EXHIBIT 10.3
Published CUSIP Number: 00000XXX0
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EXECUTION COPY
$20,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
among
AMERICAN PACIFIC CORPORATION,
as Borrower,
and
THE DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent
Dated as of February 6, 2007
WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arranger and Sole Book Runner
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arranger
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TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.......................................................................................... 1
Section 1.1 Defined Terms........................................................................ 1
Section 1.2 Other Definitional Provisions........................................................ 21
Section 1.3 Accounting Terms..................................................................... 21
Section 1.4 Resolution of Drafting Ambiguities................................................... 22
Section 1.5 Time References...................................................................... 22
ARTICLE II THE LOANS; AMOUNT AND TERMS......................................................................... 22
Section 2.1 Revolving Loans...................................................................... 22
Section 2.2 Letter of Credit Subfacility......................................................... 24
Section 2.3 Swingline Loan Subfacility........................................................... 26
Section 2.4 Incremental Facilities............................................................... 27
Section 2.5 Fees................................................................................. 28
Section 2.6 Commitment Reductions................................................................ 29
Section 2.7 Repayments........................................................................... 29
Section 2.8 Default Rate and Payment Dates....................................................... 30
Section 2.9 Conversion Options................................................................... 30
Section 2.10 Computation of Interest and Fees; Usury.............................................. 31
Section 2.11 Pro Rata Treatment and Payments...................................................... 32
Section 2.12 Non-Receipt of Funds by the Administrative Agent..................................... 33
Section 2.13 Inability to Determine Interest Rate................................................. 34
Section 2.14 Illegality........................................................................... 34
Section 2.15 Requirements of Law.................................................................. 35
Section 2.16 Indemnity............................................................................ 36
Section 2.17 Taxes................................................................................ 36
Section 2.18 Indemnification; Nature of Issuing Lender's Duties................................... 38
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................................................... 39
Section 3.1 Financial Condition.................................................................. 39
Section 3.2 No Change............................................................................ 39
Section 3.3 Corporate Existence; Compliance with Law............................................. 40
Section 3.4 Corporate Power; Authorization; Enforceable Obligations.............................. 40
Section 3.5 No Legal Bar; No Default............................................................. 40
Section 3.6 No Material Litigation............................................................... 40
Section 3.7 Investment Company Act; PUHCA, Etc................................................... 41
Section 3.8 Margin Regulations................................................................... 41
Section 3.9 ERISA................................................................................ 41
Section 3.10 Environmental Matters................................................................ 41
Section 3.11 Use of Proceeds...................................................................... 42
Section 3.12 Subsidiaries......................................................................... 42
Section 3.13 Ownership............................................................................ 42
Section 3.14 Indebtedness......................................................................... 42
Section 3.15 Taxes................................................................................ 43
Section 3.16 Intellectual Property Rights......................................................... 43
Section 3.17 Solvency............................................................................. 43
Section 3.18 Investments.......................................................................... 43
Section 3.19 Location of Collateral............................................................... 43
Section 3.20 No Burdensome Restrictions........................................................... 44
Section 3.21 Brokers' Fees........................................................................ 44
Section 3.22 Labor Matters........................................................................ 44
Section 3.23 Accuracy and Completeness of Information............................................. 44
Section 3.24 [Reserved]........................................................................... 44
Section 3.25 Insurance............................................................................ 44
Section 3.26 Security Documents................................................................... 45
Section 3.27 Regulation H......................................................................... 45
i
Section 3.28 Classification of Senior Indebtedness................................................ 45
Section 3.29 Anti-Terrorism Laws.................................................................. 45
Section 3.30 Compliance with OFAC Rules and Regulations........................................... 45
Section 3.31 Compliance with FCPA................................................................. 45
ARTICLE IV CONDITIONS PRECEDENT................................................................................ 46
Section 4.1 Conditions to Closing Date........................................................... 46
Section 4.2 Conditions to All Extensions of Credit............................................... 49
ARTICLE V AFFIRMATIVE COVENANTS................................................................................ 50
Section 5.1 Financial Statements................................................................. 50
Section 5.2 Certificates; Other Information...................................................... 51
Section 5.3 Payment of Taxes and Other Obligations............................................... 52
Section 5.4 Conduct of Business and Maintenance of Existence..................................... 52
Section 5.5 Maintenance of Property; Insurance................................................... 52
Section 5.6 Inspection of Property; Books and Records; Discussions............................... 53
Section 5.7 Notices.............................................................................. 53
Section 5.8 Environmental Laws................................................................... 54
Section 5.9 Financial Covenants.................................................................. 54
Section 5.10 Additional Guarantors................................................................ 55
Section 5.11 Compliance with Law.................................................................. 55
Section 5.12 Pledged Assets....................................................................... 55
Section 5.13 Covenants Regarding Patents, Trademarks and Copyrights............................... 56
Section 5.14 Post-Closing Covenant................................................................ 57
Section 5.15 Federal Assignment of Claims Act..................................................... 57
Section 5.16 Further Assurances................................................................... 57
ARTICLE VI NEGATIVE COVENANTS.................................................................................. 58
Section 6.1 Indebtedness......................................................................... 58
Section 6.2 Liens................................................................................ 59
Section 6.3 Nature of Business................................................................... 59
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc............................... 59
Section 6.5 Advances, Investments and Loans...................................................... 60
Section 6.6 Transactions with Affiliates......................................................... 61
Section 6.7 Ownership of Subsidiaries; Restrictions.............................................. 61
Section 6.8 Corporate and Accounting Changes..................................................... 61
Section 6.9 Limitation on Restricted Actions..................................................... 61
Section 6.10 Restricted Payments.................................................................. 62
Section 6.11 Amendments to Subordinated Debt...................................................... 62
Section 6.12 Sale Leasebacks...................................................................... 63
Section 6.13 No Further Negative Pledges.......................................................... 63
Section 6.14 Deposit Account Control Agreements; Additional Bank Accounts......................... 63
ARTICLE VII EVENTS OF DEFAULT.................................................................................. 63
Section 7.1 Events of Default.................................................................... 63
Section 7.2 Acceleration; Remedies............................................................... 66
ARTICLE VIII THE ADMINISTRATIVE AGENT.......................................................................... 66
Section 8.1 Appointment.......................................................................... 66
Section 8.2 Delegation of Duties................................................................. 66
Section 8.3 Exculpatory Provisions............................................................... 67
Section 8.4 Reliance by Administrative Agent..................................................... 67
Section 8.5 Notice of Default.................................................................... 67
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders............................... 68
Section 8.7 Indemnification...................................................................... 68
Section 8.8 Administrative Agent in Its Individual Capacity...................................... 68
Section 8.9 Successor Administrative Agent....................................................... 69
Section 8.10 Nature of Duties..................................................................... 69
Section 8.11 Releases............................................................................. 69
ARTICLE IX MISCELLANEOUS....................................................................................... 69
Section 9.1 Amendments, Waivers and Release of Collateral........................................ 69
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Section 9.2 Notices.............................................................................. 71
Section 9.3 No Waiver; Cumulative Remedies....................................................... 73
Section 9.4 Survival of Representations and Warranties........................................... 73
Section 9.5 Payment of Expenses and Taxes........................................................ 73
Section 9.6 Successors and Assigns; Participations; Purchasing Lenders........................... 74
Section 9.7 Adjustments; Set-off................................................................. 76
Section 9.8 Table of Contents and Section Headings............................................... 77
Section 9.9 Counterparts......................................................................... 77
Section 9.10 Effectiveness........................................................................ 77
Section 9.11 Severability......................................................................... 77
Section 9.12 Integration.......................................................................... 77
Section 9.13 Governing Law........................................................................ 78
Section 9.14 Consent to Jurisdiction and Service of Process....................................... 78
Section 9.15 Confidentiality...................................................................... 78
Section 9.16 Acknowledgments...................................................................... 79
Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages............................... 79
Section 9.18 Patriot Act Notice................................................................... 79
Section 9.19 Amendment and Restatement............................................................ 79
ARTICLE X GUARANTY............................................................................................. 80
Section 10.1 The Guaranty......................................................................... 80
Section 10.2 Bankruptcy........................................................................... 80
Section 10.3 Nature of Liability.................................................................. 81
Section 10.4 Independent Obligation............................................................... 81
Section 10.5 Authorization........................................................................ 81
Section 10.6 Reliance............................................................................. 81
Section 10.7 Waiver............................................................................... 82
Section 10.8 Limitation on Enforcement............................................................ 82
Section 10.9 Confirmation of Payment.............................................................. 83
SCHEDULES
Schedule 1.1(a) Account Designation Letter
Schedule 1.1(b) Investments
Schedule 1.1(c) Liens
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.9 Form of Notice of Conversion/Extension
Schedule 3.3 Jurisdictions of Organization and Qualification
Schedule 3.12 Subsidiaries
Schedule 3.16 Intellectual Property
Schedule 3.19(a) Location of Real Property
Schedule 3.19(b) Location of Collateral
Schedule 3.19(c) Chief Executive Offices
Schedule 3.19(d) Mortgaged Property
Schedule 3.22 Labor Matters
Schedule 4.1(b) Form of Secretary's Certificate
Schedule 4.1(h) Form of Solvency Certificate
Schedule 5.2(b) Form of Officer's Compliance Certificate
Schedule 5.10 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 6.14 Deposit Accounts
Schedule 9.6(c) Form of Assignment and Assumption Agreement
iv
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 6, 2007, among
AMERICAN PACIFIC CORPORATION, a Delaware corporation (the "Borrower"), each of
those Domestic Subsidiaries of the Borrower identified as a "Guarantor" on the
signature pages hereto and such other Domestic Subsidiaries of the Borrower as
may from time to time become a party hereto (collectively the "Guarantors" and
individually a "Guarantor"), the several banks and other financial institutions
from time to time parties to this Credit Agreement (collectively the "Lenders"
and individually a "Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent" or the "Agent"), and BANK OF AMERICA, N.A.,
as Syndication Agent.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make loans and other
financial accommodations to the Credit Parties in the amount of up to
$20,000,000, as more particularly described herein;
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Credit Parties on the terms and conditions contained
herein; and
WHEREAS, this Credit Agreement shall amend and restate the Existing Credit
Agreement (as defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
As used in this Credit Agreement, terms defined in the preamble to this
Credit Agreement have the meanings therein indicated, and the following terms
have the following meanings:
"ABR Default Rate" shall have the meaning set forth in Section 2.8.
"Accessible Borrowing Availability" shall mean, as of any date of
determination, the amount that the Borrower is able to borrow on such date under
the Revolving Committed Amount without a Default or Event of Default occurring
or existing after giving pro forma effect to such borrowing.
"Account Designation Letter" shall mean the Account Designation Letter
dated as of the Closing Date from the Borrower to the Administrative Agent in
substantially the form attached hereto as Schedule 1.1(a).
"Additional Credit Party" shall mean each Person that becomes a Guarantor
by execution of a Joinder Agreement in accordance with Section 5.10.
"Administrative Agent" or "Agent" shall have the meaning set forth in the
first paragraph of this Credit Agreement and any successors in such capacity.
"Administrative Details Form" shall mean, with respect to any Lender, a
document containing such Lender's contact information for purposes of notices
provided under this Credit Agreement and account details for purposes of
payments made to such Lender under this Credit Agreement.
"AFC Guaranty" shall mean the Unconditional Guaranty of Payment and
Performance November 30, 2005 of the Borrower in favor of Aerojet Fine Chemicals
LLC and Aerojet - General Corporation.
"Affiliate" shall mean as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, a Person shall be deemed to
be "controlled by" a Person if such Person possesses, directly or indirectly,
power either (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.
"Agreement" or "Credit Agreement" shall mean this Credit Agreement, as
amended, restated, amended and restated, modified or supplemented from time to
time in accordance with its terms.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean, at any time, the rate of interest per annum publicly
announced or otherwise identified from time to time by Wachovia at its principal
office in Charlotte, North Carolina as its prime rate. The parties hereto
acknowledge that the rate announced publicly by Wachovia as its Prime Rate is an
index or base rate and shall not necessarily be its lowest or best rate charged
to its customers or other banks; and "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published on the next
succeeding Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms above, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the opening of business on the date of such change.
"Alternate Base Rate Loans" shall mean Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"Applicable Percentage" shall mean, for any day, the rate per annum set
forth below opposite the applicable Level then in effect, it being understood
that the Applicable Percentage for (a) Alternate Base Rate Loans shall be the
percentage set forth under the column "Base Rate Margin", (b) LIBOR Rate Loans
shall be the percentage set forth under the column "LIBOR Margin & L/C Fee" and
(c) the Commitment Fee shall be the percentage set forth under the column
"Commitment Fee":
APPLICABLE PERCENTAGE
LIBOR
Pricing Total Base Rate Margin Commitment
Level Leverage Ratio Margin & L/C Fee Fee
------- ------------------ --------- --------- ----------
I > 4.00 to 1.0 1.50% 2.50% 0.50%
-
II <4.00 to 1.0 but > 1.25% 2.25% 0.50%
-
3.25 to 1.0
III <3.25 to 1.0 but > 1.00% 2.00% 0.50%
-
2.50 to 1.0
IV < 2.50 to 1.0 0.75% 1.75% 0.375%
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date on which
the Administrative Agent has received from the Credit Parties the quarterly
financial information (in the case of the first three fiscal quarters of the
Borrower's fiscal year), the annual financial information (in the case of the
fourth fiscal quarter of the Borrower) and the certifications required to be
delivered to the Administrative Agent and the Lenders in accordance with the
provisions of Sections 5.1(a), 5.1(b) and 5.2(b)
2
(each an "Interest Determination Date"). Such Applicable Percentage shall be
effective from such Interest Determination Date until the next such Interest
Determination Date. After the Closing Date, if the Credit Parties shall fail to
provide the financial information or certifications in accordance with the
provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Percentage
shall, on the date five (5) Business Days after the date by which the Credit
Parties were so required to provide such financial information or certifications
to the Administrative Agent and the Lenders, be based on Level I until such time
as such information or certifications are provided, whereupon the Level shall be
determined by the then current Total Leverage Ratio. In the event that any
financial information or certification provided to the Administrative Agent in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), is shown
to be inaccurate (regardless of whether this Agreement or the Commitments are in
effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Percentage for any
period (an "Applicable Period") than the Applicable Percentage applied for such
Applicable Period, then (i) the Borrower shall immediately deliver to the
Administrative Agent a corrected compliance certificate for such Applicable
Period, (ii) the Applicable Percentage shall be determined as if it had been
properly calculated for such Applicable Period, and (iii) the Borrower shall
immediately pay to the Administrative Agent the accrued additional interest
owing as a result of such increased Applicable Percentage for such Applicable
Period equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for
such period. It is acknowledged and agreed that nothing contained herein shall
limit the rights of the Administrative Agent and Lenders with respect to
Sections 2.8 and 7.1. Notwithstanding the foregoing, the Applicable Percentage
for the first two complete fiscal quarters after the Closing Date shall be (i)
not less than 2.25% for LIBOR Rate Loans and (ii) not less than 1.25% for
Alternate Base Rate Loans; and the Commitment Fee shall be set at 0.50%.
"Approved Fund" shall mean, with respect to any Lender, any fund or trust
or entity that invests in commercial bank loans in the ordinary course of
business and is advised or managed by (a) such Lender, (b) an Affiliate of such
Lender, (c) any other Lender or any Affiliate thereof or (d) the same investment
advisor as any Person described in clauses (a) - (c).
"Arranger" shall mean Wachovia Capital Markets, LLC and Banc of America
Securities LLC, together with their respective successors and assigns.
"Asset Disposition" shall mean the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Subsidiary
whether by sale, lease, transfer or otherwise.
"Assignment Agreement" shall mean an Assignment and Assumption Agreement,
in substantially the form of Schedule 9.6(c).
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" shall mean any of the events described in Section
7.1(e).
"Borrower" shall have the meaning set forth in the first paragraph of this
Credit Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date such Loan is
made.
"Business" shall have the meaning set forth in Section 3.10.
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in
connection with a rate determination, borrowing or payment in respect of a LIBOR
Rate Loan, the term "Business Day" shall also exclude any day on which banks in
London, England are not open for dealings in Dollar deposits in the London
interbank market.
"Capital Lease" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
3
"Capital Lease Obligations" shall mean the capitalized lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"), (b)
Dollar denominated (or foreign currency fully hedged to the Dollar) time
deposits, certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (i) any domestic commercial bank of recognized
standing having capital and surplus in excess of $250,000,000 or (ii) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with maturities of not
more than 364 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements with a bank or
trust company (including a Lender) or a recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America, (e) obligations of any
State of the United States or any political subdivision thereof for the payment
of the principal and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to principal and
interest at times and in amounts sufficient to provide such payment, (f) auction
preferred stock rated in the highest short-term credit rating category by S&P or
Moody's, (g) readily marketable tax-free municipal bonds of a domestic issuer
rated Aaa by Moody's, or AAA by S&P, and maturing within one year from the date
of issuance (and investments in mutual funds investing primarily in those
bonds), (h) investments in money market funds substantially all of whose assets
are comprised of securities of the types described in subparts (a) through (g)
above, and (i) demand deposit accounts maintained in the ordinary course of
business.
"Change of Control" shall mean at any time the occurrence of any of the
following events: (a) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 35% or more of the then outstanding Voting Stock of
the Borrower; or (b) the replacement of a majority of the Board of Directors of
the Borrower over a two-year period from the directors who constituted the Board
of Directors at the beginning of such period, and such replacement shall not
have been approved by a vote of at least a majority of the Board of Directors of
the Borrower then still in office who either were members of such Board of
Directors at the beginning of such period or whose election as a member of such
Board of Directors was previously so approved.
"Closing Date" shall mean the date of this Credit Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean a collective reference to the collateral which is
identified in, and at any time will be covered by, the Security Documents and
any other property or assets of a Credit Party, whether tangible or intangible
and whether real or personal, that may from time to time secure the Credit Party
Obligations.
"Commitment" shall mean the Revolving Commitments, the LOC Commitments and
the Swingline Commitments, individually or collectively, as appropriate.
4
"Commitment Fee" shall have the meaning set forth in Section 2.5(a).
"Commitment Period" shall mean (a) with respect to Revolving Loans, the
period from and including the Closing Date to but excluding the Maturity Date
and (b) with respect to Letters of Credit, the period from and including the
Closing Date to but excluding the date that is 30 days prior to the Maturity
Date.
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Consolidated" shall mean, when used with reference to financial
statements or financial statement items of the Credit Parties and their
Subsidiaries or any other Person, such statements or items on a consolidated
basis in accordance with the consolidation principles of GAAP.
"Consolidated EBITDA" shall mean, as of any date of determination for the
four quarter period ending on such date, without duplication, (a) Consolidated
Net Income for such period plus (b) the sum of the following to the extent
deducted in calculating Consolidated Net Income: (i) Consolidated Interest
Expense for such period, (ii) income tax expense (including, without limitation,
any federal, state, local and foreign income and similar taxes) of the Credit
Parties and their Subsidiaries for such period, (iii) depreciation and
amortization expense (including amortization of debt discount and debt issuance
costs to the extent permitted by GAAP) of the Credit Parties and their
Subsidiaries for such period, (iv) other non-cash charges (excluding reserves
for future cash payments during the term of this Agreement) of the Credit
Parties and their Subsidiaries for such period, (v) non-cash compensation
expense, or other non-cash expenses or charges, arising from the granting of
stock options to employees, officers and directors and similar arrangements
(including repricing, amendment, modification, substitution or change of any
such options or similar arrangements) for such period, (vi) payment in kind
interest payments related to seller notes, Subordinated Debt or other
Indebtedness incurred in connection with any Permitted Acquisition, (vii)
increases in reserves for Environmental Remediation Payments for such period and
(viii) non-recurring cash charges actually incurred not exceeding $2,000,000 in
respect of Ampac ISP UK Ltd., minus (c) non-cash charges previously added back
to Consolidated Net Income in determining Consolidated EBITDA to the extent such
non-cash charges have become cash charges during such period, minus (d) payments
for Environmental Remediation OM Payments for such period (net of cash
recovered), minus (e) any other non-recurring cash or non-cash gains in excess
of $50,000 during such period.
Further, (1) for any four-quarter period, Consolidated EBITDA shall be
calculated on a pro forma basis to exclude the effects of any sales of real
property assets owned by the Borrower or any of its Subsidiaries and (2) for any
four-quarter period ending on after the closing date of any Permitted
Acquisition, Consolidated EBITDA shall be calculated on a pro forma basis
assuming the consummation of such Permitted Acquisition as of the first day of
such period.
"Consolidated Funded Debt" shall mean, on any date of calculation, Funded
Debt of the Borrower and its Subsidiaries on a Consolidated basis.
"Consolidated Interest Expense" shall mean, as of any date of
determination for the four quarter period ending on such date, all interest
expense (excluding (i) amortization of debt discount, other debt issue costs and
premium and (ii) any payment in kind interest related to any seller notes,
Subordinated Debt or other Indebtedness incurred in connection with any
Permitted Acquisition and any Subordinated Debt, but including the interest
component under Capital Leases and synthetic leases, tax retention operating
leases, off-balance sheet loans and similar off-balance sheet financing
products) for such period of the Credit Parties and their Subsidiaries on a
Consolidated basis. Notwithstanding the foregoing, for purposes of calculating
Consolidated Interest Expense for the fiscal quarters ending March 31, 2007,
June 30, 2007 and September 30, 2007, Consolidated Interest Expense shall be
annualized during such fiscal quarters such that (a) for the calculation of
Consolidated Interest Expense as of December 31, 2006, Consolidated Interest
Expense for the fiscal quarter then ending will be multiplied by four (4), (b)
for the calculation of Consolidated Interest Expense as of March 31, 2007,
Consolidated Interest Expense for the two fiscal quarter period then ending will
be multiplied by two (2) and (c) for the calculation of Consolidated Interest
Expense as of June 30, 2007, Consolidated Interest Expense for the three fiscal
quarter period then ending will be multiplied by one and one-third (1 1/3).
5
"Consolidated Net Income" shall mean, as of any date of determination for
the four quarter period ending on such date, the net income (before discontinued
operations, extraordinary items, and changes in accounting principals) or loss
of Borrower and its Subsidiaries, determined in accordance with GAAP of the
Borrower and its Subsidiaries on a Consolidated basis for such period; provided
that Consolidated Net Income shall not include the net income of any
corporation, partnership, limited liability company, joint venture or other
legal arrangement (whether created by contract or conducted through a separate
legal entity) now or hereafter formed by the Borrower or any Subsidiary with
another Person that is not the Borrower or any Subsidiary.
"Consolidated Scheduled Debt Payments" shall mean, as of any date of
determination for the four quarter period ending on such date, the sum of all
scheduled payments of principal on Consolidated Funded Debt for such period
(including the principal component of payments due on Capital Leases during the
applicable period ending on such date); it being understood that Consolidated
Scheduled Debt Payments shall not include optional repayments or the mandatory
repayments required pursuant to Section 2.7.
"Consolidated Subsidiaries" shall mean Subsidiaries of the Borrower which
are included on a consolidated basis in the financial statements of the Borrower
in accordance with GAAP.
"Consolidated Working Capital" shall mean, as of any date of
determination, the excess of (a) current assets (excluding cash and Cash
Equivalents) of the Credit Parties and their Subsidiaries on a Consolidated
basis as of such date of determination less (b) current liabilities (excluding
the current portion of long term Indebtedness) of the Credit Parties and their
Subsidiaries on a Consolidated basis as of such date of determination, all as
determined in accordance with GAAP.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any contract, agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Copyright Licenses" shall mean any written agreement providing for the
grant by or to a Person of any right under any Copyright, including, without
limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement.
"Copyrights" shall mean all copyrights of the Credit Parties and their
Subsidiaries in all works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Copyright Office or in any similar
office or agency of the United States, any state thereof or any other country or
any political subdivision thereof, or otherwise, including, without limitation,
any thereof referred to in Schedule 3.16 and all renewals thereof.
"Credit Documents" shall mean this Credit Agreement, each of the Notes,
any Joinder Agreement, the Letters of Credit, LOC Documents and the Security
Documents and all other agreements, documents, certificates and instruments
delivered to the Administrative Agent or any Lender by any Credit Party in
connection therewith (other than any agreement, document, certificate or
instrument related to a Hedging Agreement).
"Credit Party" shall mean any of the Borrower or the Guarantors.
"Credit Party Obligations" shall mean, without duplication, (a) all of the
obligations, indebtedness and liabilities of the Credit Parties to the Lenders
(including the Issuing Lender) and the Administrative Agent, whenever arising,
under this Credit Agreement, the Notes or any of the other Credit Documents,
including principal, interest, fees, prepayment premiums (if any), expenses,
reimbursements and indemnification obligations and other amounts (including, but
not limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any Credit
Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (b) all liabilities and obligations, whenever arising,
owing from any Credit Party or any of their Subsidiaries to any Hedging
Agreement Provider arising under any Secured Hedging Agreement.
"Default" shall mean any of the events specified in Section 7.1, whether
or not any requirement for the giving of notice or the lapse of time, or both,
or any other condition, has been satisfied.
6
"Defaulting Lender" shall mean, at any time, any Lender that, at such time
(a) has failed to make a Loan or fund a Participation Interest required pursuant
to the terms of this Credit Agreement, (b) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Credit Agreement and such default remains uncured, or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency proceeding
or to a receiver, trustee or similar official.
"Deposit Account Control Agreement" shall mean an agreement among a Credit
Party, a depository institution and the Administrative Agent, which agreement is
in a form reasonably acceptable to the Administrative Agent, and which provides
the Administrative Agent with "control" (as such term is used in Article 9 of
the Uniform Commercial Code) over the deposit accounts described therein, as the
same may be amended, restated, supplemented, extended, replaced or otherwise
modified from time to time.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's Domestic Lending Office shown in such Lender's
Administrative Details Form; and thereafter, such other office of such Lender as
such Lender may from time to time specify to the Administrative Agent and the
Borrower as the office of such Lender at which Alternate Base Rate Loans of such
Lender are to be made.
"Domestic Subsidiary" shall mean any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Environmental Laws" shall mean any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Credit Agreement.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or any limitations or
restrictions placed upon any real property owned, leased or operated by the
Borrower or any of its Subsidiaries by any Governmental Authority, or (b)
damages relating to, or costs incurred by such Governmental Authority in
response to, a release or threatened release of Materials of Environmental
Concern into the environment.
"Environmental Remediation Equipment Payments" shall mean the
Environmental Remediation Payments consisting of payments made for equipment
costs.
"Environmental Remediation OM Payments" shall mean the Environmental
Remediation Payments consisting of payments made for the operating and
maintenance costs.
"Environmental Remediation Payments" shall mean payments made by the
Borrower or any of its Subsidiaries in connection with the implementation of a
remediation program together with the operation and maintenance of such program
and equipment acquired under such program involving (a) any liability under
Environmental Laws, or any limitations or restrictions placed upon any real
property owned, leased or operated by the Borrower or any of its Subsidiaries by
any Government Authority or court, or (b) damages relating to, or costs incurred
by such Governmental Authority in response to, a release or threatened release
of Materials of Environmental Concern into the environment with respect to the
Athens Road Project Site and the Valley Drive Site.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities, as defined in
7
Regulation D of such Board as in effect from time to time, or any similar
category of liabilities for a member bank of the Federal Reserve System in New
York City.
"Event of Default" shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.
"Excluded Subsidiary" shall mean any direct or indirect Subsidiary of the
Borrower having either (a) revenues (determined by reference to its latest
quarterly financial statements) for the trailing 12 -month period then ended
less than or equal to $100,000, or (b) an aggregate book value of assets, as
measured as of the end of any fiscal quarter determined by reference to the
Borrower's latest quarterly financial statements, less than or equal to
$100,000, in each case, on a Consolidated basis.
"Existing Credit Agreement" shall mean that certain First Lien Credit
Agreement, dated as of November 30, 2005, as amended, by and among the Borrower,
certain direct and indirect Subsidiaries of the Borrower as guarantors, the
lenders party thereto, and the Administrative Agent.
"Existing Letters of Credit" shall mean the Letters of Credit outstanding
under the Existing Credit Agreement.
"Extension of Credit" shall mean, as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of Credit by
such Lender.
"Federal Funds Effective Rate" shall have the meaning set forth in the
definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated January 31, 2007,
addressed to the Borrower from Wachovia and the Arranger, as amended, modified
or otherwise supplemented.
"Flood Hazard Property" any Mortgaged Property that is in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Funded Debt" shall mean, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations (including, without limitation, the
noncontingent amount of earnout obligations) of such Person incurred, issued or
assumed as the deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (e) the unreimbursed amount of
all letters of credit issued or bankers' acceptances facilities created for the
account of such Person, (f) the principal portion of all Capital Lease
Obligations of such Person, (g) all net obligations of such Person under Hedging
Agreements, excluding any portion thereof which would be accounted for as
interest expense under GAAP, (h) all preferred Capital Stock issued by such
Person and which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration, (i) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product, (j) all Indebtedness of others of the type
described in clauses (a) through (i) hereof secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (k) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person of the type described in clauses
(a) through (i) hereof, and (l) all Indebtedness of the type described in
clauses (a) through (i) hereof of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer (to the
extent such Person is liable therefor) calculated based on the percentage of
such Indebtedness for which such Person is liable; provided, however, that
Funded Debt shall not include Indebtedness among the Credit Parties.
8
"GAAP" shall mean generally accepted accounting principles in effect in
the United States of America applied on a consistent basis, subject, however, in
the case of determination of compliance with the financial covenants set out in
Section 5.9 to the provisions of Section 1.3.
"Government Acts" shall have the meaning set forth in Section 2.18.
"Government Contract" shall mean any contract entered into between the
Borrower or any of its Subsidiaries and the government of the United States of
America, or any department, agency, public corporation, or other instrumentality
or agent thereof or any state government or any department, agency or
instrumentality or agent thereof.
"Governmental Approvals" shall mean all authorizations, consents,
approvals, permits, licenses and exemptions of, registrations and filings with,
and reports to, all Governmental Authorities.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor" shall have the meaning set forth in the first paragraph of
this Credit Agreement.
"Guaranty" shall mean the guaranty of the Guarantors set forth in
Article X.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease or
purchase property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof, but excluding
ordinary course indemnification obligations not constituting financial
undertakings. The amount of any Guaranty Obligation hereunder shall (subject to
any limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
"Hedging Agreement Provider" shall mean any Person that enters into a
Secured Hedging Agreement with a Credit Party or any of its Subsidiaries that is
permitted by Section 6.1(d) to the extent such Person is a Lender, an Affiliate
of a Lender or any other Person that was a Lender (or an Affiliate of a Lender)
at the time it entered into the Secured Hedging Agreement but has ceased to be a
Lender (or whose Affiliate has ceased to be a Lender) under the Credit
Agreement.
"Hedging Agreements" shall mean, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates, or
currency or raw materials values, including, without limitation, any interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate hedging agreements.
"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations (including, without
limitation, the reasonably anticipated amount of earnout obligations) of such
Person incurred, issued or assumed
9
as the deferred purchase price of property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and due
within six months of the incurrence thereof) which would appear as liabilities
on a balance sheet of such Person, (e) the maximum amount of all letters of
credit issued or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (f) the principal portion of all Capital Lease Obligations of
such Person, (g) all net obligations of such Person under Hedging Agreements,
excluding any portion thereof which would be accounted for as interest expense
under GAAP, (h) all preferred Capital Stock issued by such Person and which by
the terms thereof could be (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other acceleration,
(i) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product, (j) [reserved], (k) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (l) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person and (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer (to the extent such Person is liable therefor)
calculated based on the percentage of such Indebtedness for which such Person is
liable.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Intellectual Property" shall mean the Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks and Trademark Licenses of the Credit
Parties and their Subsidiaries, all goodwill associated therewith and all rights
to xxx for infringement thereof.
"Interest Coverage Ratio" shall mean the ratio of (i) Consolidated EBITDA
to (ii) Consolidated Interest Expense.
"Interest Payment Date" shall mean (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December and on the applicable
Maturity Date, (b) as to any LIBOR Rate Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to any LIBOR Rate
Loan having an Interest Period longer than three months, (i) each three (3)
month anniversary following the first day of such Interest Period and (ii) the
last day of such Interest Period and (d) as to any Loan which is the subject of
a mandatory repayment required pursuant to Section 2.7(b), the date on which
such mandatory repayment is due.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan,
(a) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Rate Loan
and ending one, two, three or six months thereafter, subject to
availability to all applicable Lenders, as selected by the Borrower in the
Notice of Borrowing or Notice of Conversion given with respect thereto;
and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Rate Loan
and ending one, two, three or six months thereafter, subject to
availability to all applicable Lenders, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that the foregoing provisions are subject
to the following:
(i) if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding
10
day in the calendar month at the end of such Interest Period) shall
end on the last Business Day of the relevant calendar month;
(iii) if the Borrower shall fail to give notice as provided
above, the Borrower shall be deemed to have selected an Alternate
Base Rate Loan to replace the affected LIBOR Rate Loan;
(iv) no Interest Period in respect of any Loan shall extend
beyond the applicable Maturity Date; and
(v) no more than ten (10) LIBOR Rate Loans may be in effect at
any time. For purposes hereof, LIBOR Rate Loans with different
Interest Periods shall be considered as separate LIBOR Rate Loans,
even if they shall begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new LIBOR Rate Loan with a single Interest Period.
"Investment" shall mean (a) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of shares of
Capital Stock, other ownership interests or other securities of any Person or
bonds, notes, debentures or all or substantially all of the assets of any Person
or (b) any deposit with, or advance, loan or other extension of credit to, any
Person (other than deposits made in the ordinary course of business) or (c) any
other capital contribution to or investment in any Person, including, without
limitation, any Guaranty Obligation (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such Person.
"Issuing Lender" shall mean Wachovia or any successor in such capacity.
"Issuing Lender Fees" shall have the meaning set forth in Section 2.5(c).
"Joinder Agreement" shall mean a Joinder Agreement in substantially the
form of Schedule 5.10, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10.
"Lender" shall have the meaning set forth in the first paragraph of this
Credit Agreement and shall include the Issuing Lender and the Swingline Lender.
"Lender Commitment Letter" shall mean, with respect to any Lender, the
letter (or other correspondence) to such Lender from the Administrative Agent
notifying such Lender of its LOC Commitment and/or Revolving Commitment
Percentage.
"Letters of Credit" shall mean any letter of credit issued by the Issuing
Lender pursuant to the terms hereof, as such letter of credit may be amended,
modified, extended, renewed or replaced from time to time.
"Letter of Credit Facing Fee" shall have the meaning set forth in Section
2.5(c).
"Letter of Credit Fee" shall have the meaning set forth in Section 2.5(b).
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%). If, for any reason, neither of such rates is available,
then "LIBOR" shall mean the rate per annum at which, as determined by the
Administrative Agent, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London
11
time, two (2) Business Days prior to the commencement of the applicable Interest
Period for settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office in such Lender's Administrative
Details Form; and thereafter, such other office of such Lender as such Lender
may from time to time specify to the Administrative Agent and the Borrower as
the office of such Lender at which the LIBOR Rate Loans of such Lender are to be
made.
"LIBOR Rate" shall mean a rate per annum (rounded upwards, if necessary,
to the next higher 1/100th of 1%) determined by the Administrative Agent
pursuant to the following formula:
LIBOR Rate = LIBOR
-------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" shall mean Loans the rate of interest applicable to
which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"Loan" shall mean a Revolving Loan and/or a Swingline Loan, as
appropriate.
"LOC Commitment" shall mean the commitment of the Issuing Lender to issue
Letters of Credit and with respect to each Revolving Lender, the commitment of
such Revolving Lender to purchase participation interests in the Letters of
Credit up to such Lender's LOC Committed Amount as specified in the Lender
Commitment Letter or in the Register, as such amount may be reduced from time to
time in accordance with the provisions hereof.
"LOC Committed Amount" shall have the meaning set forth in Section 2.2(a).
"LOC Documents" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or (b) any collateral security for such obligations.
"LOC Obligations" shall mean, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"Mandatory LOC Borrowing" shall have the meaning set forth in Section
2.2(e).
"Mandatory Swingline Borrowing" shall have the meaning set forth in
Section 2.3(b)(ii).
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property, assets or financial condition of the Borrower
and its Subsidiaries taken as a whole, (b) the ability of the Borrower or any
Guarantor to perform its obligations, when such obligations are required to be
performed, under this Credit Agreement, any of the Notes or any other Credit
Document or (c) the validity or enforceability of this Credit Agreement, any of
the Notes or any of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern" shall mean any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or
12
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, perchlorate, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maturity Date" shall mean the date that is five (5) years after the
Closing Date.
"Material IP" shall mean all material Intellectual Property of each Credit
Party reasonably necessary for each of them to conduct its business as currently
conducted or with a fair market value in excess of $500,000 (other than
non-exclusive licenses for off-the-shelf software, and other non-exclusive
licenses in intellectual property, in each case, obtained in the ordinary course
of business).
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage Instrument" shall mean any mortgage, deed of trust or deed to
secure debt executed by a Credit Party in favor of the Administrative Agent
pursuant to the terms of the Existing Credit Agreement, as the same may be
amended, modified, restated or supplemented from time to time.
"Mortgage Policy" shall mean, with respect to any Mortgage Instrument, an
ALTA mortgagee title insurance policy issued by a title insurance company (the
"Title Insurance Company") selected by the Administrative Agent in an amount
satisfactory to the Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
"Mortgaged Property" shall mean any owned or leased real property of a
Credit Party as of the Closing Date which is set forth on Schedule 3.19(d).
"Multiemployer Plan" shall mean a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note" or "Notes" shall mean the Revolving Notes and/or the Swingline
Notes, collectively, separately or individually, as appropriate.
"Notice of Borrowing" shall mean a request for a Revolving Loan borrowing
pursuant to Section 2.1(b)(i) or a request for a Swingline Loan borrowing
pursuant to Section 2.3(b)(i), as appropriate. A Form of Notice of Borrowing is
attached as Schedule 2.1(b)(i).
"Notice of Conversion/Extension" shall mean the written notice of
conversion of a LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate
Base Rate Loan to a LIBOR Rate Loan, or extension of a LIBOR Rate Loan, in each
case substantially in the form of Schedule 2.9.
"Obligations" shall mean, collectively, Loans and LOC Obligations and all
other obligations of the Credit Parties to the Administrative Agent and the
Lenders under the Credit Documents.
"OFAC" shall mean the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"Operating Lease" shall mean, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Participant" shall have the meaning set forth in Section 9.6(b).
"Participation Interest" shall mean a participation interest purchased by
a Revolving Lender in LOC Obligations as provided in Section 2.2(c) and in
Swingline Loans as provided in Section 2.3.
"Patent Licenses" shall mean all written agreements providing for the
grant by or to a Person of any license to manufacture, use or sell any invention
covered by a Patent, including, without limitation, any thereof referred to in
Schedule 3.16 to the Credit Agreement.
13
"Patents" shall mean all letters patent of the United States or any other
country, now existing or hereafter arising, and all improvement patents,
reissues, reexaminations, patents of additions, renewals and extensions thereof,
including, without limitation, any thereof referred to in Schedule 3.16 to this
Credit Agreement, and (ii) all applications for letters patent of the United
States or any other country, now existing or hereafter arising, and all
provisionals, divisions, continuations and continuations-in-part and substitutes
thereof, including, without limitation, any thereof referred to in Schedule 3.16
to this Credit Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean an acquisition or any series of related
acquisitions by a Credit Party of (a) all or substantially all of the assets or
a majority of the Voting Stock and other ownership interests of a Person by a
merger, amalgamation or consolidation or any other combination with such Person
or (b) any division, line of business or other business unit of a Person (such
Person or such division, line of business or other business unit of such Person
shall be referred to herein as the "Target"), in each case that is a type of
business (or assets used in a type of business) permitted to be engaged in by
the Credit Parties and their Subsidiaries pursuant to Section 6.3, so long as
(i) no Default or Event of Default shall then exist or would exist after giving
effect thereto, (ii) the Credit Parties shall demonstrate to the reasonable
satisfaction of the Administrative Agent and the Required Lenders that, after
giving effect to the acquisition on a Pro Forma Basis, (A) the Total Leverage
Ratio shall be less than 5.0 to 1.0 and (B) the Credit Parties are in compliance
with each of the financial covenants set forth in Section 5.9 (calculated in the
case of (A) and (B) as of the last day of the most recent fiscal quarter as to
which financial statements have become available), (iii) the Administrative
Agent, on behalf of the Lenders, shall have received (or shall receive in
connection with the closing of such acquisition) a first priority perfected
security interest (except for Permitted Liens) in all property (including,
without limitation, Capital Stock) acquired with respect to the Target in
accordance with the terms of Sections 5.10 and 5.12 and the Target, if a Person,
shall have executed a Joinder Agreement in accordance with the terms of Section
5.10, subject to the exceptions in Section 5.10 and 5.12 in the case of any
non-U.S. assets acquired as a part of such acquisition, (iv) the Administrative
Agent and the Lenders shall have received (A) a description of the material
terms of such acquisition, (B) audited financial statements (or, if unavailable,
management-prepared financial statements) of the Target for its two most recent
fiscal years and for any fiscal quarters ended within the fiscal year to date
and (C) consolidated projected income statements of the Borrower and its
Consolidated Subsidiaries (giving effect to such acquisition), all in form and
substance reasonably satisfactory to the Administrative Agent; provided,
however, that if the aggregate purchase price for such acquisition is less than
or equal to $10,000,000, the requirements set forth in this subclause (iv) may
be waived by the Administrative Agent upon receipt of such other financial
information reasonably acceptable to the Administrative Agent, (v) if the
aggregate purchase price for such acquisition is greater than or equal to
$2,500,000, the Target shall have earnings before interest, taxes, depreciation
and amortization (after adjustments reasonably satisfactory to the
Administrative Agent) for the four fiscal quarter period prior to the
acquisition date in an amount greater than $0, (vi) such acquisition shall not
be a "hostile" acquisition and shall have been approved by the Board of
Directors and/or shareholders of the applicable Credit Party and the Target,
(vii) after giving effect to such acquisition, there shall be at least
$10,000,000 of Accessible Borrowing Availability under the Revolving Committed
Amount and (viii) the aggregate consideration (including without limitation
equity consideration, earn outs or deferred compensation or non-competition
arrangements and the amount of Indebtedness and other liabilities assumed by the
Credit Parties and their Subsidiaries) paid by the Credit Parties and their
Subsidiaries (a) in connection with any such acquisition shall not exceed
$35,000,000 and (b) for all acquisitions of a Persons that are not incorporated,
formed or organized in the United States made during the term of this Agreement
shall not exceed $20,000,000.
"Permitted Investments" shall mean:
(a) cash and Cash Equivalents;
(b) Investments set forth on Schedule 1.1(b);
(c) receivables owing to the Credit Parties or any of their
Subsidiaries or any receivables and advances to suppliers, in each case if
created, acquired or made in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
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(d) Investments in and loans to any Credit Party;
(e) loans and advances to officers, directors and employees in an
aggregate amount not to exceed $500,000 at any time outstanding; provided
that such loans and advances shall comply with all applicable Requirements
of Law;
(f) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(g) Investments, acquisitions or transactions permitted under
Section 6.4(b) (including any Investments owned by a Person acquired in a
Permitted Acquisition);
(h) Hedging Agreements to the extent permitted hereunder;
(i) Investments (including debt obligations) received in connection
with the permitted disposition of any assets;
(j) Guaranty Obligations to the extent permitted hereunder;
(k) the AFC Guaranty;
(l) Investments in and loans as permitted by Section 6.1(d); and
(m) additional loan advances and/or Investments of a nature not
contemplated by the foregoing clauses hereof; provided that such loans,
advances and/or Investments made pursuant to this clause shall not exceed
an aggregate amount of $5,000,000 at any time outstanding; provided that,
if the Total Leverage Ratio as of the most recently ended fiscal year
(commencing with the fiscal year ending September 30, 2007) is less than
or equal to 3.00 to 1.00, then such loans, advances and/or Investments
made pursuant to this clause shall not exceed an aggregate amount of
$10,000,000 per fiscal year so long as after giving effect to any such
Investment on a pro forma basis (calculated as of the last day of the most
recent fiscal quarter as to which financial statements have become
available), the Credit Parties are in compliance with the financial
covenants set forth in Section 5.9.
"Permitted Liens" shall mean:
(a) Liens created by or otherwise existing under or in connection
with this Credit Agreement or the other Credit Documents in favor of the
Administrative Agent on behalf of the Secured Parties;
(b) Liens in favor of a Hedging Agreement Provider in connection
with a Secured Hedging Agreement; provided that such Liens shall secure
the Credit Party Obligations and the obligations under such Secured
Hedging Agreement on a pari passu basis;
(c) Liens securing purchase money indebtedness and Capital Lease
Obligations (and refinancings thereof) to the extent permitted under
Section 6.1(c); provided, that (i) any such Lien attaches to such property
concurrently with or within 30 days after the acquisition thereof and (ii)
such Lien attaches solely to the property so acquired in such transaction;
(d) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace, if any, related
thereto has not expired or which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect
thereto are maintained on the books of any Credit Party or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case
of Foreign Subsidiaries with significant operations outside the United
States of America, generally accepted accounting principles in effect from
time to time in their respective jurisdictions of incorporation);
15
(e) statutory Liens such as carriers', warehousemen's, mechanics',
materialmen's, landlords', repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period of more
than 90 days or which are being contested in good faith by appropriate
proceedings; provided that a reserve or other appropriate provision shall
have been made therefor in an amount consistent with historical practices
and normal course of business of the Credit Parties and their
Subsidiaries;
(f) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements in an aggregate amount consistent with historical practices
and normal course of business of the Credit Parties and their
Subsidiaries;
(g) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(h) easements, rights of way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;
(i) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
this definition (other than Liens set forth on Schedule 1.1(c)); provided
that such extension, renewal or replacement Lien shall be limited to all
or a part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property);
(j) Liens existing on the Closing Date and set forth on Schedule
1.1(c); provided that (i) no such Lien shall at any time be extended to
cover property or assets other than the property or assets subject thereto
on the Closing Date and improvements thereon and (ii) the principal amount
of the Indebtedness secured by such Lien may be extended, renewed,
refunded and refinanced; however, such principal amount may not be
increased;
(k) Liens arising in the ordinary course of business by virtue of
any contractual, statutory or common law provision relating to banker's
Liens, rights of set-off or similar rights and remedies covering deposit
or securities accounts (including funds or other assets credited thereto)
or other funds maintained with a depository institution or securities
intermediary;
(l) any zoning, building or similar laws or rights reserved to or
vested in any Governmental Authority;
(m) restrictions on transfers of securities imposed by applicable
securities laws;
(n) Liens arising out of judgments or awards not resulting in an
Event of Default; provided that the applicable Credit Party or Subsidiary
shall in good faith be prosecuting an appeal or proceedings for review;
(o) Liens on the property of a Person existing at the time such
Person becomes a Subsidiary of a Credit Party in a transaction permitted
hereunder securing Indebtedness permitted hereunder; provided, however,
that any such Lien may not extend to any other property of any Credit
Party or any other Subsidiary that is not a Subsidiary of such Person;
provided, further, that any such Lien was not created in anticipation of
or in connection with the transaction or series of transactions pursuant
to which such Person became a Subsidiary of a Credit Party;
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(p) any interest or title of a lessor, licensor, sublessor,
sublicensor or licensee under any lease, license or sublease entered into
by any Credit Party or any Subsidiary thereof in the ordinary course of
its business and covering only the assets so leased, licensed or
subleased;
(q) assignments of insurance or condemnation proceeds provided to
landlords (or their mortgagees) pursuant to the terms of any lease and
Liens or rights reserved in any lease for rent or for compliance with the
terms of such lease; and
(r) additional Liens so long as the principal amount of Indebtedness
and other obligations secured thereby does not exceed $5,000,000 in the
aggregate.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" shall mean, as of any date of determination, any employee benefit
plan which is covered by Title IV of ERISA and in respect of which any Credit
Party or a Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Amended and Restated Pledge Agreement
dated as of the Closing Date executed by the Credit Parties in favor of the
Administrative Agent, for the benefit of the Secured Parties, as the same may
from time to time be amended, restated, amended and restated, supplemented or
otherwise modified in accordance with the terms hereof and thereof.
"Prime Rate" shall have the meaning set forth in the definition of
Alternate Base Rate.
"Pro Forma Basis" shall mean, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the most recent quarter end preceding the date
of such transaction.
"Properties" shall have the meaning set forth in Section 3.10(a).
"Purchasing Lenders" shall have the meaning set forth in Section 9.6(c).
"Recovery Event" shall mean the receipt by the Credit Parties or any of
their Subsidiaries of any cash insurance proceeds or condemnation or
expropriation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of their respective property
or assets other than obsolete property or assets no longer used or useful in the
business of the Credit Parties or any of their Subsidiaries.
"Register" shall have the meaning set forth in Section 9.6(d).
"Reimbursement Obligation" shall mean the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 2.2(d) for amounts drawn under
Letters of Credit.
"Reorganization" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"Replaced Lender" shall have the meaning set forth in Section 2.19.
"Replacement Lender" shall have the meaning set forth in Section 2.19.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. Section 4043.
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"Required Lenders" shall mean, as of any date of determination, Lenders
holding at least 66 2/3% of (a) the outstanding Revolving Commitments or (ii) if
the Revolving Commitments have been terminated, the outstanding Loans and
Participation Interests; provided, however, that if any Lender shall be a
Defaulting Lender at such time, then there shall be excluded from the
determination of Required Lenders, Obligations (including Participation
Interests) owing to such Defaulting Lender and such Defaulting Lender's
Commitments.
"Requirement of Law" shall mean, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and each law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" shall mean, as to (a) the Borrower, the President,
any Vice-President, the Chief Executive Officer, Chief Financial Officer,
Treasurer or the Chief Operating Officer or (b) any other Credit Party, any duly
authorized officer thereof.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (b)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of any Credit Party or any of its Subsidiaries, now or hereafter
outstanding, (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
Capital Stock of any Credit Party or any of its Subsidiaries, now or hereafter
outstanding, (d) any payment with respect to any earnout obligation, (e) any
payment or prepayment of principal of, premium, if any, or interest (other than
pay-in-kind interest) on, redemption, purchase, retirement, defeasance, sinking
fund or similar payment with respect to, any Subordinated Debt of any Credit
Party or any of its Subsidiaries, (f) the payment by any Credit Party or any of
its Subsidiaries of any management, advisory or consulting fee to any Person or
the payment of any extraordinary salary, bonus or other form of compensation to
any Person who is directly or indirectly a significant partner, shareholder,
owner or executive officer of any such Person, to the extent such extraordinary
salary, bonus or other form of compensation is not included in the corporate
overhead of such Credit Party or such Subsidiary and (g) any repurchase,
prepayment, redemption or acquisition of the Senior Unsecured Notes.
"Revolving Commitment" shall mean, with respect to each Revolving Lender,
the commitment of such Revolving Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding up to an amount equal to such Revolving
Lender's Revolving Commitment Percentage of the Revolving Committed Amount.
"Revolving Commitment Percentage" shall mean, for each Lender, the
percentage identified as its Revolving Commitment Percentage in its Lender
Commitment Letter or in the Assignment Agreement pursuant to which such Lender
became a Lender hereunder, as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 9.6(c).
"Revolving Committed Amount" shall have the meaning set forth in Section
2.1(a).
"Revolving Lender" shall mean, as of any date of determination, a Lender
holding a Revolving Commitment on such date.
"Revolving Loan" shall have the meaning set forth in Section 2.1.
"Revolving Note" or "Revolving Notes" shall mean the promissory notes of
the Borrower provided pursuant to Section 2.1(e) in favor of any of the
Revolving Lenders evidencing the Revolving Loan provided by any such Revolving
Lender pursuant to Section 2.1(a), individually or collectively, as appropriate,
as such promissory notes may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time.
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
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"Sanctioned Country" shall mean a country subject to a sanctions program
identified on the list maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as otherwise
published from time to time.
"Sanctioned Person" shall mean (i) a Person named on the list of
"Specially Designated Nationals and Blocked Persons" maintained by OFAC
available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or as
otherwise published from time to time, or (ii) (A) an agency of the government
of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country,
or (C) a person resident in a Sanctioned Country, to the extent subject to a
sanctions program administered by OFAC.
"Secured Hedging Agreement" shall mean any Hedging Agreement between a
Credit Party and a Hedging Agreement Provider, as amended, restated, amended and
restated, modified, supplemented or extended from time to time.
"Secured Hedging Obligations" shall mean, without duplication, all of the
obligations, indebtedness and liabilities of the Credit Parties to the Hedging
Agreement Providers, whenever arising, under the Secured Hedging Agreements,
including principal, interest, fees, premiums, scheduled periodic payments,
breakage, termination and other payments, reimbursements and indemnification
obligations and other amounts (including, but not limited to, any interest
accruing after the occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code).
"Secured Parties" shall mean the Administrative Agent, the Lenders and the
Hedging Agreement Providers.
"Security Agreement" shall mean the Amended and Restated Security
Agreement dated as of the Closing Date executed by the Credit Parties in favor
of the Administrative Agent, for the benefit of the Secured Parties, as amended,
restated, amended and restated, modified or supplemented from time to time in
accordance with its terms.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement, the Mortgage Instruments and all other agreements, documents and
instruments relating to, arising out of, or in any way connected with any of the
foregoing documents or granting to the Administrative Agent, Liens or security
interests to secure, inter alia, the Credit Party Obligations whether now or
hereafter executed and/or filed, each as may be amended from time to time in
accordance with the terms hereof, executed and delivered in connection with the
granting, attachment and perfection of the Administrative Agent's security
interests and liens arising thereunder, including, without limitation, UCC
financing statements.
"Senior Unsecured Notes" shall mean any of the 9% Senior Notes due 2015 in
an aggregate principal amount of $110,000,000, issued by the Borrower pursuant
to the Senior Unsecured Notes Indenture, and any registered notes issued by the
Borrower in exchange for, and as contemplated by any of the Senior Unsecured
Notes with similar terms as the Senior Unsecured Notes, as such Senior Unsecured
Notes may be supplemented, amended or otherwise modified from time to time to
the extent permitted hereunder.
"Senior Unsecured Notes Documents" shall mean the Senior Unsecured Notes,
the Senior Unsecured Notes Indenture, the Senior Unsecured Notes Guarantees, and
all other documents executed and delivered with respect to the foregoing.
"Senior Unsecured Notes Guarantees" shall mean the guarantees of the
guarantors pursuant to the Senior Unsecured Notes Indenture, as each may be
supplemented, amended or modified from time to time.
"Senior Unsecured Notes Indenture" shall mean that certain Indenture,
dated as of February 6, 2007, by and among the Borrower, the guarantors named
therein, and Xxxxx Fargo Bank, National Association, as trustee with respect to
the Senior Unsecured Notes, as supplemented, amended or otherwise modified from
time to time to the extent permitted hereunder.
"Single Employer Plan" shall mean any Plan that is not a Multiemployer
Plan.
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"Subordinated Debt" shall mean any Indebtedness (i) owing by a Credit
Party to another Credit Party or (ii) owing by a Credit Party to any other
Person which is unsecured and non-amortizing, and in each case by its terms or
pursuant to a separate subordination agreement is specifically subordinated in
right of payment to the prior payment of the Credit Party Obligations and
contains subordination and other terms reasonably acceptable to the
Administrative Agent.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, limited liability company, partnership or other entity are at
the time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Credit Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower. Xxxxxx Business Park Associates 1986-1, L.P., a Nevada limited
partnership, shall not be considered a Subsidiary for purposes of the Loan
Documents.
"Swingline Commitment" shall mean the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time outstanding
up to the Swingline Committed Amount, and the commitment of the Revolving
Lenders to purchase participation interests in the Swingline Loans as provided
in Section 2.3(b)(ii), as such amounts may be reduced from time to time in
accordance with the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the Swingline
Lender's Swingline Commitment as specified in Section 2.3(a).
"Swingline Lender" shall mean Wachovia and any successor in such capacity.
"Swingline Loan" shall have the meaning set forth in Section 2.3(a).
"Swingline Note" shall mean the promissory note of the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans provided pursuant to
Section 2.3(d), as such promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Taxes" shall have the meaning set forth in Section 2.17.
"Total Leverage Ratio" shall mean, as of the end of each fiscal quarter of
the Borrower, for the Borrower and its Subsidiaries on a consolidated basis for
the four consecutive quarters ending on such date, the ratio of (a) Consolidated
Funded Debt on the last day of such period to (b) Consolidated EBITDA for such
four fiscal quarter period.
"Trademark License" shall mean any written agreement providing for the
grant by or to a Person of any right to use any Trademark, including, without
limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement.
"Trademarks" shall mean (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, service marks,
elements of package or trade dress of goods or services, logos and other source
or business identifiers, together with the goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, including, without limitation, any thereof referred to in
Schedule 3.16 to this Credit Agreement, and (b) all renewals thereof including,
without limitation, any thereof referred to in Schedule 3.16.
"Tranche" shall mean the collective reference to LIBOR Rate Loans whose
Interest Periods begin and end on the same day.
"Transactions" shall mean the closing of this Agreement, the other Credit
Documents, the issuance of the Senior Unsecured Notes and the other transactions
contemplated hereby to occur in connection with such closing
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(including, without limitation, the initial borrowings under the Credit
Documents and the payment of fees and expenses in connection with all of the
foregoing).
"Transfer Effective Date" shall have the meaning set forth in each
Assignment Agreement.
"Type" shall mean, as to any Loan, its nature as an Alternate Base Rate
Loan or LIBOR Rate Loan, as the case may be.
"UCC" shall mean the Uniform Commercial Code from time to time in effect
in any applicable jurisdiction.
"Voting Stock" shall mean, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
may be or have been suspended by the happening of such a contingency.
"Wachovia" shall mean Wachovia Bank, National Association, a national
banking association, together with its successors and/or assigns.
"Works" shall mean all works which are subject to copyright protection
pursuant to Title 17 of the United States Code.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Credit Agreement shall have the defined meanings when used in the Notes or
other Credit Documents or any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Credit Agreement shall refer to this
Credit Agreement as a whole and not to any particular provision of this
Credit Agreement, and Section, subsection, Schedule and Exhibit references
are to this Credit Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 1.3 ACCOUNTING TERMS.
Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
Consolidated financial statements of the Borrower delivered to the Lenders;
provided that, if the Borrower shall notify the Administrative Agent that it
wishes amend the definitions of Consolidated EBITDA, Consolidated Interest
Expense, Consolidated Net Income, Consolidated Funded Debt, any definitions
incorporated in the foregoing defined terms or Section 5.9 to eliminate the
effect of any change in GAAP on the operation of any such definition or
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend any such definition or provision for such
purpose), then the Borrower's compliance with such provisions shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such
definition or provision is amended in a manner satisfactory to the Borrower and
the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender at
the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial
21
statements as to which no objection shall have been made in accordance with the
provisions above and (ii) a reasonable estimate of the effect on the financial
statements on account of such changes in application.
SECTION 1.4 RESOLUTION OF DRAFTING AMBIGUITIES.
Each Credit Party acknowledges and agrees that it was represented by
counsel in connection with the execution and delivery of this Credit Agreement
and the other Credit Documents to which it is a party, that it and its counsel
reviewed and participated in the preparation and negotiation hereof and thereof
and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
hereof or thereof.
SECTION 1.5 TIME REFERENCES.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
ARTICLE II
THE LOANS; AMOUNT AND TERMS
SECTION 2.1 REVOLVING LOANS.
(a) Revolving Commitment. During the Commitment Period, subject to
the terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans in Dollars ("Revolving Loans") to the Borrower
from time to time for the purposes hereinafter set forth; provided,
however, that (i) with regard to each Revolving Lender individually, the
sum of such Revolving Lender's Revolving Commitment Percentage of the
aggregate principal amount of outstanding Revolving Loans plus such
Revolving Lender's Revolving Commitment Percentage of outstanding
Swingline Loans plus such Revolving Lender's Revolving Commitment
Percentage of outstanding LOC Obligations shall not exceed such Revolving
Lender's Revolving Commitment and (ii) with regard to the Revolving
Lenders collectively, the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed
Amount then in effect. For purposes hereof, the aggregate principal amount
available hereunder for Revolving Loans shall be TWENTY MILLION DOLLARS
($20,000,000) (as such aggregate maximum amount may be reduced from time
to time as provided in Section 2.6, or as increased pursuant to Section
2.4, the "Revolving Committed Amount"). Revolving Loans may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof,
as the Borrower may request, and may be repaid and reborrowed in
accordance with the provisions hereof; provided, however, the Revolving
Loans made on the Closing Date may only consist of Alternate Base Rate
Loans unless the Borrower delivers a funding indemnity letter reasonably
acceptable to the Administrative Agent not less than three (3) Business
Days prior to the Closing Date. LIBOR Rate Loans shall be made by each
Revolving Lender at its LIBOR Lending Office and Alternate Base Rate Loans
at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by delivering a Notice of Borrowing (or
telephone notice promptly confirmed in writing by delivery of a
Notice of Borrowing, which delivery may be by fax) to the
Administrative Agent not later than 1:00 P.M. on the Business Day
prior to the date of the requested borrowing in the case of
Alternate Base Rate Loans, and on the third Business Day prior to
the date of the requested borrowing in the case of LIBOR Rate Loans.
Each such Notice of Borrowing shall be irrevocable
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and shall specify (A) that a Revolving Loan is requested, (B) the
date of the requested borrowing (which shall be a Business Day), (C)
the aggregate principal amount to be borrowed and (D) whether the
borrowing shall be comprised of Alternate Base Rate Loans, LIBOR
Rate Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. If the Borrower shall
fail to specify in any such Notice of Borrowing (1) an applicable
Interest Period in the case of a LIBOR Rate Loan, then such notice
shall be deemed to be a request for an Interest Period of one month,
or (2) the Type of Revolving Loan requested, then such notice shall
be deemed to be a request for an Alternate Base Rate Loan hereunder.
The Administrative Agent shall give notice to each Revolving Lender
promptly upon receipt of each Notice of Borrowing, the contents
thereof and each such Revolving Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan which is an
Alternate Base Rate Loan shall be in a minimum aggregate amount of
$500,000 and in integral multiples of $500,000 in excess thereof (or
the remaining amount of the Revolving Committed Amount, if less).
Each Revolving Loan which is a LIBOR Rate Loan shall be in a minimum
aggregate amount of $1,000,000 and in integral multiples of
$1,000,000 in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less).
(iii) Advances. Each Revolving Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available to
the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Section 9.2, or at
such other office as the Administrative Agent may designate in
writing, upon reasonable advance notice by 1:00 P.M. on the date
specified in the applicable Notice of Borrowing, in Dollars and in
funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and
in like funds as received by the Administrative Agent.
(c) Repayment. Subject to the terms of this Credit Agreement,
Revolving Loans may be borrowed, repaid and reborrowed during the
Commitment Period. The principal amount of all Revolving Loans shall be
due and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 7.2.
(d) Interest. Subject to the provisions of Section 2.8(b), Revolving
Loans shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as
Revolving Loans shall be comprised of Alternate Base Rate Loans,
each such Alternate Base Rate Loan shall bear interest at a per
annum rate equal to the sum of the Alternate Base Rate plus the
Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as Revolving Loans
shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan
shall bear interest at a per annum rate equal to the sum of the
LIBOR Rate plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each Interest
Payment Date.
(e) Revolving Notes; Covenant to Pay. Each Revolving Lender's
Revolving Commitment shall be evidenced, upon such Revolving Lender's
request, by a duly executed promissory note of the Borrower to such
Revolving Lender in substantially the form of Schedule 2.1(e). The
Borrower covenants and agrees to pay the Revolving Loans in accordance
with the terms of this Credit Agreement and the Revolving Note or
Revolving Notes.
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SECTION 2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require, during the Commitment Period the
Issuing Lender shall issue, and the Revolving Lenders shall participate
in, standby Letters of Credit for the account of the Borrower from time to
time upon request in a form reasonably acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC Obligations shall
not at any time exceed FIVE MILLION DOLLARS ($5,000,000) (the "LOC
Committed Amount"), (ii) the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not at any time exceed the Revolving
Committed Amount then in effect, (iii) all Letters of Credit shall be
denominated in Dollars and (iv) Letters of Credit shall be issued for any
lawful corporate purposes and may be issued as standby letters of credit,
including in connection with workers' compensation and other insurance
programs. Except as otherwise expressly agreed upon by all the Revolving
Lenders, no Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided, however, up to
$1,000,000 of Letters of Credit may have an original expiry date up to
five (5) years after issuance so long as any such Letter of Credit
extending beyond the Maturity Date shall be cash collateralized by the
date that is seven (7) Business Days prior to the Maturity Date or shall
be terminated by the Company prior to the Maturity Date. So long as no
Default or Event of Default has occurred and is continuing and subject to
the other terms and conditions to the issuance of Letters of Credit
hereunder, the expiry dates of Letters of Credit may be extended annually
or periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date not
more than twelve (12) months from the date of extension; provided,
further, that no Letter of Credit, as originally issued or as extended,
shall have an expiry date extending beyond the date that is thirty (30)
days prior to the Maturity Date. Each Letter of Credit shall comply with
the related LOC Documents. The issuance and expiry date of each Letter of
Credit shall be a Business Day. Any Letters of Credit issued hereunder
shall be in a minimum original face amount of $100,000 or such lesser
amount approved by the Issuing Lender.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least five (5) Business
Days prior to the requested date of issuance. The Issuing Lender will
promptly upon request provide to the Administrative Agent for
dissemination to the Revolving Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any activity
with respect thereto which may have occurred since the date of any prior
report, and including therein, among other things, the account party, the
beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred. The Issuing Lender will further
provide to the Administrative Agent promptly upon request copies of the
Letters of Credit. The Issuing Lender will provide to the Administrative
Agent promptly upon request a summary report of the nature and extent of
LOC Obligations then outstanding.
(c) Participations. Each Revolving Lender, upon issuance of a Letter
of Credit, shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its Revolving Commitment Percentage of the
obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its Revolving Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and nature
of each Revolving Lender's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required
hereunder or under any LOC Document, each such Revolving Lender shall pay
to the Issuing Lender its Revolving Commitment Percentage of such
unreimbursed drawing pursuant to and in accordance with the provisions of
subsection (d) hereof. The obligation of each Revolving Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall
not be affected by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the Issuing
Lender under any Letter of Credit, together with interest as hereinafter
provided.
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(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent. The Borrower shall reimburse the Issuing Lender on
the day of drawing under any Letter of Credit (either with the proceeds of
a Revolving Loan obtained hereunder or otherwise) in same day funds as
provided herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided herein, the unreimbursed amount
of such drawing shall bear interest at a per annum rate equal to the ABR
Default Rate. Unless the Borrower shall immediately notify the Issuing
Lender and the Administrative Agent of its intent to otherwise reimburse
the Issuing Lender, the Borrower shall be deemed to have requested a
Mandatory LOC Borrowing in the amount of the drawing as provided in
subsection (e) hereof, the proceeds of which will be used to satisfy the
Reimbursement Obligations. The Borrower's Reimbursement Obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or defense to payment
the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense
based on any failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit. The Issuing Lender will promptly notify the other Revolving
Lenders of the amount of any unreimbursed drawing and each Revolving
Lender shall promptly pay to the Administrative Agent for the account of
the Issuing Lender, in Dollars and in immediately available funds, the
amount of such Revolving Lender's Revolving Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Revolving Lender from the Issuing Lender if such notice
is received at or before 2:00 P.M., otherwise such payment shall be made
at or before 12:00 Noon on the Business Day next succeeding the day such
notice is received. If such Revolving Lender does not pay such amount to
the Issuing Lender in full upon such request, such Revolving Lender shall,
on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of
such drawing until such Revolving Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Effective Rate and
thereafter at a rate equal to the Alternate Base Rate. Each Revolving
Lender's obligation to make such payment to the Issuing Lender, and the
right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the Credit Party Obligations hereunder and shall be
made without any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan
to reimburse a drawing under a Letter of Credit, the Administrative Agent
shall give notice to the Revolving Lenders that a Revolving Loan has been
requested or deemed requested in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans (each such borrowing, a "Mandatory LOC
Borrowing") shall be made (without giving effect to any termination of the
Commitments pursuant to Section 7.2) pro rata based on each Revolving
Lender's respective Revolving Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to Section
7.2) and the proceeds thereof shall be paid directly to the Issuing Lender
for application to the respective LOC Obligations. Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans on the day such
notice is received by the Revolving Lenders from the Administrative Agent
if such notice is received at or before 2:00 P.M., otherwise such payment
shall be made at or before 12:00 Noon on the Business Day next succeeding
the day such notice is received, in each case notwithstanding (i) the
amount of Mandatory LOC Borrowing may not comply with the minimum amount
for borrowings of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure for any
such request or deemed request for Revolving Loan to be made by the time
otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC
Borrowing, or (vi) any reduction in the Revolving Committed Amount after
any such Letter of Credit may have been drawn upon. In the event that any
Mandatory LOC Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of
the occurrence of a Bankruptcy Event), then each such Revolving Lender
hereby agrees that it shall forthwith fund (as of the date the Mandatory
LOC Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) its
25
Participation Interests in the outstanding LOC Obligations; provided,
further, that in the event any Revolving Lender shall fail to fund its
Participation Interest on the day the Mandatory LOC Borrowing would
otherwise have occurred, then the amount of such Revolving Lender's
unfunded Participation Interest therein shall bear interest payable by
such Revolving Lender to the Issuing Lender upon demand, at the rate equal
to, if paid within two (2) Business Days of such date, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) ISP98 and UCP. Unless otherwise expressly agreed by the Issuing
Lender and the Borrower, when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998," as most recently published
by the Institute of International Banking Law & Practice at the time of
issuance shall apply to each standby Letter of Credit, and (ii) the rules
of The Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance, shall apply to each commercial Letter of Credit.
(h) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any letter
of credit application), this Credit Agreement shall control.
(i) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including
without limitation Section 2.2(a), a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit is issued for
the account of a Subsidiary of the Borrower; provided that,
notwithstanding such statement, the Borrower shall be the actual account
party for all purposes of this Credit Agreement for such Letter of Credit
and such statement shall not affect the Borrower's Reimbursement
Obligations hereunder with respect to such Letter of Credit.
SECTION 2.3 SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. During the Commitment Period, subject to
the terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans to the Borrower
(each a "Swingline Loan" and, collectively, the "Swingline Loans") for the
purposes hereinafter set forth; provided, however, (i) the aggregate
amount of Swingline Loans outstanding at any time shall not exceed THREE
MILLION DOLLARS ($3,000,000) (the "Swingline Committed Amount"), and (ii)
the sum of the aggregate principal amount of outstanding Revolving Loans
plus outstanding Swingline Loans plus outstanding LOC Obligations shall
not exceed the Revolving Committed Amount. Swingline Loans hereunder may
be repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. Upon receiving a
Notice of Borrowing from the Borrower not later than 2:00 P.M. on
any Business Day requesting that a Swingline Loan be made, the
Swingline Lender will make Swingline Loans available to the Borrower
on the same Business Day such request is received by the
Administrative Agent. Swingline Loan borrowings hereunder shall be
made in minimum amounts of $100,000 (or the remaining available
amount of the Swingline Committed Amount if less) and in integral
amounts of $100,000 in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline Loan
borrowing shall be due and payable on the Maturity Date. The
Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Administrative Agent, demand
repayment of its Swingline Loans by way of a Revolving Loan
borrowing, in which case the Borrower shall be deemed to have
requested a Revolving Loan borrowing comprised entirely of Alternate
Base Rate
26
Loans in the amount of such Swingline Loans; provided, however,
that, in the following circumstances, any such demand shall also be
deemed to have been given one Business Day prior to each of (A) the
Maturity Date, (B) the occurrence of any Bankruptcy Event, (C) upon
acceleration of the Credit Party Obligations hereunder, whether on
account of a Bankruptcy Event or any other Event of Default, and (D)
the exercise of remedies in accordance with the provisions of
Section 7.2 hereof (each such Revolving Loan borrowing made on
account of any such deemed request therefor as provided herein being
hereinafter referred to as "Mandatory Swingline Borrowing"). Each
Revolving Lender hereby irrevocably agrees to make such Revolving
Loans promptly upon any such request or deemed request on account of
each Mandatory Swingline Borrowing in the amount and in the manner
specified in the preceding sentence on the date such notice is
received by the Revolving Lenders from the Administrative Agent if
such notice is received at or before 2:00 P.M., otherwise such
payment shall be made at or before 12:00 Noon on the Business Day
next succeeding the date such notice is received notwithstanding (1)
the amount of Mandatory Swingline Borrowing may not comply with the
minimum amount for borrowings of Revolving Loans otherwise required
hereunder, (2) whether any conditions specified in Section 4.2 are
then satisfied, (3) whether a Default or an Event of Default then
exists, (4) failure of any such request or deemed request for
Revolving Loans to be made by the time otherwise required in Section
2.1(b)(i), (5) the date of such Mandatory Swingline Borrowing, or
(6) any reduction in the Revolving Committed Amount or termination
of the Revolving Commitments immediately prior to such Mandatory
Swingline Borrowing or contemporaneously therewith. In the event
that any Mandatory Swingline Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy
Code), then each Revolving Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Swingline Borrowing
would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each such
Revolving Lender to share in such Swingline Loans ratably based upon
its respective Revolving Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to
Section 7.2); provided that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is
purchased, and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Revolving
Lender shall be required to pay to the Swingline Lender interest on
the principal amount of such participation purchased for each day
from and including the day upon which the Mandatory Swingline
Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if paid within
two (2) Business Days of the date of the Mandatory Swingline
Borrowing, the Federal Funds Effective Rate, and thereafter at a
rate equal to the Alternate Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions of
Section 2.8(b), Swingline Loans shall bear interest at a per annum rate
equal to the Alternate Base Rate plus the Applicable Percentage for
Revolving Loans that are Alternate Base Rate Loans. Interest on Swingline
Loans shall be payable in arrears on each Interest Payment Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in the
original amount of the Swingline Committed Amount and substantially in the
form of Schedule 2.3(d).
SECTION 2.4 INCREMENTAL FACILITIES.
Subject to the terms and conditions set forth herein, the Borrower
shall have the right, from time to time prior to the date that is three
years following the Closing Date, to incur additional Indebtedness under
this Credit Agreement in the form of an increase to the Aggregate
Revolving Committed Amount (the "Incremental Revolving Facility") by the
amount of up to TWENTY MILLION DOLLARS ($20,000,000). The following terms
and conditions shall apply to the Incremental Revolving Facility: (a)
27
the loans made under the Incremental Revolving Facility (each an
"Additional Revolving Loan") shall constitute Credit Party Obligations and
will be secured and guaranteed with the other Credit Party Obligations on
a pari passu basis, (b) the Incremental Revolving Facility shall have the
same terms (including interest rate and maturity date) as the existing
Revolving Loans, (c) any such Incremental Revolving Facility shall be in a
minimum principal amount of $2,500,000 and integral multiples of $500,000
in excess thereof, (d) the Incremental Revolving Facility shall be
entitled to the same voting rights as the existing Revolving Loans and
shall be entitled to receive proceeds of prepayments on the same basis as
the existing Revolving Loans, (e) the Incremental Revolving Facility shall
be obtained from existing Lenders or from other banks, financial
institutions or investment funds, in each case in accordance with the
terms set forth below, (f) the proceeds of the Additional Revolving Loan
will be used for the purposes set forth in Section 3.11, (g) the Borrower
shall execute a Revolving Note in favor of any new Lender or any existing
Lender requesting a Revolving Note whose Revolving Committed Amount is
increased, (h) the conditions to Extensions of Credit in Section 4.2 shall
have been satisfied, (i) no Default or Event of Default shall exist and
(j) if the amount of such Incremental Revolving Facility is greater than
$5,000,000, the Administrative Agent shall have received from the Borrower
updated financial projections and an officer's certificate, in each case
in form and substance reasonably satisfactory to the Administrative Agent,
demonstrating that, after giving effect to the Incremental Revolving
Facility on a Pro Forma Basis, the Borrower will be in compliance with the
financial covenants set forth in Section 5.9 (calculated as of the last
day of the most recent fiscal quarter as to which financial statements
have become available). Participation in the Incremental Revolving
Facility shall be offered first to each of the existing Lenders, but each
such Lender shall have no obligation to provide all or any portion of the
Incremental Revolving Facility. If the amount of the Incremental Revolving
Facility shall exceed the commitments which the existing Lenders are
willing to provide with respect to the Incremental Revolving Facility,
then the Borrower may invite other banks, financial institutions and
investment funds reasonably acceptable to the Administrative Agent to join
this Credit Agreement as Lenders hereunder for the portion of the
Incremental Revolving Facility not taken by existing Lenders, provided
that such other banks, financial institutions and investment funds shall
enter into such joinder agreements to give effect thereto as the
Administrative Agent may reasonably request. The Administrative Agent is
authorized to enter into, on behalf of the Lenders, any amendment to this
Credit Agreement or any other Credit Document as may be necessary to
incorporate the terms of the Incremental Revolving Facility therein.
SECTION 2.5 FEES.
(a) Commitment Fee. In consideration of the Revolving Commitments,
the Borrower agrees to pay to the Administrative Agent, for the ratable
benefit of the Revolving Lenders, a commitment fee (the "Commitment Fee")
in an amount equal to the Applicable Percentage per annum on the average
daily unused amount of the Revolving Committed Amount. For purposes of
computation of the Commitment Fee, LOC Obligations shall be considered
usage but Swingline Loans shall not be considered usage of the Revolving
Committed Amount. The Commitment Fee shall be payable quarterly in arrears
on the last Business Day of each calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC Commitments,
the Borrower agrees to pay to the Administrative Agent, for the ratable
benefit of the Revolving Lenders, a fee (the "Letter of Credit Fee") equal
to the Applicable Percentage for Revolving Loans that are LIBOR Rate Loans
per annum on the average daily maximum amount available to be drawn under
each Letter of Credit from the date of issuance to the date of expiration.
The Letter of Credit Fee shall each be payable quarterly in arrears on the
last Business Day of each calendar quarter.
(c) Issuing Lender Fees. In addition to the Letter of Credit Fees
payable pursuant to subsection (b) hereof, the Borrower shall pay to the
Issuing Lender for its own account without sharing by the other Lenders
the reasonable and customary charges from time to time of the Issuing
Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees"). The Issuing Lender may charge,
and retain for its own account without sharing by the other Lenders, an
additional facing fee (the "Letter of Credit
28
Facing Fee") of one-quarter of one percent (0.25%) per annum on the
average daily maximum amount available to be drawn under each such Letter
of Credit issued by it. The Issuing Lender Fees and the Letter of Credit
Facing Fee shall be payable quarterly in arrears on the last Business Day
of each calendar quarter.
(d) Administrative Fee. The Borrower agrees to pay to the
Administrative Agent the annual administrative fee as described in the Fee
Letter.
SECTION 2.6 COMMITMENT REDUCTIONS.
(a) Voluntary Reductions. The Borrower shall have the right to
terminate or permanently reduce the unused portion of the Revolving
Committed Amount at any time or from time to time upon not less than five
(5) Business Days' prior written notice to the Administrative Agent (which
shall notify the Lenders thereof as soon as practicable) of each such
termination or reduction, which notice shall specify the effective date
thereof and the amount of any such reduction which shall be in a minimum
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall be irrevocable and effective upon receipt by the Administrative
Agent; provided that no such reduction or termination shall be permitted
if after giving effect thereto, and to any prepayments of the Revolving
Loans made on the effective date thereof, the sum of the aggregate
principal amount of outstanding Revolving Loans plus outstanding Swingline
Loans plus outstanding LOC Obligations would exceed the Revolving
Committed Amount then in effect.
(b) Swingline Committed Amount. If the Revolving Committed Amount is
reduced pursuant to Section 2.7(a) below the then current Swingline
Committed Amount, the Swingline Committed Amount shall automatically be
reduced by an amount such that the Swingline Committed Amount equals the
Revolving Committed Amount.
(c) Maturity Date. The Revolving Commitments, the Swingline
Commitment and the LOC Commitment shall automatically terminate on the
Maturity Date.
SECTION 2.7 REPAYMENTS.
(a) Optional Repayments. The Borrower shall have the right to repay
Loans in whole or in part from time to time; provided, however, that each
partial repayment of a Revolving Loan shall be in a minimum principal
amount of $500,000 and integral multiples of $500,000 in excess thereof
(or the remaining outstanding principal amount), and each partial
repayment of a Swingline Loan shall be in a minimum principal amount of
$100,000 and integral multiples of $100,000 in excess thereof (or the
remaining outstanding principal amount). The Borrower shall give three
Business Days' irrevocable notice in the case of LIBOR Rate Loans and
same-day irrevocable notice on any Business Day in the case of Alternate
Base Rate Loans, to the Administrative Agent (which shall notify the
Lenders thereof as soon as practicable). Within the foregoing parameters,
amounts paid under this Section 2.7(a) shall be applied first to Alternate
Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest
Period maturities. All payments under this Section 2.7(a) shall be subject
to Section 2.16, but otherwise without premium or penalty. Interest on the
principal amount repaid shall be payable on the next occurring Interest
Payment Date that would have occurred had such loan not been repaid or, at
the request of the Administrative Agent, interest on the principal amount
repaid shall be payable on any date that a repayment is made hereunder
through the date of repayment. Amounts repaid on the Revolving Loans and
the Swingline Loans may be reborrowed in accordance with the terms hereof.
(b) Mandatory Repayments.
(i) Revolving Committed Amount. If at any time after the
Closing Date, the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall exceed the Revolving Committed
Amount, the Borrower
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shall immediately repay the Loans in an amount sufficient to
eliminate such excess (such repayment to be applied as set forth in
clause (ii) below).
(ii) Application of Mandatory Repayments. All amounts required
to be paid pursuant to this Section 2.7(b) shall be applied first to
the Swingline Loans (without a corresponding reduction of the
Swingline Committed Amount) and (2) second to the Revolving Loans
(without a corresponding reduction of the Revolving Committed
Amount). Within the parameters of the applications set forth above,
repayments shall be applied first to Alternate Base Rate Loans and
then to LIBOR Rate Loans in direct order of Interest Period
maturities. All repayments under this Section 2.7(b) shall be
subject to Section 2.16 and be accompanied by interest on the
principal amount prepaid through the date of repayment.
Notwithstanding the terms of this subsection (B) to the contrary, so
long as (x) no Default or Event of Default exists and (y) the amount
of any repayments required under Sections 2.7(b)(ii)-(vi) has been
transferred to the Administrative Agent to be held by it as
Collateral pursuant to the terms of the Security Agreement, at the
election of the Borrower, if there are not sufficient Alternate Base
Rate Loans outstanding to effect any repayment required under
Section 2.7(b)(ii), such repayment may be deferred until the end of
the Interest Period of any LIBOR Rate Loan being prepaid, in respect
of the amount of such repayment which would otherwise be required to
be used to repay such LIBOR Rate Loan (after giving effect to any
repayment of outstanding Alternate Base Rate Loans).
SECTION 2.8 DEFAULT RATE AND PAYMENT DATES.
(a) If all or a portion of the principal amount of any Loan which is
a LIBOR Rate Loan shall not be paid when due or continued as a LIBOR Rate
Loan in accordance with the provisions of Section 2.9 (whether at the
stated maturity, by acceleration or otherwise), such overdue principal
amount of such Loan shall be converted to an Alternate Base Rate Loan at
the end of the Interest Period applicable thereto.
(b) (i) If all or a portion of the principal amount of any LIBOR
Rate Loan shall not be paid when due, such overdue amount shall bear
interest at a rate per annum which is equal to the rate that would
otherwise be applicable thereto plus 2%, until the end of the Interest
Period applicable thereto, and thereafter at a rate per annum which is
equal to the Alternate Base Rate plus the sum of the Applicable Percentage
then in effect for Alternate Base Rate Loans and 2% (the "ABR Default
Rate") or (ii) if any interest payable on the principal amount of any Loan
or any fee or other amount, including the principal amount of any
Alternate Base Rate Loan, payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum which is equal to
the ABR Default Rate, in each case from the date of such non-payment until
such amount is paid in full (after as well as before judgment). Upon the
occurrence, and during the continuance, of any other Event of Default
hereunder, at the option of the Required Lenders, the principal of and, to
the extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear interest,
payable on demand, at a per annum rate which is (A) in the case of
principal, the rate that would otherwise be applicable thereto plus 2% or
(B) in the case of interest, fees or other amounts, the ABR Default Rate
(after as well as before judgment).
(c) Interest on each Loan shall be payable in arrears on each
Interest Payment Date; provided that interest accruing pursuant to
paragraph (b) of this Section 2.8 shall be payable from time to time on
demand.
SECTION 2.9 CONVERSION OPTIONS.
(a) The Borrower may, in the case of Revolving Loans, elect from
time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans, by
delivering a Notice of Conversion/Extension to the Administrative Agent at
least three (3) Business Days prior to the proposed date of conversion. In
addition, the Borrower may elect from time to time to convert all or any
portion of a LIBOR Rate Loan to an
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Alternate Base Rate Loan by giving the Administrative Agent irrevocable
written notice thereof by 1:00 P.M. one Business Day prior to the proposed
date of conversion. If the date upon which an Alternate Base Rate Loan is
to be converted to a LIBOR Rate Loan is not a Business Day, then such
conversion shall be made on the next succeeding Business Day and during
the period from such last day of an Interest Period to such succeeding
Business Day such Loan shall bear interest as if it were an Alternate Base
Rate Loan. LIBOR Rate Loans may only be converted to Alternate Base Rate
Loans on the last day of the applicable Interest Period. If the date upon
which a LIBOR Rate Loan is to be converted to an Alternate Base Rate Loan
is not a Business Day, then such conversion shall be made on the next
succeeding Business Day and during the period from such last day of an
Interest Period to such succeeding Business Day such Loan shall bear
interest as if it were an Alternate Base Rate Loan. All or any part of
outstanding Alternate Base Rate Loans may be converted as provided herein;
provided that (i) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing and (ii)
partial conversions shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. All or any
part of outstanding LIBOR Rate Loans may be converted as provided herein;
provided that partial conversions shall be in an aggregate principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in Section 2.9(a); provided,
that no LIBOR Rate Loan may be continued as such when any Default or Event
of Default has occurred and is continuing, in which case such Loan shall
be automatically converted to an Alternate Base Rate Loan at the end of
the applicable Interest Period with respect thereto. If the Borrower shall
fail to give timely notice of an election to continue a LIBOR Rate Loan,
or the continuation of LIBOR Rate Loans is not permitted hereunder, such
LIBOR Rate Loans shall be automatically converted to Alternate Base Rate
Loans at the end of the applicable Interest Period with respect thereto.
SECTION 2.10 COMPUTATION OF INTEREST AND FEES; USURY.
(a) Interest payable hereunder with respect to any Alternate Base
Rate Loan based on the Prime Rate shall be calculated on the basis of a
year of 365 days (or 366 days, as applicable) for the actual days elapsed.
All other fees, interest and all other amounts payable hereunder shall be
calculated on the basis of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of each determination of a LIBOR Rate on the Business Day of
the determination thereof. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate shall become effective
as of the opening of business on the day on which such change in the
Alternate Base Rate shall become effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Credit Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the computations
used by the Administrative Agent in determining any interest rate.
(c) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this subsection
which shall override and control all such agreements, whether now existing
or hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any Credit Party Obligation), shall the
interest taken, reserved, contracted for, charged, or received under this
Credit Agreement, under the Notes or otherwise, exceed the maximum
nonusurious amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum nonusurious
amount, any such construction shall be subject to the provisions of this
paragraph and such interest shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the necessity
of
31
execution of any amendment or new document. If any Lender shall ever
receive anything of value which is characterized as interest on the Loans
under applicable law and which would, apart from this provision, be in
excess of the maximum nonusurious amount, an amount equal to the amount
which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on the Loans and
not to the payment of interest, or refunded to the Borrower or the other
payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to
demand payment of the Loans or any other Indebtedness evidenced by any of
the Credit Documents does not include the right to receive any interest
which has not otherwise accrued on the date of such demand, and the
Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the
Lenders with respect to the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout
the full stated term (including any renewal or extension) of the Loans so
that the amount of interest on account of such Indebtedness does not
exceed the maximum nonusurious amount permitted by applicable law.
SECTION 2.11 PRO RATA TREATMENT AND PAYMENTS.
(a) Allocation of Payments Prior to Exercise of Remedies. Each
borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective Revolving
Commitment Percentages of the Revolving Lenders. Unless otherwise required
by the terms of this Credit Agreement, each payment under this Credit
Agreement or any Note shall be applied, first, to any fees then due and
owing by the Borrower pursuant to Section 2.5, second, to interest then
due and owing hereunder and under the Notes of the Borrower and, third, to
principal then due and owing hereunder and under the Notes of the
Borrower. Each payment on account of any fees pursuant to Section 2.5
shall be made pro rata in accordance with the respective amounts due and
owing (except as to the Letter of Credit Facing Fees and the Issuing
Lender Fees). Each payment (other than prepayments) by the Borrower on
account of principal of and interest on the Revolving Loans shall be
applied to such Loans on a pro rata basis in accordance with the terms of
Section 2.7(a) hereof. Each optional repayment on account of principal of
the Loans shall be applied in accordance with Section 2.7(a). Each
mandatory repayment on account of principal of the Loans shall be applied
in accordance with Section 2.7(b). All payments (including prepayments) to
be made by the Borrower on account of principal, interest and fees shall
be made without defense, set-off or counterclaim (except as provided in
Section 2.17(b)) and shall be made to the Administrative Agent for the
account of the Lenders at the Administrative Agent's office specified on
Section 9.2 in Dollars and in immediately available funds not later than
1:00 P.M. on the date when due. The Administrative Agent shall distribute
such payments to the Lenders entitled thereto promptly upon receipt in
like funds as received. If any payment hereunder (other than payments on
the LIBOR Rate Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension. If any
payment on a LIBOR Rate Loan becomes due and payable on a day other than a
Business Day, such payment date shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
(b) Allocation of Payments After Exercise of Remedies.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the exercise of remedies (other than the invocation of
default interest pursuant to Section 2.8(b)) by the Administrative Agent
or the Lenders pursuant to Section 7.2 (or after the Commitments shall
automatically terminate and the Loans (with accrued interest thereon) and
all other amounts under the Credit Documents (including without limitation
the maximum amount of all contingent liabilities under Letters of Credit)
shall automatically become due and payable in accordance with the terms of
such Section), all amounts collected or received by the Administrative
Agent or any Lender on account of the Credit Party Obligations or any
other amounts outstanding under any of the Credit Documents or in respect
of the Collateral shall be paid over or delivered as follows (irrespective
of whether the following costs, expenses, fees, interest, premiums,
scheduled periodic payments or Credit Party Obligations are allowed,
permitted or recognized as a claim in any proceeding resulting from the
occurrence of a Bankruptcy Event):
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FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys'
fees) of the Administrative Agent in connection with enforcing the
rights of the Lenders under the Credit Documents and any protective
advances made by the Administrative Agent with respect to the
Collateral under or pursuant to the terms of the Security Documents;
SECOND, to the payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the Credit
Party Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest, and including, with respect
to any Secured Hedging Agreement, any fees, premiums and scheduled
periodic payments due under such Secured Hedging Agreement and any
interest accrued thereon;
FIFTH, to the payment of the outstanding principal amount of
the Credit Party Obligations and the payment or cash
collateralization of the outstanding LOC Obligations, and including
with respect to any Secured Hedging Agreement, any breakage,
termination or other payments due under such Secured Hedging
Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to clauses "FIRST"
through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender bears to the
aggregate then outstanding Loans and LOC Obligations) of amounts available
to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH"
above; and (iii) to the extent that any amounts available for distribution
pursuant to clause "FIFTH" above are attributable to the issued but
undrawn amount of outstanding Letters of Credit, such amounts shall be
held by the Administrative Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in
this Section 2.11. Notwithstanding the foregoing terms of this Section
2.11, only Collateral proceeds and payments under the Guaranty (as opposed
to ordinary course principal, interest and fee payments hereunder) shall
be applied to obligations under any Secured Hedging Agreement.
SECTION 2.12 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
(a) Unless the Administrative Agent shall have been notified in
writing by a Lender prior to the date a Loan is to be made by such Lender
(which notice shall be effective upon receipt) that such Lender does not
intend to make the proceeds of such Loan available to the Administrative
Agent, the Administrative Agent may assume that such Lender has made such
proceeds available to the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption (but shall not
be required to) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the
33
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount
is recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal
Funds Effective Rate.
(b) Unless the Administrative Agent shall have been notified in
writing by the Borrower, prior to the date on which any payment is due
from the Borrower hereunder (which notice shall be effective upon receipt)
that the Borrower does not intend to make such payment, the Administrative
Agent may assume that the Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but shall not
be required to) make available to each Lender on such payment date an
amount equal to the portion of such assumed payment to which such Lender
is entitled hereunder, and if the Borrower has not in fact made such
payment to the Administrative Agent, such Lender shall, on demand, repay
to the Administrative Agent the amount made available to such Lender. If
such amount is repaid to the Administrative Agent on a date after the date
such amount was made available to such Lender, such Lender shall pay to
the Administrative Agent on demand interest on such amount in respect of
each day from the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is recovered
by the Administrative Agent at a per annum rate equal to the Federal Funds
Effective Rate.
(c) A certificate of the Administrative Agent submitted to the
Borrower or any Lender with respect to any amount owing under this Section
2.12 shall be conclusive in the absence of manifest error.
SECTION 2.13 INABILITY TO DETERMINE INTEREST RATE.
Notwithstanding any other provision of this Credit Agreement, if (i) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining LIBOR for such Interest Period, or (ii) the Required Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the
cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested
be outstanding as a LIBOR Tranche during such Interest Period, the
Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Alternate Base Rate Loans and any Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
SECTION 2.14 ILLEGALITY.
Notwithstanding any other provision of this Credit Agreement, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by the relevant Governmental Authority to any Lender shall
make it unlawful for such Lender or its LIBOR Lending Office to make or maintain
LIBOR Rate Loans as contemplated by this Credit Agreement or to obtain in the
interbank eurodollar market through its LIBOR Lending Office the funds with
which to make such Loans, (a) such Lender shall promptly notify the
Administrative Agent and the Borrower thereof, (b) the commitment of such Lender
hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall
forthwith be suspended until the Administrative Agent shall give notice that the
condition or situation which gave rise to the suspension shall no longer exist,
and (c) such Lender's Loans then outstanding as LIBOR Rate Loans, if any, shall
be converted on the last day of the Interest Period for such
34
Loans or within such earlier period as required by law as Alternate Base Rate
Loans. The Borrower hereby agrees promptly to pay any Lender, upon its demand,
any additional amounts necessary to compensate such Lender for actual and direct
costs (but not including anticipated profits) reasonably incurred by such Lender
in making any repayment in accordance with this Section including, but not
limited to, any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the Borrower
shall be conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided, however, that such efforts shall not cause
the imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its sole discretion to be material.
SECTION 2.15 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date
hereof:
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit or any application
relating thereto, any LIBOR Rate Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof
(except for changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBOR Rate hereunder;
or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit
or the Participation Interests therein or to reduce any amount receivable
hereunder or under any Note, then, in any such case, the Credit Parties
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced
amount receivable which such Lender reasonably deems to be material as
determined by such Lender with respect to its LIBOR Rate Loans or Letters
of Credit. A certificate as to any additional amounts payable pursuant to
this Section submitted by such Lender, through the Administrative Agent,
to the Borrower shall be conclusive in the absence of manifest error. Each
Lender agrees to use reasonable efforts (including reasonable efforts to
change its Domestic Lending Office or LIBOR Lending Office, as the case
may be) to avoid or to minimize any amounts which might otherwise be
payable pursuant to this paragraph of this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such Lender to
be material.
(b) If any Lender shall have reasonably determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or compliance by such Lender
or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from
any central bank or Governmental Authority made subsequent to the date
hereof does or shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed
by such Lender to be material, then from time to time, within fifteen (15)
days after demand by such Lender, the Credit Parties shall pay to such
Lender such additional amount as shall be certified by such Lender as
being required to compensate it for such reduction. Such a
35
certificate as to any additional amounts payable under this Section
submitted by a Lender (which certificate shall include a description of
the basis for the computation), through the Administrative Agent, to the
Borrower shall be conclusive absent manifest error.
(c) The Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section for any additional
amount incurred more than ninety (90) days after the Lender obtains
knowledge of the change in law giving rise to such additional amount and
of such Lender's intention to claim compensation therefor (except that, if
the change in law giving rise to such additional amount is retroactive,
then the ninety (90) day period referred to above shall be extended to
include the period of retroactive effect thereof).
(d) The agreements in this Section 2.15 shall survive the
termination of this Credit Agreement and payment of the Credit Party
Obligations.
SECTION 2.16 INDEMNITY.
The Credit Parties hereby agree to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in payment of the
principal amount of or interest on any Loan by such Lender in accordance with
the terms hereof, (b) default by the Borrower in accepting a borrowing after the
Borrower has given a notice in accordance with the terms hereof, (c) default by
the Borrower in making any prepayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
prepayment of a Loan, or the conversion thereof, on a day which is not the last
day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain its Loans
hereunder (but excluding loss of margin). A certificate as to any additional
amounts payable pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be delivered to
the Administrative Agent within thirty days following such default, prepayment
or conversion) shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive termination of this Credit Agreement
and payment of the Credit Party Obligations.
SECTION 2.17 TAXES.
(a) All payments made by the Credit Parties hereunder or under any
Note shall be, except as provided in Section 2.17(b), made free and clear
of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any Governmental Authority or by any
political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding any tax imposed on or measured by the net
income or profits of a Lender pursuant to the laws of the jurisdiction in
which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities
with respect thereto (all such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively
as "Taxes"). If any Taxes are so levied or imposed, the Credit Parties
agree to pay the full amount of such Taxes, and such additional amounts as
may be necessary so that every payment of all amounts due under this
Credit Agreement or under any Note, after withholding or deduction for or
on account of any Taxes, will not be less than the amount provided for
herein or in such Note. The Credit Parties will furnish to the
Administrative Agent as soon as practicable after the date the payment of
any Taxes is due pursuant to applicable law certified copies (to the
extent reasonably available and required by law) of tax receipts
evidencing such payment by the Credit Parties. The Credit Parties agree to
indemnify and hold harmless each Lender, and reimburse such Lender upon
its written request, for the amount of any Taxes so levied or imposed and
paid by such Lender, except for, in the event such Lender or the
Administrative Agent fails to deliver notice of any assertion of Taxes to
the Borrower within ninety (90) days after it has knowledge of such
assertion or imposition of Taxes, any penalties, interest or expenses
which would not have arisen but for the failure of the Lender or the
Administrative Agent to so notify the Borrower of such assertion or
imposition of Taxes.
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(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Closing Date, or
in the case of a Lender that is an assignee or transferee of an interest
under this Credit Agreement pursuant to Section 9.6(d) (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to
such Lender two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN or W-8ECI (or successor or other necessary or
appropriate forms) certifying such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to
be made under this Credit Agreement and under any Note. In addition, each
Lender agrees that it will deliver upon the Borrower's request updated
versions of the foregoing, as applicable, whenever the previous
certification has become obsolete or inaccurate in any material respect,
together with such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under
this Credit Agreement and any Note. Notwithstanding anything to the
contrary contained in Section 2.17(a), but subject to the immediately
succeeding sentence, (A) the Borrower shall be entitled, to the extent it
is required to do so by law, to deduct or withhold Taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the
account of any Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes to the extent that such Lender has not provided to the Borrower
U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (B) the Borrower shall not be
obligated pursuant to Section 2.17(a) hereof to gross-up payments to be
made to a Lender in respect of Taxes imposed by the United States if (I)
such Lender has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section
2.17(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such Taxes.
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 2.17, the Credit Parties agree to
pay additional amounts and to indemnify each Lender in the manner set
forth in Section 2.17(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Closing Date in
any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR Lending
Office, as the case may be) to avoid or to minimize any amounts which
might otherwise be payable pursuant to this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such Lender in
its sole discretion to be material.
(d) If the Credit Parties pay any additional amount pursuant to this
Section 2.17 with respect to a Lender, such Lender shall use reasonable
efforts to obtain a refund of tax or credit against its tax liabilities on
account of such payment; provided that such Lender shall have no
obligation to use such reasonable efforts if either (i) it is in an excess
foreign tax credit position or (ii) it believes in good faith, in its sole
discretion, that claiming a refund or credit would cause adverse tax
consequences to it. In the event that such Lender receives such a refund
or credit, such Lender shall pay to the Credit Parties an amount that such
Lender reasonably determines is equal to the net tax benefit obtained by
such Lender as a result of such payment by the Credit Parties. In the
event that no refund or credit is obtained with respect to the Credit
Parties' payments to such Lender pursuant to this Section 2.17, then such
Lender shall upon request provide a certification that such Lender has not
received a refund or credit for such payments. Nothing contained in this
Section 2.17 shall require a Lender to disclose or detail the basis of its
calculation of the amount of any tax benefit or any other amount or the
basis of its determination referred to in the proviso to the first
sentence of this Section 2.17 to the Credit Parties or any other party.
(e) The agreements in this Section 2.17 shall survive the
termination of this Credit Agreement and the payment of the Credit Party
Obligations.
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SECTION 2.18 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
(a) In addition to its other obligations under Section 2.2, the
Credit Parties hereby agree to protect, indemnify, pay and save the
Issuing Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit or (ii) the failure of the Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority (all such acts or omissions, herein
called "Government Acts").
(b) As between the Credit Parties and the Issuing Lender, the Credit
Parties shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Lender shall not
be responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of the
beneficiary of a Letter of Credit to comply fully with conditions required
in order to draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds
thereof; and (vii) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Lender, under or in connection with any Letter of Credit or
the related certificates, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not put such Issuing Lender under
any resulting liability to the Credit Parties. It is the intention of the
parties that this Credit Agreement shall be construed and applied to
protect and indemnify the Issuing Lender against any and all risks
involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Credit Parties, including, without limitation, any
and all risks of the acts or omissions, whether rightful or wrongful, of
any Government Authority. The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or
any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 2.18 is intended to limit the
Reimbursement Obligation of the Borrower contained in Section 2.2(d)
hereof. The obligations of the Credit Parties under this Section 2.18
shall survive the termination of this Credit Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Issuing Lender to enforce
any right, power or benefit under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 2.18, the Credit Parties shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
arising out of the gross negligence or willful misconduct of the Issuing
Lender (including action not taken by the Issuing Lender), as determined
by a court of competent jurisdiction.
SECTION 2.19 REPLACEMENT OF LENDERS.
If any Lender shall become affected by any of the changes or events
described in Sections 2.14, 2.15, or 2.17 (any such Lender being hereinafter
referred to as a "Replaced Lender") and shall petition the Borrower for any
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increased cost or amounts thereunder, then in such case, the Borrower may, upon
at least thirty (30) Business Days' notice to the Administrative Agent and such
Replaced Lender and so long as no Default or Event of Default has occurred and
is continuing, designate a replacement lender (a "Replacement Lender")
acceptable to the Administrative Agent in its reasonable discretion, to which
such Replaced Lender shall, subject to its receipt of all amounts owed to such
Replaced Lender under Sections 2.14, 2.15, 2.16 or 2.17, assign at par all (but
not less than all) of its rights, obligations, Loans and Commitments hereunder;
provided, that all amounts owed to such Replaced Lender by the Borrower (except
liabilities which by the terms hereof survive the payment in full of the Loans
and termination of this Agreement) shall be paid in full as of the date of such
assignment. Upon any assignment by any Lender pursuant to this Section 2.19
becoming effective, the Replacement Lender shall thereupon be deemed to be a
"Lender" for all purposes of this Agreement and such Replaced Lender shall
thereupon cease to be a "Lender" for all purposes of this Agreement and shall
have no further rights or obligations hereunder (other than pursuant to Sections
2.14, 2.15, or 2.17, and 9.5 while such Replaced Lender was a Lender). If any
Replaced Lender shall refuse to assign its rights, obligations, Loans and
Commitment in accordance with the terms of this Section 2.19, the Replaced
Lender shall cease to be a "Lender" for all purposes of this Agreement upon
payment to the Replaced Lender of all amounts owing to such Replaced Lender in
accordance with the terms of this Section 2.19 without any further action of
such Replaced Lender and so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower shall have the right to designate a
Replacement Lender acceptable to the Administrative Agent in its reasonable
discretion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make the
Extensions of Credit herein provided for, the Credit Parties hereby represent
and warrant to the Administrative Agent and to each Lender that:
SECTION 3.1 FINANCIAL CONDITION.
(a) The audited Consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of September 30, 2006, together with the
related Consolidated statements of income or operations, and Consolidated
statements of shareholders' equity and cash flows for the fiscal years
ended on such dates:
(A) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein;
(B) fairly present the financial condition of the Borrower and
its Consolidated Subsidiaries as of the date thereof (subject, in
the case of the unaudited financial statements, to normal year-end
adjustments) and results of operations for the period covered
thereby; and
(C) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments
and contingent obligations required to be included in accordance
with GAAP.
(b) The projections of the Borrower and its Subsidiaries
delivered to the Agent in December, 2006 have been prepared in good
faith based upon reasonable assumptions.
SECTION 3.2 NO CHANGE.
Since September 30, 2006, there has been no development or event which,
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect.
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SECTION 3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the Credit Parties (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization or
formation, (b) has the requisite power and authority and the legal right to own
and operate all its material property, to lease the material properties it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified to conduct business and in good standing under the laws of
(i) the jurisdiction of its organization or formation, (ii) the jurisdiction
where its chief executive office is located and (iii) each other jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to so
qualify or be in good standing could not reasonably be expected to have a
material adverse effect on the business or operations of the Credit Parties and
their Subsidiaries (in the aggregate taken as a whole) in such jurisdiction, (d)
is in compliance with all Requirements of Law, government permits and government
licenses (including, without limitation, all Food and Drug Administration
regulations and requirements) except to the extent that the failure to comply
therewith could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and (e) has all material permits, licenses and
governmental authorizations necessary to run their business. The jurisdictions
in which the Credit Parties as of the Closing Date are organized and qualified
to do business are described on Schedule 3.3.
SECTION 3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party and
has taken all necessary limited liability company, partnership or corporate
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery or performance of any Credit Document by any of the Credit
Parties (other than those that have been obtained) or with the validity or
enforceability of any Credit Document against any of the Credit Parties (except
such filings as are necessary in connection with the perfection of the Liens
created by such Credit Documents). Each Credit Document to which it is a party
has been duly executed and delivered on behalf of each Credit Party. Each Credit
Document to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 3.5 NO LEGAL BAR; NO DEFAULT.
The execution, delivery and performance by each Credit Party of the Credit
Documents to which such Credit Party is a party, the borrowings thereunder and
the use of the proceeds of the Loans will not violate any Requirement of Law or
any material Contractual Obligation of any Credit Party (except those as to
which waivers or consents have been obtained), and will not result in, or
require, the creation or imposition of any Lien on any Credit Party's properties
or revenues pursuant to any Requirement of Law or material Contractual
Obligation other than the Liens arising under or contemplated in connection with
the Credit Documents. No Credit Party is in default under or with respect to any
of its material Contractual Obligations in any material respect. No Default or
Event of Default has occurred and is continuing.
SECTION 3.6 NO MATERIAL LITIGATION.
No litigation, investigation, claim, criminal prosecution, civil
investigative demand, imposition of criminal or civil fines and penalties, or
any other proceeding of or before any arbitrator or Governmental Authority is
pending or, to the best knowledge of the Credit Parties, threatened by or
against any Credit Party or any of its Subsidiaries or against any of its or
their respective properties or revenues (a) with respect to the Credit Documents
or any Loan or
40
any of the Transactions contemplated hereby, or (b) which, if adversely
determined, could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
SECTION 3.7 INVESTMENT COMPANY ACT; PUHCA, ETC.
No Credit Party is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Credit Party is a subject to regulation under the Public
Utility Holding Company Act of 1935, as amended, the Federal Power Act, the
Interstate Commerce Act, or any federal or state statute or regulation limiting
its ability to incur the Credit Party Obligations.
SECTION 3.8 MARGIN REGULATIONS.
No part of the proceeds of any Extension of Credit hereunder will be used
directly or indirectly for any purpose that violates, or that would be
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. The Credit Parties and their Subsidiaries (a) are not engaged,
principally or as one of their important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" "margin stock"
within the respective meanings of each of such terms under Regulation U and (b)
taken as a group do not own "margin stock" except as identified in the financial
statements referred to in Section 3.1 and the aggregate value of all "margin
stock" owned by the Credit Parties and their Subsidiaries taken as a group does
not exceed 25% of the value of their assets.
SECTION 3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency" (within
the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code, except
to the extent that any such occurrence or failure to comply could not,
individually or in the aggregate, reasonably be expected to result in liability
to the Credit Parties and their Subsidiaries in excess of $1,000,000. No
termination of a Single Employer Plan has occurred resulting in any liability in
excess of $1,000,000 that has remained underfunded, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by an amount
which, as determined in accordance with GAAP, could reasonably be expected to
have a Material Adverse Effect. Neither any Credit Party nor any Commonly
Controlled Entity is currently subject to any liability in excess of $1,000,000
for a complete or partial withdrawal from a Multiemployer Plan.
SECTION 3.10 ENVIRONMENTAL MATTERS.
(a) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect, the facilities and properties
owned, leased or operated by the Credit Parties or any of their
Subsidiaries (the "Properties") do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any
Environmental Law.
(b) Except where such violation, contamination or non-compliance
could not reasonably be expected to have a Material Adverse Effect, the
Properties and all operations of the Credit Parties and/or their
Subsidiaries at the Properties are in compliance, and have in the last
five years been in compliance with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties or violation
of any Environmental Law with respect to the Properties or the business
operated by the Credit Parties or any of their Subsidiaries (the
"Business").
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(c) Neither the Credit Parties nor their Subsidiaries have received
any written or actual notice of violation, alleged violation,
non-compliance, liability or potential liability with respect to
environmental matters or Environmental Laws regarding any of the
Properties or the Business, nor does the Credit Parties and their
Subsidiaries have knowledge or reason to believe that any such notice will
be received or is being threatened which could reasonably be expected to
have a Material Adverse Effect.
(d) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location that could give rise to
liability under any Environmental Law, and no Materials of Environmental
Concern have been generated, treated, stored or disposed of at, on or
under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Credit Parties and their
Subsidiaries, threatened, under any Environmental Law to which any Credit
Party or any Subsidiary is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business which
could reasonably be expected to have a Material Adverse Effect.
(f) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect, there has been no release or
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of any Credit
Party or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
SECTION 3.11 USE OF PROCEEDS.
The proceeds of the Extensions of Credit shall be used by the Borrower
solely (a) to pay certain fees and expenses associated with the issuance by the
Borrower of the Senior Unsecured Notes, (b) to refinance certain existing
Indebtedness of the Borrower and its Subsidiaries, (c) to pay any fees and
expenses associated with this Credit Agreement on the Closing Date, (d) for
working capital and other general business purposes of the Credit Parties and
their Subsidiaries (including, without limitation, capital expenditures and
Permitted Acquisitions).
SECTION 3.12 SUBSIDIARIES.
Set forth on Schedule 3.12 is a complete and accurate list of all
Subsidiaries of the Credit Parties as of the Closing Date. The Borrower shall
update Schedule 3.12 from time to time in accordance with Section 5.2(c).
SECTION 3.13 OWNERSHIP.
Each of the Credit Parties and its Subsidiaries has good and marketable
title to all of its material assets, or if any Property is leased by such Credit
Party or any of its Subsidiaries, such Person has a valid leasehold interest
enforceable against the ground lessor of such Property in accordance with the
terms of such lease, and none of the assets of the Credit Parties and their
Subsidiaries is subject to any Lien other than Permitted Liens.
SECTION 3.14 INDEBTEDNESS.
Except as otherwise permitted under Section 6.1, the Credit Parties and
their Subsidiaries have no Indebtedness.
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SECTION 3.15 TAXES.
Each of the Credit Parties and their Subsidiaries has filed, or caused to
be filed or timely filed for extension of payment of, all material federal and
state income tax returns and all other tax returns required to be filed and paid
(a) all amounts of taxes shown thereon to be due (including interest and
penalties) and (b) all other material taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) that are not
yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. None of the Credit Parties and their Subsidiaries is aware
as of the Closing Date of any proposed material tax assessments against it or
any of its Subsidiaries.
SECTION 3.16 INTELLECTUAL PROPERTY RIGHTS.
Each of the Credit Parties and their Subsidiaries owns, or has the legal
right to use, all Material IP. Set forth on Schedule 3.16 is a list of all
Material IP owned by each of the Credit Parties and their Subsidiaries or that
the Credit Parties or any of their Subsidiaries has the right to use as of the
Closing Date. Except as provided on Schedule 3.16, no material claim has been
asserted in writing and is pending by any Person challenging or questioning the
use of any such Material IP or the validity or effectiveness of any such
Material IP, nor do the Credit Parties or any of their Subsidiaries know of any
such claim, and, to the knowledge of the Credit Parties and their Subsidiaries,
the use of such Material IP by the Credit Parties or any of their Subsidiaries
does not infringe on the rights of any Person in any material respect. The
Borrower may update Schedule 3.16 in accordance with the terms of Section
5.2(c).
SECTION 3.17 SOLVENCY.
After giving effect to the Transactions, the fair saleable value of each
Credit Party's assets, measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to this Credit Agreement.
After giving effect to the Transactions, the Credit Parties (taken as a whole)
(a) do not have unreasonably small capital in relation to the business in which
they are or propose to be engaged and (b) have not incurred, or do not believe
that they will incur, debts beyond their ability to pay such debts as they
become due. In executing the Credit Documents and consummating the Transactions,
none of the Credit Parties intends to hinder, delay or defraud either present or
future creditors or other Persons to which one or more of the Credit Parties is
or will become indebted.
SECTION 3.18 INVESTMENTS.
All Investments of each of the Credit Parties and their Subsidiaries are
Permitted Investments.
SECTION 3.19 LOCATION OF COLLATERAL.
Set forth on Schedule 3.19(a) is a list of all Properties of the Credit
Parties and their Subsidiaries as of the Closing Date with street address,
county and state where located. Set forth on Schedule 3.19(b) is a list of all
locations not otherwise set forth on Schedule 3.19(a) where any tangible
personal property of the Credit Parties and their Subsidiaries, with a value in
excess of an aggregate amount of $100,000, is located as of the Closing Date,
including county and state where located. Set forth on Schedule 3.19(c) is the
state of incorporation or organization, the chief executive office and the
principal place of business of each of the Credit Parties and their Subsidiaries
as of the Closing Date.
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SECTION 3.20 NO BURDENSOME RESTRICTIONS.
None of the Credit Parties and their Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.21 BROKERS' FEES.
None of the Credit Parties and their Subsidiaries has any obligation to
any Person in respect of any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents other than the closing and other fees payable pursuant to this
Credit Agreement and as set forth in the Fee Letter.
SECTION 3.22 LABOR MATTERS.
There are no collective bargaining agreements or Multiemployer Plans in
which any of the Credit Parties or their Subsidiaries are participating
employers as of the Closing Date, other than as set forth in Schedule 3.22
hereto, and none of the Credit Parties and their Subsidiaries (i) has suffered
any strikes, walkouts, work stoppages or other material labor difficulty within
the last five (5) years prior to the Closing Date, other than as set forth in
Schedule 3.22 hereto, (ii) has knowledge as of the Closing Date of any pending
strike, walkout or work stoppage, or (iii) has knowledge of any existing strike,
walkout or work stoppage, except (with respect to any specific matters set forth
in clauses (i), (ii) and (iii) above) which in the aggregate could not
reasonably be expected to cause a Material Adverse Effect. Other than as set
forth on Schedule 3.22, no unfair labor practice complaint is pending against
any Credit Party or any of its Subsidiaries as of the Closing Date.
SECTION 3.23 ACCURACY AND COMPLETENESS OF INFORMATION.
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of any Credit Party or any of its Subsidiaries to the
Administrative Agent, the Arranger or any Lender for purposes of or in
connection with this Credit Agreement or any other Credit Document, or any
transaction contemplated hereby or thereby when taken together with the
Borrower's filings with the SEC, as modified or supplemented by other
information so furnished, is or will be true and accurate in all material
respects and does not contain any material misstatement of fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time. There are no facts now known to the Borrower (other
than matters of general economic nature) that has had, or could reasonably be
expected to have, a Material Adverse Effect, which fact has not been set forth
herein, in the financial statements of the Borrower and its Subsidiaries
furnished to the Administrative Agent and the Lenders, or in any certificate,
opinion or other written statement made or furnished by or on behalf of a Credit
Party to the Administrative Agent and/or the Lenders.
SECTION 3.24 [RESERVED].
SECTION 3.25 INSURANCE.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts (after giving effect to any self-insurance compatible
with the following standards), with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
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SECTION 3.26 SECURITY DOCUMENTS.
The Security Documents create valid security interests in, and Liens on,
the Collateral purported to be covered thereby. Except as set forth in the
Security Documents, such security interests and Liens are perfected security
interests and Liens (to the extent that such perfection can be accomplished upon
(a) the filing of appropriate financing statements with the Secretary of State
of the state of incorporation for each Credit Party, the filing of appropriate
assignments or notices with the United States Patent and Trademark Office and
the United States Copyright Office, and the recordation of the applicable
Mortgage Instruments, in each case in favor of the Administrative Agent, on
behalf of the Lenders, and (b) the Administrative Agent obtaining Control (as
defined in the Security Agreement) over those items of Collateral in which a
security interest is perfected through Control), prior to all other Liens other
than Permitted Liens.
SECTION 3.27 REGULATION H.
No Mortgaged Property is a Flood Hazard Property.
SECTION 3.28 CLASSIFICATION OF SENIOR INDEBTEDNESS.
The Credit Party Obligations constitute "Senior Indebtedness" under and as
defined in any agreement governing any Subordinated Debt and the subordination
provisions set forth in each such agreement are legally valid and enforceable
against the parties thereto.
SECTION 3.29 ANTI-TERRORISM LAWS.
Neither any Credit Party nor any of its Subsidiaries is an "enemy" or an
"ally of the enemy" within the meaning of Section 2 of the Trading with the
Enemy Act of the United States of America (50 U.S.C. App. Sections 1 et seq.),
as amended. Neither any Credit Party nor any or its Subsidiaries is in violation
of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto or (c) the Patriot Act (as defined in Section 9.18). None of
the Credit Parties (i) is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked
person.
SECTION 3.30 COMPLIANCE WITH OFAC RULES AND REGULATIONS.
None of the Credit Parties or their Subsidiaries or their respective
Affiliates (i) is a Sanctioned Person, (ii) has more than 15% of its assets in
Sanctioned Countries, or (iii) derives more than 15% of its operating income
from investments in, or transactions with Sanctioned Persons or Sanctioned
Countries. No part of the proceeds of any Extension of Credit hereunder will be
used directly or indirectly to fund any operations in, finance any investments
or activities in or make any payments to, a Sanctioned Person or a Sanctioned
Country.
SECTION 3.31 COMPLIANCE WITH FCPA.
To the best of its knowledge, each of the Credit Parties and their
Subsidiaries (a) is in compliance with the Foreign Corrupt Practices Act, 15
U.S.C. Sections 78dd-1, et seq., and any foreign counterpart thereto and (b) has
not made a payment, offering, or promise to pay, or authorized the payment of,
money or anything of value (i) in order to assist in obtaining or retaining
business for or with, or directing business to, any foreign official, foreign
political party, party official or candidate for foreign political office, (ii)
to a foreign official, foreign political party or party
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official or any candidate for foreign political office, and (iii) with the
intent to induce the recipient to misuse his or her official position to direct
business wrongfully to such Credit Party or its Subsidiary or to any other
Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. Sections
78dd-1, et seq., in each case to the extent such non-compliance, payment,
offering or promise to pay could, individually or in the aggregate, reasonably
be expected to result in liability to the Credit Parties and their Subsidiaries
in excess of $1,000,000.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 CONDITIONS TO CLOSING DATE.
This Credit Agreement shall become effective upon, and the obligation of
each Lender to make the initial Revolving Loans on the Closing Date is subject
to, the satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. The
Administrative Agent shall have received (i) counterparts of this Credit
Agreement, executed by a duly authorized officer of each party hereto,
(ii) for the account of each Lender with a Revolving Commitment requesting
a promissory note, a Revolving Note, (iii) for the account of the
Swingline Lender, the Swingline Note, (iv) counterparts of the Security
Agreement, and the Pledge Agreement, in each case conforming to the
requirements of this Credit Agreement and executed by duly authorized
officers of the Credit Parties or other Person, as applicable and (vi)
counterparts of any other Credit Document, executed by the duly authorized
officers of the parties thereto.
(b) Authority Documents. The Administrative Agent shall have
received the following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or other charter documents, as applicable, of each
Credit Party certified (A) by a secretary or assistant secretary of
such Credit Party (pursuant to a secretary's certificate in
substantially the form of Schedule 4.1(b) attached hereto) as of the
Closing Date to be true and correct and in force and effect as of
such date, and (B) to be true and complete as of a recent date by
the appropriate Governmental Authority of the state of its
incorporation or organization, as applicable.
(ii) Resolutions. Copies of resolutions of the board of
directors or comparable managing body of each Credit Party approving
and adopting the Credit Documents, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by
a secretary or assistant secretary of such Credit Party (pursuant to
a secretary's certificate in substantially the form of Schedule
4.1(b) attached hereto) as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) Bylaws. A copy of the bylaws or comparable operating
agreement of each Credit Party certified by a secretary or assistant
secretary of such Credit Party (pursuant to a secretary's
certificate in substantially the form of Schedule 4.1(b) attached
hereto) as of the Closing Date to be true and correct and in force
and effect as of such date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state of incorporation or organization and each
other state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse
Effect on the business or operations of the Credit Parties and their
Subsidiaries in such state.
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(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary (pursuant to a
secretary's certificate in substantially the form of Schedule 4.1(b)
attached hereto) to be true and correct as of the Closing Date.
(c) Legal Opinion of Counsel. The Administrative Agent shall have
received an opinion or opinions of counsel for the Credit Parties, dated
the Closing Date and addressed to the Administrative Agent and the
Lenders, in form and substance reasonably acceptable to the Administrative
Agent (which shall include, without limitation, opinions with respect to
the due organization and valid existence of each Credit Party, opinions as
to perfection of the Liens granted to the Administrative Agent pursuant to
the Security Documents and opinions as to the non-contravention of the
Credit Parties' organizational documents).
(d) Personal Property Collateral. The Administrative Agent shall
have received, in form and substance satisfactory to the Administrative
Agent:
(i) (A) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit Party and
each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Lenders' security
interest in the Collateral, copies of the financing statements on
file in such jurisdictions and evidence that no Liens exist other
than Permitted Liens and (B) tax lien, judgment and pending
litigation searches as reasonably required by the Administrative
Agent;
(ii) searches of ownership of Intellectual Property in the
appropriate governmental offices and such patent/trademark/copyright
filings as reasonably requested by the Administrative Agent in order
to perfect the Administrative Agent's security interest in the
Material IP;
(iii) completed and/or amended UCC financing statements for
each appropriate jurisdiction as is necessary, in the Administrative
Agent's sole discretion, to perfect the Lenders' security interest
in the Collateral;
(iv) the stock or membership certificates, if any, evidencing
the Capital Stock pledged to the Administrative Agent pursuant to
the Pledge Agreement, duly executed in blank undated stock or
transfer powers, to the extent not previously delivered under the
Existing Credit Agreement;
(v) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the Lenders'
security interest in the Collateral; and
(vi) Except as provided in Section 5.14, Deposit Account
Control Agreements satisfactory to the Administrative Agent with
respect to each account set forth on Schedule 6.14 (to the extent
not previously delivered under the Existing Credit Agreement),
except payroll accounts set forth thereon, the Company's workers
comp escrow account no. 00000000 maintained with Xxxxx Fargo Bank,
National Association described thereon and to the extent otherwise
determined by the Administrative Agent.
(e) Real Property Collateral. The Administrative Agent shall have received
fully executed and notarized amendments to the existing Mortgage
Instruments encumbering the Mortgaged Properties listed in Schedule
3.19(d), in form and substance satisfactory to the Administrative Agent,
along with any additional documentation relating to the Mortgaged
Properties as the Administrative Agent deems appropriate.
(f) Liability, Casualty, Property and Business Interruption Insurance. The
Administrative Agent shall have received copies of insurance policies or
certificates of insurance evidencing liability, casualty, property and
business interruption insurance meeting the requirements set forth herein
or in the Security Documents. The Administrative Agent shall be named as
loss payee and/or additional insured with respect to any such insurance
providing liability coverage or coverage in respect of any Collateral, and
each
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provider of any such insurance shall agree, by endorsement upon the policy
or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give thirty (30) days prior written
notice before any such policy or policies shall be cancelled.
(g) Litigation. There shall not exist any pending litigation or
investigation affecting or relating to (i) any Credit Party or any of its
Subsidiaries that in the reasonable judgment of the Administrative Agent
and Lenders could materially adversely affect the any Credit Party or any
of its Subsidiaries, this Agreement or the other Credit Documents, that
has not been settled, dismissed, vacated, discharged or terminated prior
to the Closing Date or (ii) this Agreement or the other Credit Documents,
that has not been settled, dismissed, vacated, discharged or terminated
prior to the Closing Date.
(h) Solvency Certificate. The Administrative Agent shall have
received an officer's certificate prepared by the chief financial officer
of the Borrower as to the financial condition, solvency and related
matters of the Borrower and the Credit Parties and their Subsidiaries,
taken as a whole, after giving effect to the initial borrowings under the
Credit Documents, in substantially the form of Schedule 4.1(h) hereto.
(i) Account Designation Letter. The Administrative Agent shall have
received the executed Account Designation Letter in the form of Schedule
1.1(a) hereto.
(j) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing with respect to the Revolving Loans to be
made on the Closing Date.
(k) Consents. The Administrative Agent shall have received evidence
that all boards of directors, governmental, shareholder and material third
party consents and approvals necessary in connection with the Transactions
have been obtained and all applicable waiting periods have expired without
any action being taken by any authority that could restrain, prevent or
impose any material adverse conditions on such transactions or that could
seek or threaten any of the foregoing.
(l) Compliance with Laws. The Transactions contemplated hereby shall
be in compliance with all applicable laws and regulations (including all
applicable securities and banking laws, rules and regulations).
(m) Bankruptcy. There shall be no bankruptcy or insolvency
proceedings with respect to Credit Parties or any of their Subsidiaries.
(n) Existing Indebtedness of the Credit Parties. All of the existing
Indebtedness for borrowed money of the Borrower and its Subsidiaries
(other than Indebtedness permitted to exist pursuant to Section 6.1) shall
be repaid in full and all security interests related thereto shall be
terminated on the Closing Date.
(o) Financial Statements. The Administrative Agent and the Lenders
shall have received copies of the financial statements referred to in
Section 3.1 hereof, each in form and substance satisfactory to it.
(p) No Material Adverse Change. Since September 30, 2006, there has
been no material adverse change in the business, operations, properties,
assets or financial condition of the Borrower or any of its Subsidiaries
taken as a whole.
(q) Financial Condition Certificate. The Administrative Agent shall
have received a certificate or certificates executed by a Responsible
Officer of the Borrower as of the Closing Date stating that (i) no action,
suit, investigation or proceeding is pending, ongoing or, to the knowledge
of any Credit Party, threatened in any court or before any other
Governmental Authority that purports to affect any Credit Party or any
transaction contemplated by the Credit Documents, which action, suit,
investigation or proceeding could reasonably be expected to have a
Material Adverse Effect and (ii) immediately after giving effect to this
Credit Agreement, the other Credit Documents, and all the Transactions
contemplated
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to occur on such date, (A) no Default or Event of Default exists, (B) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (C) the
Credit Parties are in pro forma compliance with each of the initial
financial covenants set forth in Section 5.9 (as evidenced through
detailed calculations of such financial covenants on a schedule to such
certificate) calculated as of the last day of the fiscal quarter
immediately preceding the Closing Date as to which financial statements
have become available.
(r) Total Leverage Ratio. The Administrative Agent shall have
received evidence that, as of September 30, 2006, the Total Leverage Ratio
of the Credit Parties and their Subsidiaries is not greater than 4.00 to
1.00, calculated on a Pro Forma Basis after giving effect to the
Transactions (calculated as of the last day of the fiscal quarter
immediately preceding the Closing Date as to which financial statements
have become available).
(s) Proceeds from Issuance of Senior Unsecured Notes. The Borrower
shall have received not less than $110,000,000 in gross proceeds from the
issuance of the Senior Unsecured Notes on terms and conditions
satisfactory to the Administrative Agent.
(t) Patriot Act Certificate. The Administrative Agent shall have
received a certificate satisfactory thereto, for benefit of itself and the
Lenders, provided by the Borrower that sets forth information required by
the Patriot Act (as defined in Section 9.18) including, without
limitation, the identity of the Borrower, the name and address of the
Borrower and other information that will allow the Administrative Agent or
any Lender, as applicable, to identify the Borrower in accordance with the
Patriot Act.
(u) Fees. The Administrative Agent and the Lenders shall have
received all fees, if any, owing pursuant to the Fee Letter and Section
2.5.
(v) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
SECTION 4.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent on the date of
making such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties herein, in the Security Documents or
which are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct on and as of the date of
such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Compliance with Commitments. Immediately after giving effect to
the making of any such Extension of Credit (and the application of the
proceeds thereof), (i) the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed
Amount then in effect, (ii) the LOC Obligations shall not exceed the LOC
Committed Amount and (iii) the Swingline Loans shall not exceed the
Swingline Committed Amount.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan is
requested, all conditions set forth in Section 2.1 shall have been
satisfied.
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(e) Additional Conditions to Letters of Credit. If the issuance of a
Letter of Credit is requested, all conditions set fort in Section 2.2
shall have been satisfied.
(f) Additional Conditions to Swingline Loans. If a Swingline Loan is
requested, all conditions set forth in Section 2.3 shall have been
satisfied.
(g) Additional Conditions to Incremental Facility. If an Additional
Loan is requested, all conditions set forth in Section 2.4 shall have been
satisfied.
Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute
representations and warranties by the Credit Parties as of the date of such
Extension of Credit that the conditions set forth above in paragraphs (a)
through (h), as applicable, have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the Closing
Date, and thereafter for so long as this Credit Agreement is in effect and until
the Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations and all other amounts owing to the Administrative Agent
or any Lender hereunder are paid in full (other than inchoate indemnity
obligations), such Credit Party shall, and shall cause each of its Subsidiaries
(other than in the case of Sections 5.1 or 5.2 hereof), to:
SECTION 5.1 FINANCIAL STATEMENTS.
Furnish to the Administrative Agent for distribution to the Lenders:
(a) Annual Financial Statements. As soon as available and in any
event no later than the earlier of (i) to the extent applicable, the date
the Borrower is required by the SEC to deliver its Form 10-K for any
fiscal year of the Borrower and (ii) ninety (90) days after the end of
each fiscal year of the Borrower, a copy of the Consolidated balance
sheets of the Borrower and its Consolidated Subsidiaries as at the end of
such fiscal year, the related Consolidated statements of income or
operations and the related consolidated statements of shareholders' equity
and of cash flows (to the extent available) of the Borrower and its
Consolidated Subsidiaries for such year, which other than in the case of
the consolidating statements shall be audited by Deloitte & Touche LLP or
a firm of independent certified public accountants of nationally
recognized standing reasonably acceptable to the Administrative Agent,
setting forth in each case in comparative form the figures for the
previous fiscal year, reported on without a "going concern" or like
qualification or exception, or qualification indicating that the scope of
the audit was inadequate to permit such independent certified public
accountants to certify such financial statements without such
qualification;
(b) Quarterly Financial Statements. As soon as available and in any
event no later than the earlier of (i) to the extent applicable, the date
the Borrower is required by the SEC to deliver its Form 10-Q for any
fiscal quarter of the Borrower and (ii) forty-five (45) days after the end
of each fiscal quarter of the Borrower, a copy of the consolidated balance
sheets of the Borrower and its Consolidated Subsidiaries as at the end of
such period and related consolidated statements of income or operations
and Consolidated statements of cash flows (to the extent available) for
the Borrower and its Consolidated Subsidiaries for such quarterly period
and for the portion of the fiscal year ending with such period, in each
case setting forth in comparative form consolidated figures for the
corresponding period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments); and
50
(c) Annual Operating Budget and Cash Flow. As soon as available, but
in any event within fifteen (15) days after the end of each fiscal year, a
copy of the detailed annual operating budget or plan including cash flow
projections of the Borrower and its Subsidiaries for the next four fiscal
quarter period prepared on a monthly basis, in form and detail reasonably
acceptable to the Administrative Agent and the Lenders, together with a
summary of the material assumptions made in the preparation of such annual
budget or plan;
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the
case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change, if any, in the application of accounting principles as
provided in Section 1.3.
SECTION 5.2 CERTIFICATES; OTHER INFORMATION.
Furnish to the Administrative Agent for distribution to the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and 5.1(b) above, a certificate of a
Responsible Officer substantially in the form of Schedule 5.2(b) stating
that, to the best of such Responsible Officer's knowledge, each of the
Credit Parties during such period observed or performed in all material
respects all of its covenants and other agreements, and satisfied in all
material respects every condition, contained in this Credit Agreement to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and such certificate shall include
the calculations in reasonable detail required to indicate compliance with
Section 5.9 as of the last day of such period;
(c) concurrently with or prior to the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above, (i) an updated
copy of Schedule 3.12 if the Borrower or any of its Subsidiaries has
formed or acquired a new Subsidiary since the Closing Date or since
Schedule 3.12 was last updated, as applicable and (ii) an updated copy of
Schedule 3.16 if the Borrower or any of its Subsidiaries has registered,
applied for registration of, acquired or otherwise obtained ownership of
any new Material IP since the Closing Date or since Schedule 3.16 was last
updated, as applicable;
(d) promptly upon their becoming available, (i) copies of all
reports (other than those otherwise provided pursuant to Section 5.1 and
those which are of a promotional nature) and other financial information
which the Borrower sends to its shareholders, (ii) copies of all reports
and all registration statements and prospectuses, if any, which the
Borrower may make to, or file with, the Securities and Exchange Commission
(or any successor or analogous Governmental Authority) or any securities
exchange or other private regulatory authority and (iii) all press
releases and other statements made available by any of the Credit Parties
to the public concerning material developments in the business of any of
the Credit Parties; and
(e) promptly, such additional financial and other information as the
Administrative Agent, on behalf of any Lender, may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section
5.2(d) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address listed on Section 9.2 and
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notifies the Administrative Agent that such documents are available; or (ii) on
which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent) and the Administrative Agent receives notification that
such documents are available. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
certificates required by Section 5.2(b) to the Administrative Agent. Except for
such certificates, the Administrative Agent shall have no obligation to request
the delivery or to maintain copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower
with any such request for delivery, and each Lender shall be solely responsible
for requesting delivery to it or maintaining its copies of such documents.
SECTION 5.3 PAYMENT OF TAXES AND OTHER OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, subject, where applicable, to specified
grace periods, (a) its Federal and state income taxes and other material taxes
and (b) its other material obligations and liabilities of whatever nature in
accordance with industry practice and (c) any additional material costs that are
imposed as a result of any failure to so pay, discharge or otherwise satisfy
such taxes, obligations and liabilities, except when the amount or validity of
any such taxes, obligations and liabilities is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Credit Parties.
SECTION 5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
(a) (i) Continue to engage in business of the same general type as now
conducted by it on the Closing Date and (ii) preserve, renew and keep in full
force and effect its legal existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business; (b) comply in all material respects with all material
Contractual Obligations; and (c) comply with all Requirements of Law applicable
to it except to the extent that failure to comply therewith could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; provided that the Borrower may liquidate or dissolve any
Subsidiary in the exercise of its reasonable business judgment to the extent
permitted hereunder and such liquidation or dissolution is not materially
adverse to the Lenders.
SECTION 5.5 MAINTENANCE OF PROPERTY; INSURANCE.
(a) Keep all material property useful and necessary in its business
in good working order and condition (ordinary wear and tear and
obsolescence excepted).
(b) Maintain with financially sound and reputable insurance
companies liability, casualty, property and business interruption
insurance (including, without limitation, insurance with respect to its
tangible Collateral) in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the
Administrative Agent, upon the request of the Administrative Agent, full
information as to the insurance carried. The Administrative Agent shall be
named as loss payee or mortgagee, as its interest may appear, and/or
additional insured with respect to any such casualty, property and
liability insurance, as applicable, and each provider of any such
insurance shall agree, by endorsement upon the policy or policies issued
by it or by independent instruments furnished to the Administrative Agent,
that it will give the Administrative Agent thirty (30) days prior written
notice before any such policy or policies shall be altered or canceled,
and such policies shall provide that no act or default of the Credit
Parties or any of their Subsidiaries or any other Person shall affect the
rights of the Administrative Agent or the Lenders under such policy or
policies.
(c) In case of any material loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, such Credit Party
shall promptly give written notice thereof to the Administrative Agent
generally describing the nature and extent of such damage or destruction.
In case of any such material loss,
52
damage to or destruction of the Collateral of any Credit Party or any part
thereof, if required by the Administrative Agent or the Required Lenders,
such Credit Party (whether or not the insurance proceeds, if any, received
on account of such damage or destruction shall be sufficient for that
purpose), at such Credit Party's cost and expense, will (in the exercise
of its reasonable business judgment) promptly repair or replace the
Collateral of such Credit Party so lost, damaged or destroyed.
SECTION 5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the
Administrative Agent or any Lender, the Administrative Agent or any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired, and to discuss any information or other matter, unless disclosure to
the Administrative Agent or any Lender (or designated representative) is then
prohibited by a Requirement of Law, a directive of any Governmental Authority or
a Contractual Obligation binding on a Credit Party as of the Closing Date;
provided, that, a representative of the Borrower may be present at such meeting.
SECTION 5.7 NOTICES.
Give notice in writing to the Administrative Agent (which shall promptly
transmit such notice to each Lender) of:
(a) promptly, but in any event within two (2) Business Days after
any Credit Party knows of the occurrence of any Default or Event of
Default;
(b) promptly, any default or event of default under any material
Contractual Obligation of any Credit Party or any of their Subsidiaries
which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect or involve a monetary claim in excess of
$5,000,000;
(c) promptly, any litigation, or any investigation or proceeding
known to any Credit Party (i) affecting any Credit Party or any of their
Subsidiaries which, if adversely determined, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect
or involve a monetary claim in excess of $5,000,000, (ii) affecting or
with respect to this Credit Agreement, any other Credit Document or any
security interest or Lien created thereunder or (iii) involving an
environmental claim or potential liability under Environmental Laws which
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(d) any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against any Credit Party which
could reasonably be expected to have a Material Adverse Effect;
(e) any attachment, judgment, lien, levy or order exceeding
$5,000,000 that may be assessed against or threatened against any Credit
Party other than Permitted Liens;
(f) as soon as possible and in any event within thirty (30) days
after any Credit Party knows of: (i) the occurrence or expected occurrence
of any Reportable Event with respect to any Plan, a failure to make any
material required contribution to a Plan, the creation of any Lien in
favor of the PBGC (other than a Permitted Lien) or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or any Credit Party, any Commonly Controlled
Entity or any Multiemployer Plan, with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan, in either
case, resulting in any liability in excess of $5,000,000;
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(g) promptly, any notice of any violation received by any Credit
Party from any Governmental Authority including, without limitation, any
notice of violation of Environmental Laws; and
(h) promptly, any other development or event which could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Credit Parties propose to take with respect thereto.
In the case of any notice of a Default or Event of Default, the Borrower shall
specify that such notice is a Default or Event of Default notice on the face
thereof.
SECTION 5.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with all applicable
Environmental Laws and obtain and comply with and maintain any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws where the failure to do so could reasonably
be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws,
where the failure to do so could reasonably be expected to have a Material
Adverse Effect, except to the extent that the same are being contested in
good faith by appropriate proceedings; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in
any way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Credit
Parties or any of their Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise
out of the gross negligence, bad faith or willful misconduct of the party
seeking indemnification therefor. The agreements in this paragraph shall
survive repayment of the Credit Party Obligations and all other amounts
payable hereunder and termination of the Commitments and the Credit
Documents.
SECTION 5.9 FINANCIAL COVENANTS.
Comply with the following financial covenants:
(a) Total Leverage Ratio. The Total Leverage Ratio, as of the last
day of each fiscal quarter of the Borrower, shall be less than or equal to
5.25 to 1.00.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the
last day of each fiscal quarter of the Borrower, shall be greater than or
equal to 2.50 to 1.00.
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made in determining compliance for any
applicable period with the financial covenants set forth in this Section 5.9,
(i) after consummation of any Permitted Acquisition, (A) income statement items
and other balance sheet items (whether positive or negative) attributable to the
Target acquired in such transaction shall be included in such calculations to
the extent relating to such applicable period, subject to adjustments reasonably
acceptable to the Borrower and the Required Lenders, and (B) Indebtedness of a
Target which is retired in connection with a Permitted Acquisition shall be
excluded from such calculations and deemed to have been retired as of the first
day of
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such applicable period and (ii) after any Asset Disposition permitted by Section
6.4(a)(vi), (A) income statement items, cash flow statement items and other
balance sheet items (whether positive or negative) attributable to the property
or assets disposed of shall be excluded in such calculations to the extent
relating to such applicable period, subject to adjustments reasonably acceptable
to the Borrower and the Administrative Agent (after consultation with the
Lenders) and (B) Indebtedness that is repaid with the proceeds of such Asset
Disposition shall be excluded from such calculations and deemed to have been
repaid as of the first day of such applicable period.
SECTION 5.10 ADDITIONAL GUARANTORS.
The Credit Parties will cause each of their Domestic Subsidiaries (other
than Excluded Subsidiaries), whether newly formed, after acquired or otherwise
existing, to promptly (and in any event within thirty (30) days after such
Domestic Subsidiary is formed or acquired (or such longer period of time as
agreed to by the Administrative Agent in its reasonable discretion)) become a
Guarantor hereunder by way of execution of a Joinder Agreement. The Credit Party
Obligations shall be secured by, among other things, a first priority perfected
security interest (subject to Permitted Liens) in the Collateral of such new
Guarantor and a pledge of 100% of the Capital Stock of such new Guarantor and
its Domestic Subsidiaries and 65% (or such higher percentage that would not
result in adverse tax consequences for such new Guarantor) of the voting Capital
Stock and 100% of the non-voting Capital Stock of its first-tier Foreign
Subsidiaries (other than Excluded Subsidiaries) held by the Borrower or any
Guarantor. In connection with the foregoing, the Credit Parties shall deliver to
the Administrative Agent, with respect to each new Guarantor to the extent
applicable, substantially the same documentation required pursuant to Sections
4.1(b)-(f) and 5.12 and such other documents or agreements as the Administrative
Agent may reasonably request.
SECTION 5.11 COMPLIANCE WITH LAW.
Comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.
SECTION 5.12 PLEDGED ASSETS.
(a) Cause 100% of the Capital Stock in each of its direct or
indirect Domestic Subsidiaries and 65% of the voting Capital Stock and
100% of the non-voting Capital Stock in each of its first-tier Foreign
Subsidiaries, in each case, held by the Borrower or any Guarantor, to be
subject at all times to a first priority, perfected Lien (except for
Permitted Liens) in favor of the Administrative Agent, pursuant to the
terms and conditions of the Security Documents or such other security
documents as the Administrative Agent shall reasonably request; provided
that with respect to any Capital Stock of any first-tier Foreign
Subsidiaries to be pledged to the Administrative Agent, for the benefit of
the Lenders, on or after the Closing Date, the Administrative Agent, in
its reasonable discretion after consultation with Borrower, shall be
entitled to determine that the cost of perfecting, in a foreign
jurisdiction, the security interest of the Administrative Agent, for the
benefit of the Lenders, in such Capital Stock is impractical, illegal or
cost-prohibitive, and may agree to forego the foreign perfection of such
security interest.
(b) If, subsequent to the Closing Date, a Credit Party shall acquire
any securities, instruments, chattel paper or other personal property
required for perfection to be delivered to the Administrative Agent, as
Collateral hereunder or under any of the Security Documents, promptly (and
in any event within thirty (30) days) after any Responsible Officer of a
Credit Party acquires knowledge of same notify the Administrative Agent of
same. Each Credit Party shall, and shall cause each of its Subsidiaries
(other than Excluded Subsidiaries) to, take such action at its own expense
as reasonably requested by the Administrative Agent (including, without
limitation, any of the actions described in Section 4.1(d) or (e) hereof)
to ensure that the Administrative Agent, has a first priority perfected
Lien (except for Permitted Liens) to secure the Credit Party Obligations
in (i) all personal property of the Credit Parties located in the United
States and (ii) to the extent deemed to be material by the Administrative
Agent
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or the Required Lenders in its or their sole reasonable discretion, all
other personal property of the Credit Parties, subject in each case only
to Permitted Liens; provided that, such Lien shall not result in
materially adverse tax consequences to the Borrower or its Subsidiaries.
Each Credit Party shall, and shall cause each of its Subsidiaries (other
than Excluded Subsidiaries) to, adhere to the covenants set forth in the
Security Documents.
SECTION 5.13 COVENANTS REGARDING PATENTS, TRADEMARKS AND COPYRIGHTS.
(a) Concurrently with the delivery of quarterly and annual financial
statements of the Borrower pursuant to Section 5.1 hereof, notify the
Administrative Agent promptly if it knows that any application, letters
patent or registration relating to any Material IP of the Credit Parties
or any of their Subsidiaries may become abandoned, or of any material
adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any court)
regarding any Credit Party's or any of its Subsidiary's ownership of any
Patent or Trademark constituting Material IP, its right to patent or
register the same, or to enforce, keep and maintain the same, or its
rights under any Patent License or Trademark License constituting Material
IP.
(b) Concurrently with the delivery of quarterly and annual financial
statements of the Borrower pursuant to Section 5.1 hereof, notify the
Administrative Agent promptly after it knows of any material adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in any court) regarding any Copyright or Copyright License
constituting Material IP of the Credit Parties or any of their
Subsidiaries, whether (i) such Copyright or Copyright License may become
invalid or unenforceable prior to its expiration or termination, or (ii)
any Credit Party's or any of its Subsidiary's ownership of such Copyright,
its right to register the same or to enforce, keep and maintain the same,
or its rights under such Copyright License, may become affected.
(c) (i) Concurrently with the delivery of quarterly and annual
financial statements of the Borrower pursuant to Section 5.1 hereof,
notify the Administrative Agent of any filing by any Credit Party or any
of its Subsidiaries, either itself or through any agent, employee,
licensee or designee, of any application for registration of any Material
IP with the United States Copyright Office or United States Patent and
Trademark Office or any similar office or agency in any other country or
any political subdivision thereof.
(ii) Concurrently, with the delivery of quarterly and annual
financial statements of the Borrower pursuant to Section 5.1 hereof,
provide the Administrative Agent and its counsel a complete and
correct list of all Material IP owned by or licensed to the Credit
Parties or any of their Subsidiaries, that have not been set forth
as annexes of such documents and instruments showing all filings and
recordings for the protection of the security interest of the
Administration Agent therein pursuant to the agreements of the
United States Patent and Trademark Office or the United States
Copyright Office.
(iii) Upon reasonable request of the Administrative Agent,
execute and deliver any and all agreements, instruments, documents,
and papers as the Administrative Agent may reasonably request to
evidence the Administrative Agent's security interest in the
Material IP and the general intangibles referred to in clauses (i)
and (ii), including, without limitation, the goodwill of the Credit
Parties and their Subsidiaries relating thereto or represented
thereby (or such other Material IP or the general intangibles
relating thereto or represented thereby as the Administrative Agent
may reasonably request.
(d) Take all necessary actions, including, without limitation, in
any proceeding before the United States Patent and Trademark Office or the
United States Copyright Office, to maintain each item of
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Material IP of the Credit Parties and their Subsidiaries, including,
without limitation, payment of maintenance fees, filing of applications
for renewal, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings, as shall be
reasonable and appropriate in accordance with prudent business practice.
(e) In the event that any Credit Party becomes aware that any
Material IP is infringed, misappropriated or diluted by a third party in
any material respect, notify the Administrative Agent promptly after it
learns thereof and, unless the Credit Parties shall reasonably determine
that such Material IP is not material to the business of the Credit
Parties and their Subsidiaries taken as a whole or as to which the Credit
Parties reasonably conclude that the cost or the strategic impact of such
proceeding or its likelihood of success does not justify its prosecution,
promptly xxx for infringement, misappropriation or dilution and to recover
any and all damages for such infringement, misappropriation or dilution,
and take such other actions as the Credit Parties shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property.
SECTION 5.14 POST-CLOSING COVENANT.
(a) Control Agreement. Within thirty (30) days of the Closing Date,
the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, a fully executed amendment to
the Deposit Account Control Agreement existing as of the Closing Date with
U.S. Bank, National Association ("U.S. Bank") to add any and all accounts
with U.S. Bank listed on Schedule 6.14 (other than the Company's EBMS Flex
Account 1-537-9504-9383 holding employee medical contributions) not listed
in such Deposit Account Control Agreement as of the Closing Date.
(b) Intellectual Property Collateral. Within ninety (90) days after
the Closing Date (or such extended period of time as agreed to by the
Administrative Agent), to the extent reasonably required by the
Administrative Agent, the Credit Parties shall provide evidence reasonably
satisfactory to the Administrative Agent that all material chain of title
issues (including unreleased filings related to Liens that have previously
been terminated) with respect to the Intellectual Property of the Credit
Parties registered with the United States Patent and Trademark Office have
been corrected in the appropriate records of the United States Patent and
Trademark Office.
(c) Utah Local Counsel Opinion. Within thirty (30) days of Closing
Date, the Administrative Agent shall have received an opinion of special
Utah counsel to the Credit Parties, addressed to the Administrative Agent
and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent.
SECTION 5.15 FEDERAL ASSIGNMENT OF CLAIMS ACT.
Deliver such documentation as may be reasonably required by the
Administrative Agent to comply with the Federal Assignment of Claims Act; and
the Credit Parties shall take such actions as may be required by the
Administrative Agent to file such documentation with the appropriate
Governmental Authorities.
SECTION 5.16 FURTHER ASSURANCES.
Upon the reasonable request of the Administrative Agent, promptly
perform or cause to be performed any and all acts and execute or cause to
be executed any and all documents for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are
necessary or advisable to maintain in favor of the Administrative Agent,
for the benefit of the Secured Parties, Liens on the Collateral that are
duly perfected in accordance with the requirements of, or the obligations
of the Credit Parties under, the Credit Documents and all applicable
Requirements of Law.
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ARTICLE VI
NEGATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations and all other amounts owing to the Administrative Agent
or any Lender hereunder are paid in full (other than inchoate indemnity
obligations), that:
SECTION 6.1 INDEBTEDNESS.
The Credit Parties will not, nor will they permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness of the Credit Parties and their Subsidiaries
existing as of the Closing Date as referenced in the financial statements
referenced in Section 3.1 (and set out more specifically in Schedule
6.1(b)) hereto and renewals, refinancings or extensions thereof in a
principal amount not in excess of that outstanding as of the date of such
renewal, refinancing or extension;
(c) Indebtedness of the Credit Parties and their Subsidiaries
incurred after the Closing Date consisting of Capital Leases or
Indebtedness incurred to provide all or a portion of the purchase price or
cost of construction of an asset; provided that (i) such Indebtedness when
incurred shall not exceed the purchase price or cost of construction of
such asset; (ii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the time
of such refinancing; and (iii) the total amount of all such Indebtedness
shall not exceed a principal amount of $5,000,000 at any time outstanding;
(d) Unsecured intercompany Indebtedness among the Credit Parties
constituting Subordinated Debt;
(e) Indebtedness and obligations owing under Secured Hedging
Agreements and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(f) Indebtedness arising under the Senior Unsecured Notes and, so
long as no Default or Event of Default shall have occurred or would result
therefrom on an actual or Pro Forma Basis (with any pro forma financial
covenant compliance to be calculated as of the last day of the most recent
fiscal quarter as to which financial statements have become available),
additional issuances on the same terms as those set forth in the Senior
Unsecured Notes Indenture or on substantially similar terms thereto (but
no less favorable to the Borrower and the Lenders) as reasonably
determined by the Administrative Agent, and any renewals, refinancings or
extensions thereof in a principal amount not in excess of that outstanding
as of the date of such renewal, refinancing or extension thereof;
(g) Indebtedness assumed in connection with Permitted Acquisitions
(other than Indebtedness issued as consideration in, or to provide all or
any portion of the funds used to consummate, such Permitted Acquisition),
provided, that, the total principal amount of all such Indebtedness shall
not exceed $10,000,000 at any time outstanding, and any renewals,
refinancings or extensions thereof in a principal amount not in excess of
that outstanding as of the date of such renewal, refinancing or extension;
(h) Indebtedness arising out of any seller notes on terms and
conditions reasonably satisfactory to the Administrative Agent issued in
connection with any Permitted Acquisition, and any
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Subordinated Debt (other than as permitted by Section 6.1(d)), provided,
that, the total principal amount of all such Indebtedness (excluding any
payment in kind interest added to principal) shall not exceed $25,000,000
at any time outstanding, and any renewals, refinancings or extensions
thereof in a principal amount not in excess of that outstanding as of the
date of such renewal, refinancing or extension;
(i) Guaranty Obligations in respect of Indebtedness of a Credit
Party to the extent such Indebtedness is permitted to exist or be incurred
pursuant to this Section 6.1;
(j) other Indebtedness incurred by the Borrower or any of its
Subsidiaries arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guaranties,
surety bonds or performance bonds securing the performance of the Borrower
or any such Subsidiary pursuant to such agreements, in connection with any
Permitted Acquisition or any Asset Dispositions permitted pursuant to
Section 6.4 below;
(k) Indebtedness in respect of Permitted Investments;
(l) Indebtedness in respect of any earnout obligations arising from
any Permitted Acquisitions, provided that such amount, together with the
aggregate amount of all other consideration paid in connection therewith,
does not exceed the aggregate amount of consideration permitted to be paid
as provided in the definition of "Permitted Acquisition" herein; and
(m) other secured or unsecured Indebtedness of Credit Parties not
otherwise permitted in subsections (a) through (k) above which does not
exceed $20,000,000 in the aggregate at any time outstanding.
SECTION 6.2 LIENS.
The Credit Parties will not, nor will they permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of their respective property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, except for
Permitted Liens.
SECTION 6.3 NATURE OF BUSINESS.
The Credit Parties will not, nor will they permit any Subsidiary to, alter
the character of the business of the Credit Parties and their Subsidiaries, when
taken as a whole, in any material respect from that conducted as of the Closing
Date.
SECTION 6.4 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer,
lease or otherwise dispose of its property or assets or agree to do so at
a future time, except the following, without duplication, shall be
expressly permitted:
(i) (A) the sale, transfer, lease or other disposition of
inventory and materials in the ordinary course of business and (B)
the conversion of cash into Cash Equivalents and Cash Equivalents
into cash;
(ii) Recovery Events;
(iii) the sale, lease, transfer or other disposition of
machinery, parts and equipment no longer used or useful in the
conduct of the business of the Credit Parties or any of their
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Subsidiaries or where machinery, parts and equipment shall be
replaced by other machinery, parts and equipment;
(iv) the sale, lease or transfer of property or assets (at
fair value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a
Credit Party other than the Borrower to another Credit Party;
(vi) the licenses of Intellectual Property rights in the
ordinary course of business;
(vii) the termination of any Hedging Agreement permitted
pursuant to Section 6.1;
(viii) the consolidation, liquidation or merger of a Credit
Party into another Credit Party or any Subsidiary into a Credit
Party; provided, that (A) prior to or simultaneously with any such
consolidation, liquidation or merger, all actions required by the
Administrative Agent shall be taken to ensure the continued
perfection and priority of the Administrative Agent's Liens on the
property and assets of each such Credit Party and (B) if such
consolidation, liquidation or merger involves the Borrower, the
Borrower shall be the surviving entity;
(ix) the dissolution, liquidation or winding up of a
Subsidiary that is not a Credit Party; provided that prior to or
simultaneously with any such dissolution, liquidation or winding up,
all assets of such Subsidiary are transferred to a Credit Party or a
Subsidiary thereof;
(x) the liquidation of any inactive or dormant Subsidiary; and
(xi) the sale, lease or transfer of property or assets not to
exceed $5,000,000 in the aggregate in any fiscal year.
provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vi)
above, at least 75% of the consideration received therefor by the Credit
Parties or any such Subsidiary shall be in the form of cash or Cash
Equivalents, (B) after giving effect to any Asset Disposition pursuant to
clause (vi) above, the Credit Parties shall be in compliance on a Pro
Forma Basis with the financial covenants set forth in Section 5.9 hereof,
recalculated for the most recently ended fiscal quarter for which
information is available, and (C) with respect to clauses (iv), (v) and
(vi) above, no Default or Event of Default shall exist or shall result
therefrom; provided, further, that with respect to sales of assets
permitted hereunder only, the Administrative Agent shall be entitled,
without the consent of the Required Lenders, to release its Liens relating
to the particular assets sold and, in the case of a Guarantor which is the
subject of the asset sale, to release it from its Guaranty; or
(b) (i) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the property or assets of
any Person, other than (A) Permitted Acquisitions and (B) except as
otherwise limited or prohibited herein, purchases or other acquisitions of
Intellectual Property, inventory, materials, property and equipment in the
ordinary course of business, or (ii) enter into any transaction of merger
or consolidation, except for (A) Investments or acquisitions permitted
pursuant to Section 6.5 and (B) the merger or consolidation of a Credit
Party with and into another Credit Party; provided that if the Borrower is
a party thereto, the Borrower will be the surviving Person.
SECTION 6.5 ADVANCES, INVESTMENTS AND LOANS.
The Credit Parties will not, nor will they permit any Subsidiary to, make
any Investment except for Permitted Investments.
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SECTION 6.6 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not, nor will they permit any Subsidiary to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder or Affiliate (other
than (i) transactions between or among the Credit Parties and (ii) compensation
arrangements with any officer or director that is in the ordinary course of
business and consistent with historical past practices of compensation for
officers and directors, and reasonable and customary directors' indemnification
and similar arrangements) other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length transaction with a
Person other than an officer, director, shareholder or Affiliate.
SECTION 6.7 OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS.
The Credit Parties will not, nor will they permit any Subsidiary to,
create, form or acquire any Domestic Subsidiaries, except for Domestic
Subsidiaries that are joined as Additional Credit Parties as required by the
terms hereof (other than in the case of Excluded Subsidiaries). The Credit
Parties will not, nor will they permit any Subsidiary to, create, form or
acquire any Foreign Subsidiaries (other than Excluded Subsidiaries), unless with
respect to any newly created, formed or acquired first tier Foreign Subsidiaries
such Credit Party or Subsidiary has complied with the pledge requirements set
forth in Section 5.12. The Credit Parties will not sell, transfer, pledge or
otherwise dispose of any Capital Stock or other equity interests in any of their
Subsidiaries, nor will they permit any of their Subsidiaries to issue, sell,
transfer, pledge or otherwise dispose of any of their Capital Stock or other
equity interests, except in a transaction permitted by Section 6.4.
SECTION 6.8 CORPORATE AND ACCOUNTING CHANGES.
No Credit Party will, nor will it permit any of its Subsidiaries to, (a)
change its fiscal year except to change the fiscal year of a Subsidiary to
conform its fiscal year to the Borrower's, (b) change its state of
incorporation, organization or formation of a Credit Party to a non-U.S.
jurisdiction or without giving such notice as is required under the Security
Agreement or have more than one state of incorporation, organization or
formation or (c) materially change its accounting method (except in accordance
with GAAP) in any manner materially adverse to the interests of the Lenders
without the prior written consent of the Required Lenders.
SECTION 6.9 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions to any Credit Party on its
Capital Stock or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party, or (e)
act as a Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section
6.1(c) (provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith), (iv) any
Permitted Lien or any document or instrument governing any Permitted Lien
(provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien), (v) customary non-assignment
provisions of leases, subleases, licenses and sublicenses, (vi) restrictions in
joint venture and partnership agreements, (vii) restrictions on property to be
transferred or optioned that are or were created by virtue of the transfer
thereof, including restrictions with respect to the disposition or transfer of
assets or property in asset sale agreements, stock sale agreements and other
similar agreements, (viii) the Senior Unsecured Notes Indenture or other
indenture or agreement evidencing Indebtedness permitted under Section 6.1(f),
and (ix) restrictions and conditions applicable to any Subsidiary acquired after
the
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date hereof if such restrictions and conditions existed at the time such
Subsidiary was acquired, were not created in anticipation of such acquisition,
and apply solely to such acquired Subsidiary.
SECTION 6.10 RESTRICTED PAYMENTS.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through its
Subsidiaries), (c) to make any payments, prepayments, purchases or redemptions
of the Senior Unsecured Notes or any Subordinated Debt permitted hereunder or
effect any refinancing thereof (to the extent permitted hereby); provided that,
(i) such payments, prepayments, purchases or redemptions in respect of the
Senior Unsecured Notes or any Subordinated Debt may only be made when no Default
or Event of Default shall have occurred and be continuing, and (ii) such
payments, prepayments, purchases or redemptions in respect of the Senior
Unsecured Notes or any Subordinated Debt not constituting intercompany
Indebtedness permitted under Section 6.1(d) may only be made when (A) after
giving effect to such payments, there shall be at least $10,000,000 of
Accessible Borrowing Availability under the Revolving Committed Amount, and (B)
after giving effect to such payments, the Borrower is in pro forma compliance
with the financial covenants set forth in Section 5.9 (calculated as of the last
day of the most recent fiscal quarter as to which financial statements have
become available), (d) any repurchase or other acquisition of the Borrower's
Capital Stock under the terms of stock purchase agreements or similar agreements
or arrangements pursuant to which the Borrower has or may in the future have the
right to repurchase options in respect of the Borrower's Capital Stock from
former directors or employees of, or former consultants to, the Borrower as a
result of a termination of any such person's employment by or service to the
Borrower or otherwise in accordance with similar provisions of any option awards
or similar arrangements entered into by the Borrower from time to time, if after
giving effect thereto the aggregate amount of such purchases, redemptions,
retirements and acquisitions paid or made in any fiscal year is not in excess of
$1,000,000, (e) payments on Subordinated Debt incurred pursuant to and in
accordance with Section 6.1(d) and (6.1(h), subject to the terms and conditions
of any subordination agreement entered into with respect thereto, (f) the Credit
Parties and their Subsidiaries may (i) purchase, redeem or otherwise acquire
shares of their Capital Stock or warrants or options to acquire any such shares
or prepay Subordinated Debt with the proceeds received from the substantially
concurrent issue of new shares of Capital Stock or (ii) prepay Subordinated Debt
with the proceeds received from the substantially concurrent issue of new
Subordinated Debt, (g) repurchase of Capital Stock deemed to occur upon the
exercise of stock options, warrants or other convertible or exchangeable
securities; provided that, such repurchase may only be made when (i) no Default
or Event of Default shall have occurred and be continuing, (ii) after giving
effect to such repurchase, there shall be at least $10,000,000 of Accessible
Borrowing Availability under the Revolving Committed Amount, and (iii) after
giving effect to such repurchase, the Borrower is in pro forma compliance with
the financial covenants set forth in Section 5.9 (calculated as of the last day
of the most recent fiscal quarter as to which financial statements have become
available), (h) make cash payments in lieu of fractional shares issuable as
dividends on Capital Stock of the Credit Parties and their Subsidiaries in an
amount not to exceed $1,000,000 in the aggregate, (i) make other Restricted
Payments not in excess of $5,000,000 in the aggregate, and (j) make any payment
with respect to any earnout obligation, provided that, such payments may only be
made when (i) no Default or Event of Default shall have occurred and be
continuing, (ii) after giving effect to such payments, there shall be at least
$10,000,000 of Accessible Borrowing Availability under the Revolving Committed
Amount, and (iii) after giving effect to such payments, the Borrower is in pro
forma compliance with the financial covenants set forth in Section 5.9
(calculated as of the last day of the most recent fiscal quarter as to which
financial statements have become available).
SECTION 6.11 AMENDMENTS TO SUBORDINATED DEBT.
The Credit Parties will not, nor will it permit any Subsidiary to, without
the prior written consent of the Required Lenders, amend, modify, waive or
extend or permit the amendment, modification, waiver or extension of any term of
any document governing or relating to any Subordinated Debt in a manner that is
materially adverse to the interests of the Lenders.
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SECTION 6.12 SALE LEASEBACKS.
The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an Operating lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (a) which any Credit Party or any Subsidiary has sold or
transferred or is to sell or transfer to a Person which is not a Credit Party or
a Subsidiary or (b) which any Credit Party or any Subsidiary intends to use for
substantially the same purpose as any other property which has been sold or is
to be sold or transferred by a Credit Party or a Subsidiary to another Person
which is not a Credit Party or a Subsidiary in connection with such lease.
SECTION 6.13 NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not, nor will they permit any Subsidiary to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon any of their properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other obligation,
except (a) pursuant to this Credit Agreement and the other Credit Documents, (b)
pursuant to the Senior Unsecured Notes Indenture or other indenture or agreement
evidencing Indebtedness permitted under Section 6.1(f), (c) pursuant to any
document or instrument governing Indebtedness incurred pursuant to Section
6.1(c) (provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith) and (e), (d)
any Permitted Lien or any document or instrument governing any Permitted Lien
(provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien), (e) customary non-assignment
provisions of leases, subleases, licenses and sublicenses, (f) restrictions in
joint venture and partnership agreements, (g) restrictions on property to be
transferred or optioned that are or were created by virtue of the transfer
thereof, including restrictions with respect to the disposition or transfer of
assets or property in asset sale agreements, stock sale agreements and other
similar agreements, (h) restrictions and conditions applicable to any Subsidiary
acquired after the date hereof if such restrictions and conditions existed at
the time such Subsidiary was acquired, were not created in anticipation of such
acquisition, and applying solely to such acquired Subsidiary, and (i)
restrictions on cash and other deposits or net worth imposed by customers under
contracts entered into the ordinary course of business.
SECTION 6.14 DEPOSIT ACCOUNT CONTROL AGREEMENTS; ADDITIONAL BANK ACCOUNTS.
Each of the Credit Parties will not, nor will it permit any Domestic
Subsidiary to, open, maintain or otherwise have any checking, savings or other
accounts at any bank or other financial institution, or any other account where
money is or may be deposited or maintained with any Person, other than (a) the
accounts set forth on Schedule 6.14, (b) demand deposit accounts established
after the Closing Date that are subject to a Deposit Account Control Agreement,
(c) other demand deposit accounts established after the Closing Date solely as
payroll and other zero balance accounts and (d) other deposit accounts so long
as at any time the balance in any such account does not exceed $100,000 and the
aggregate balance in all such accounts does not exceed $250,000.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
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(a) Payment. (i) The Borrower shall fail to pay any principal on any
Loan when due in accordance with the terms hereof; or (ii) the Borrower
shall fail to reimburse the Issuing Lender for any LOC Obligations when
due in accordance with the terms hereof; or (iii) the Borrower shall fail
to pay any interest on any Loan or any fee or other amount payable
hereunder when due in accordance with the terms hereof and such failure
shall continue unremedied for three (3) Business Days; or (iv) or any
Guarantor shall fail to pay on the Guaranty in respect of any of the
foregoing or in respect of any other Guaranty Obligations hereunder (after
giving effect to the grace period in clause (iii)); or
(b) Misrepresentation. Any representation or warranty made or deemed
made herein, in the Security Documents or in any of the other Credit
Documents or which is contained in any certificate, document or financial
or other statement furnished at any time under or in connection with this
Credit Agreement shall prove to have been incorrect, false or misleading
on or as of the date made or deemed made; or
(c) Covenant Default. (i) Any Credit Party shall fail to perform,
comply with or observe any term, covenant or agreement applicable to it
contained in Sections 5.1, 5.2, 5.4(a)(ii), 5.4(c), 5.7, 5.9, 5.11, or
Article VI hereof; or (ii) any Credit Party shall fail to comply with any
other covenant contained in this Credit Agreement or the other Credit
Documents or any other agreement, document or instrument among any Credit
Party, the Administrative Agent and the Lenders or executed by any Credit
Party in favor of the Administrative Agent or the Lenders (other than as
described in Sections 7.1(a) or 7.1(c)(i) above), and such breach or
failure to comply is not cured within thirty (30) days of its occurrence;
or
(d) Debt Cross-Default. (i) Any Credit Party shall default in any
payment of principal of or interest on any Indebtedness (other than the
Loans, Reimbursement Obligations and the Guaranty) in a principal amount
outstanding of at least $5,000,000 for the Borrower and any of its
Subsidiaries in the aggregate beyond any applicable grace period (not to
exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness was created; (ii) any Credit Party shall default
in the observance or performance of any other agreement or condition
relating to any Indebtedness (including the Senior Unsecured Notes but
other than the Loans, Reimbursement Obligations and the Guaranty) in a
principal amount outstanding of at least $5,000,000 in the aggregate for
the Credit Parties and their Subsidiaries or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity; or (iii) any
Credit Party shall breach or default any Secured Hedging Agreement
(subject to any applicable cure periods) and the termination value owed by
such Credit Party as a result thereof shall exceed $5,000,000; or
(e) Bankruptcy Default. (i) A Credit Party or any of its
Subsidiaries shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts (other than such events
occurring in accordance with the terms of Section 6.4), or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or a Credit Party or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against a Credit Party or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against a Credit Party or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of their
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) a Credit Party or
any of its Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) a Credit Party
or any of its
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Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing their inability to, pay its debts as they become due; or
(f) Judgment Default. One or more judgments or decrees shall be
entered against a Credit Party or any of its Subsidiaries involving in the
aggregate a liability (to the extent not covered by insurance) of
$5,000,000 or more and all such judgments or decrees shall not have been
paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 30 Business Days from the entry thereof or any injunction,
temporary restraining order or similar decree shall be issued against a
Credit Party or any of its Subsidiaries that could reasonably be expected
to result in a Material Adverse Effect; or
(g) ERISA Default. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan with liability to the Credit Parties and their
Subsidiaries in excess of $5,000,000 in the aggregate, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA) with
liability to the Credit Parties and their Subsidiaries in excess of
$5,000,000 in the aggregate, whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan (other than
a Permitted Lien) shall arise on the assets of the Credit Parties or any
Commonly Controlled Entity, (iii) a Reportable Event with liability to the
Credit Parties and their Subsidiaries in excess of $5,000,000 in the
aggregate shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, or
(v) a Credit Party, any of its Subsidiaries or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required Lenders is
likely to, incur any liability in connection with a withdrawal from, or
the Insolvency or Reorganization of, any Multiemployer Plan by an amount
which, as determined in accordance with GAAP, could reasonably be expected
to have a Material Adverse Effect; or
(h) Change of Control. There shall occur a Change of Control; or
(i) Invalidity of Guaranty. At any time after the execution and
delivery thereof, the Guaranty, for any reason other than the satisfaction
in full of all Credit Party Obligations, shall cease to be in full force
and effect (other than in accordance with its terms) or shall be declared
to be null and void, or any Credit Party shall contest the validity or
enforceability of the Guaranty or any Credit Document in writing or deny
in writing that it has any further liability, including with respect to
future advances by the Lenders, under any Credit Document to which it is a
party; or
(j) Invalidity of Credit Documents. Any other Credit Document shall
fail to be in full force and effect or to give the Administrative Agent
and/or the Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby (except as such documents may
be terminated or no longer in force and effect in accordance with the
terms thereof, other than those indemnities and provisions which by their
terms shall survive) or any Lien shall fail to be a first priority,
perfected Lien (other than Permitted Liens) on a material portion of the
Collateral; or
(k) Hedging Agreement. Any termination payment in excess of
$1,000,000 shall be due by a Credit Party under any Hedging Agreement and
such amount is not paid within the later to occur of five (5) Business
Days after the due date thereof or the expiration of grace periods, if
any, in such Hedging Agreement; or
(l) Subordinated Debt. The subordination provisions contained in any
Subordinated Debt shall cease to be in full force and effect or to give
the Lenders the rights, powers and privileges purported to be created
thereby;
(m) Uninsured Loss. Any uninsured damage to or loss, theft or
destruction of any assets of the Credit Parties or any of their
Subsidiaries shall occur that is in excess of $2,500,000; or
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(n) Government Contracts. (i) The Borrower or any Subsidiary thereof
is debarred or suspended from contracting with any Governmental Authority
which individually, or together with any other pending or suspected
debarments or suspensions could reasonably be expected to have a Material
Adverse Effect; or (ii) an investigation by any Governmental Authority
relating to the Borrower or any Subsidiary thereof and involving fraud,
deception or willful misconduct shall have been commenced in connection
with any Government Contract or the Borrower's or any Subsidiary's
activities that could reasonably be expected to have a Material Adverse
Effect; or (iii) the actual termination of a Government Contract due to
alleged fraud, deception or willful misconduct that could reasonably be
expected to have a Material Adverse Effect.
SECTION 7.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
then, and in any such event, (a) if such event is an Event of Default specified
in Section 7.1(e) above, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts
under the Credit Documents (including without limitation the maximum amount of
all contingent liabilities under Letters of Credit) shall immediately become due
and payable, and (b) if such event is any other Event of Default, any or all of
the following actions may be taken: (i) with the written consent of the Required
Lenders, the Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
(ii) the Administrative Agent may, or upon the written request of the Required
Lenders, the Administrative Agent shall, declare the Loans (with accrued
interest thereon) and all other amounts owing under this Credit Agreement and
the Notes to be due and payable forthwith and direct the Borrower to pay to the
Administrative Agent cash collateral as security for the LOC Obligations for
subsequent drawings under then outstanding Letters of Credit an amount equal to
the maximum amount of which may be drawn under Letters of Credit then
outstanding, whereupon the same shall immediately become due and payable; and/or
(iii) with the written consent of the Required Lenders, the Administrative Agent
may, or upon the written request of the Required Lenders, the Administrative
Agent shall, exercise such other rights and remedies as provided under the
Credit Documents and under applicable law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints Wachovia as the
Administrative Agent of such Lender under this Credit Agreement, and each such
Lender irrevocably authorizes Wachovia, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Credit
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Credit Agreement,
together with such other powers as are reasonably incidental thereto. Each
Lender acknowledges that the Credit Parties may rely on each action taken by the
Administrative Agent on behalf of the Lenders hereunder. Notwithstanding any
provision to the contrary elsewhere in this Credit Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or otherwise exist against the Administrative
Agent.
SECTION 8.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this Credit
Agreement by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
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Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.
SECTION 8.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or affiliates shall be (a)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Credit Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Credit Party or any officer thereof contained in this
Credit Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Credit Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Credit
Documents or for any failure of any Credit Party to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance by any Credit Party of any of the agreements contained in, or
conditions of, this Credit Agreement, or to inspect the properties, books or
records of any Credit Party.
SECTION 8.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation believed by it in good faith 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 (including, without limitation,
counsel to the Credit Parties), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes
unless an executed Assignment Agreement has been filed with the
Administrative Agent pursuant to Section 9.6(c) with respect to the Loans
evidenced by such Note. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Credit Agreement
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
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. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under any of the Credit
Documents in accordance with a request of the Required Lenders or all of
the Lenders, as may be required under this Credit Agreement, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Lender that has signed this Credit
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
SECTION 8.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided, however, that
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unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Credit Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the
Required Lenders, or all of the Lenders, as the case may be.
SECTION 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representation or warranty to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Credit Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower or any other Credit Party and
made its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent 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 analysis, appraisals and decisions in taking or not taking
action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower or any other Credit Party which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION 8.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent, the Issuing
Lender and their Affiliates and their respective officers, directors, agents and
employees (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Revolving Commitment Percentages in effect on the date on which indemnification
is sought under this Section, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Credit
Party Obligations) be imposed on, incurred by or asserted against any such
indemnitee in any way relating to or arising out of any Credit Document or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such
indemnitee under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from such indemnitee's
gross negligence or willful misconduct, as determined by a court of competent
jurisdiction. The agreements in this Section 8.7 shall survive the termination
of this Credit Agreement and payment of the Notes and all other amounts payable
hereunder.
SECTION 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
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SECTION 8.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30 days'
prior notice to the Borrower and the Lenders. If the Administrative Agent shall
resign as Administrative Agent under this Credit Agreement and the Notes or if
the Administrative Agent enters or becomes subject to receivership, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be approved by the Borrower with such
approval not to be unreasonably withheld (provided, however, if an Event of
Default shall exist at such time, no approval of the Borrower shall be required
hereunder), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Credit Agreement or any holders of the Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Credit Agreement.
SECTION 8.10 NATURE OF DUTIES.
Except as otherwise expressly stated herein, any agent (other than the
Administrative Agent) or co-lead arranger listed from time to time on the cover
page of this Credit Agreement shall have no obligations, responsibilities or
duties under this Credit Agreement or under any other Credit Document other than
obligations, responsibilities and duties applicable to all Lenders in their
capacity as Lenders; provided, however, that such agents and co-lead arrangers
shall be entitled to the same rights, protections, exculpations and
indemnifications granted to the Administrative Agent under this Article VIII in
their capacity as an agent or co-lead arranger.
SECTION 8.11 RELEASES.
The Administrative Agent will release any Guarantor and any Lien on any
Collateral that is sold as permitted by the Credit Agreement or as otherwise
permitted by the Lenders or Required Lenders, as applicable.
In connection with the granting of Liens of the type described in clause
(c) of the definition of "Permitted Liens", by the Borrower or any of its
Subsidiaries, at the reasonable request of the Borrower, and at the Borrower's
expense, the Administrative Agent shall take (and is hereby authorized to take)
any actions reasonably requested by the Borrower in connection therewith
(including, without limitation, executing appropriate lien subordinations in
favor of the holder or holders of such Liens solely with respect to the item or
items of equipment or other assets subject to such Liens).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS, WAIVERS AND RELEASE OF COLLATERAL.
Neither this Credit Agreement nor any of the other Credit Documents, nor
any terms hereof or thereof may be amended, supplemented, waived or modified (by
amendment, waiver, consent or otherwise) except in accordance with the
provisions of this Section nor may Collateral be released except as specifically
provided herein or in the Security Documents or in accordance with the
provisions of this Section 9.1. The Required Lenders may or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to
time, (x) enter into with the Borrower written amendments, supplements or
modifications hereto and to the other Credit Documents for the
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purpose of adding any provisions to this Credit Agreement or the other Credit
Documents or changing in any manner the rights of the Lenders or of the Borrower
hereunder or thereunder or (b) waive or consent to the departure from, on such
terms and conditions as the Required Lenders may specify in such instrument, any
of the requirements of this Credit Agreement or the other Credit Documents or
any Default or Event of Default and its consequences; provided, however, that no
such amendment, supplement, modification, release, waiver or consent shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or Note or any installment thereon, or reduce the stated
rate of any interest or fee payable hereunder (except in connection
with a waiver of interest at the increased post-default rate set
forth in Section 2.8 which shall be determined by a vote of the
Required Lenders) or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the written consent of
each Lender directly affected thereby; provided that, it is
understood and agreed that (A) no waiver, reduction or deferral of a
mandatory repayment required pursuant to Section 2.7(b), nor any
amendment of Section 2.7(b), shall constitute a reduction of the
amount of, or an extension of the scheduled date of, the scheduled
date of maturity of, or any installment of, any Loan or Note and (B)
any reduction in the stated rate of interest on Revolving Loans
shall only require the written consent of each Lender holding a
Revolving Commitment; or
(ii) amend, modify or waive any provision of this Section 9.1
or reduce the percentage specified in the definition of Required
Lenders, without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Article VIII
without the written consent of the then Administrative Agent; or
(iv) release the Borrower or all or substantially all of the
Guarantors from obligations under the Guaranty, without the written
consent of all of the Lenders and Hedging Agreement Providers; or
(v) release all or substantially all of the Collateral without
the written consent of all of the Lenders and Hedging Agreement
Providers; or
(vi) subordinate the Loans to any other Indebtedness without
the written consent of all of the Lenders; or
(vii) permit a Letter of Credit to have an original expiry
date more than twelve (12) months from the date of issuance without
the consent of each of the Revolving Lenders; provided, that the
expiry date of any Letter of Credit may be extended in accordance
with the terms of Section 2.2(a); or
(viii) permit the Borrower to assign or transfer any of its
rights or obligations under this Credit Agreement or other Credit
Documents without the written consent of all of the Lenders; or
(ix) amend, modify or waive any provision of the Credit
Documents requiring consent, approval or request of the Required
Lenders or all Lenders without the written consent of the Required
Lenders or all the Lenders as appropriate; or
(x) without the consent of Revolving Lenders holding in the
aggregate more than 66 2/3% of the outstanding Revolving Commitments
(or if the Revolving Commitments have been terminated, the aggregate
principal amount of outstanding Revolving Loans), amend, modify or
waive any provision in Section 4.2 or waive any Default or Event of
Default (or amend any Credit Document to effectively waive any
Default or Event of Default) if the effect of such amendment,
modification or waiver is that the Revolving Lenders shall be
required to fund Revolving Loans when such Lenders would otherwise
not be required to do so; or
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(xi) amend, modify or waive any provision of the Credit
Documents requiring consent, approval or request of the Required
Lenders or all Lenders, without the written consent of all of the
Required Lenders or Lenders as appropriate; or
(xii) amend, modify or waive any provision of the Credit
Documents affecting the rights or duties of the Administrative
Agent, the Issuing Lender or the Swingline Lender under any Credit
Document without the written consent of the Administrative Agent,
the Issuing Lender and/or the Swingline Lender, as applicable, in
addition to the Lenders required hereinabove to take such action; or
(xiii) amend, modify or waive the order in which Credit Party
Obligations are paid in Section 2.12(b) without the written consent
of each Lender and each Hedging Agreement Provider directly affected
thereby; or
(xiv) amend the definitions of "Hedging Agreement," "Secured
Hedging Agreement," or "Hedging Agreement Provider" without the
consent of any Hedging Agreement Provider that would be adversely
affected thereby; or
(xv) amend, modify or waive any provision of Article XI,
without the written consent of all the Lenders (other than for
purposes of curing any formal defect, omission or ambiguity).
provided, further, that no amendment, waiver or consent affecting the
rights or duties of the Administrative Agent, the Issuing Lender or the
Swingline Lender under any Credit Document shall in any event be effective,
unless in writing and signed by the Administrative Agent, the Issuing Lender
and/or the Swingline Lender, as applicable, in addition to the Lenders required
hereinabove to take such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of the
Borrower and the other Credit Parties shall not be required for any amendment,
modification or waiver of the provisions of Article VIII (other than the
provisions of Section 8.9) ); provided, however, that the Administrative Agent
shall provide written notice to the Borrower of any such amendment, modification
or waiver.
Notwithstanding the fact that the consent of all the Lenders is required
in certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
SECTION 9.2 NOTICES.
(a) Except as otherwise provided in Article II, all notices,
requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or other electronic
communications as provided below), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (a) when
delivered by hand, (b) when transmitted via telecopy (or other facsimile
device) to the number set out herein, (c) the Business Day following the
day on which the same has been delivered prepaid (or pursuant to an
invoice arrangement) to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same
is sent by certified or
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registered mail, postage prepaid, in each case, addressed as follows in
the case of the Borrower, the other Credit Parties and the Administrative
Agent, and, in the case of each of the Lenders, as set forth in such
Lender's Administrative Details Form, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders
of the Notes:
The Borrower American Pacific Corporation
and the other 0000 Xxxxxx Xxxxxx Xxxxxxx #000
Credit Parties: Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxx, Chief Financial Officer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Borrower's
Website address: xxx.xxxx.xxx
The Administrative
Agent: Wachovia Bank, National Association, as
Administrative Agent
Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx XX0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
provided, that notices given by the Borrower pursuant to Section 2.1 or
Section 2.9 hereof shall be effective only upon receipt thereof by the
Administrative Agent.
(b) Notices and other communications to the Lenders or the
Administrative Agent hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent; provided that
the foregoing shall not apply to notices to any Lender pursuant to Article
II if such Lender, as applicable, has notified the Administrative Agent
that it is incapable of receiving notices under such Section by electronic
communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to particular
notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as
available, return e-mail or other written acknowledgement); provided that
if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next business
day for the recipient, and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.
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SECTION 9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Credit Agreement and the Notes
and the making of the Loans; provided that all such representations and
warranties shall terminate on the date upon which the Commitments have been
terminated and all amounts owing hereunder and under any Notes have been paid in
full.
SECTION 9.5 PAYMENT OF EXPENSES AND TAXES.
The Credit Parties agree (a) to pay or reimburse the Administrative Agent
and the Arranger for all their reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation, negotiation, printing
and execution of, and any amendment, supplement or modification to, this Credit
Agreement and the other Credit Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Administrative Agent and the Arranger, (b)
to pay or reimburse each Lender and the Administrative Agent for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Credit Agreement and the other Credit Documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the Lenders (including reasonable allocated costs of
in-house legal counsel), and (c) on demand, to pay, indemnify, and hold each
Lender, the Administrative Agent and the Arranger harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Credit Documents and any
such other documents, (d) to pay, indemnify, and hold each Lender, the
Administrative Agent, the Arranger and their Affiliates and their respective
officers, directors, employees, partners, members, counsel, agents,
representatives, advisors and affiliates (collectively called the "Indemnitees")
harmless from and against, any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents and any such
other documents and the use, or proposed use, of proceeds of the Loans and (e)
to pay any civil penalty or fine assessed by the U.S. Department of the
Treasury's Office of Foreign Assets Control against, and all reasonable costs
and expenses (including counsel fees and disbursements) incurred in connection
with defense thereof by the Administrative Agent or any Lender as a result of
the funding of Loans, the issuance of Letters of Credit, the acceptance of
payments or of Collateral due under the Credit Documents (all of the foregoing,
collectively, the "Indemnified Liabilities"); provided, however, that the
Borrower shall not have any obligation hereunder to an Indemnitee with respect
to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnitee, as determined by a court of competent
jurisdiction pursuant to a final non-appealable judgment. The agreements in this
Section 9.5 shall survive repayment of the Loans, Notes and all other amounts
hereunder.
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SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Credit Parties, the Lenders, the Administrative Agent, all
future holders of the Notes and their respective successors and assigns,
except that the Credit Parties may not assign or transfer any of their
rights or obligations under this Credit Agreement or the other Credit
Documents without the prior written consent of each Lender.
(b) 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 Loan owing
to such Lender, any Note held by such Lender, any Commitment of such
Lender, or any other interest of such Lender hereunder. In the event of
any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under this Credit Agreement to the other parties
to this Credit Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain
the holder of any such Note for all purposes under this Credit Agreement,
and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Credit Agreement. No Lender shall
transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Credit Agreement or
any other Credit Document except to the extent such amendment or waiver
would (i) extend the scheduled maturity of any Loan or Note or any
installment thereon in which such Participant is participating, or reduce
the stated rate or extend the time of payment of interest or fees thereon
(except in connection with a waiver of interest at the increased
post-default rate set forth in Section 2.9 which shall be determined by a
vote of the Required Lenders) or reduce the principal amount thereof, or
increase the amount of the Participant's participation over the amount
thereof then in effect; provided that, it is understood and agreed that
(A) no waiver, reduction or deferral of a mandatory repayment required
pursuant to Section 2.7(b), nor any amendment of Section 2.7(b), shall
constitute a reduction of the amount of, or an extension of the scheduled
date of, the scheduled date of maturity of, or any installment of, any
Loan or Note, (B) a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and (C) an
increase in any Commitment or Loan shall be permitted without consent of
any participant if the Participant's participation is not increased as a
result thereof, (ii) release all or substantially all of the Guarantors
from their obligations under the Guaranty, (iii) release all or
substantially all of the Collateral, or (iv) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Credit Agreement. In the case of any such participation, the Participant
shall not have any rights under this Credit Agreement or any of the other
Credit Documents (the Participant's rights against such Lender in respect
of such participation to be those set forth in the agreement executed by
such Lender in favor of the Participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation; provided that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.5 with respect
to its participation in the Commitments and the Loans outstanding from
time to time; provided further, that no Participant shall be entitled to
receive any greater amount pursuant to such Sections than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any time,
sell or assign to any Lender or any Affiliate or Approved Fund thereof and
to one or more additional banks, insurance companies, financial
institutions, investment funds or other entities ("Purchasing Lenders"),
all or any part of its rights and obligations under this Credit Agreement
and the Notes in minimum amounts of $1,000,000 (or such lesser amount
approved by the Administrative Agent) with respect to its Revolving
Commitment and its Revolving Loans (or, if less, the entire amount of such
Lender's Revolving Commitment and Revolving Loans) pursuant to an
Assignment Agreement, executed by such Purchasing Lender, such transferor
Lender, the Administrative Agent, the Issuing Lender and the Borrower (to
the extent required), and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided, however, that (A) any
sale or assignment to an existing Lender, or Affiliate or Approved Fund
thereof, shall not require the consent of the Borrower nor shall any such
sale or assignment be subject to the minimum assignment amounts specified
herein and (B) so long as no Default or Event of Default shall have
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occurred and be continuing, any sale or assignment of a portion of the
Revolving Loans and a Revolving Loan Commitment shall require the consent
of the Borrower (such consent not to be unreasonably withheld). Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Assignment Agreement, (1) the Purchasing
Lender thereunder shall be a party hereto and, to the extent provided in
such Assignment Agreement, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (2) the transferor
Lender thereunder shall, to the extent provided in such Assignment
Agreement, be released from its obligations under this Credit Agreement
(and, in the case of an Assignment Agreement covering all or the remaining
portion of a transferor Lender's rights and obligations under this Credit
Agreement, such transferor Lender shall cease to be a party hereto;
provided, however, that such Lender shall continue to be entitled to any
indemnification rights that expressly survive hereunder). Such Assignment
Agreement shall be deemed to amend this Credit Agreement to the extent,
and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Revolving Commitment
Percentages arising from the purchase by such Purchasing Lender of all or
a portion of the rights and obligations of such transferor Lender under
this Credit Agreement and the Notes. On or prior to the Transfer Effective
Date specified in such Assignment Agreement, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange
for the Notes delivered to the Administrative Agent pursuant to such
Assignment Agreement new Notes to the order of such Purchasing Lender in
an amount equal to the Commitment assumed by it pursuant to such
Assignment Agreement and, unless the transferor Lender has not retained a
Commitment hereunder, new Notes to the order of the transferor Lender in
an amount equal to the Commitment retained by it hereunder. Such new Notes
shall be dated the Closing Date and shall otherwise be in the form of the
Notes replaced thereby. Notwithstanding anything to the contrary contained
in this Section 9.6, a Lender may assign any or all of its rights under
this Credit Agreement to an Affiliate or a Approved Fund of such Lender
without delivering an Assignment Agreement to the Administrative Agent;
provided, however, that (x) the Credit Parties and the Administrative
Agent may continue to deal solely and directly with such assigning Lender
until an Assignment Agreement has been delivered to the Administrative
Agent for recordation on the Register, (y) the failure of such assigning
lender to deliver a Assignment Agreement to the Administrative Agent shall
not affect the legality, validity or binding effect of such assignment and
(z) an Assignment Agreement between the assigning Lender an Affiliate or
Approved Fund of such Lender shall be effective as of the date specified
in such Assignment Agreement.
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.2 a copy of each Assignment Agreement delivered to it and
a register (the "Register") for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Loans
owing to, each Lender from time to time. A Loan (and the related Note)
recorded on the Register may be assigned or sold in whole or in part upon
registration of such assignment or sale on the Register. The entries in
the Register shall be conclusive, in the absence of manifest error, and
the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice. In the
case of an assignment pursuant to the last sentence of Section 9.6(c) as
to which an Assignment Agreement is not delivered to the Administrative
Agent, the assigning Lender shall, acting solely for this purpose as a
non-fiduciary agent of the Credit Parties, maintain a comparable register
on behalf of the Credit Parties. In the event that any Lender sells
participations in a Loan recorded on the Register, such Lender shall
maintain a register on which it enters the name of all participants in
such Loans held by it (the "Participant Register"). A Loan recorded on the
Register (and the registered Note, if any, evidencing the same) may be
participated in whole or in part only by registration of such
participation on the Participant Register (and each registered Note shall
expressly so provide). Any participation of such Loan recorded on the
Register (and the registered Note, if any, evidencing the same) may be
effected only by the registration of such participation on the Participant
Register.
(e) Upon its receipt of a duly executed Assignment Agreement,
together with payment to the Administrative Agent by the transferor Lender
or the Purchasing Lender, as agreed between them, of a registration and
processing fee of $3,500 for each Purchasing Lender (other than a
Purchasing Lender that is an Affiliate or Approved Fund of the transferor
Lender) listed in such Assignment Agreement and the Notes subject to such
Assignment Agreement, the Administrative Agent shall (i) accept such
Assignment
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Agreement, (ii) record the information contained therein in the Register
and (iii) give prompt notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Subsidiaries which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Credit Agreement or which has been delivered to such Lender by or on
behalf of the Borrower in connection with such Lender's credit evaluation
of the Borrower and its Affiliates prior to becoming a party to this
Credit Agreement, in each case subject to Section 9.15.
(g) At the time of each assignment pursuant to this Section 9.6 to a
Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms described in Section 2.17.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Credit Agreement (including,
without limitation, any right to payment of principal and interest under
any Note) to secure obligations of such Lender, including without
limitation, (i) any pledge or assignment to secure obligations to a
Federal Reserve Bank and (ii) in the case of any Lender that is a fund or
trust or entity that invests in commercial bank loans in the ordinary
course of business, any pledge or assignment to any holders of obligations
owed, or securities issued, by such Lender including to any trustee for,
or any other representative of, such holders; it being understood that the
requirements for assignments set forth in this Section 9.6 shall not apply
to any such pledge or assignment of a security interest, except with
respect to any foreclosure or similar action taken by such pledgee or
assignee with respect to such pledge or assignment; provided that no such
pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto and no such pledgee or assignee
shall have any voting rights under this Credit Agreement unless and until
the requirements for assignments set forth in this Section 9.6 are
complied with in connection with any foreclosure or similar action taken
by such pledgee or assignee.
SECTION 9.7 ADJUSTMENTS; SET-OFF.
(a) Each Lender agrees that if any Lender (a "benefited Lender")
shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to a Bankruptcy Event
or otherwise) in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such benefited Lender shall purchase
for cash from the other Lenders a participating interest in such portion
of each such other Lender's Loan, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise
all rights of payment (including, without limitation, rights of set-off)
with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law (including, without limitation, other rights of set-off), each
Lender shall have the right, without prior notice to the Borrower or the
applicable Credit Party, any such notice being expressly waived by the
Credit Parties to the extent permitted by applicable law, upon the
occurrence of any Event of Default, to setoff and appropriate and apply
any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held by or owing to such
Lender or any branch or agency
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thereof to or for the credit or the account of the Borrower or any other
Credit Party, or any part thereof in such amounts as such Lender may
elect, against and on account of the Loans and other Credit Party
Obligations of the Borrower and the other Credit Parties to the
Administrative Agent and the Lenders and claims of every nature and
description of the Administrative Agent and the Lenders against the
Borrower and the other Credit Parties, in any currency, whether arising
hereunder, under any other Credit Document or any Secured Hedging
Agreement pursuant to the terms of this Credit Agreement, as such Lender
may elect, whether or not the Administrative Agent or the Lenders have
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The aforesaid right of set-off may
be exercised by such Lender against the Borrower, any other Credit Party
or against any trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receiver or execution, judgment or attachment
creditor of the Borrower or any other Credit Party, or against anyone else
claiming through or against the Borrower, any other Credit Party or any
such trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of Default.
Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
SECTION 9.8 TABLE OF CONTENTS AND SECTION HEADINGS.
The table of contents and the Section and subsection headings herein are
intended for convenience only and shall be ignored in construing this Credit
Agreement.
SECTION 9.9 COUNTERPARTS.
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Credit Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 9.10 EFFECTIVENESS.
This Credit Agreement shall become effective on the date on which all of
the parties have signed a copy hereof (whether the same or different copies) and
shall have delivered the same to the Administrative Agent pursuant to Section
9.2 or, in the case of the Lenders, shall have given to the Administrative Agent
written, telecopied or telex notice (actually received) at such office that the
same has been signed and mailed to it.
SECTION 9.11 SEVERABILITY.
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9.12 INTEGRATION.
This Credit Agreement and the other Credit Documents represent the
agreement of the Borrower, the other Credit Parties, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, the Borrower, the other Credit Parties, or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or therein.
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SECTION 9.13 GOVERNING LAW.
This Credit Agreement and, unless otherwise specified therein, each other
Credit Document and the rights and obligations of the parties under this Credit
Agreement and such other Credit Document shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York without regard
to conflict of laws principles thereof (other than Sections 5-1401 and 5-1402 of
The New York General Obligations Law).
SECTION 9.14 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Credit Agreement, any Note or any of the other
Credit Documents may be brought in any state or federal court of competent
jurisdiction in the State of New York, and, by execution and delivery of this
Credit Agreement, the Borrower and each of the other Credit Parties accepts, for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Credit
Agreement from which no appeal has been taken or is available. The Borrower and
each of the other Credit Parties irrevocably agree that all service of process
in any such proceedings in any such court may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to it at its address set forth in Section 9.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by the Borrower and the
other Credit Parties to be effective and binding service in every respect. The
Borrower, the other Credit Parties, the Administrative Agent and the Lenders
irrevocably waive any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens which it may
now or hereafter have to the bringing of any such action or proceeding in any
such jurisdiction. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any Lender to bring
proceedings against the Borrower or the other Credit Parties in the court of any
other jurisdiction.
SECTION 9.15 CONFIDENTIALITY.
The Administrative Agent and each of the Lenders agrees that it will use
its best efforts not to disclose without the prior consent of the Borrower any
information (the "Information") with respect to the Credit Parties and their
Subsidiaries which is furnished pursuant to this Credit Agreement, any other
Credit Document or any documents contemplated by or referred to herein or
therein and which is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such information is
not public, except that any Lender may disclose any such Information (a) to its
employees, affiliates, auditors or counsel or to another Lender, (b) as has
become generally available to the public other than by a breach of this Section
9.15, (c) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or the Office of the Comptroller of
the Currency or the National Association of Insurance Commissioners or similar
organizations (whether in the United States or elsewhere) or their successors,
(d) as may be required or appropriate in response to any summons or subpoena or
any law, order, regulation or ruling applicable to such Lender, (e) to (i) any
prospective Participant or assignee in connection with any contemplated transfer
pursuant to Section 9.6 or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower,
provided that such prospective transferee shall have been made aware of this
Section 9.15 and shall have agreed to be bound by its provisions as if it were a
party to this Credit Agreement, (f) to Gold Sheets and other similar bank trade
publications; such information to consist of deal terms and other information
regarding the credit facilities evidenced by this Credit Agreement customarily
found in such publications, (g) in connection with any suit, action or
proceeding for the purpose of defending itself, reducing its liability, or
protecting or exercising any of its claims, rights, remedies or interests under
or in connection with the Credit Documents or any Secured Hedging Agreement, (h)
to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 9.15), (i) any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in
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connection with ratings issued with respect to such Lender, (j) to a Person that
is an investor or prospective investor in a Securitization (as defined below)
that agrees that its access to information regarding the Borrower and the Loans
is solely for purposes of evaluating an investment in such Securitization;
provided that such Person shall have been made aware of this Section 9.15 and
shall have agreed to be bound by its provisions as if it were a party to this
Credit Agreement, or (k) to a Person that is a trustee, collateral manager,
servicer, noteholder or secured party in a Securitization in connection with the
administration, servicing and reporting on the assets serving as collateral for
such Securitization; provided that such Person shall have been made aware of
this Section 9.15 and shall have agreed to be bound by its provisions as if it
were a party to this Credit Agreement. For purposes of this Section
"Securitization" shall mean a public or private offering by a Lender or any of
its affiliates or their respective successors and assigns, of securities which
represent an interest in, or which are collateralized in whole or in part by,
the Loans.
SECTION 9.16 ACKNOWLEDGMENTS.
The Borrower and the other Credit Parties each hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Credit
Party arising out of or in connection with this Credit Agreement and the
relationship between the Administrative Agent and the Lenders, on one
hand, and the Borrower and the other Credit Parties, on the other hand, in
connection herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrower
or the other Credit Parties and the Lenders.
SECTION 9.17 WAIVERS OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
Each of the Borrower, the other Credit Parties, the Administrative Agent and the
Lenders agree not to assert any claim against any other party to this Credit
Agreement or any their respective directors, officers, employees, attorneys,
Affiliates or agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to any of
the transactions contemplated herein.
SECTION 9.18 PATRIOT ACT NOTICE.
Each Lender and the Administrative Agent (for itself and not on behalf of
any other party) hereby notifies the Borrower that, pursuant to the requirements
of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26,
2001 (the "Patriot Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Patriot Act.
SECTION 9.19 AMENDMENT AND RESTATEMENT.
This Agreement is intended to amend and restate the Existing Credit
Agreement, without novation, with the Commitments set forth herein and the
Lenders party hereto. All Letters of Credit outstanding under the Existing
Credit Agreement shall be Letters of Credit outstanding hereunder. The Company
hereby ratifies, affirms and acknowledges all of its Obligations in respect of
the Existing Credit Agreement and the related documents and
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agreements delivered by them thereunder, including all outstanding Existing
Letters of Credit and related LOC Documents. Without limiting the foregoing, all
Collateral under the Existing Credit Agreement shall be Collateral hereunder and
continue to secure the obligations. All previously outstanding promissory notes
under the Existing Credit Agreement will be deemed cancelled upon the occurrence
of the Closing Date and the issuance of the Notes hereunder. Additionally, those
Lenders party hereto which are also party to the Existing Credit Agreement
hereby waive any prior notice requirement under the Existing Credit Agreement
with respect to the termination of commitments thereunder and the making of any
prepayments thereunder.
ARTICLE X
GUARANTY
SECTION 10.1 THE GUARANTY.
In order to induce the Lenders to enter into this Credit Agreement and any
Hedging Agreement Provider to enter into any Secured Hedging Agreement and to
extend credit hereunder and thereunder and in recognition of the direct benefits
to be received by the Guarantors from the Extensions of Credit hereunder and any
Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent, the Lenders and the Hedging Agreement Providers as
follows: the Guarantor hereby unconditionally and irrevocably jointly and
severally guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise, of
any and all Credit Party Obligations. If any or all of the indebtedness becomes
due and payable hereunder or under any Secured Hedging Agreement, each Guarantor
unconditionally promises to pay such indebtedness to the Administrative Agent,
the Lenders, the Hedging Agreement Providers, or their respective order, or
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Lenders in collecting any of the Credit Party
Obligations. The Guaranty set forth in this Article X is a guaranty of timely
payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
SECTION 10.2 BANKRUPTCY.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders and any Hedging Agreement Provider
whether or not due or payable by the Borrower upon the occurrence of any of the
events specified in Section 7.1(e), and unconditionally promises to pay such
Credit Party Obligations to the Administrative Agent for the account of the
Lenders and to any such Hedging Agreement Provider, or order, on demand, in
lawful money of the United States. Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent, any Lender or any
Hedging Agreement Provider, which payment or transfer or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, or
otherwise is avoided, and/or required to be repaid to the Borrower or a
Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
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SECTION 10.3 NATURE OF LIABILITY.
The liability of each Guarantor hereunder is exclusive and independent of
any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent, the Lenders or any Hedging Agreement Provider on the
Credit Party Obligations which the Administrative Agent, such Lenders or such
Hedging Agreement Provider repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
SECTION 10.4 INDEPENDENT OBLIGATION.
The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other Guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
SECTION 10.5 AUTHORIZATION.
Each of the Guarantors authorizes the Administrative Agent, each Lender
and each Hedging Agreement Provider without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof
in accordance with this Credit Agreement and any Secured Hedging Agreement, as
applicable, including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any Guarantor or any other party for the payment
of this Guaranty or the Credit Party Obligations and exchange, enforce waive and
release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine and (d) release or substitute any one or more
endorsers, Guarantors, the Borrower or other obligors.
SECTION 10.6 RELIANCE.
It is not necessary for the Administrative Agent, the Lenders or any
Hedging Agreement Provider to inquire into the capacity or powers of the
Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any Credit Party Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
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SECTION 10.7 WAIVER.
(a) Each of the Guarantors waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent, any Lender or any Hedging Agreement Provider to (i)
proceed against the Borrower, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from the Borrower, any other
guarantor or any other party, or (iii) pursue any other remedy in the
Administrative Agent's, any Lender's or any Hedging Agreement Provider's
power whatsoever. Each of the Guarantors waives any defense based on or
arising out of any defense of the Borrower, any other guarantor or any
other party other than payment in full of the Credit Party Obligations
(other than contingent indemnity obligations), including without
limitation any defense based on or arising out of the disability of the
Borrower, any other guarantor or any other party, or the unenforceability
of the Credit Party Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower other than
payment in full of the Credit Party Obligations. The Administrative Agent
may, at its election, foreclose on any security held by the Administrative
Agent by one or more judicial or nonjudicial sales (to the extent such
sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent or any Lender may have against the
Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to
the extent the Credit Party Obligations have been paid in full and the
Commitments have been terminated. Each of the Guarantors waives any
defense arising out of any such election by the Administrative Agent or
any of the Lenders, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantors against the Borrower or any other party or any
security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Credit Party Obligations. Each Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Credit Party Obligations and
the nature, scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and agrees that neither the Administrative Agent nor any
Lender shall have any duty to advise such Guarantor of information known
to it regarding such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any
rights of subrogation which it may at any time otherwise have as a result
of this Guaranty (whether contractual, under Section 509 of the U.S.
Bankruptcy Code, or otherwise) to the claims of the Lenders or any Hedging
Agreement Provider against the Borrower or any other guarantor of the
Credit Party Obligations of the Borrower owing to the Lenders or such
Hedging Agreement Provider (collectively, the "Other Parties") and all
contractual, statutory or common law rights of reimbursement, contribution
or indemnity from any Other Party which it may at any time otherwise have
as a result of this Guaranty until such time as the Credit Party
Obligations shall have been paid in full and the Commitments have been
terminated. Each of the Guarantors hereby further agrees not to exercise
any right to enforce any other remedy which the Administrative Agent, the
Lenders or any Hedging Agreement Provider now have or may hereafter have
against any Other Party, any endorser or any other guarantor of all or any
part of the Credit Party Obligations of the Borrower and any benefit of,
and any right to participate in, any security or collateral given to or
for the benefit of the Lenders and/or the Hedging Agreement Providers to
secure payment of the Credit Party Obligations of the Borrower until such
time as the Credit Party Obligations (other than contingent indemnity
obligations) shall have been paid in full and the Commitments have been
terminated.
SECTION 10.8 LIMITATION ON ENFORCEMENT.
The Lenders and the Hedging Agreement Providers agree that this Guaranty
may be enforced only by the action of the Administrative Agent acting upon the
instructions of the Required Lenders or such Hedging Agreement
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Provider (only with respect to obligations under the applicable Secured Hedging
Agreement) and that no Lender or Hedging Agreement Provider shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent for the benefit of the Lenders under the terms of this Credit Agreement
and for the benefit of any Hedging Agreement Provider under any Secured Hedging
Agreement. The Lenders and the Hedging Agreement Providers further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
SECTION 10.9 CONFIRMATION OF PAYMENT.
The Administrative Agent and the Lenders will, upon request after payment
of the Credit Party Obligations which are the subject of this Guaranty and
termination of the Commitments relating thereto, confirm to the Borrower, the
Guarantors or any other Person that such indebtedness and obligations have been
paid and the Commitments relating thereto terminated, subject to the provisions
of Section 10.2.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed and delivered by its proper and duly authorized officers as
of the day and year first above written.
BORROWER: AMERICAN PACIFIC CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer and Treasurer
GUARANTORS: AMERICAN PACIFIC CORPORATION,
a Nevada corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer and Treasurer
AMPAC FINE CHEMICALS LLC,
a California limited liability company
By: /s/ Xx. Xxxxx Xxxxx
----------------------------------------
Name: Xx. Xxxxx Xxxxx
Title: President
ENERGETIC ADDITIVES INC., LLC,
a Nevada limited liability company
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Manager
AMPAC-ISP CORP.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer and Treasurer
AMERICAN AZIDE CORPORATION,
a Nevada corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
AMPAC FARMS, INC.,
a Nevada corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
ADMINISTRATIVE AGENT
AND LENDERS: WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
