements referred to in Section 5.4 as owned by it. The
-----------
Borrower and each of its Subsidiaries owns (or is licensed to use) all
Intellectual Property which is necessary or appropriate in any material
respect for the conduct of its respective business as conducted on the date
of this Agreement, without any material conflict with the rights of any
other Person. Neither the Borrower nor any Subsidiary is aware of (i) any
material existing or threatened infringement or misappropriation of any of
its Intellectual Property by any third party or (ii) any material third
party claim that any aspect of the business of the Borrower or any
Subsidiary (as conducted on the date of this Agreement) infringes or will
infringe upon, any Intellectual Property or other property right of any
other Person.
52
5.15. Labor Matters. There are no labor controversies pending
-------------
against the Borrower or any Subsidiary which could reasonably be expected to
have a Material Adverse Effect. The Borrower and each of its Subsidiaries
are in substantial compliance in all material respects with the Fair Labor
Standards Act, as amended.
5.16. Investment Company Act. Neither the Borrower nor any
----------------------
Subsidiary thereof is an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
5.17. Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.18. Insurance. The Borrower and its Subsidiaries maintain with
---------
financially sound and reputable insurance companies insurance for property,
casualty, business interruption and liability losses in such amounts and
covering such risks as is consistent with sound business practice.
5.19. Special Representations and Warranties of the Non-U.S.
------------------------------------------------------
Subsidiary Borrower. The Non-U.S. Subsidiary Borrower which may be a party
-------------------
hereto or which may become a party hereto after the Closing Date represents
and warrants to the Lenders as provided in this Section 5.19 that:
------------
(a) Existence and Standing. Such Non-U.S. Subsidiary
----------------------
Borrower is a company duly organized and validly existing and in good
standing under the laws of its jurisdiction of organization (hereinafter
referred to as its "HOME COUNTRY") and has all requisite authority to
conduct its business as it is now being conducted except where the failure
to have such requisite authority would not have a Material Adverse Effect.
(b) Authorization and Validity. The Non-U.S. Subsidiary
--------------------------
Borrower has the requisite power and authority and legal right to execute
and deliver the Non-U.S. Subsidiary Borrower Credit Documents and to perform
its obligations thereunder. The execution and delivery by the Non-U.S.
Subsidiary Borrower of the Non-U.S. Subsidiary Borrower Credit Documents and
the performance by it of its obligations thereunder have been duly
authorized by proper corporate proceedings, and such Non-U.S. Subsidiary
Borrower Credit Documents constitute legal, valid and binding obligations of
the Non-U.S. Subsidiary Borrower enforceable against the Non-U.S. Subsidiary
Borrower in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
(c) No Conflict; Government Consent. Neither the execution
-------------------------------
and delivery by the Non-U.S. Subsidiary Borrower of the Non-U.S. Subsidiary
Borrower Credit Documents, nor the consummation by it of the transactions
therein contemplated to be consummated by it, nor compliance by the Non-U.S.
Subsidiary Borrower with the provisions thereof will violate any
53
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Non-U.S. Subsidiary Borrower or any of its Subsidiaries or
the Non-U.S. Subsidiary Borrower's or any of its Subsidiaries' articles of
association (or other comparable constituent documents) or the provisions of
any indenture, instrument or agreement to which the Non-U.S. Subsidiary
Borrower or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on
the Property of the Non-U.S. Subsidiary Borrower or any of its Subsidiaries
pursuant to the terms of any such indenture, instrument or agreement in any
such case which violation, conflict, default, creation or imposition could
reasonably be expected to have a Material Adverse Effect. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental agency is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability
of, any of the Non-U.S. Subsidiary Borrower Credit Documents.
(d) Filing. To ensure the enforceability or admissibility
------
in evidence of this Agreement and any promissory notes requested to be
issued hereunder by the Non-U.S. Subsidiary Borrower in its Home Country, it
is not necessary that this Agreement or any such promissory notes or any
other document be filed or recorded with any court or other authority in its
Home Country or that any stamp or similar tax be paid to or in respect of
this Agreement or any such promissory notes of the Non-U.S. Subsidiary
Borrower. The qualification by any Lender or the Agent for admission to do
business under the laws of its Home Country does not constitute a condition
to, and the failure to so qualify does not affect, the exercise by any
Lender or the Agent of any right, privilege, or remedy afforded to any
Lender or the Agent in connection with the Non-U.S. Subsidiary Borrower
Credit Documents or the enforcement of any such right, privilege, or remedy
against the Non-U.S. Subsidiary Borrower. The performance by any Lender or
the Agent of any action required or permitted under the Credit Documents
will not (i) violate any law or regulation of the Non-U.S. Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii) result in
any tax (including any withholding tax) or other monetary liability to such
party pursuant to the laws of the Non-U.S. Subsidiary Borrower's Home
Country or political subdivision or taxing authority thereof or otherwise
(provided that, should any such action result in any such tax or other
monetary liability to the Lender or the Agent, the Borrower hereby agrees to
indemnify such Lender or the Agent, as the case may be, against (x) any such
tax or other monetary liability and (y) any increase in any tax or other
monetary liability which results from such action by such Lender or the
Agent and, to the extent the Borrower makes such indemnification, the
incurrence of such liability by the Agent or any Lender will not constitute
a Default) or (iii) violate any rule or regulation of any federation or
organization or similar entity of which the Non-U.S. Subsidiary Borrower's
Home Country is a member.
(e) No Immunity. Neither the Non-U.S. Subsidiary Borrower
-----------
nor any of its assets is entitled to immunity from suit, execution,
attachment or other legal process. The Non-U.S. Subsidiary Borrower's
execution and delivery of the Non-U.S. Subsidiary Borrower Credit Documents
constitute, and the exercise of its rights and performance of and compliance
with its
54
obligations under such Credit Documents will constitute, private and
commercial acts done and performed for private and commercial purposes.
ARTICLE VI: 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
Agent (which shall promptly provide copies to the Lenders):
(i) Within 90 days after the close of each of its fiscal years,
an unqualified (except for qualifications relating to
changes in accounting principles or practices reflecting
changes in generally accepted principles of accounting and
required or approved by the Borrower's independent certified
public accountants) 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 the 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 (a) any management letter
prepared by said accountants and (b) a certificate of said
accountants that, in the course of their examination
necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured
Default, or if, in the opinion of such accountants, any
Default or Unmatured Default shall exist, stating the nature
and status thereof.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and the
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 its chief
financial officer as being prepared, to the best of his or
her knowledge in accordance with Agreement Accounting
Principles, consistently applied, subject to normal year-end
audit adjustments.
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit F
---------
hereto signed by its chief financial officer showing the
calculations necessary to determine compliance with Sections
--------
6.20, 6.21 and 6.22 of this Agreement and stating that no
---- ---- ----
Default or
55
Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) As soon as possible and in any event not later than January
31 of each fiscal year commencing with the fiscal year
beginning January 1, 2003, a copy of the plan and forecast
(including a projected balance sheet, income statement and
statement of cash flow) of the Borrower and its Subsidiaries
for the upcoming fiscal year prepared in such detail as
shall be reasonably satisfactory to the Agent.
(v) As soon as possible and in any event within 10 days after
the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief
financial 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 10 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, health or safety
law or regulation by the Borrower or any of its
Subsidiaries, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports
and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files
with the Commission (other than routine filings relating
solely to employee benefit plans and filings on Forms 3, 4
or 5 regarding xxxxxxx xxxxxxx activities). In the event the
Borrower is no longer required to file reports with the
Commission, the Borrower need not furnish such reports to
the Agent, but nonetheless shall provide the Agent the
financial statements previously contained in such reports.
(ix) Promptly after the execution thereof, copies of all material
amendments to the Note Purchase Agreement or any of the
Receivables Purchase Documents.
(x) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each
---------------
Subsidiary to, use the proceeds of the Advances, Swing Line Loans and
Facility LCs to repay certain existing Indebtedness, for general corporate
purposes, including, without limitation, for Acquisitions permitted by
Section 6.15 hereof, and to repay outstanding Advances and Reimbursement
------------
Obligations. After it has become a party hereto, the Non-U.S. Subsidiary
Borrower will use the
56
proceeds of the Revolving Credit Advances and Facility LCs for general
corporate purposes, including, without limitation, for Acquisitions
permitted by Section 6.15 hereof, and to repay its outstanding Advances and
------------
Reimbursement Obligations. The Borrower and the Non-U.S. Subsidiary Borrower
will not, nor will they permit any Subsidiary to, use any of the proceeds of
the Advances either (i) to purchase or carry any "margin stock" (as defined
in Regulation U) or (ii) to make any other Acquisition (except as
specifically permitted by Section 6.15). Notwithstanding anything herein to
------------
the contrary, Facility LCs may be applied for by the Borrower hereunder for
the benefit of the Borrower's Subsidiaries.
6.3. Notice of Default. After knowledge thereof shall have come to
-----------------
the attention of an Authorized Officer of either Borrower, such Borrower
will give prompt notice in writing to the Agent, and the Agent shall
promptly notify each other Lender, 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, and will cause each
-------------------
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as conducted on
the date of this Agreement, or as conducted on the date of its formation, in
the case of the Non-U.S. Subsidiary Borrower or other Subsidiary that may be
formed after the Closing Date, and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business
is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
-----
pay when due all taxes, assessments and governmental charges and levies upon
it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary
---------
to, maintain with financially sound and reputable insurance companies
insurance for property, casualty, business interruption and liability losses
in such amounts and covering such risks as is consistent with sound business
practice, and the Borrower will furnish to Agent, upon request of the Agent
or any Lender, a certificate setting forth in summary form, the nature and
extent of the insurance maintained pursuant to this provision and such other
information as shall be reasonably requested. The Borrower will, within ten
(10) Business Days of its receipt of notice of termination or cancellation
of any products liability or other liability insurance policy insuring the
Borrower or any of its Subsidiaries (other than any such notice with respect
to the expiration of any such policy at the end of its stated term when
renewal of such policy, or the obtaining of a substantially equivalent
policy with a different insurer, is not expected to be a problem), give
written notice thereof to the Lenders.
6.7. Compliance with Laws. The Borrower will, and will cause each
--------------------
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all applicable federal, state and local
57
environmental, health and safety statutes and regulations; provided,
--------
however, neither the Borrower nor any Subsidiary shall be required to comply
-------
with any such laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards if its failure to comply therewith could not,
in the aggregate, have a Material Adverse Effect.
6.8. Maintenance of Property. The Borrower will, and will cause
-----------------------
each Subsidiary to, do all things necessary to maintain, preserve, protect
and keep all of its tangible personal and real Property in good repair,
working order and condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times. The Borrower will, and
will cause each Subsidiary to, do all things necessary to maintain,
preserve, protect all of its Intellectual Property including, without
limitation, perform each of its respective obligations under any and all
license agreements and other contracts and agreements evidencing or relating
to Intellectual Property, using the same in interstate or foreign commerce,
properly marking such Intellectual Property and maintaining all necessary
and appropriate governmental registrations (both domestic and foreign).
6.9. Inspection. The Borrower will, and will cause each Subsidiary
----------
to, permit the Lenders, at their cost, by their respective representatives
and agent, during normal business hours, to inspect any of the Property,
corporate books and financial records of the Borrower and each Subsidiary,
to examine and make copies of the books of accounts and other financial
records of the Borrower and each Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and each Subsidiary with, and to be
advised as to the same by, their respective officers at such reasonable
times and intervals as the Lenders may reasonably designate.
6.10. Subsidiaries. The Borrower will cause each Person (other than
------------
a SPV) that becomes a direct or indirect Subsidiary of the Borrower after
the date of this Agreement (whether as the result of an Acquisition,
creation, or otherwise) to execute and deliver a Subsidiary Guaranty to and
in favor of the Agent, the Swing Line Lender, the LC Issuer and the Lenders
(together with an opinion of counsel, corporate resolutions and such other
corporate documentation as the Agent may reasonably request, all in form and
substance satisfactory to the Agent), in each case within 30 days after
becoming a direct or indirect Subsidiary of the Borrower. Notwithstanding
the foregoing, no Subsidiary either (i) organized under the laws of a
jurisdiction other than the United States of America, or (ii) more than 80%
of the sales, earnings and assets of which are derived from operations in
territories of the United States and jurisdictions outside of the United
States (a "FOREIGN SUBSIDIARY") shall be required to give, execute and
deliver a Subsidiary Guaranty if the delivery of such Subsidiary Guaranty
would cause the undistributed earnings of that Foreign Subsidiary to be
treated as a deemed dividend to the Borrower for federal income tax
purposes, in which event the terms of Section 6.15 shall be applicable.
------------
6.11. Dividends. The Borrower will not, nor will it permit any
---------
Subsidiary to, declare or pay any dividends on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at any time
outstanding, except that:
58
(i) Any Subsidiary may declare and pay dividends to the
Borrower or to a Wholly-Owned Subsidiary.
(ii) Any Subsidiary may declare and pay dividends to a
Subsidiary other than a Wholly-Owned Subsidiary so long as
at the time of and upon giving effect to each such dividend
(a) the Borrower shall be in compliance with Section 6.22
------------
and (b) no other Default or Unmatured Default shall exist.
(iii) The Borrower may declare or pay any dividends on its
capital stock or redeem, repurchase or otherwise acquire or
retire any of its capital stock at any time outstanding so
long as at the time of and upon giving effect to each such
dividend, repurchase, acquisition or retirement, (a) the
Borrower shall be in compliance with Section 6.22 and (b)
------------
no other Default or Unmatured Default shall exist.
6.12. Indebtedness. The Borrower will not, nor will it permit any
------------
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness existing on the date hereof and described in
Schedule 7 hereto.
----------
(iii) Contingent Obligations permitted by Section 6.16.
------------
(iv) Hedging Obligations entered into in the ordinary course of
business as bona fide xxxxxx against interest rate or
commodity price fluctuations and not for speculative
purposes.
(v) Indebtedness of one or more Subsidiaries to the Borrower,
but only to the extent permitted by clauses (vi) and (x) of
------------ ---
Section 6.15.
------------
(vi) Indebtedness incurred in connection with the Receivables
Purchase Documents, provided, that Receivables Facility
--------
Attributed Indebtedness incurred in connection therewith
does not exceed $75,000,000 in the aggregate at any time.
(vii) Indebtedness incurred by Foreign Subsidiaries of the
Borrower (excluding Obligations incurred hereunder) in an
amount not to exceed $10,000,000 in the aggregate at any
time.
(viii) Additional Indebtedness of the Borrower and its
Subsidiaries in an aggregate principal amount at any one
time outstanding not to exceed the greater of (a)
$15,000,000 or (b) ten percent (10%) of Consolidated Net
Worth.
6.13. Merger. The Borrower will not, nor will it permit any
------
Subsidiary to, merge or consolidate with any other Person, except that:
59
(i) A Subsidiary may merge with the Borrower (so long as the
Borrower is the surviving corporation).
(ii) A Subsidiary may merge with a Wholly-Owned Subsidiary (so
long as a Wholly-Owned Subsidiary is the surviving
corporation).
(iii) The Borrower may merge with any other Person subject to the
terms and conditions of clause (xi) of Section 6.15.
----------- ------------
6.14. 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 for (i) sales of inventory in the ordinary course of
business, (ii) the sale, discount, or transfer of delinquent accounts
receivable in the ordinary course of business for purposes of collection
only, (iii) occasional sales, leases or other dispositions of immaterial
assets for consideration not less than fair market value, (iv) sales, leases
or other dispositions of assets that are obsolete or have negligible fair
market value; (v) sales of equipment for a fair and adequate consideration
(but if replacement equipment is necessary for the proper operation of the
business of the seller, the seller must promptly replace the sold
equipment); and (vi) any transfer of an interest in Receivables, Receivables
and Related Security, accounts or notes receivable on a limited recourse
basis under the Receivables Purchase Documents, provided that such transfer
--------
qualifies as a legal sale and as a sale under Agreement Accounting
Principles and that the amount of Receivables Facility Attributed
Indebtedness does not exceed $75,000,000 at any one time outstanding;
provided, however, that the aggregate amount of Property of the Borrower and
-------- -------
its Subsidiaries leased, sold or disposed of pursuant to any of clauses (ii)
------------
through (vi) of this Section (excluding any equipment which has been
----
promptly replaced) during the twelve-month period ending with the month in
which any such lease, sale or other disposition occurs shall not constitute
a Substantial Portion of the Property of the Borrower and its Subsidiaries.
6.15. Investments and Acquisitions; Guaranty or Pledge
------------------------------------------------
Documentation for New Subsidiaries. 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) Short-term obligations (i.e., maturing within one year) of,
or fully guaranteed by, the United States of America.
(ii) Commercial paper rated A-l or better by Standard and Poor's
Ratings Group, a division of McGraw Hill Corporation or P-l
or better by Xxxxx'x Investors Service, Inc.
(iii) 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.
60
(iv) Money-market funds or money-market mutual funds which (a)
seek to maintain a constant net asset value, (b) maintain
fund assets under management having an aggregate market
value of at least $500,000,000 and (c) invest primarily in
Investments referred to in clauses (i) through (iii) above.
----------- -----
(v) Demand deposit accounts maintained in the ordinary course
of business.
(vi) Investments in existence on the date of this Agreement and
described in Schedule 8 hereto.
----------
(vii) Current trade and customer accounts receivable that are for
goods furnished or services rendered in the ordinary course
of business and that are payable on terms customary in the
trade, including the existing floor plan program offered to
distributors of the Borrower's products.
(viii) Investments evidenced by promissory notes executed by
customers of the Borrower and payable to the Borrower in an
aggregate principal amount not to exceed $500,000 at any
one time outstanding.
(ix) Investments in the SPVs (a) required in connection with the
Receivables Purchase Documents and (b) resulting from the
transfers permitted by Section 6.14 (vi).
-----------------
(x) Loans, capital contributions and other Investments made
subsequent to the date of this Agreement, whether in
existing Subsidiaries, new Subsidiaries or Persons which
are not Subsidiaries of the Borrower; provided, that (a)
--------
the aggregate amount of such Investments to Persons which
are not Obligor Subsidiaries or the Non-U.S. Subsidiary
Borrower of Borrower made during the term of this Agreement
does not exceed $20,000,000 and (b) the Borrower shall have
complied with Section 6.10 in respect of each Subsidiary
------------
not identified on Schedule 5 hereto.
----------
(xi) Acquisitions of other Persons made by the Borrower
subsequent to the date of this Agreement; provided, that
--------
(a) except with respect to a proposed Acquisition where the
aggregate consideration to be paid by the Borrower plus any
----
consideration paid in connection with Acquisitions made by
the Borrower during the immediately preceding twelve month
period (or, if the date of such Acquisition is prior to the
first anniversary of the Closing Date, the period from such
date extending back to the Closing Date) is less than
$20,000,000, the Borrower shall have supplied the Lenders,
at least 15 days prior to any such proposed Acquisition,
with historic financial statements for the Person to be
acquired (which financial statements shall include the four
most recently completed fiscal quarters of such Person, but
which need not be audited) and pro forma financial
statements for such Person and the Borrower on a combined
and consolidated basis, in a manner acceptable to the
Agent, which shall demonstrate to the reasonable
satisfaction of the Agent that, if the Acquisition were to
be
61
consummated, together with Acquisitions made by the
Borrower in the twelve months preceding the proposed
Acquisition, the Leverage Ratio of the Borrower would not
exceed 3.10 to 1.0, provided, however, that if such
-------- -------
historic and pro forma financial statements demonstrate, in
the reasonable judgment of the Agent, that the Leverage
Ratio of the Borrower would exceed 3.10 to 1.0 but would
not exceed 3.25 to 1.0, the Required Lenders' consent shall
be required for consummation of the proposed Acquisition;
(b) upon giving effect to each such Acquisition (1) the
Person so acquired by the Borrower shall have either been
merged into the Borrower (with the Borrower as the
surviving entity) or such Person shall have become a
Wholly-Owned Subsidiary of the Borrower (and the Borrower
shall have complied with Section 6.10 in respect of such
------------
Subsidiary) and (2) no Default or Unmatured Default does
exist or would exist after giving effect to the proposed
Acquisition; (c) prior to the date of such Acquisition,
such Acquisition shall have been approved by the board of
directors and, if applicable, the shareholders of the
Person whose stock or assets are being acquired in
connection with such Acquisition and no claim or challenge
has been asserted or threatened by any shareholder or
director of such Person which could reasonably be expected
to have a material adverse effect on such Acquisition or a
Material Adverse Effect; and (d) as of the date of any such
Acquisition, all approvals required in connection with such
Acquisition shall have been obtained.
(xii) Loans, capital contributions and other Investments among
the Borrower, the Non-U.S. Subsidiary Borrower and the
Obligor Subsidiaries.
For the purposes of this Section 6.15, Investments and Acquisitions shall be
------------
valued at their initial principal amount, or cost, as the case may be,
without giving effect to any interest or dividends paid thereon or any
appreciation or depreciation in the market value thereof; provided, however,
that Investments consisting of loans and advances shall be valued at the
principal amount thereof then remaining unpaid.
In addition to the foregoing provisions, the Borrower will not, nor will it
permit any consolidated Subsidiary to, create or acquire a Subsidiary (a
"NEW SUBSIDIARY") other than in connection with an Acquisition permitted
hereunder or pursuant to any transaction that is permitted by or not
otherwise prohibited by this Agreement; provided that (1) upon the creation
or acquisition of each New Subsidiary which is not a Foreign Subsidiary, the
Borrower shall cause each such New Subsidiary (other than a SPV) to promptly
(but in any event within 30 days) deliver to the Agent an executed
Subsidiary Guaranty; (2) upon the creation or acquisition of each New
Subsidiary which is a Material Foreign Subsidiary (other than a SPV), the
Borrower shall or shall cause its applicable domestic Subsidiary promptly
(but in any event within 60 days following the creation or acquisition
thereof, subject, in the case of the Non-U.S. Subsidiary Borrower, to the
conditions set forth in Section 4.2) to execute a Pledge Agreement with
-----------
respect to the stock of such material Foreign Subsidiary, provided the Lien
created under such Pledge Agreement shall be extended equally and ratably to
the Senior Noteholders pursuant to the Intercreditor Agreement; and (3) in
either case, shall deliver appropriate corporate resolutions, opinions and
other documentation in form and substance satisfactory to the Agent in
connection therewith. In
62
addition to the foregoing provisions, if any Foreign Subsidiary becomes a
Material Foreign Subsidiary (whether through investment, add-on
acquisitions, growth or otherwise), the Borrower shall or shall cause its
applicable domestic Subsidiary promptly (but in any event within 60 days
following the end of the fiscal quarter during which such Foreign Subsidiary
becomes a Material Foreign Subsidiary) to execute a Pledge Agreement with
respect to the stock of such Material Foreign Subsidiary, provided the Lien
created under such Pledge Agreement shall be extended equally and ratably to
the Senior Noteholders pursuant to a the Intercreditor Agreement; and shall
deliver appropriate corporate resolutions, opinions and other documentation
in form and substance satisfactory to the Agent in connection therewith;
provided, however, that the provisions of this sentence shall not be
-------- -------
applicable to Xxxxxxx Denver Xxxxxx GmbH, provided the Borrower is in
compliance with the provisions of Section 6.24.
------------
6.16. Contingent Obligations and Off Balance Sheet Liabilities. 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) or
Off Balance Sheet Liabilities, except (i) by endorsement of instruments for
deposit or collection in the ordinary course of business, (ii) Facility LCs
issued hereunder, (iii) the Parent Guaranty and the Subsidiary Guaranties,
(iv) litigation indemnities in favor of Xxxxxx existing on the date of this
Agreement, (v) an additional aggregate amount not to exceed $10,000,000 at
any one time outstanding consisting of Letters of Credit (excluding all
Facility LCs, but including all Existing LCs) issued upon the application of
the Borrower (but not any Subsidiary); (vi) Contingent Obligations of the
Borrower with respect to the obligations of any Subsidiary or other Person
in which the Borrower has a direct or indirect Investment, provided that the
aggregate amount of all such Contingent Obligations, when added to the
aggregate amount of all outstanding Investments permitted by clause (x) of
----------
Section 6.15, shall not at any time exceed $20,000,000; (vii) Contingent
------------
Obligations of any Obligor Subsidiary which is a party to a Subsidiary
Guaranty consisting of a guaranty by such Obligor Subsidiary of the
Indebtedness evidenced by the Senior Notes; provided, (y) such guaranty to
the Senior Noteholders shall be on substantially the same terms as the
applicable Subsidiary Guaranty, with such changes thereto as shall not in
any manner be adverse to the interests of the Agent or the Lenders, and (z)
such guaranty of the Senior Notes shall provide for its automatic release
upon the release of the applicable Obligor Subsidiary of the Subsidiary
Guaranty; (viii) Off Balance Sheet Liabilities which are included in the
definition of Consolidated Total Debt provided the Borrower is in compliance
with the financial covenants of this Agreement; (ix) Contingent Obligations
of the Borrower or any of its Subsidiaries arising under the Receivables
Purchase Documents; and (x) Contingent Obligations of the Borrower or any of
its Subsidiaries consisting of a guaranty of any Hedging Obligations of the
Borrower or its Subsidiaries owing to any Lender or Affiliate of a Lender it
its separate capacity as the hedge counterparty or provider thereunder, but
only to the extent such Hedging Obligations are permitted under Section
-------
6.12(iv).
--------
6.17. Liens. The Borrower will not, nor will it permit any
-----
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
63
(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 and for which adequate reserves in accordance
with generally accepted principles of accounting shall have
been set aside on its books.
(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 60 days past due or which are
being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside
on its books.
(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 the
Subsidiaries.
(v) Good faith deposits incurred in the ordinary course of
business to secure public or statutory obligations, to
secure or in lieu of surety bonds, or in connection with
bids or contracts (including, without limitation, the
purchase or lease of real estate).
(vi) Liens securing judgments or orders for the payment of
money, or surety or appeal bonds with respect to any such
judgment or order, in an aggregate amount not exceeding
$1,000,000, so long as no Default exists with respect
thereto under Section 7.9.
-----------
(vii) The interest of a lessor under any conditional sale or
Capitalized Lease to the Borrower so long as the related
Indebtedness is permitted by Section 6.12.
------------
(viii) Any Lien on any asset securing Indebtedness permitted by
Section 6.12 which is incurred or assumed for the purpose
------------
of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition
thereof.
(ix) Any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary or is merged or
consolidated with or into the Borrower or a Subsidiary,
provided that the Indebtedness secured by each such Lien is
permitted by Section 6.12.
------------
64
(x) Liens existing on the date hereof and described in Schedule
--------
9 hereto which secure Indebtedness in existence on the date
-
of this Agreement.
(xi) Liens arising out of any renewal, extension or refinancing
of any Indebtedness secured by any Lien permitted by any of
clauses (vii), (viii), (ix) or (x) above, so long as the
------------- ------ ---- ---
principal amount of such Indebtedness in not increased
thereby and such Indebtedness is not secured by any
additional Property.
(xii) Liens in favor of the United States of America or any state
thereof, or any department, agency or instrumentality or
political subdivision thereof, in favor of any other
country or political subdivision, to secure partial,
progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness permitted
by Section 6.12 and incurred or guaranteed for the purpose
------------
of financing or refinancing all or any part of the purchase
price of Property subject to such Liens, or the cost of
constructing or improving the Property subject to such
Liens, including, without limitation, Liens incurred in
connection with pollution control, industrial revenue or
similar tax-advantaged financings; provided the aggregate
amount of Indebtedness secured under this clause (xii)
------------
shall not exceed $20,000,000.
(xiii) Liens in favor of the Agent granted pursuant to any
Collateral Document.
(xiv) Liens on any collateral covered by any of the Collateral
Documents, which Liens have been extended for the equal and
ratable benefit of the Senior Noteholders to secure the
Indebtedness of the Borrower under the Note Purchase
Agreement and the Senior Notes and which Liens are governed
by the Intercreditor Agreement and which Liens, pursuant to
the terms of the Note Purchase Agreement, shall be
automatically released without any action on the part of
any Noteholder, if the Lien thereon under the Collateral
Documents in favor of the Agent for the benefit of itself,
the LC Issuer and the Lenders shall be released.
(xv) Liens arising under the Receivables Purchase Documents, so
long as the related Indebtedness is permitted by Section
-------
6.12.
----
6.18. Rentals. The Borrower will not, nor will it permit any
-------
Subsidiary to, create, incur or suffer to exist obligations for Rentals in
excess of $6,000,000 during any one fiscal year on a non-cumulative basis in
the aggregate for the Borrower and its Subsidiaries.
6.19. Affiliates. The Borrower will not, and will not permit any
----------
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 (i) Permitted Receivables Transfers and
(ii) transactions in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a comparable
arms-length transaction.
65
6.20. Minimum Consolidated Interest Coverage Ratio. The Borrower
--------------------------------------------
will not, as of the last day of any fiscal quarter of the Borrower,
commencing with the fiscal quarter ending March 31, 2002, permit the
Consolidated Interest Coverage Ratio for the period of four fiscal quarters
ending on such day, to be less than 3.5 to 1.0.
6.21. Minimum Consolidated Net Worth. The Borrower will not at any
------------------------------
time subsequent to the initial Credit Extension hereunder permit
Consolidated Net Worth to be less than the sum of (i) $164,201,300 plus (ii)
----
50% of Consolidated Net Income (if positive) for each fiscal quarter of the
Borrower commencing with the fiscal quarter ending December 31, 2001 and
concluding with the fiscal quarter ending most recently prior to the date of
determination, but without deduction for any fiscal quarter in which there
is a loss. Without otherwise limiting the foregoing, the initial
determination of the Borrower's compliance with this Section 6.21 shall
------------
occur on March 31, 2002.
6.22. Maximum Leverage Ratio. The Borrower will not, as of the last
----------------------
day of any fiscal quarter of the Borrower, commencing with the fiscal
quarter ending March 31, 2002, permit the Leverage Ratio for the period of
four consecutive fiscal quarters ending on such day, to be greater than 3.25
to 1.0.
6.23. Capital Expenditures. The Borrower will not, nor will it
--------------------
permit any Subsidiary to, expend, or be committed to expend, during any
period of twelve consecutive months on a non-cumulative basis an amount for
Capital Expenditures in the aggregate for the Borrower and its Subsidiaries
which exceeds five percent (5%) of consolidated revenues for such
twelve-month period, calculated in each case as of the end of each
fiscal-quarter for the twelve months then ended.
6.24. Pledge Agreements. The Borrower shall not at any time permit
------------------
the aggregate assets of all of the Borrower's Foreign Subsidiaries in
connection with which the Agent has not received a Pledge Agreement to
exceed fifteen percent (15%) of consolidated total assets.
ARTICLE VII: 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 pursuant
to either Section 4.3 of this Agreement or Section 2 of any Subsidiary
Guaranty) by the Borrower or any Subsidiary to the Lenders, the Swing Line
Lender, the LC Issuer or the Agent under or in connection with this
Agreement, any Credit Extension, any Subsidiary Guaranty, or any certificate
or information delivered in connection with this Agreement, any Credit
Extension or any other Credit Document shall be materially false on the date
as of which made.
7.2. Nonpayment of (a) any Reimbursement Obligation or the
principal of any Loan when due, or (b) interest upon any Loan or
Reimbursement Obligation or of any fee payable pursuant to Section 2.7 or
-----------
Section 2.23(d) within five days after the same becomes due, or (c) any
---------------
other obligations under any of the Credit Documents not referred to in
clauses (a) and (b)
----------- ---
66
above within five days after receipt by the applicable Borrower of a written
demand therefor from the Agent or any Lender, as applicable.
7.3. The breach by the Borrower of any of the terms or provisions
of Section 6.2, 6.3 or any of Sections 6.10 through 6.19.
----------- --- ------------- ----
7.4. The breach by either Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
----------- --- ---
provisions of this Agreement, and such breach continues for 30 days after
the first to occur of (i) the date the applicable Borrower first knows of
such breach or (ii) the date the applicable Borrower receives written notice
from any Lender (acting through the Agent) of such breach.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Material Indebtedness when due; or either (i) the Borrower or any of its
Subsidiaries shall default in the performance of any term, provision or
condition contained in any agreement or agreements under which any Material
Indebtedness was created or is governed (and any applicable grace period(s)
expressly set forth therein shall have expired) or (ii) any other event
shall occur or condition exist (including any "Amortization Event" or event
of like import in connection with the Receivables Purchase Facility), (a)
the effect of which (under either clause (i) or (ii), as the case may be) 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 (other than by a regularly scheduled payment) prior to the stated
maturity thereof or (b) if such event or condition shall occur under any
Receivables Purchase Documents, the effect thereof is to (x) terminate the
reinvestment of collections or proceeds of Receivables and Related Security
under any Receivables Purchase Document (other than a termination resulting
solely from the request of the Borrower or any of its Subsidiaries), or (y)
cause the replacement of, or permit the investors thereunder to replace, the
Person then acting as servicer for the related Receivables Purchase
Facility; or the Borrower or any of its Subsidiaries shall not pay, or shall
admit in writing its inability to pay, its debts generally as they become
due.
7.6. The Borrower or any of its 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 with respect to it
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 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.
-----------
67
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 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control (each a
"CONDEMNATION"), of all or any portion of the Property of the Borrower or
any of its Subsidiaries, which, when taken together with all other Property
of the Borrower and its Subsidiaries, or any of them, so Condemned during
the twelve-month period ending with the month in which any such Condemnation
occurs, constitutes a Substantial Portion of the consolidated Property of
the Borrower and its Subsidiaries.
7.9. The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any one or more judgments or orders
for the payment of money in excess of $1,000,000 (other than any judgment
for which a financially sound and reputable insurer has admitted in writing
liability) in the aggregate, which are not stayed on appeal or otherwise
being appropriately contested in good faith with adequate reserves set aside
on its books in accordance with generally accepted accounting principles.
7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $1,000,000; or any Reportable Event shall occur in
connection with any Plan; or the Borrower or any of its Subsidiaries or any
other member of the Controlled Group shall become party to any Multiemployer
Plan.
7.11. Except for matters identified on Schedule 6 hereto, the
----------
Borrower or any of its Subsidiaries shall be the subject of any proceeding
or investigation pertaining to the release by the Borrower or any of its
Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or
local environmental, health or safety law or regulation, which, in either
case, could reasonably be expected to have a Material Adverse Effect.
7.12. Any Change in Control shall occur.
7.13. Other than in connection with any transactions which shall be
permitted by the terms hereof or of any other Credit Document or which shall
otherwise have been approved in writing by Required Lenders (or, if required
by the terms of Section 8.3 all of the Lenders), the Borrower shall cease
-----------
to own at least 80% of the capital stock of each Obligor Subsidiary and the
Non-U.S. Subsidiary Borrower.
7.14. The Parent Guaranty or any Subsidiary Guaranty shall fail to
remain in full force or effect; or any action shall be taken to discontinue
or to assert the invalidity or unenforceability of the Parent Guaranty or
any Subsidiary Guaranty; or the Borrower or any Subsidiary shall fail to
comply with any of the terms or provisions of the Parent Guaranty or any
Subsidiary Guaranty
68
to which it is a party; or the Borrower or any Subsidiary denies that it has
any further liability under the Parent Guaranty or any Subsidiary Guaranty
to which it is a party, or gives notice to such effect.
7.15. Any of the following shall occur: (i) any Credit Document
shall for any reason fail to create a valid and perfected first priority
security interest in any collateral purported to be covered thereby, except
as permitted by the terms of any Credit Document, (ii) any Credit Document
shall fail to remain in full force or effect, (iii) any action shall be
taken to discontinue or to assert the invalidity or unenforceability of any
Credit Document, or (iv) either Borrower shall fail to comply with any of
the terms or provisions of any Credit Document.
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS, WAIVERS, AMENDMENTS
AND REMEDIES
8.1. Remedies.
--------
(a) If any Default described in Section 7.6 or 7.7 occurs with
----------- ---
respect to either Borrower, the Commitments of the Lenders hereunder (and
the obligation of the Swing Line Lender to make Swing Line Loans and the
obligation of a 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 Agent, the Swing Line
Lender, the LC Issuer or any Lender. If any other Default occurs and is
continuing, the Required Lenders may terminate or suspend the Commitments of
the Lenders (and the obligation of the Swing Line Lender to make Swing Line
Loans and the obligation of a 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 each Borrower hereby expressly
waives. The Agent shall notify the Borrowers of any action taken by the
Required Lenders pursuant to the preceding sentence.
(b) In addition, each Borrower agrees that upon the occurrence
and during the continuance of any Default, it shall, if requested at any
time by the Agent upon instruction from the Required Lenders, pay (and, in
the case of any of the Defaults specified in Section 7.6 or 7.7 with respect
----------- ---
to either Borrower, forthwith, without any demand or the taking of any other
action by the Agent or any Lender, it shall pay) to the Agent an amount in
immediately available funds equal to the then aggregate amount of the LC
Obligations attributable to it (in the applicable currency or currencies of
the Facility LCs under which such LC Obligations arose) to be held as
security therefor for the benefit of the Lenders and the LC Issuer (it being
understood and agreed that the Non-U.S. Subsidiary Borrower shall not be
required to make any such payments with respect to any LC Obligations
incurred by the Borrower).
(c) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the Commitments of the Lenders hereunder (and
the obligation of the Swing Line Lender to make Swing Line Loans and the
obligation of the LC Issuer to issue Facility LCs) as a result of any
Default (other than any Default as described in Section 7.6 or 7.7 with
----------- ---
respect to
69
either 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 Agent shall, by notice to
the Borrowers, rescind and annul such acceleration and/or termination.
8.2. Defaulting Lender. In the event that any Lender fails to fund
-----------------
its Revolving Loan Percentage or Term Loan Percentage, as applicable, of any
Advance requested or deemed requested by either Borrower which such Lender
is obligated to fund under the terms of this Agreement (the funded portion
of such Advance being hereinafter referred to as a "NON PRO RATA LOAN"),
until the earlier of such Lender's cure of such failure and the termination
of the Commitments, the proceeds of all amounts thereafter repaid to the
Agent by the applicable Borrower and otherwise required to be applied to
such Lender's share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the applicable Borrower by the Administrative
Agent ("CURE LOANS") on behalf of such Lender to cure, in full or in part,
such failure by such Lender, but shall nevertheless be deemed to have been
paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 8.2 shall
-----------
apply only with respect to the proceeds of payments of Obligations
and shall not affect the conversion or continuation of Loans
pursuant to Section 2.10;
------------
(ii) any such Lender shall be deemed to have cured its
failure to fund its Revolving Loan Percentage or Term Loan
Percentage of any Advance at such time as an amount equal to such
Lender's original Revolving Loan Percentage or Term Loan
Percentage, as applicable, of the requested principal portion of
such Advance is fully funded to the applicable Borrower, whether
made by such Lender itself or by operation of the terms of this
Section 8.2, and whether or not the Non Pro Rata Loan with respect
-----------
thereto has been repaid, converted or continued;
(iii) amounts advanced to the applicable Borrower to
cure, in full or in part, any such Lender's failure to fund its
Revolving Loan Percentage or Term Loan Percentage, as applicable,
of any Advance shall bear interest at the rate applicable to Loans
which are Floating Rate Loans, in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they
were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred
or is continuing, and notwithstanding the instructions of the
applicable Borrower as to its desired application, all repayments
of principal which, in accordance with the other terms of this
Agreement, would be applied to the outstanding Floating Rate Loans
shall be applied first, ratably to all Floating Rate Loans
-----
constituting Non Pro Rata Loans, second, ratably to Floating Rate
------
Loans other than those constituting Non Pro Rata Loans or Cure
Loans and, third, ratably to Floating Rate Loans constituting Cure
-----
Loans (it being understood and agreed that all payments of
principal made by the Non-U.S. Subsidiary Borrower shall be applied
as set forth above only to Loans made to the Non-U.S. Subsidiary
Borrower);
70
(v) for so long as and until the earlier of any such
Lender's cure of the failure to fund its Revolving Loan Percentage
or Term Loan Percentage, as applicable, of any Advance and the
termination of the Commitments, the term "Required Lenders" for
purposes of this Agreement shall mean Lenders (excluding all
Lenders whose failure to fund their respective applicable
Percentages of such Advance have not been so cured) whose
Percentage represents at least fifty-one percent (51%) of the
aggregate Percentages of such Lenders; and
(vi) for so long as and until any such Lender's failure
to fund its Revolving Loan Percentage or Term Loan Percentage, as
applicable, of any Advance is cured in accordance with Section
-------
8.2(ii), (A) such Lender shall not be entitled to and the Borrowers
-------
shall not be required to pay any facility fees with respect to its
Commitments and (B) such Lender shall not be entitled to and the
Borrowers shall not be required to pay any letter of credit fees
which would otherwise be payable to such Lender.
8.3. Amendments. Subject to the provisions of this Article VIII,
---------- ------------
the Required Lenders (or the Agent with the consent in writing of the
Required Lenders), the Borrower and (after it has become a party hereto) the
Non-U.S. Subsidiary Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Credit
Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or thereunder or waiving any Default hereunder;
provided, that no such supplemental agreement shall, without the consent of
--------
each Lender:
(a) Increase or decrease the amount of, the Commitment of any
Lender (except for a ratable decrease in the Commitments of
all Lenders) or otherwise subject any Lender to any
additional obligation; or
(b) Reduce the principal of or rate of interest on any Loan,
any Reimbursement Obligation or any fees hereunder; or
(c) Postpone the date fixed for any payment of principal of or
interest on any Loan, any Reimbursement Obligation or any
fees hereunder; or
(d) Extend the Revolving Loan Termination Date, or otherwise
extend the term of the Commitment of any Lender, except as
provided in Section 2.21; or
------------
(e) Change the definition of Required Lenders or the percentage
of the Commitments, the Outstanding Credit Exposures or the
Outstanding LC Exposures, or the number of Lenders, which
shall be required for the Lenders or any of them to take
any action under this Section 8.3 or any other provision of
-----------
the Credit Documents; or
(f) Permit either Borrower to assign any of its rights or
obligations under this Agreement; or
71
(g) Other than in connection with any transactions which shall
be permitted by the terms hereof or of any other Credit
Document or which shall otherwise have been approved in
writing by Required Lenders (or, if required by the other
terms of this Section 8.3 all of the Lenders), release the
-----------
Borrower or any Subsidiary from all or any portion of its
guaranty liability under its respective Parent Guaranty or
Subsidiary Guaranty; or
(h) Other than in connection with any transactions which shall
be permitted by the terms hereof or of any other Credit
Document or which shall otherwise have been approved in
writing by Required Lenders (or, if required by the other
terms of this Section 8.3, all of the Lenders), release any
-----------
of the collateral pledged pursuant to the Pledge
Agreements;
(i) Waive the requirements of Section 4.1(i) or 4.1(j); or
-------------- ------
(j) Amend or waive any of the provisions of this Section 8.3.
-----------
No amendment of any provision of this Agreement relating to the
Agent, the Swing Line Lender or the LC Issuer shall be effective without the
written consent of the Agent, the Swing Line Lender or the LC Issuer, as the
case may be. The Agent may waive payment of the fee required under Section
-------
12.3.2 without obtaining the consent of any other party to this Agreement.
------
8.4. Preservation of Rights. No delay or omission of the Lenders,
----------------------
the Swing Line Lender or the Agent to exercise any right under the Credit
Documents shall impair such right or be construed to be a waiver of any
Default or Unmatured Default or an acquiescence therein, and the making of a
Loan or issuance of a Letter of Credit notwithstanding the existence of a
Default or Unmatured Default or the inability of the applicable Borrower to
satisfy the conditions precedent to such Loan 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 Credit Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 8.3,
-----------
and then only to the extent in such writing specifically set forth. All
remedies contained in the Credit Documents or by law afforded shall be
cumulative and all shall be available to the Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX: GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
---------------------------
warranties of the Borrowers contained in this Agreement shall survive
delivery of this Agreement and the making of the Loans herein contemplated.
72
9.2. Governmental Regulation. Anything contained in this Agreement
-----------------------
to the contrary notwithstanding, no Lender shall be obligated to extend
credit to either Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes on the
-----
overall net income of any Lender and except as otherwise provided in Section
-------
2.22) or other similar assessments or charges made by any governmental or
----
revenue authority in respect of the Credit Documents shall be paid by the
applicable Borrower, together with interest and penalties, if any. As of the
date of this Agreement, neither the Borrower nor any Lender is aware of any
such taxes, assessments or charges.
9.4. Headings. Section headings in the Credit Documents are for
--------
convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Credit Documents.
9.5. Entire Agreement. The Credit Documents embody the entire
----------------
agreement and understanding among the Borrowers, the Agent and the Lenders
and supersede all prior agreements and understandings among the Borrowers,
the Agent and the Lenders relating to the subject matter thereof including,
without limitation, the Existing Credit Agreement and the Interim Credit
Agreement (other than contingent indemnity obligations which are stated to
survive the termination thereof).
9.6. Several Obligations; Benefits of this Agreement. The
-----------------------------------------------
respective obligations of the Lenders hereunder are several and not joint
and no Lender shall be the partner or agent of any other (except to the
extent to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns;
provided, however, that the parties hereto expressly agree that the Arranger
-------- -------
shall enjoy the benefits of the provisions of Sections 9.7, 9.12 and 10.10
------------ ---- -----
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.
9.7. Expenses; Indemnification. The Borrower and the Non-U.S.
-------------------------
Subsidiary Borrower shall reimburse the Agent and the Arranger for any
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent and Arranger,
which attorneys may be employees of the Agent or the Arranger) paid or
incurred by the Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, amendment, modification and
administration of the Credit Documents. The Borrower and the Non-U.S.
Subsidiary Borrower also agree to reimburse the Agent, the Swing Line
Lender, any LC Issuer, the Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent, the Swing Line Lender, any LC
Issuer, the Arranger and the Lenders, which attorneys may be employees of
the Agent, the Swing Line Lender, any LC Issuer, the Arranger or the Lenders
and other advisors and professionals engaged by the Agent or the Arranger)
paid or
73
incurred by the Agent, the Swing Line Lender, any LC Issuer, the Arranger or
any Lender in connection with the collection and enforcement of the Credit
Documents. The Borrower and the Non-U.S. Subsidiary Borrower further agree
to indemnify the Agent, the Swing Line Lender, any LC Issuer, the Arranger
and each Lender, its directors, officers and employees against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor
whether or not the Agent, the Swing Line Lender, an LC Issuer, the Arranger
or any Lender is a party thereto) (collectively "LOSSES") which any of them
may pay or incur arising out of or relating to this Agreement, the other
Credit Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Credit
Extension hereunder. The obligations of each Borrower under this Section
shall survive the termination of this Agreement; provided, however, that
-------- -------
neither Borrower shall be obligated to indemnify any Lender, the Agent, the
Swing Line Lender, the Arranger or any LC Issuer with respect to Losses
which arise solely from such Lender's, Agent's Swing Line Lender's,
Arranger's or LC Issuer's gross negligence or willful misconduct.
Notwithstanding anything to the contrary herein, neither Borrower shall be
liable to reimburse the Agent, the Swing Line Lender, the LC Issuers, the
Arranger or any of the Lenders in respect of disputes which arise or Losses
which are incurred by the Agent, the Swing Line Lender, the LC Issuers, the
Arranger or any of the Lenders which arise solely as a result of an action
or failure to act on the part of the Agent, the Swing Line Lender, an LC
Issuer, the Arranger or a Lender and which do not relate in any way to
actions or failures to act on the part of the applicable Borrower or any of
the Borrower's Subsidiaries. Without otherwise limiting the foregoing, it is
understood and agreed that the Non-U.S. Subsidiary Borrower shall not be
obligated to indemnify any Lender, the Agent, the Swing Line Lender, the
Arranger or any LC Issuer with respect to any amounts determined to be
attributable to Loans made to, or Obligations incurred by or on behalf of,
the Borrower.
9.8. Numbers of Documents. All statements, notices, closing
--------------------
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9. Accounting. Except as provided to the contrary herein, all
----------
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
9.10. Prior Agreement. The Borrower, the Lenders and the Agent
---------------
agree that, upon (i) the execution and delivery of this Agreement by each of
the parties hereto and (ii) the satisfaction (or waiver by the
aforementioned parties) of the conditions precedent set forth in Section
-------
4.1, the terms and provisions of the Existing Credit Agreement shall be and
---
hereby are amended, superseded and restated in their entirety by the terms
and provisions of this Agreement, and the Interim Credit Agreement shall be
and hereby is terminated. This Agreement is not intended to and shall not
constitute a novation of the Existing Credit Agreement or the Interim Credit
Agreement or the indebtedness created thereunder. The commitment of each
Lender that is a party to the Existing Credit Agreement shall, on the
effective date hereof, automatically be deemed amended and the only
Commitments shall be those hereunder; provided, however, that the commitment
-------- -------
of each Lender under the Existing Credit Agreement that is not party to this
74
Agreement, and the commitment of each Lender under the Interim Credit
Agreement shall terminate on the date hereof.
9.11. Severability of Provisions. Any provision in any Credit
--------------------------
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 Credit Documents are
declared to be severable.
9.12. Nonliability of Lenders. The relationship between the
-----------------------
Borrowers on the one hand and the Lenders, the Swing Line Lender, the LC
Issuers and the Agent on the other hand shall be solely that of borrower and
lender. Neither the Agent, the Arranger, the Swing Line Lender, the LC
Issuers nor any Lender shall have any fiduciary responsibilities to either
Borrower or vice versa. Neither the Agent, the Arranger, the Swing Line
Lender, the LC Issuers nor any Lender undertakes any responsibility to the
Borrowers to review or inform either Borrower of any matter in connection
with any phase of the Borrowers' business or operations.
9.13. CHOICE OF LAW. THE CREDIT DOCUMENTS (OTHER THAN THOSE
-------------
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
9.14. CONSENT TO JURISDICTION. THE BORROWERS, THE AGENT, THE LC
-----------------------
ISSUER AND EACH LENDER EACH HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT
DOCUMENTS AND EACH SUCH PARTY 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 AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST
EITHER BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY EITHER BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER
OR ANY AFFILIATE OF THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY CREDIT DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
9.15. WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT, THE LC ISSUER
--------------------
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
75
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY CREDIT DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
9.16. Agent for Service of Process. Upon becoming a party hereto,
----------------------------
the Non-U.S. Subsidiary Borrower hereby irrevocably appoints the Borrower as
its agent for service of process in any proceeding referred to in Section
-------
9.14 of this Agreement and agrees that service of process in any such
----
proceeding may be made by mailing or delivering a copy thereof to it care of
Borrower at its address for notices set forth in Article XIII of this
------------
Agreement.
9.17. Confidentiality. Each Lender agrees to hold any confidential
---------------
information which it may receive from either Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials exercising regulatory functions over or with respect to any
Lender, (iv) to any Person as required by law, regulation, or legal process,
(v) to any Person in connection with any legal proceeding to which that
Lender is a party, and (vi) as permitted by Section 12.4.
------------
ARTICLE X: THE AGENT
10.1. Appointment. Bank One is hereby appointed Agent hereunder and
-----------
under each other Credit Document, and each of the Lenders irrevocably
authorizes the Agent to act as the contractual representative of such Lender
with the rights and duties as expressly set forth herein. The Agent agrees
to act as such upon the express conditions contained in this Article X. The
---------
Agent shall not have a fiduciary relationship in respect of either Borrower
or any Lender by reason of this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers
------
under the Credit Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably
incidental thereto. The Agent shall have no implied duties to the Lenders,
or any obligation to the Lenders to take any action thereunder except any
action specifically provided by the Credit Documents to be taken by the
Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
----------------
officers, agents or employees shall be liable to either Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Credit Document or in connection herewith
or therewith except for its or their own gross negligence or willful
misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent
-------------------------------------------
nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Credit
Document or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of any obligor under any Credit Document,
including, without limitation, any agreement by either Borrower to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be
----------
76
delivered to the Agent; (iv) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (v) the validity,
effectiveness or genuineness of any Credit Document or any other instrument
or writing furnished in connection therewith. The Agent shall have no duty
to disclose to the Lenders information that is not required to be furnished
by a Borrower to the Agent at such time, but is voluntarily furnished by a
Borrower to the Agent (either in its capacity as Agent or in its individual
capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all
---------------------------------
cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Credit Document in accordance with written instructions
signed by the Required Lenders (except to the extent Section 8.3 requires
-----------
the unanimous consent of all Lenders), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Credit 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 Agents and Counsel. The Agent may execute any
--------------------------------
of its duties as Agent hereunder and under any other Credit 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 Agent shall be
entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Credit
Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled
------------------------------
to rely upon any notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which
counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
-----------------------------------------
to reimburse and indemnify the Agent ratably in proportion to their
respective Commitments or, if the Commitments have terminated, their
Outstanding Credit Exposure (i) for any amounts not reimbursed by either
Borrower for which the Agent is entitled to reimbursement by the applicable
Borrower pursuant to Section 9.7, (ii) for any other expenses incurred by
-----------
the Agent on behalf of the Lenders, in connection with the collection and
enforcement of the Credit Documents 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 Agent in any way relating to
or arising out of the Credit Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the
extent any of the foregoing arise from the gross negligence or willful
misconduct of the Agent. The
77
obligations of the Lenders under this Section 10.8 shall survive payment of
------------
the Obligations and termination of this Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender, the
------------------
Agent shall have the same rights and powers hereunder and under any other
Credit Document as any Lender and may exercise the same as though it were
not the Agent, and the term "Lender" or "Lenders" shall, at any time when
the Agent is a Lender, unless the context otherwise indicates, include the
Agent in its individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any
other Credit Document, with the Borrowers or any of the Borrower's
Subsidiaries in which such Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person. The Agent, in its individual
capacity, is not obligated to remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it
----------------------
has, independently and without reliance upon the Agent, the Arranger or any
other Lender and based on the financial statements prepared by the Borrower
and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and the
other Credit Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement and the other Credit Documents.
10.11. Successor Agent. The 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 Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the 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 a successor Agent on behalf of the Lenders and the
Borrowers, with the Borrower's consent (provided such consent may not be
unreasonably withheld or delayed and provided further no such consent shall
be required if a Default shall have occurred and be continuing). If no
successor Agent shall have been so appointed by the Required Lenders or
consented to by the Borrower (if such consent is required) within thirty
days after the resigning Agent's giving notice of its intention to resign,
then the resigning Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Agent. If the Agent has resigned or been removed and no
successor Agent has been appointed, the Lenders may perform all the duties
of the Agent hereunder and each Borrower shall make all payments in respect
of its respective Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having
capital and retained earnings of at least $100,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Agent. Upon the
effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its
78
duties and obligations hereunder and under the Credit Documents. After the
effectiveness of the resignation or removal of an Agent, the provisions of
this Article X shall continue in effect for the benefit of such Agent in
---------
respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Credit Documents.
10.12. Agent's Fees. The Borrowers agree to pay to the Agent and
------------
the Lenders, for their own respective accounts, the fees agreed to by the
Borrower pursuant to that certain letter agreement dated January 29, 2002,
or as otherwise agreed from time to time (it being understood and agreed
that the Non-U.S. Subsidiary Borrower shall not be liable for payment of any
fees determined to be attributable to the Borrower).
10.13. Execution of Guaranty Collateral Documents. The Lenders, the
------------------------------------------
Swing Line Lender and the LC Issuers hereby empower and authorize the Agent
to execute and deliver to the applicable Borrower on their behalf the Parent
Guaranty, Subsidiary Guaranties, Pledge Agreement(s) and all related
agreements, documents or instruments as shall be necessary of appropriate to
effect the purposes of the Parent Guaranty, Subsidiary Guaranties and Pledge
Agreement(s).
10.14. Collateral and Guaranty Releases. The Lenders, the Swing
--------------------------------
Line Lender and the LC Issuers hereby empower and authorize the Agent to
execute and deliver to the applicable Borrower on their behalf any
agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of any entities' liability with respect to the Parent
Guaranty or any Subsidiary Guaranty or release of any collateral pledged
pursuant to any Pledge Agreement in connection with any transactions which
shall be permitted by the terms hereof or of any other Credit Document or
which shall otherwise have been approved in writing by the Required Lenders
(or, if required by the terms of Section 8.3, all of the Lenders).
-----------
10.15. No Duties Imposed on Syndication Agent or Arranger. Except
--------------------------------------------------
as specifically provided otherwise herein with respect to the rights and
benefits of the Arranger hereunder, none of the Persons identified on the
cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreement as a "Syndication Agent" or "Arranger" shall
have any right, power, obligation, liability, responsibility or duty under
this Agreement other than if such Person is a Lender, those applicable to
all Lenders as such. Without limiting the foregoing, none of the Persons
identified on the cover page to this Agreement, the signature pages to this
Agreement or otherwise in this Agreement as a "Syndication Agent" or
"Arranger" shall have or be deemed to have any fiduciary duty to or
fiduciary relationship with any Lender. In addition to the agreement set
forth in Section 10.10, each of the Lenders acknowledges that it has not
-------------
relied, and will not rely, on any of the Persons so identified in deciding
to enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XI: SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
------
of the Lenders under applicable law, if any Default or Unmatured Default
occurs, any and all deposits (including all
79
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 to or for the credit or account of the applicable Borrower may be
offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be
due (it being understood and agreed that no deposits of the Non-U.S.
Subsidiary Borrower or Indebtedness held by or owing to the Non-U.S.
Subsidiary Borrower shall be offset by any Lender and applied toward any
Obligations incurred by or on behalf of the Borrower); it being understood
-------------------
that, in order to effect such setoff, any Lender may combine currencies at
the then-effective buy and sell spot rate of exchange of such Lender with
respect to such currencies.
11.2. Ratable Payments. If any Lender, whether by setoff or
----------------
otherwise, has payment made to it upon its share of any Advance (other than
payments received pursuant to Sections 3.1, 3.2 or 3.4) in a greater
------------ --- ---
proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans comprising that
Advance held by the other Lenders so that after such purchase each Lender
will hold its ratable proportion of Loans comprising that Advance. 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 Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
11.3. Relations Among Lenders. The Lenders are not partners or
-----------------------
co-venturers, and no Lender shall be liable for the acts or omissions of or
(except as otherwise set forth herein with respect to the Agent) authorized
to act for or on behalf of any other Lender.
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION
12.1. Successors and Assigns. The terms and provisions of the
----------------------
Borrower Credit Documents and the Non-U.S. Subsidiary Credit Documents shall
be binding upon and inure to the benefit of the Borrower and the Non-U.S.
Subsidiary Borrower, respectively, and the Lenders and their respective
successors and assigns, except that (i) neither the Borrower nor the
Non-U.S. Subsidiary Borrower shall have the right to assign its rights or
obligations under the Borrower Credit Documents or the Non-U.S. Subsidiary
Borrower Credit Documents, respectively, and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. Notwithstanding clause
------------ ------
(ii) of this Section, any Lender may at any time, without the consent of the
----
Borrower, the Non-U.S. Subsidiary Borrower or the Agent, assign all or any
portion of its rights under the Credit Documents to a Federal Reserve Bank;
provided, however, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agent may treat any Lender as the
owner of the Loans made by such Lender hereunder for all purposes hereof
unless and until such payee complies with Section 12.3 in the case of an
------------
assignment thereof or, in the case of any other transfer, a written notice
of the transfer is filed with the Agent. Any assignee or transferee of a
Loan agrees by acceptance thereof to be bound by all the terms and
provisions of the Credit Documents. Any request, authority or consent of any
Person, who at the time of making such
80
request or giving such authority or consent is the owner of any Loan, shall
be conclusive and binding on any subsequent holder, transferee or assignee
of such Loan.
12.2. Participation.
-------------
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 owing to such
Lender, any Loans owned by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Credit Documents. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Credit 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 all
Loans made by it for all purposes under the Credit Documents, all amounts
payable by each Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and each Borrower, the LC
Issuer and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the
Credit 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 Credit Documents, other than
any such amendment, modification or waiver which requires the unanimous
consent of the Lenders under Section 8.3.
-----------
12.2.3. Benefit of Setoff. Each 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
----
Credit Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Credit Documents,
provided that each Lender shall 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 Credit Documents; provided,
--------
that, unless the Agent and the Borrower shall otherwise agree, each such
assignment shall be in the minimum principal amount of not less than the
lesser of (i) $5,000,000 and (ii) the amount of such Lender's Commitments as
of the proposed date of such assignment, and each such assignment shall be
of a constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement and the assignment shall cover
the same percentage
81
of such Lender's commitment, Loans and interest in Facility LCs. Each such
assignment shall be substantially in the form of Exhibit I hereto or in such
---------
other form as may be agreed to by the Agent and the parties thereto. The
consent of the Borrower and the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof (none of which consents may be unreasonably
withheld); provided, that if (i) a Default has occurred and is continuing or
--------
(ii) the assignment is pursuant to the physical settlement of credit
derivative transactions, the consent of the Borrower shall not be required.
12.3.2. Effect; Effective Date. Upon Purchaser's (i)
----------------------
delivery to the Agent of a notice of assignment, substantially in the form
attached as Exhibit "A" to Exhibit I hereto (a "Notice of Assignment"),
---------
together with any consents required by Section 12.3.1, and (ii) payment of a
--------------
$3,500 fee to the Agent for processing such assignment, such assignment
shall become effective on the effective date specified in such Notice of
Assignment. 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 Credit Document executed by the Lenders and shall have all the rights
and obligations of a Lender under the Credit Documents, to the same extent
as if it were an original party hereto, and no further consent or action by
either Borrower, the Lenders, the LC Issuer or the Agent shall be required
to release the transferor Lender with respect to the percentage of the
Aggregate Revolving Loan 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 Agent and the
--------------
Borrowers shall make appropriate arrangements so that, to the extent
promissory notes have been issued to evidence any of the transferred Loans,
replacement promissory notes are issued to the transferor Lender and a new
promissory notes or, as appropriate, replacement promissory notes are issued
to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment. Upon the Purchaser's
receipt of new or replacement promissory notes, the transferor Lender shall
return its old promissory notes to the applicable Borrower appropriately
legended.
12.3.3. Register. The Agent shall maintain at its address
--------
referred to in Section 13.1 a copy of each assignment delivered to and
------------
accepted by it pursuant to this Section 12.3 and a register (the "REGISTER")
------------
for the recordation of the names and addresses of the Lenders and the
Commitments of and principal amount of the Loans owing to, each Lender from
time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an assignment under this Section 12.3. The
------------
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and each Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by either Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
12.4. Dissemination of Information. Each Borrower authorizes each
----------------------------
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Credit 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
82
Subsidiaries; provided, that each Transferee and prospective Transferee
--------
agrees to be bound by Section 9.16 of this Agreement.
------------
12.5. Tax Treatment. If any interest in any Credit 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
-------
2.18.
----
ARTICLE XIII: NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.13
------------- ------------
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Credit
Document shall be given either in writing or by facsimile and addressed or
delivered to such party at its address or facsimile number, as the case may
be, set forth below its signature hereto or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if properly transmitted by
facsimile, shall be deemed given when transmitted.
13.2. Change of Address. Each Borrower, the Agent, the LC Issuer
-----------------
and any Lender may each change the address and/or facsimile number for
service of notice upon it by a notice in writing to the other parties
hereto.
ARTICLE XIV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
This Agreement shall be effective when it has been executed by the Borrower,
the Agent, the LC Issuer and the Lenders and each party has notified the
Agent by facsimile or telephone, that it has taken such action.
83
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and
the Agent have executed this Agreement as of the date first above written.
Commitments
-----------
XXXXXXX DENVER, INC. (formerly known as
Xxxxxxx Denver Machinery Inc.)
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
0000 Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [_______________________]
= =
[_______________________]
= =
[_______________________]
= =
Telephone: [(___) ___-____]
= =
Facsimile: [(___) ___-____]
= =
BANK ONE, NA (Main Office Chicago)
(formerly known as The First National Bank of
Chicago),
Individually as a Lender, as a LC Issuer, the Swing
Line Lender and as Agent
By: ______________________________________________
Print Name: ______________________________________
Title: ___________________________________________
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: [_______________________]
= =
[_______________________]
= =
Telephone: [(___) ___-____]
= =
Facsimile: [(___) ___-____]
= =
84
