EXHIBIT 10.1
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CREDIT AGREEMENT
(364-DAY FACILITY)
dated as of July 31, 2002
among
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
JPMORGAN CHASE BANK,
as Administrative Agent
CITICORP USA, INC.,
as Syndication Agent
XXXXXX XXXXXXX BANK,
WACHOVIA BANK,
THE ROYAL BANK OF SCOTLAND,
as Co-Documentation Agents
and
The Lenders Party Hereto
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X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
as Joint Bookrunners and Lead Arrangers
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms.......................................................1
Section 1.02. Performance; Time..................................................23
Section 1.03. Accounting Principles..............................................23
Section 1.04. Use of Defined Terms...............................................23
Section 1.05. Rounding...........................................................23
Section 1.06. Exhibits and Schedules.............................................23
Section 1.07. References to "Company and its Subsidiaries".......................23
Section 1.08. Miscellaneous Terms................................................24
ARTICLE II
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
Section 2.01. The Commitments....................................................24
Section 2.02. Borrowings, Conversions and Continuations of Committed Loans.......24
Section 2.03. Competitive Loans..................................................25
Section 2.04. Prepayments........................................................28
Section 2.05. Voluntary Reduction of Commitments.................................28
Section 2.06. Principal and Interest.............................................28
Section 2.07. Fees...............................................................29
Section 2.08. Computation of Fees and Interest...................................29
Section 2.09. Manner and Treatment of Payments among the Lenders, the
Company and the Administrative Agent ..............................30
Section 2.10. Funding Sources....................................................31
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes..............................................................31
Section 3.02. Illegality.........................................................32
Section 3.03. Increased Costs and Reduction of Return............................33
Section 3.04. Capital Adequacy...................................................33
Section 3.05. Breakfunding Costs.................................................33
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Section 3.06. Inability to Determine Rates.......................................34
Section 3.07. Matters Applicable to all Requests for Compensation................34
ARTICLE IV
CONDITIONS
Section 4.01. Conditions Precedent to Closing Date...............................35
Section 4.02. Any Extensions of Credit...........................................37
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Corporate Existence and Power......................................37
Section 5.02. Corporate Authorization; No Contravention..........................37
Section 5.03. Governmental Authorization.........................................38
Section 5.04. Binding Effect.....................................................38
Section 5.05. Litigation.........................................................38
Section 5.06. No Event of Default................................................38
Section 5.07. ERISA Compliance...................................................38
Section 5.08. Regulations T, U and X.............................................39
Section 5.09. Taxes..............................................................39
Section 5.10. Financial Condition................................................40
Section 5.11. Environmental Matters..............................................40
Section 5.12. Subsidiaries.......................................................40
Section 5.13. Insurance..........................................................40
Section 5.14. Full Disclosure....................................................40
Section 5.15. Public Utility Holding Company Act; Investment Company Act.........41
Section 5.16. Title to Properties................................................41
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01. Financial Statements...............................................41
Section 6.02. Certificates; Other Information....................................42
Section 6.03. Notices............................................................42
Section 6.04. Preservation of Corporate Existence, Etc...........................43
Section 6.05. Maintenance of Property............................................43
Section 6.06. Insurance..........................................................44
Section 6.07. Compliance with Laws...............................................44
Section 6.08. Inspection of Property and Books and Records.......................44
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Section 6.09. Environmental Laws.................................................44
Section 6.10. Use of Proceeds....................................................44
Section 6.11. Regulatory Approvals...............................................45
Section 6.12. Transactions with Officers, Directors and Affiliates...............45
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01. Liens, Negative Pledges............................................45
Section 7.02. Dispositions.......................................................46
Section 7.03. Mergers............................................................46
Section 7.04. Limitation on Guaranty Obligations.................................46
Section 7.05. Synthetic Leases...................................................47
Section 7.06. Compliance with ERISA..............................................47
Section 7.07. Interest Coverage Ratio............................................47
Section 7.08. Ratio of Consolidated Funded Debt to EBITDA........................47
Section 7.09. Accounting Changes.................................................47
Section 7.10. Change in Nature of Business.......................................48
Section 7.11. Hedging Agreements.................................................48
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
Section 8.01. Events of Default..................................................48
Section 8.02. Remedies Upon Event of Default.....................................50
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01. Appointment and Authorization......................................51
Section 9.02. Administrative Agent and Affiliates................................52
Section 9.03. Lenders' Credit Decisions..........................................52
Section 9.04. Action by Administrative Agent.....................................52
Section 9.05. Liability of Administrative Agent..................................53
Section 9.06. Indemnification....................................................54
Section 9.07. Successor Administrative Agent.....................................55
Section 9.08. No Obligations of the Company......................................55
Section 9.09. Documentation Agent; Syndication Agent.............................56
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ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments; Consents...............................................56
Section 10.02. Notices............................................................57
Section 10.03. No Waiver; Cumulative Remedies.....................................57
Section 10.04. Costs and Expenses.................................................58
Section 10.05. Binding Effect; Assignment.........................................58
Section 10.06. Sharing of Setoffs.................................................60
Section 10.07. Counterparts.......................................................61
Section 10.08. Severability.......................................................61
Section 10.09. No Third Parties Benefited.........................................61
Section 10.10. Time...............................................................61
Section 10.11. GOVERNING LAW AND JURISDICTION.....................................61
Section 10.12. WAIVER OF JURY TRIAL...............................................62
Section 10.13. Entire Agreement...................................................62
Section 10.14. Interpretation.....................................................62
Section 10.15. Nature of Lenders' Obligations.....................................63
Section 10.16. Indemnity; Damage Waiver...........................................63
Section 10.17. Nonliability of the Lenders........................................63
Section 10.18. Failure to Charge Not Subsequent Waiver............................64
Section 10.19. Headings...........................................................64
Section 10.20. Foreign Lenders and Participants...................................64
Section 10.21. Confidentiality....................................................65
EXHIBITS:
Exhibit A -- Form of Request for Extension of Credit
Exhibit B -- Form of Compliance Certificate
Exhibit C -- Form of Committed Loan Note
Exhibit D-1 -- Form of Competitive Bid Request
Exhibit D-2 -- Form of Competitive Bid
Exhibit D-3 -- Form of Competitive Loan Note
Exhibit E -- Form of Notice of Assignment and Acceptance
Exhibit F -- Form of Opinion of Counsel
Exhibit G -- Form of Notice of Participation
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SCHEDULES
Schedule 2.01 -- Commitments and Pro Rata Shares
Schedule 5.05 -- Litigation
Schedule 5.06 -- Defaults
Schedule 5.07 -- ERISA Plans
Schedule 5.12 -- Subsidiaries
Schedule 7.01 -- Existing Liens
Schedule 7.02 -- Certain Permitted Dispositions
Schedule 10.02 -- Lending Offices and Notice Addresses
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CREDIT AGREEMENT
(364-DAY FACILITY)
This CREDIT AGREEMENT (364-Day Facility) dated as of July 31, 2002 is
entered into by and among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a
Delaware corporation (the "Company"), each lender whose name is set forth on the
signature pages of this Agreement and each lender which may hereafter become a
party to this Agreement (collectively, the "Lenders" and individually, a
"Lender"), JPMorgan Chase Bank, as Administrative Agent, Citicorp USA, Inc. as
Syndication Agent and Xxxxxx Xxxxxxx Bank, Wachovia Bank, N.A. and The Royal
Bank of Scotland plc, as Co-Documentation Agents.
RECITALS
A. The Company has requested that the Lenders provide a revolving
credit facility hereunder to replace the Existing Agreement (as defined below)
and repay outstanding indebtedness thereunder, if any, and for general corporate
purposes.
B. The Lenders are willing to provide a credit facility on the terms
and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the
following terms will have the following meanings, unless the context otherwise
requires:
"Absolute Rate" means a rate of interest for a Competitive Loan
determined from an Absolute Rate Bid that has been accepted by the Company.
"Absolute Rate Bid" has the meaning set forth in Section 2.03(b).
"Adjusted LIBOR" means, with respect to any LIBOR Loan for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) LIBOR for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder or any successor administrative
agent.
"Administrative Agent's Office" means the Administrative Agent's
address and account as set forth on Schedule 10.02, or such other address or
account as the
Administrative Agent hereafter may designate by written notice to the Company
and the Lenders.
"Administrative Agent--Related Persons" means the Administrative Agent
(including any successor agent), together with their respective Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Affiliate" means, as to any Person, any other Person which, directly,
or indirectly through one or more intermediaries, is in control of, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person possesses, directly
or indirectly through one or more intermediaries, the power to direct or cause
the direction of the management and policies of the other Person, whether
through the ownership of voting securities, the ability to exercise voting
power, by contract or otherwise. In no event shall the Lender be deemed an
"Affiliate" of the Company or of any Subsidiary of the Company.
"Agreement" means this Credit Agreement, as amended, supplemented,
modified, restated or extended from time to time in accordance with the terms
hereof.
"Applicable Amount" means, (a) for any Pricing Period with respect to
any LIBOR Loan, the per annum amounts set forth below (i) under "LIBOR Loan
Applicable Margin Facilities Usage less than or equal to 50%" if the Facilities
Usage is equal to or below 50%; or (ii) under "LIBOR Loan Applicable Margin
Facilities Usage > 50%" if the Facilities Usage exceeds 50%; in each case
opposite the Pricing Level in effect from time to time (it being understood that
the Applicable Amount for any LIBOR Loan may vary during the Interest Period of
such LIBOR Loan if there is a change in Pricing Level at any time during such
Interest Period due to a change in the Pricing Rating); and (b) with respect to
the Facility Fee, the per annum amount set forth below under "Facility Fee Rate"
opposite the Pricing Level in effect from time to time; in each case in basis
points per annum:
LIBOR Loan Applicable
Margin LIBOR Loan Applicable
Pricing Facilities Usage less Margin Facility Fee
Level than or equal to 50% Facilities Usage > 50% Rate
------- ---------------------- ---------------------- ------------
1 30.5 35.5 7.0
2 33.5 41.0 9.0
3 51.0 61.0 11.5
4 72.5 85.0 15.0
5 92.5 110.0 20.0
"Pricing Level" means, as of any date, the pricing level set forth
below opposite the most creditworthy applicable Pricing Rating as in
effect as of the first day of the Pricing Period in which such date
occurs;
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Pricing Rating
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Pricing Level S&P Moody's
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1 GREATER THAN A- A3
2 EQUAL TO A- A3
3 EQUAL TO BBB+ Baa1
4 EQUAL TO BBB Baa2
5 EQUAL TO OR LESS THAN BBB- Baa3
provided, however, that if there is no Pricing Rating, the Applicable
Amount means (a) for any Pricing Period with respect to any LIBOR Loan,
the per annum amounts set forth below (i) under "LIBOR Loan Applicable
Margin Facilities Usage less than or equal to 50%" if the Facilities
Usage is equal to or below 50%, or (ii) under "LIBOR Loan Applicable
Margin Facilities Usage > 50%" if the Facilities Usage exceeds 50%; in
each case opposite the Alternative Pricing Level in effect from time to
time (it being understood that the Applicable Amount for any LIBOR Loan
may vary during the Interest Period of such LIBOR Loan if there is a
change in the Alternative Pricing Level at any time during such
Interest Period due to a change in the Debt / EBITDA Ratio), and (b)
with respect to the Facility Fee, the per annum amount set forth below
under "Facility Fee Rate" opposite the Alternative Pricing Level in
effect from time to time; provided, that if the Compliance Certificate
is not delivered by the date required by Section 6.02(a) at the time
when the Applicable Amount is determined without a Pricing Rating,
then, subject to other provisions of this Agreement, commencing on the
date such Compliance Certificate was required to be delivered until the
date such Compliance Certificate is delivered, the Applicable Amount
set forth opposite Alternative Pricing Level 4 shall apply; in each
case in basis points per annum:
LIBOR Loan LIBOR Loan
Alternative Applicable Margin Applicable Margin
Pricing Level Facilities Usage less than or equal to 50% Facilities Usage > 50% Facility Fee Rate
------------- ------------------------------------------ ---------------------- -----------------
1 33.5 41.0 9.0
2 51.0 61.0 11.5
3 72.5 85.0 15.0
4 92.5 110.0 20.0
"Alternative Pricing Level" means, as of any date, the pricing level
set forth opposite the lowest Debt / EBITDA Ratio determined at the
most recent quarter-end prior to the first day of the Pricing Period in
which such date occurs:
Alternative
Pricing Level Debt / EBITDA Ratio
------------- -------------------
1 LESS THAN 1.0
2 EQUAL TO OR GREATER THAN 1.0 BUT LESS THAN 1.5
3 EQUAL TO OR GREATER THAN 1.5 BUT LESS THAN 2.0
4 EQUAL TO OR GREATER THAN 2.0 BUT LESS THAN 2.75
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"Debt / EBITDA Ratio" means, at any date of determination, the ratio of
consolidated debt of the Company, as of such date, to EBITDA at the
most recent quarter-end for the preceding four fiscal quarters.
"Pricing Level Change Date" means (a) with respect to any change in the
Pricing Rating which results in a change in the Applicable Amount, the
date of the public announcement of the change in such Pricing Rating or
(b) with respect to any change in the Debt / EBITDA Ratio which results
in a change in the Applicable Amount, the date upon which the Company
is required by Section 6.02(a) to deliver such Compliance Certificate.
"Pricing Period" means (a) the period commencing on the Closing Date
and ending on the first Pricing Level Change Date to occur thereafter
and (b) each subsequent period commencing on each Pricing Level Change
Date and ending the day prior to the next Pricing Level Change Date.
"Pricing Rating" means, as of any date of determination, the rating, if
any, of the Company's senior unsecured debt, as determined by either
Standard & Poor's Corporation ("S&P") or Xxxxx'x Investors Service,
Inc. ("Moody's"); provided, that if the Company's senior unsecured debt
is rated by both of such rating agencies, then the more creditworthy of
such credit ratings shall apply unless there is a split rating of two
grades or more, in which case the rating one grade above the lower
rating shall apply.
"Applicable Taxes" means any and all present or future taxes (including
documentary taxes), levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with respect thereto
imposed by a Governmental Authority relating to any Loan Document, including any
liabilities imposed on amounts paid by the Company to indemnify or reimburse any
Person for such amounts, excluding Lender Taxes.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Availability Period" means the period commencing on the Closing Date
and ending, subject to Article VIII, on the day before the Maturity Date.
"Base Rate" means the higher of: (a) the Federal Funds Rate plus 0.50%,
or (b) the rate of interest publicly announced from time to time by JPMorgan
Chase Bank as its reference rate, which shall not necessarily be its lowest or
best rate charged to any of its customers.
"Base Rate Loan" means a Loan made hereunder that bears interest at the
Base Rate.
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"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting of
Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close, provided that when used in connection with any Borrowing, Continuation,
Conversion to or from, prepayment, assignment, participation or determination of
any interest rate, margin, fee, Interest Period or interest or principal payment
date or similar determination in respect of any LIBOR Loan, "Business Day" shall
exclude any such day on which commercial banks are not open for dealings in
deposits in the London interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law (provided
that if such guideline, request or directive does not have the force of law,
compliance therewith is customary for banks regulated in a manner similar to
such Lender), rule or regulation, whether or not having the force of law, in
each case, regarding capital adequacy of such Lender or of any corporation
controlling such Lender.
"Capital Lease" has the meaning specified in the definition of Capital
Lease Obligations.
"Capital Lease Obligations" means all monetary obligations of any
Person under any leasing or similar arrangement which, in accordance with GAAP,
is classified as a capital lease ("Capital Lease").
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of a Lender.
"Closing Date" means the date on which all conditions precedent set
forth in Section 4.01 are satisfied or waived by the Lenders and the
Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"Commitment" means, for each Lender, the amount set forth as such
opposite such Lender's name on Schedule 2.01 under Commitment, as such amount
may be reduced pursuant to the terms of this Agreement (collectively, the
combined "Commitments"). The respective Pro Rata Shares of the Lenders in the
combined Commitments are set forth in Schedule 2.01.
"Committed Loan" means a LIBOR Loan or a Base Rate Loan.
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"Committed Loan Note" means the promissory note made by the Company in
favor of a Lender evidencing such Lender's Committed Loans, substantially in the
form of Exhibit C, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or supplanted
(collectively, the "Committed Loan Notes").
"Company" has the meaning specified in the preamble.
"Competitive Bid" means (a) a written bid delivered to the
Administrative Agent to provide Competitive Loans, substantially in the form of
Exhibit D-2, duly completed and signed by a Lender, or (b) a telephonic bid made
by a Lender to the Administrative Agent to provide Competitive Loans including
the substance of Exhibit D-2, promptly confirmed by a written Competitive Bid.
"Competitive Bid Maximum" means the maximum amount(s) a Lender is
willing to bid under a Competitive Bid for all Competitive Loans included
therein and/or individual Competitive Loans included therein.
"Competitive Bid Request" means (a) a written request delivered to the
Administrative Agent requesting Competitive Bids, substantially in the form of
Exhibit D-l, duly completed and signed by a Responsible Officer, or (b) a
telephonic request made by a Responsible Officer to the Administrative Agent
requesting Competitive Bids including the substance of Exhibit D-1, promptly
confirmed by a written Competitive Bid Request.
"Competitive Loan" means a Loan made by any Lender under the combined
Commitments not determined by that Lender's Pro Rata Share pursuant to Section
2.03, bearing interest at an Absolute Rate or on the basis of a margin above or
below Adjusted LIBOR.
"Competitive Loan Minimum Amount" means, with respect to each of the
following actions with respect to each type of Competitive Loan, the following
amounts set forth opposite such action under such type of Competitive Loan (a
reference to "Competitive Loan Minimum Amount" shall also be deemed a reference
to the multiples in excess thereof set forth on the last line below):
LIBOR
Type of Action Absolute Rate Minimum Minimum
-------------- --------------------- -------
Competitive Bid Requests $5,000,000 $5,000,000
Competitive Bids $1,000,000 $5,000,000
Competitive Loans $1,000,000 $5,000,000
Multiples in excess
of above amounts $ 500,000 $1,000,000
"Competitive Loan Note" means the promissory note made by the Company
in favor of a Lender evidencing the Competitive Loans made by that Lender,
substantially
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in the form of Exhibit D-3, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended or
supplanted (collectively, the "Competitive Loan Notes").
"Competitive Loan Requisite Time" means, with respect to any of the
actions listed below, the time set forth opposite such action on or prior to the
date set forth below (all times are New York time):
Date
-----------------------------------------------------
Action Time Absolute Rate Loan LIBOR Loan
------ ---- ------------------ ----------
Competitive Bid Request 11:00 a.m. 1 Business Day prior to 4 Business Days prior to
Credit Date Credit Date
Competitive Bid by Lenders other 11:00 a.m. Credit Date 3 Business Days prior to
than Administrative Agent Credit Date
Competitive Bid by 10:45 a.m. Credit Date 3 Business Days prior to
Administrative Agent as Lender Credit Date
under this Agreement
Company's Acceptance 11:30 a.m. Credit Date 3 Business Days prior to
Credit Date
"Compliance Certificate" means a certificate substantially in the form
of Exhibit B, properly completed and signed by a Responsible Officer.
"Consolidated Funded Debt" means, for any period, for the Company and
its subsidiaries on a consolidated basis in accordance with GAAP, an amount
equal to the sum of, without duplication, (a) all indebtedness of the Company
and its consolidated subsidiaries for borrowed money plus (b) all Indebtedness
of the Company and its consolidated subsidiaries incurred in connection with the
acquisition of assets or property plus (c) the principal portion of all Capital
Lease Obligations of the Company and its consolidated subsidiaries plus (d) all
obligations of the Company and its consolidated subsidiaries under Permitted
Accounts Receivable Financings plus (e) indebtedness of the Company and its
consolidated subsidiaries attributable to Synthetic Leases related to tangible
Property plus (f) Deferred Purchase Price Obligations of the Company and its
consolidated subsidiaries plus (g) all Guaranty Obligations of the Company and
its consolidated subsidiaries with respect to indebtedness for borrowed money of
any other Person; in each of cases (a) through (g) as of the last day of such
period.
"Continuation" and "Continue" each mean, with respect to any Loan other
than a Base Rate Loan, the continuation of such Loan as the same type of Loan in
the same principal amount, but with a new Interest Period and an interest rate
determined as of the first day of such new Interest Period. Continuations must
occur on the last day of the Interest Period for such Loan.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage,
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deed of trust or other instrument, document or agreement to which such Person is
a party or by which it or any of its Property is bound.
"Controlled Group" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Company pursuant to Section 414(b) or (c) of the Code.
"Conversion" and "Convert" each mean, with respect to any Committed
Loan, the conversion of one type of Loan into another type of Loan. With respect
to Loans other than Base Rate Loans, Conversions other than Conversion upon a
Default or Event of Default must occur on the last day of the Interest Period
for such Loan.
"Credit Date" means the Business Day set forth in the relevant Request
for Extension of Credit or Competitive Bid Request, as applicable, as the date
upon which the Company desires to borrow such Loan.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Default Rate" means an interest rate equal to the underlying interest
rate applicable to such type of Loan plus the Applicable Amount, if any,
otherwise applicable plus 2%, to the fullest extent permitted by any Requirement
of Law.
"Deferred Purchase Price Obligations" means, as applied to any Person,
all monetary obligations to make scheduled payments in excess of $10,000,000
with respect to the deferred purchase price of Property or services (other than
trade accounts payable in the Ordinary Course of Business).
"Disposition" means the voluntary sale, transfer, or other disposition
(but not including a pledge or hypothecation except as set forth below in this
definition) of any asset of the Company or any of its Subsidiaries, including
without limitation any sale, assignment, pledge, hypothecation, transfer or
other disposal with or without recourse of any notes or accounts receivable or
any rights and claims associated therewith, other than a Permitted Disposition.
"EBITDA" means, for any period, for any Person, an amount equal to Net
Income of such Person and its consolidated subsidiaries for that period, plus
(without duplication and to the extent incorporated in the calculation of Net
Income) (a) Interest Expense of such Person and its consolidated subsidiaries
for that period, plus (b) the aggregate amount of consolidated federal and state
taxes on or measured by income of such Person and its consolidated subsidiaries
for that period (whether or not payable during that period), plus (c)
consolidated depreciation, amortization and all other non-cash items (including
non-cash compensation and impairment charges) of such Person and its
consolidated subsidiaries for that period, minus (d) any gains attributable to
the sale of assets plus (e) any losses attributable to the sale of assets, and
minus (f) any items of
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income or loss in respect of (1) equity in the income or loss of unconsolidated
affiliates or (2) minority interests in the income or loss of consolidated
subsidiaries, in each case as determined in accordance with GAAP; it being
understood that any items of loss or expense would be added to, and any items of
gain or income would be deducted from Net Income for the purpose of determining
EBITDA under this paragraph.
"Eligible Assignee" means (i) a financial institution organized under
the laws of the United States, or any state thereof, and having total assets of
at least $1,000,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets of at least $1,000,000,000, provided that such bank is
acting through a branch or agency located in the United States; (iii) a Person
that is primarily engaged in the business of commercial banking and that is (a)
a Subsidiary of a Lender, (b) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (c) a Person of which a Lender is a Subsidiary; (iv) a CLO, or
(v) another Lender.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging liability or responsibility for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), Property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based upon (a) the
presence, placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from Property, whether or not owned by the
Company, or (b) any other circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws, statutes,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices, binding agreements, licenses, authorizations and permits issued,
promulgated or entered into by any Governmental Authority, in each case relating
to environmental, health, safety and land use matters (excluding matters
relating to zoning and building permits); including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act, the California Hazardous Waste Control Law, the California
Solid Waste Management, Resource, Recovery and Recycling Act, the California
Water Code and the California Health and Safety Code.
-9-
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company or any Subsidiary of the
Company within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan which is a Materially Underfunded Plan; (b) a
withdrawal by any member of the Controlled Group from a Qualified Plan which is
a Materially Underfunded Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan which is a Materially Underfunded Plan; (d) the
filing of a notice of intent to terminate, the treatment of a plan amendment as
a termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan subject to Title IV of ERISA; (e) a
failure to make required contributions to a Qualified Plan or Multiemployer Plan
which is a Materially Underfunded Plan; (f) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Qualified
Plan or Multiemployer Plan which is a Materially Underfunded Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group with respect to a Materially Underfunded Plan; (h) an
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Qualified Plan which is
a Materially Underfunded Plan; (i) any member of the Controlled Group engages in
or otherwise becomes liable for a non-exempt prohibited transaction which would
have a Material Adverse Effect; or (j) a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under
Section 401(a) of the Code by any fiduciary with respect to any Qualified Plan
for which the Company or any of its Subsidiaries may be directly or indirectly
liable which would have a Material Adverse Effect.
"Event of Default" has the meaning provided in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Existing Agreement" means that certain Credit Agreement dated as of
August 20, 1997 between the Company and Bank of America National Trust and
Savings Association, as administration agent, Xxxxxx Guaranty Trust Company of
New York, as syndication agent, Citicorp USA, Inc., as documentation agent, and
various lenders.
"Extension of Credit" means the Borrowing, Conversion or Continuation
of any Loans (collectively, the "Extensions of Credit").
-10-
"Facility Fee" means the fee payable by the Company to the
Administrative Agent pursuant to Section 2.07.
"Facilities Usage" means, as of any date, the amount expressed as a
percentage calculated as (A) the sum of (i) all Loans outstanding under this
Agreement and (ii) all Loans outstanding and the amount of the LC Exposure under
the Multi-Year Credit Agreement divided by (B) the sum of (i) the Lenders'
Commitments under this Agreement and (ii) the Lenders' Commitments under the
Multi-Year Credit Agreement; provided that for the purposes of subclauses
(A)(ii) and (B)(ii) of this paragraph only, the terms "Lenders", "Loans", "LC
Exposure" and "Commitments" shall have the meanings as defined under the
Multi-Year Credit Agreement.
"Federal Funds Rate" means the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day of determination
(or if such day of determination is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transaction received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the U.S. Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fiscal Quarter" means, as applicable, the fiscal quarter of the
Company and its Subsidiaries as reflected in the Company's consolidated
financial statements.
"Fiscal Year" means, as applicable, the fiscal year of the Company and
its Subsidiaries as reflected in the Company's consolidated financial
statements.
"GAAP" means generally accepted accounting principles in the United
States of America set forth from time to time in the opinions and pronouncements
of the U.S. Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the U.S. Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the accounting profession), or in such other
statements by such other entity as may be in general use by significant segments
of the U.S. accounting profession, which are applicable to the circumstances as
of the date of determination.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental agency, central bank or comparable authority, authority, board,
bureau, commission, department or instrumentality, or (c) any court or
administrative tribunal.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness, lease,
letter of credit, surety
-11-
bond, bankers' acceptance or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that Person,
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any Property constituting direct or indirect security
therefor, or (b) to advance or provide funds (i) for the payment or discharge of
any such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor, or (c) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"Hedging Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Company or its Subsidiaries shall be a Hedging Agreement;
provided further that no contingent purchase price, earn-out, royalty or similar
payment obligation relating to any acquisition or divestiture of a Person by the
Company or its Subsidiaries or contract for intellectual property or other goods
and services supplied or received by the Company or its Subsidiaries shall be a
Hedging Agreement.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services (other than trade
payables entered into in the ordinary course of business pursuant to ordinary
terms); (c) all matured or drawn and unreimbursed reimbursement obligations with
respect to surety bonds, letters of credit, bankers' acceptances and similar
instruments (in each case, to the extent non-contingent); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
Property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, in either case with
respect to Property
-12-
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such Property); (f) all Capital Lease Obligations; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in Property (including accounts and contracts
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (h) all Guaranty Obligations in
respect of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (f) above. Indebtedness shall not include life insurance
policy loans to officers, directors and employees of such Person, to the extent
such loans are secured by the surrender value of such life insurance policy.
"Information Memorandum" means the Confidential Information Memorandum
dated June 19, 2002 relating to the Company and the Transactions.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in the case of clause (a) and (b) undertaken under U.S. Federal,
State or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means, for the four consecutive financial
quarters immediately preceding the determination, the ratio of (i) EBITDA to
(ii) Interest Expense.
"Interest Expense" means, for any period, for any Person, the sum,
without duplication, of total consolidated interest expense (including that
portion attributable to Capitalized Leases in conformity with GAAP) of such
Person and its consolidated subsidiaries.
"Interest Payment Date" means, (a) with respect to any Committed Loan
that is a LIBOR Loan, (i) the last day of each Interest Period applicable to, or
the maturity of, such Loan; provided, however, that if any Interest Period for a
LIBOR Loan exceeds three months, interest shall also be paid on the date which
falls, as applicable, three or six months after the beginning of such Interest
Period; (ii) any date that such Loan is prepaid in whole or in part, and (iii)
the Maturity Date, and (b) with respect to any Base Rate Loan, the last Business
Day of each calendar quarter and the Maturity Date.
"Interest Period" means, as to any Committed Loan that is a LIBOR Loan,
the period commencing on the date specified by the Company in its Request for
Extension of Credit and ending, in the case of LIBOR Loans, one, two, three or
six months thereafter, provided that:
-13-
(a) if any Interest Period pertaining to a LIBOR Loan would otherwise
end on a day which is not a Business Day, that 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;
(b) any Interest Period pertaining to a LIBOR Loan that begins on the
last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) No Interest Period for any Loan shall extend beyond the Maturity
Date.
"Lender" means each lender from time to time party hereto.
"Lender Taxes" means, in the case of each Lender, the Administrative
Agent, each Eligible Assignee, and any Affiliate or Lending Office thereof: (a)
taxes imposed on or measured in whole or in part by its overall net income,
gross income or gross receipts or capital and franchise taxes imposed on it, by
(i) any jurisdiction (or political subdivision thereof) in which it is organized
or maintains its principal office or Lending Office or (ii) any jurisdiction (or
political subdivision thereof) in which it is "doing business" (unless it would
not be doing business in such jurisdiction (or political subdivision thereof)
absent the Transactions), (b) any withholding taxes or other taxes based on
gross income imposed by the United States of America (other than withholding
taxes and taxes based on gross income resulting from or attributable to any
change in any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental Authority in
each case after the date hereof) or (c) any withholding taxes or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide the Company with the appropriate
form or forms required by Section 10.20, to the extent such forms are then
required by any Requirement of Law.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Domestic Lending Office" or its "Eurocurrency Lending
Office", as the case may be, on Schedule 10.02, or such other office or offices
as such Lender may from time to time notify the Administrative Agent.
"LIBOR" means, with respect to any LIBOR Loan for any Interest Period,
the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity
-14-
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the "LIBOR" with respect to such LIBOR Loan
for such Interest Period shall be the rate (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Loan" means a Loan made hereunder that bears interest at a rate
determined by reference to Adjusted LIBOR.
"LIBOR Margin Bid" has the meaning set forth in Section 2.03(b).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, lien (statutory or other) or other security interest or encumbrance
(including those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease Obligation or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the UCC or any comparable
law), but not including the interest of a lessor under an Operating Lease.
"Loan" means any advance made or to be made by any Lender to the
Company as provided in Article II, and includes Committed Loans and Competitive
Loans.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Request for Extension of Credit, any Compliance Certificate and any other
agreements of any type or nature hereafter executed and delivered by the Company
or any of its Subsidiaries or Affiliates to the Administrative Agent or to any
Lender in any way relating to or in furtherance of this Agreement, in each case
either as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulations T, U and X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations and condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole, (b) the ability of the Company to
perform its material obligations under this Agreement, or (c) the legality,
validity, binding effect or enforceability of any Loan Document.
"Materially Underfunded Plan" means, at any time, a Plan or Plans
having aggregate Unfunded Pension Liabilities in excess of $10,000,000.
"Maturity Date" means July 31, 2003.
-15-
"Minimum Amount" means, with respect to each action described below,
the following amount set forth opposite such action:
Minimum Multiples in
Type of Action Minimum Amount excess of Minimum Amount
-------------- -------------- ------------------------
Borrowing of, prepayment of or Conversion into, Base Rate
Loans $5,000,000 $ 500,000
Borrowing of, prepayment or Continuation of, or
Conversion into, LIBOR Loans $5,000,000 $1,000,000
Voluntary Reduction of Commitments $5,000,000 $1,000,000
Assignments $5,000,000 n/a
"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or been
obligated to make, contributions, but does not include (i) Multiemployer Plans
to which no member of the Controlled Group had withdrawal liability and an
obligation to contribute at all times following the enactment of the
Multiemployer Pension Plan Amendments Act of 1980, and (ii) Multiemployer Plans
as to which all members of the Controlled Group have both completely withdrawn
and paid the full amount of any withdrawal liability.
"Multi-Year Credit Agreement" means the multi-year credit agreement,
dated as of July 31, 2002, among the Company, JPMorgan Chase Bank, as
Administrative Agent, and various lenders.
"Net Income" means, with respect to any fiscal period, for any Person
the consolidated net income of such Person and its consolidated subsidiaries,
determined in accordance with GAAP.
"Notes" means, collectively, the Committed Loan Notes and the
Competitive Loan Notes.
"Notice of Assignment and Acceptance" means a Notice of Assignment and
Acceptance substantially in the form of Exhibit E.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or other Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a Lien securing
obligations owing to a Governmental Authority.
-16-
"Notice of Participation" means a Notice of Participation substantially
in the form of Exhibit G.
"Obligations" means all obligations of every kind or nature of the
Company from time to time owed to the Administrative Agent, any Lender, any
Person entitled to indemnification, or any one or more of them, under any one or
more of the Loan Documents, whether for principal, interest, fees, expenses,
indemnification or otherwise, and whether absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, now existing or
hereafter arising, pursuant to the terms of any of the Loan Documents, and
including interest that accrues after the commencement of any Insolvency
Proceeding.
"Operating Lease" means, as applied to any Person, any lease of
Property which is not a Capital Lease other than any such lease under which that
Person is the lessor.
"Ordinary Course Guaranty Obligations" means any Guaranty Obligations
of any Person consisting of obligations in respect of surety bonds, letters of
credit (other than letters of credit in support of indebtedness for borrowed
money of any Person), performance bonds, leases, indemnities or similar
obligations, in each case incurred in connection with a transaction entered into
in the Ordinary Course of Business of such Person.
"Ordinary Course of Business" means, in respect of any transaction
involving any Person, the ordinary course of such Person's business, as
conducted by any such Person in accordance with past practice.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
and all applicable resolutions of the board of directors (or any committee
thereof) of such corporation relating to the foregoing or the organization of
such corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Accounts Receivable Financing" means a sale or discount of
accounts receivable of any Person (a) that does not involve the creation of a
Lien or negative pledge on any accounts receivable not so sold or discounted and
(b) that does not involve in the aggregate the sale or discount of accounts
receivable having a book value exceeding $100,000,000.
"Permitted Disposition" means a Disposition of (a) inventory or other
assets sold, leased or otherwise disposed of in the Ordinary Course of Business
of the Company or a Subsidiary, (b) Dispositions of inventory, or used, worn-out
or surplus equipment, all in the Ordinary Course of Business, (c) Dispositions
of equipment to the extent that such equipment is exchanged for credit against
the purchase price of similar replacement
-17-
equipment, or the proceeds of such sale are reasonably promptly applied
to the purchase price of such replacement equipment or where the Company or its
Subsidiary determine in good faith that the failure to replace such equipment
will not be detrimental to the business of the Company or its Subsidiary, (d) a
Disposition to the Company or a Subsidiary, (e) Dispositions of accounts
receivable in connection with a Permitted Accounts Receivable Financing, or (f)
Dispositions identified on Schedule 7.02.
"Permitted Liens" means:
(a) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 6.07,
provided that no Notice of Lien has been filed or recorded under the
Code;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject thereto or
which do not in the aggregate with respect to any one Property so
encumbered have a Material Adverse Effect;
(c) Liens (other than any Lien imposed by ERISA) incurred or
pledges or deposits required in the Ordinary Course of Business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(d) (i) Liens on Property acquired by the Company or any of
its Subsidiaries that were in existence at the time of the acquisition
of such Property and were not created in contemplation of such
acquisition; (ii) Liens existing on any asset of any person at the time
such person becomes a Subsidiary of the Company and not created in
contemplation of such event; (iii) Liens on any asset of any person
existing at the time such person is merged or consolidated with or into
the Company or a Subsidiary of the Company and not created in
contemplation of such event; (iv) Liens arising out of the refinancing,
extension, renewal or refunding of any obligations secured by any Lien
permitted by this clause (d); provided that such obligations are not
increased and are not secured by any additional assets; and (v) Liens
related to the acquisition, construction or alteration of Property
(including liens placed upon the acquired Property up to 270 days
following such acquisition, or completion of such construction or
alteration), including purchase money liens;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which do not
in any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of the
Company and its Subsidiaries;
-18-
(f) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Federal Reserve Board, and (ii)
such deposit account is not intended by the Company or any of its
Subsidiaries to provide collateral to the depository institution;
(g) Liens on the Property of the Company or any of its
Subsidiaries securing (i) the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, and (ii)
obligations on surety and appeal bonds, and (iii) other obligations of
a like nature incurred in the Ordinary Course of Business;
(h) Liens associated with a Permitted Accounts Receivable
Financing;
(i) Liens on Property or assets of a Subsidiary of the Company
to secure Indebtedness of such Subsidiary to the Company or its
Subsidiaries;
(j) Liens securing financing for all or a portion of the
purchase or construction cost of real Property acquired after the
Closing Date to be used in the Ordinary Course of the Business
(provided that any such Lien shall not encumber any other Property of
the Company or its Subsidiaries), including Capital Lease Obligations
and the ownership by third parties of assets capitalized as finance
leases under GAAP;
(k) Liens arising from purchase money financing of equipment,
including Capital Lease Obligations and the ownership by third parties
of assets capitalized as finance leases under GAAP;
(l) Liens arising in the Ordinary Course of Business in favor
of a customer, which Liens are inherent in the government contracting
process; and
(m) Liens on assets identified as "Restricted Cash" on the
Company's balance sheet which are payable to third parties.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, firm, joint venture, Governmental Authority, or other
entity.
"Plan" means an employee pension benefit plan (as defined in Section
3(2) of ERISA) which any member of the Controlled Group sponsors or maintains or
to which the Company or member of the Controlled Group makes or is obligated to
make contributions, and which is subject to the provisions of Title IV of ERISA.
-19-
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the percentage of
the combined Commitments set forth opposite the name of that Lender on Schedule
2.01.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064 (a) of ERISA) has made contributions at any time
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"Quarterly Payment Date" means each June 30, September 30, December 31
and March 31.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder for which the requirement of 30-day
notice has not been waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
"Request for Extension of Credit" means a written request substantially
in the form of Exhibit A, duly completed and signed by a Responsible Officer.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its Property or to which the Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if the
Commitments are then in effect, Lenders having in the aggregate 51% or more of
the combined Commitments then in effect and (b) as of any date of determination
if the Commitments have then been terminated and there are Loans outstanding,
Lenders holding Loans aggregating 51% or more of the aggregate outstanding
principal amount of the Loans.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable telephonic notice to the intended recipient, promptly followed by a
written notice to such Person, or (b) irrevocable written notice to the intended
recipient, in each case (x) delivered or made to such Person at the address,
telephone number or facsimile number set forth on Schedule 10.02 or as otherwise
designated by such Person by Requisite Notice to the Administrative Agent and
(y) if made by the Company, given by
-20-
a Responsible Officer. Any written notice shall be in the form, if any,
prescribed in the applicable section and may be given by facsimile provided such
facsimile is promptly confirmed by a telephone call to such recipient.
"Requisite Time" means, with respect to any of the actions listed
below, the time set forth opposite such action on or prior to the date set forth
below (all times are New York Time):
Action Time Date
------ ---- ----
Borrowing of or Conversion into, Base Rate Loans 11:00 a.m. Relevant date
Prepayment of Base Rate Loans 1:00 p.m. Relevant date
Borrowing of, Continuation of, prepayment of or Conversion 1:00 p.m. 3 Business Days prior to
into LIBOR Loans of 1, 2, 3 or 6 months relevant date
Voluntary Reduction of Commitments 1:00 p.m. 3 Business Days prior to
relevant date
Funds made available by Lenders to Administrative Agent 1:00 p.m. Relevant Date
Funds made available by the Company to Administrative Agent 2:00 p.m. Relevant Date
Termination of Commitment, replacement 1:00 p.m. 3 Business Days prior to
date of termination or
replacement
"Responsible Officer" means the chief executive officer, the president,
the chief operating officer, the chief financial officer, the chief legal
officer, the treasurer or the controller of the Company. Any document or
certificate hereunder that is signed or executed by a Responsible Officer shall
be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of the Company and to have acted on
behalf of the Company.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary that meets the definition of "significant subsidiary" under Rule
1-02(w) of Regulation S-X promulgated by the U.S. Securities and Exchange
Commission.
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"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate maximum reserve percentages, if any (expressed as a
decimal, rounded upward to the nearest 1/100th of 1%), in effect on the date
LIBOR for such Interest Period is determined (whether or not applicable to any
Bank) under regulations issued from time to time by the Federal Reserve Board
for determining the reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to eurocurrency funding
(currently referred to as "Eurocurrency liabilities") having a term comparable
to such Interest Period. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Synthetic Lease" means, with respect to any Person, (a) a so-called
synthetic lease, or (b) an agreement for the use or possession of property
creating obligations which do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized
as the Indebtedness of such Person (without regard to accounting treatment).
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a Person other than a natural
Person, known by a Responsible Officer) making the representation, warranty or
other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been known by a
Responsible Officer).
"Transactions" means the execution, delivery and performance by the
Company of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"type" of Loan means (a) a Base Rate Loan or (b) a LIBOR Loan (c) a
Competitive Loan bearing interest at an Absolute Rate and (d) a Competitive Loan
bearing interest based upon Adjusted LIBOR.
"Unfunded Pension Liabilities" means with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such
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Plan, but only to the extent that such excess represents a potential liability
of a member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
Section 1.02. Performance; Time. Except as otherwise
specifically provided herein, whenever any performance obligation hereunder
shall be stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including." If any provision of this Agreement refers to any action taken or to
be taken by any Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.
Section 1.03. Accounting Principles. Unless the context
otherwise clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied; provided, that, if
the Company notifies the Administrative Agent that the Company wishes to amend
any provision hereof to eliminate the effect of any change in GAAP (or if the
Administrative Agent notifies the Company that the Requisite Lenders wish to
amend any provision hereof for such purpose), then such provision shall be
applied on the basis of GAAP in effect immediately before the relevant change in
GAAP became effective, until either such notice is withdrawn or such provision
is amended in a manner satisfactory to the Company and the Requisite Lenders.
Section 1.04. Use of Defined Terms. Any defined term used in
the plural shall refer to all members of the relevant class, and any defined
term used in the singular shall refer to any one or more of the members of the
relevant class.
Section 1.05. Rounding. Any financial ratios required to be
maintained by the Company pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
Section 1.06. Exhibits and Schedules. All Exhibits and
Schedules to this Agreement are incorporated herein by this reference. A matter
disclosed on any Schedule shall be deemed disclosed on all Schedules.
Section 1.07. References to "Company and its Subsidiaries".
Any reference herein to "the Company and its Subsidiaries" or the like shall
refer solely to the Company during such times, if any, as the Company shall have
no Subsidiaries.
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Section 1.08. Miscellaneous Terms. The term "or" is
disjunctive; the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females; feminine terms
also apply to males. The term "including" is by way of example and not
limitation.
ARTICLE II
COMMITMENTS; INTEREST, FEES, PAYMENT PROCEDURES
Section 2.01. The Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally (and not jointly) agrees, to make, Convert and
Continue Committed Loans during the Availability Period as the Company may
request; provided, however, that the aggregate principal amount of all Committed
Loans made by such Lender shall not exceed such Lender's Commitment at any time,
and the aggregate principal amount of all Committed Loans and all Competitive
Loans made by all Lenders shall not exceed the combined Commitments at any time.
Subject to the foregoing and other terms and conditions hereof, the Company may
Borrow, Convert, Continue, prepay and reborrow Committed Loans as set forth
herein without premium or penalty. Each Competitive Loan shall be made in
accordance with Section 2.03.
(b) Committed Loans made by each Lender shall be
evidenced by one or more loan accounts or records maintained by such Lender in
the Ordinary Course of Business. Upon the request of any Lender made through the
Administrative Agent, such Lender's Committed Loans may be evidenced by one or
more Committed Loan Notes, instead of or in addition to loan accounts. (Each
such Lender may endorse on the schedules annexed to its Committed Loan Note the
date, amount and maturity of its Committed Loans and payments with respect
thereto.) Such loan accounts, records or Notes shall be conclusive absent
manifest error of the amount of such Committed Loans and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company to pay any amount owing with
respect to the Committed Loans.
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, Loans with no more than 15 different Interest Periods
shall be outstanding at any one time; provided that for the purposes of this
sentence only, "Loans" shall mean all Loans outstanding under this Agreement,
plus all loans outstanding under the Multi-Year Credit Agreement.
Section 2.02. Borrowings, Conversions and Continuations of
Committed Loans.
(a) The Company may irrevocably request a Borrowing,
Conversion or Continuation of Committed Loans in a Minimum Amount by delivering
a duly completed Request for Extension of Credit by Requisite Notice to the
Administrative
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Agent not later than the Requisite Time. All Borrowings, Conversions or
Continuations shall constitute requests for Base Rate Loans unless properly and
timely otherwise designated as set forth in the prior sentence. Each Lender
shall promptly notify the Administrative Agent (who shall promptly notify the
Company) whether such Lender, in its sole discretion, consents to funding a
LIBOR Loan for such requested Interest Period(s) for such Borrowing. If any
Lender does not so consent, LIBOR Loans shall not be available for such Interest
Period(s) for such Borrowing.
(b) Each Committed Loan shall be made as part of a
Borrowing consisting of Committed Loans made by the Lenders ratably in
accordance with their respective Commitments. Promptly following receipt of a
Request for Extension of Credit, the Administrative Agent shall notify each
Lender of its Pro Rata Share thereof by Requisite Notice. Each Lender shall make
the funds for its Committed Loan available to the Administrative Agent at the
Administrative Agent's Office not later than the Requisite Time on the Business
Day specified in such Request for Extension of Credit. Upon satisfaction or
waiver of the applicable conditions set forth in Article IV, all funds so
received shall be made available to the Company.
(c) The Administrative Agent shall promptly notify the
Company and the Lenders of Adjusted LIBOR applicable to any LIBOR Loan upon
determination of same.
(d) No Loans other than Base Rate Loans may be requested
or continued during the existence of a Default or Event of Default. During the
existence of a Default or Event of Default, the Requisite Lenders may determine
that any or all of the then outstanding Committed Loans that are LIBOR Loans
shall be Converted to Base Rate Loans. Such Conversion shall be effective upon
notice to the Company from the Administrative Agent and shall continue so long
as such Default or Event of Default continues to exist.
(e) If a Committed Loan is to be made on the same date
that another Committed Loan is due and payable, the Company or the Lenders, as
the case may be, shall make available to the Administrative Agent the net amount
of funds giving effect to both such Committed Loans and the effect for purposes
of this Agreement shall be the same as if separate transfers of funds had been
made with respect to each such Committed Loan.
(f) The failure of any Lender to make any Committed Loan
on any date shall not relieve any other Lender of any obligation to make a
Committed Loan on such date, but no Lender shall be responsible for the failure
of any other Lender to so make its Committed Loan.
Section 2.03. Competitive Loans.
(a) Subject to the terms and conditions hereof, at any time
and from time to time during the Availability Period, each Lender may in its
sole and absolute
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discretion make Competitive Loans to the Company in such principal amounts as
the Company may request; provided, however, that the aggregate principal amount
of all Loans made by all Lenders shall not exceed at any time the combined
Commitments; provided, further, that the outstanding Competitive Loans made by
any Lender may exceed its Commitment. The Competitive Loans shall be deemed to
utilize the combined Commitments by an amount equal to the aggregate outstanding
principal amount thereof.
(b) The Company may irrevocably request Competitive Loans
in a Competitive Loan Minimum Amount therefor by delivering a duly completed
Competitive Bid Request by Requisite Notice not later than the Competitive Loan
Requisite Time therefor. Each Competitive Bid Request shall state whether a
Competitive Bid is requested on the basis of a fixed interest rate (an "Absolute
Rate Bid") or on the basis of a margin above or below Adjusted LIBOR (a "LIBOR
Margin Bid"). The Company may not request Competitive Bids for more than three
maturities nor request more than one type of Competitive Loan in a single
Competitive Bid Request. Unless the Administrative Agent otherwise agrees, in
its sole and absolute discretion, the Company may not submit a Competitive Bid
Request if it has submitted another Competitive Bid Request within the prior
five Business Days.
(c) No Competitive Bid Request shall be made for an
Absolute Rate Bid with a maturity of less than 14 days or more than 180 days,
for a LIBOR Margin Bid with a maturity other than one, two, three or six months,
or in any case with a maturity date subsequent to the Maturity Date. No more
than ten different maturities for Competitive Loans may be outstanding at any
time.
(d) The Administrative Agent shall promptly notify the
Lenders of a Competitive Bid Request by delivering a written copy thereof to the
Lenders. Each Lender may, in its sole and absolute discretion, bid or not bid on
all or a portion of the Competitive Loans requested in such Competitive Bid
Request by delivering by Requisite Notice an irrevocable, duly completed
Competitive Bid to the Administrative Agent by the Competitive Loan Requisite
Time for delivering Competitive Bids. Any Competitive Bid received after such
Competitive Loan Requisite Time, that is in a form other than a duly completed
Competitive Bid Request, or that is otherwise not responsive to the Competitive
Bid Request shall be disregarded. A Lender may subsequently correct any
Competitive Bid containing a manifest error if it does so by the Competitive
Loan Requisite Time for delivering Competitive Bids. The Administrative Agent
may, but shall not be required to, notify any Lender of any manifest error it
detects in such Lender's Competitive Bid.
(e) The Competitive Bid Maximum offered by a Lender for
any Competitive Loan(s) requested in a Competitive Bid may be less than the
principal amount of such Competitive Loan(s) requested by the Company, but shall
not be less than the Competitive Loan Minimum Amount for any Competitive Loan
for which such Lender is bidding. Each Competitive Bid shall expire unless
accepted by the Company prior to the Competitive Loan Requisite Time for
accepting Competitive Bids.
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(f) The Administrative Agent shall promptly notify the
Company of the names of the Lenders providing conforming Competitive Bids and
the terms of such Competitive Bids. The Company may, in its sole and absolute
discretion, accept or reject any Competitive Bid, or any portion thereof,
provided, that if the Company accepts any Competitive Bid, or any portion
thereof, the following shall apply: (i) the Company must notify the
Administrative Agent of its acceptance of any Competitive Bids not later than
the Competitive Loan Requisite Time for doing so, (ii) the Company must accept
all Absolute Rate Bids at all lower fixed interest rates before accepting any
portion of Absolute Rate Bids at a higher fixed interest rate, (iii) the Company
must accept all LIBOR Margin Bids at all lower margins over Adjusted LIBOR
before accepting any portion of LIBOR Margin Bids at a higher margin over
Adjusted LIBOR, (iv) each Competitive Loan to be made must be in a Competitive
Loan Minimum Amount therefor, (v) if two or more Lenders have submitted a
Competitive Bid at the same fixed interest rate or margin, then the Company must
accept either all of such Competitive Bids or accept such Competitive Bids in
the same proportion as the Competitive Bid Maximum of each Lender for such
Competitive Loan bears to the aggregate Competitive Bid Maximums of all such
Lenders for such Competitive Loans (subject to clause (iv) above) and (vi) the
Company may not accept Competitive Bids for an aggregate amount in excess of the
Competitive Loans requested in its Competitive Bid Request.
(g) The Administrative Agent shall promptly notify each
of the Lenders whose Competitive Bid, or any portion thereof, has been accepted
or rejected by the Company by telephone, which notification shall promptly be
confirmed in writing, delivered in person or by telecopier to such Lenders. Any
Competitive Bid, or portion thereof, not timely accepted by the Company and/or
timely notified by the Administrative Agent to a Lender as having been accepted
shall be deemed rejected.
(h) In the case of a LIBOR Margin Bid, the Administrative
Agent shall determine Adjusted LIBOR on the date which is two Business Days
prior to the date of the proposed Competitive Loan, and shall promptly
thereafter notify the Company and the Lenders whose LIBOR Margin Bids were
accepted by the Company of such Adjusted LIBOR.
(i) Each Lender which has had a Competitive Bid, or
portion thereof, accepted by the Company shall make the funds for its
Competitive Loan(s) available to the Administrative Agent at the Administrative
Agent's Office not later than the Requisite Time for making such funds available
on the Business Day specified in such Competitive Loan Request. Upon
satisfaction or waiver of the applicable conditions set forth in Article IV, all
funds so received shall be made available to the Company.
(j) Each Lender's Competitive Loan shall be evidenced by
that Lender's Competitive Loan Note or by one or more loan accounts or records
maintained by such Lender in the Ordinary Course of Business, in each case
subject to Section 2.01(b).
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(k) Each Competitive Loan shall be due and payable on the
maturity date of such Competitive Loan.
Section 2.04. Prepayments.
(a) The Company may at any time and from time to time
voluntarily prepay Committed Loans in a Minimum Amount after delivering an
irrevocable Requisite Notice not later than the Requisite Time for prepayments.
The Administrative Agent will promptly notify each Lender thereof and of such
Lender's Pro Rata Share of such prepayment. Each prepayment must be made ratably
to all outstanding Committed Loans borrowed on the same day.
(b) If for any reason the sum of (i) the principal amount
of the Committed Loans and (ii) the aggregate principal amount of all
Competitive Loans made by all Lenders exceeds the combined Commitments in effect
at any time, the Company shall immediately prepay Committed Loans sufficient to
cure such overage.
(c) Any prepayment of a LIBOR Loan shall be accompanied
by all accrued interest thereon, together with the costs set forth in Section
3.05.
(d) Competitive Loans may not be prepaid unless (i)
expressly so provided in the Competitive Bid Request and Competitive Bid for
such Competitive Loan or (ii) otherwise agreed by the Company and the Lender
making such Competitive Loan after notice to the Administrative Agent.
Section 2.05. Voluntary Reduction of Commitments.
The Company shall have the right, at any time and from time to
time, without penalty or charge, upon giving Requisite Notice not later than the
Requisite Time, voluntarily to reduce, permanently and irrevocably, in a Minimum
Amount, or to terminate, the then unused portion of the Commitments, provided
that any such reduction or termination shall be accompanied by payment of all
accrued and unpaid Facility Fees with respect to the portion of the Commitments
being reduced or terminated. The Administrative Agent shall promptly notify the
Lenders of any reduction or termination of the Commitments under this Section.
Each Lender's Commitment shall be reduced by an amount equal to such Lender's
Pro Rata Share times the amount of such reduction.
Section 2.06. Principal and Interest.
(a) If not sooner paid, the outstanding principal amount
of each Committed Loan and Competitive Loan shall be due and payable on the
Maturity Date, or if such Loan is not Continued or Converted, at the end of the
applicable Interest Period.
(b) The Company shall pay interest on the unpaid principal
amount of the Loans (before and after default, before and after maturity, before
and after judgment,
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and before and after the commencement of any Insolvency Proceeding) from the
date borrowed until paid in full (whether at stated maturity, by acceleration or
otherwise) on each Interest Payment Date for each type of Loan at a rate per
annum equal to the applicable interest rate determined in accordance with the
definition of such type of Loan in this Agreement, plus, in the case of LIBOR
Loans, the Applicable Amount.
(c) If any amount of principal of or interest on any Loan
or any other amount payable under any Loan Document is not paid in full when due
(whether by acceleration or otherwise), the Company shall pay interest on such
unpaid amount from the date such amount becomes due until the date such amount
is paid in full, and after as well as before any entry of judgment thereon, at a
fluctuating rate of interest rate equal to the Default Rate. Accrued and unpaid
interest on past due amounts (including, without limitation, interest on past
due interest) shall be compounded monthly, on the last day of each calendar
month, to the fullest extent permitted by Requirement of Law, and payable on
demand.
Section 2.07. Fees.
(a) Facility Fee. The Company shall pay to the
Administrative Agent, for the account of each Lender, a Facility Fee equal to
the Applicable Amount for the Facility Fee times such Lender's Pro Rata Share of
the daily aggregate amount of the combined Commitments, (determined daily on a
per annum basis). The Facility Fee under the Commitments shall accrue from the
Closing Date to but excluding the Maturity Date and shall be payable quarterly
in arrears on each Quarterly Payment Date and on the Maturity Date. The Facility
Fee shall be calculated quarterly in arrears; if there is any change in the
Applicable Amount during any quarter, the average daily amount shall be computed
and multiplied by the Applicable Amount separately for each period that such
Applicable Amount was in effect during such quarter.
(b) Agency Fee. The Company shall pay to the
Administrative Agent an agency fee in such amounts and at such times as
heretofore agreed upon by letter agreement between the Company and the
Administrative Agent. The agency fee is for the services to be performed by the
Administrative Agent in acting as Administrative Agent and is fully earned on
the date paid. The agency fee paid to the Administrative Agent is solely for its
own account and is nonrefundable.
Section 2.08. Computation of Fees and Interest. Computations
of interest with respect to Base Rate Loans shall be calculated on the basis of
a year of 365 or 366 days, as the case may be, and the actual number of days
elapsed; computations of interest on all other types of Loans and all fees and
other amounts under this Agreement shall be calculated on the basis of a year of
360 days and the actual number of days elapsed, which results in a higher yield
to the Lenders than a method based on a year of 365 or 366 days. Interest shall
accrue on each Loan for the day on which the Loan is made; interest shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid. Notwithstanding anything in this Agreement to the contrary,
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interest in excess of the maximum amount permitted by any Requirement of Law
shall not accrue or be payable hereunder, and any amount paid as interest
hereunder which would otherwise be in excess of such maximum permitted amount
shall instead be treated as a payment of principal.
Section 2.09. Manner and Treatment of Payments among the
Lenders, the Company and the Administrative Agent.
(a) Unless otherwise provided herein, all payments by the
Company or any Lender hereunder shall be made to the Administrative Agent at the
Administrative Agent's Office and account in immediately available funds without
defense, setoff or counterclaim not later than the Requisite Time. All payments
received after the Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America.
(b) Upon satisfaction of any applicable terms and
conditions set forth herein, the Administrative Agent shall promptly make any
amounts received in accordance with the prior subsection available in like funds
received as follows: (i) if payable to the Company, by crediting an account of
the Company maintained with the Administrative Agent in New York City and
designated by the Company in the applicable Request for Extension of Credit or
Competitive Bid Request or, if no account is maintained by the Company with the
Administrative Agent, then by wire transfer to an account designated in writing
by the Company and delivered to Administrative Agent, and (ii) if payable to any
Lender, by wire transfer to such Lender at the address specified in Schedule
10.02. The Administrative Agent's determination, or any Lender's determination
not contradictory thereto, of any amount payable hereunder shall be conclusive
in the absence of manifest error.
(c) Subject to the definition of "Interest Period," if
any payment to be made by the Company shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.
(d) Unless the Company or any Lender has notified the
Administrative Agent prior to the date any payment to be made by it is due, that
it does not intend to remit such payment, the Administrative Agent may, in its
discretion, assume that the Company or the Lender, as the case may be, has
timely remitted such payment and may, in its discretion and in reliance thereon,
make available such payment to the Person entitled thereto. If such payment was
not in fact remitted to the Administrative Agent, then:
(i) if the Company failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to
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the Administrative Agent at the greater of (x) the Federal Funds Rate
and (y) such rate as may be determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender
shall on the Business Day following such Credit Date pay to the
Administrative Agent the amount of such assumed payment made available
to the Company, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to the Company to the date such amount is paid to
the Administrative Agent at the greater of (x) the Federal Funds Rate
and (y) such rate as may be determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitments or to prejudice any rights which
the Administrative Agent or the Company may have against any Lender as
a result of any default by such Lender hereunder.
(iii) if any Lender failed to make a payment funding a
Committed Loan, and fails to make such payment on the Business Day
following the Credit Date, the Company shall repay such Lender's failed
payment funding of such Commitment Loan to the Administrative Agent
immediately upon receipt of notice from the Administrative Agent
regarding such failure to pay by any such Lender.
Section 2.10. Funding Sources. Nothing in this Agreement shall
be deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place or
manner.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes. Each payment of any amount payable by the
Company under this Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any Applicable Taxes. To the
extent that the Company is obligated by any Requirement of Law to make any
deduction or withholding on account of Applicable Taxes from any amount payable
to any Lender under this Agreement, the Company shall (i) make such deduction or
withholding and pay the same to the relevant Governmental Authority and (ii) pay
such additional amount to that Lender as is necessary to result in that Lender's
receiving a net after-Applicable Tax amount equal to the amount to which that
Lender would have been entitled under this Agreement absent such deduction or
withholding. If a Lender shall become aware that receipt of such a payment
resulted in an excess payment or credit to that Lender on account of such
Applicable Taxes, that Lender shall promptly refund such excess to the
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Company. In addition, if any Governmental Authority imposes any penalties,
interest or other liabilities on any Lender by reason of the Company failing to
deduct or withhold sufficient amounts on account of Applicable Taxes, or
otherwise, the Company shall indemnify such Lender against such penalties,
interest or other liabilities; provided, however, that the Company shall not be
obligated to indemnify any Lender for such amounts to the extent arising from
such Lender's failure to act in good faith in promptly notifying the Company
thereof within 45 days from the date on which such Lender became aware of such
penalties, interest or other liabilities. Payment by the Company under this
Section shall be made within 30 days from the date any Lender makes written
demand for indemnification hereunder, which demand shall set forth in reasonable
detail the calculation of the amount being requested from the Company. If a
Lender shall become aware that it is entitled to receive a refund or credit from
a relevant Governmental Authority directly attributable to Applicable Taxes as
to which it has been indemnified by the Company pursuant to this Section, it
shall promptly notify the Company of the availability of such refund or credit
and shall, within 30 days after receipt of a request by the Company (whether as
a result of notification that it has made to the Company or otherwise), make a
claim to such Governmental Authority for such refund or credit at the Company's
expense so long as making such a claim is not inconsistent with such Lender's
internal policies and is not disadvantageous to such Lender.
Section 3.02. Illegality.
(a) If any Lender shall determine that the introduction
of any Requirement of Law after the date hereof, or any change in any
Requirement of Law or in the interpretation or administration thereof after the
date hereof, has made it unlawful, or that any central bank or other
Governmental Authority has asserted after the date hereof that it is unlawful,
for such Lender or its Lending Office to make LIBOR Loans, then, on notice
thereof by such Lender to the Company (with a copy to the Administrative Agent),
the obligation of such Lender to make LIBOR Loans shall be suspended until such
Lender shall have notified the Company (with a copy to the Administrative Agent)
that the circumstances giving rise to such determination no longer exist;
provided, that, if the designation of an alternative branch or lending office of
the Lender will permit the Lender to make or maintain such LIBOR Loans, the
Lender will designate such alternative branch or lending office, subject to its
determination that such designation is not disadvantageous to such Lender.
(b) If any Lender shall determine that it is unlawful to
maintain any LIBOR Loan, the Company shall prepay in full all LIBOR Loans then
outstanding, together with interest accrued thereon, either on the last day of
the Interest Period thereof if such Lender may lawfully continue to maintain
such LIBOR Loans to such day, or immediately, if the Lender may not lawfully
continue to maintain such LIBOR Loans, together with any amounts required to be
paid in connection therewith pursuant to Section 3.05.
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Section 3.03. Increased Costs and Reduction of Return. If any
Lender shall determine that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of Adjusted LIBOR) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law, provided that if such guideline or
request does not have the force of law, compliance therewith is customary for
banks regulated in a manner similar to such Lender), after the date hereof,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Loans, then the Company shall be liable for,
and shall from time to time, within 10 Business Days after demand therefor by
such Lender, pay to such Lender additional amounts as are sufficient to
compensate such Lender for such increased costs; provided, however, that, if the
designation of an alternative branch or lending office of the Lender will avoid
or reduce the amount of such increased costs, the Lender will designate such
alternative branch or lending office, subject to its determination that such
designation is not disadvantageous to such Lender.
Section 3.04. Capital Adequacy. If any Lender shall determine
that (a) the introduction after the date hereof of any Capital Adequacy
Regulation, (b) any change after the date hereof in any Capital Adequacy
Regulation, (c) any change after the date hereof in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (d) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender, with any Capital Adequacy Regulation;
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines that
the amount of such capital is increased as a consequence of its Commitments,
Loans, credits or obligations under this Agreement, then, within 10 Business
Days after demand of such Lender, the Company shall upon demand pay to such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase; provided, however, that,
if the designation of an alternative branch or lending office of the Lender will
avoid or reduce such increased amount the Lender will designate such alternative
branch or lending office, subject to its determination that such designation is
not disadvantageous to such Lender.
Section 3.05. Breakfunding Costs. The Company agrees to
reimburse each Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of: (a) the failure of
the Company to make any payment or prepayment of principal of any LIBOR Loan
(including payments made after any acceleration thereof); (b) the failure of the
Company to Borrow, Continue or Convert a LIBOR Loan after the Company has given
a Request for Extension of Credit; (c) if caused by the Company or as a result
of any acceleration of the Loans by reason of a Default or Event of Default, the
prepayment of a LIBOR Loan on a day which is not the
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last day of the Interest Period with respect thereto; or (d) if caused by the
Company or required by the Requisite Lenders pursuant to Section 2.02(d), the
Conversion of any LIBOR Loan to a Base Rate Loan on a day that is not the last
day of the respective Interest Period; including any such loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
its LIBOR Loans hereunder or from fees payable to terminate the deposits from
which such funds were obtained. Solely for purposes of calculating amounts
payable by the Company to a Lender under this Section, each LIBOR Loan (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at Adjusted LIBOR used in determining Adjusted LIBOR
for such LIBOR Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such LIBOR Loan is in fact so funded.
Section 3.06. Inability to Determine Rates.
If the Requisite Lenders shall have advised the Agent of the
Requisite Lenders' determination that for any reason adequate and reasonable
means do not exist for ascertaining Adjusted LIBOR for any requested Interest
Period with respect to a proposed LIBOR Loan or that Adjusted LIBOR for any
requested Interest Period with respect to a proposed LIBOR Loan does not
adequately and fairly reflect the cost to such Lender of funding such Loan, the
Administrative Agent will forthwith give notice of such determination to the
Company. Thereafter, the obligation of the Lenders to make or maintain LIBOR
Loans, as the case may be, hereunder shall be suspended until the Requisite
Lenders revoke such notice in writing to the Company and the Administrative
Agent; provided, however, that no outstanding LIBOR Loan shall be terminated
prior to the expiration of the Interest Period unless required by law. Upon
receipt of such notice, the Company may revoke any Request for Extension of
Credit then submitted by it. If the Company does not revoke such notice, any
LIBOR Loans requested in such notice shall be made, Converted or Continued as
Base Rate Loans instead of LIBOR Loans.
Section 3.07. Matters Applicable to all Requests for
Compensation.
(a) The Company shall not be required to compensate any
Lender under Section 3.03 or 3.04 for amounts allocable to any period more than
30 days prior to the date that such Lender initially notifies the Company that
it intends to claim compensation under such Sections; provided, however, that if
such claim relates to any cost or increase that has been retroactively imposed
upon such Lender, the Company shall be required to compensate such Lender for
amounts allocable to the period since the date such cost or increase was so
imposed upon such Lender, provided that such Lender notifies the Company that it
intends to claim such compensation within 60 days of such retroactive cost or
increase having been imposed.
(b) The Administrative Agent and any Lender shall provide
reasonable detail to the Company regarding the manner in which the amount of any
payment to the Administrative Agent or that Lender under this Article III has
been determined,
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concurrently with demand for such payment. The Administrative Agent's or any
Lender's determination of any amount payable under this Article III shall be
conclusive in the absence of manifest error.
(c) For purposes of calculating amounts payable under
this Article III any Loans shall be deemed to have been funded at the underlying
applicable interest rate set forth in the definition thereof whether or not such
Loans was, in fact, so funded.
(d) All of the Company's obligations under this Article
III shall survive termination of the Commitments and payment in full of all
Loans.
(e) Upon (i) the Company becoming obligated for any taxes
with respect to any Lender pursuant to Section 3.01, (ii) any Lender making a
claim for compensation under Section 3.03 or Section 3.04, or (iii) any Lender
invoking Section 3.06, such Lender, upon not less than 10 Business Days'
Requisite Notice from the Company (with a copy to the Administrative Agent),
shall execute and deliver a Notice of Assignment and Acceptance covering that
Lender's Pro Rata Share in favor of such Eligible Assignee as the Company may
designate, subject to payment in full by such Eligible Assignee of all
principal, interest, compensation, fees and other amounts owing to such Lender
through the date of assignment, including without limitation all amounts owing
under this Article III. Upon the removal of any Lender, it shall be released
from all obligations and liabilities under any Loan Document. An assignment
pursuant to this Section shall be governed by the provisions of Section 10.05
other than the Minimum Amount limitation therein contained. Alternatively, the
Company may, upon 10 Business Days' notice to the Administrative Agent (who
shall notify each Lender) reduce the combined Commitments by an amount equal to
that Lender's Pro Rata Share (and, for this purpose, no Minimum Amounts shall
apply), and in connection therewith, deliver to the Administrative Agent for the
account of such Lender, the amounts, described in the first sentence above and
release such Lender from its Pro Rata Share.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions Precedent to Closing Date.
(a) The effectiveness of this Agreement is subject to the
condition that the Administrative Agent shall have received on or before the
Closing Date all of the following, in form and substance reasonably satisfactory
to X.X. Xxxxxx Securities Inc., JPMorgan Chase Bank, Xxxxxxx Xxxxx Xxxxxx Inc.
and all Lenders:
(i) Credit Agreement. This Agreement executed by the Company,
the Administrative Agent and all Lenders;
(ii) Notes. If requested by a Lender, Notes executed by the
Company in favor of such Lender;
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(iii) Resolutions; Incumbency of the Company. (A) Copies of
the resolutions of the board of directors of the Company approving and
authorizing the execution, delivery and performance by the Company of
the Agreement and the other Loan Documents to be delivered by the
Company hereunder, and authorizing the borrowing of the Loans,
certified as of the Closing Date by the Secretary or an Assistant
Secretary of the Company and (B) a certificate of the Secretary or
Assistant Secretary of the Company (x) certifying the names and true
signatures of the officers of the Company authorized to execute,
deliver and perform the Loan Documents to be delivered by the Company
hereunder, and (y) designating the officers to be deemed Responsible
Officers under this Agreement, and certifying the names and true
signature of such Responsible Officers;
(iv) Articles of Incorporation; By-Laws and Good Standing of
the Company. Each of the following documents: (A) the articles or
certificate of incorporation of the Company as in effect on the Closing
Date, certified by the Secretary of State of the state of incorporation
of the Company as of a recent date, and the bylaws of the Company as in
effect on the Closing Date, certified by the Secretary or Assistant
Secretary of the Company as of the Closing Date; and (B) a good
standing certificate for the Company from the Secretary of State of
Delaware as of a recent date;
(v) Opinion of Counsel. An opinion of counsel for the Company
and addressed to the Administrative Agent and the Lenders substantially
in the form of Exhibit F;
(vi) Officer's Certificate. A certificate of a Responsible
Officer dated the Closing Date certifying that (A) the representations
and warranties contained in Article V are true and correct in all
material respects, (B) no Default or Event of Default has occurred and
is continuing, and (C) there has occurred since January 31, 2002, no
event or circumstance that could reasonably be expected to result in a
Material Adverse Effect;
(vii) Other Documents. Such other approvals, opinions or
documents as X.X. Xxxxxx Securities Inc., JPMorgan Chase Bank, Xxxxxxx
Xxxxx Xxxxxx Inc. and the Lenders may reasonably request by notice to
the Company prior to the Closing Date;
(viii) Termination of Existing Agreement. Evidence that the
Company has terminated, or concurrently with the initial funding
hereunder will be terminating, all commitments under the Existing
Agreement and shall have paid all amounts owing to the Lenders
thereunder; and
(ix) Payment of Attorney's Costs. All Attorney Costs of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 10.04, and invoiced to the
Company prior to the initial Extension of Credit under this Agreement,
shall have been paid.
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Section 4.02. Any Extensions of Credit. The obligation of each
Lender to make any Extension of Credit is subject to the satisfaction of the
following conditions precedent on the relevant Credit Date:
(a) Request for Extension of Credit. The Administrative
Agent shall have timely received a duly completed Request for Extension of
Credit by Requisite Notice by the Requisite Time;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in Article V shall
be true and correct in all material respects on and as of such Credit Date with
the same effect as if made on and as of such date, except where such
representations and warranties expressly relate to an earlier date;
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Extension of Credit.
Each Request for Extension of Credit shall constitute a representation
and warranty by the Company, as of the date of each such Request and as of the
applicable Credit Date that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and the
Lenders that:
Section 5.01. Corporate Existence and Power. The Company and
each of its corporate Subsidiaries: (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has the corporate power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and execute, deliver, and perform its obligations, if any, under, the
Loan Documents; (c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect; and (d) is in compliance with every
Requirement of Law except where such noncompliance would not have a Material
Adverse Effect.
Section 5.02. Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company of each Loan Document to
which it is a party, have been duly authorized by all necessary corporate
action, and do not and will not: (a) contravene the terms of any of the
Company's Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing any
material Contractual Obligation to which the
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Company is a party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or its Property is subject; or (c) violate any
Requirement of Law applicable to the Company.
Section 5.03. Governmental Authorization. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority is necessary or required in connection with the
execution, delivery or performance by the Company of any Loan Document to which
it is a party, other than routine filings required to be made by the Company in
the Ordinary Course of Business after the date hereof.
Section 5.04. Binding Effect. Each Loan Document to which the
Company is a party constitutes the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
Section 5.05. Litigation. Except as disclosed on Schedule
5.05, there are no actions, suits, investigations, proceedings, claims or
disputes pending or threatened, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, its Subsidiaries or any of their
respective Properties which: (a) purport to affect or pertain to this Agreement,
or any other Loan Document, or any of the Transactions; or (b) have a reasonable
possibility of an adverse decision which would have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority against the Company
purporting to enjoin or restrain the execution, delivery and performance of this
Agreement or any other Loan Document, or directing that the Transactions not be
consummated as herein or therein provided.
Section 5.06. No Event of Default.
(a) No Event of Default exists or would result from the
incurring of any Obligations by the Company.
(b) Except as disclosed on Schedule 5.06, neither the
Company nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, would reasonably be expected to have a Material Adverse Effect.
Section 5.07. ERISA Compliance.
(a) Schedule 5.07 lists all Plans maintained or sponsored by
the Company or to which it is obligated to contribute, and separately identifies
Plans intended to be Qualified Plans and Multiemployer Plans. Each Plan other
than a Multiemployer Plan is in compliance, and, with respect to each
Multiemployer Plan, the
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Company has no knowledge that such Multiemployer Plan is not in compliance, in
all material respects with the applicable provisions of ERISA, the Code and
other Federal or applicable state law that is not preempted by ERISA. Each
Qualified Plan has been determined by the Internal Revenue Service ("IRS") to
qualify under Section 401 of the Code, and the trusts created thereunder have
been determined to be exempt from tax under the provisions of Section 501 of the
Code, and to the best knowledge of the Company nothing has occurred which would
cause the loss of such qualification or tax-exempt status.
(b) There is no outstanding liability (excluding PBGC
premiums due but not delinquent under Section 4001 of ERISA) under Title IV of
ERISA with respect to any Plan maintained or sponsored by the Company or any
ERISA Affiliate (as to which the Company is or may reasonably be expected to be
liable), nor with respect to any Plan to which the Company or any ERISA
Affiliate (wherein the Company is or may be liable) contributes or is obligated
to contribute, which would reasonably be expected to have a Material Adverse
Effect. None of the Qualified Plans has Unfunded Pension Liabilities as to which
the Company is or may be liable, and which would reasonably be expected to have
a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan maintained or sponsored by the Company or to
which the Company is obligated to contribute and as to which the Company is or
may reasonably be expected to be liable, and which would reasonably be expected
to have a Material Adverse Effect. There are no pending or, to the best
knowledge of the Company, threatened claims, actions or lawsuits, other than
routine claims for benefits in the usual and ordinary course, asserted or
instituted against (i) any Plan maintained or sponsored by the Company or its
assets, (ii) any member of the Controlled Group with respect to any Qualified
Plan of the Company, or (iii) any fiduciary with respect to any Plan for which
the Company may be directly or indirectly liable, through indemnification
obligations or otherwise which in each case would reasonably be expected to have
a Material Adverse Effect. The Company has not transferred any Unfunded Pension
Liability outside of the Controlled Group or otherwise engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA which has a reasonable
likelihood of having a Material Adverse Effect.
Section 5.08. Regulations T, U and X. No part of the proceeds
of any Loan hereunder will be used to purchase or carry, or to extend credit to
others for the purpose of purchasing or carrying, any Margin Stock in violation
of Regulations T, U and X.
Section 5.09. Taxes. The Company and its Subsidiaries have
filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable,
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except those which are being contested in good faith by appropriate proceedings
and for which adequate reserves have been provided in accordance with GAAP.
Section 5.10. Financial Condition.
(a) The audited consolidated financial statements of
financial condition of the Company and its Subsidiaries, and the related
consolidated statements of operations, shareholders' equity and cash flows (i)
as of and for the Fiscal Year ended January 31, 2002, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended by April 30, 2002: (A)
were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; and (B) are
complete and accurate in all material respects and fairly present, in all
material respects, the financial condition of the Company and its consolidated
subsidiaries as of the date thereof and results of operations for the period
covered thereby.
(b) Since January 31, 2002, there has been no Material
Adverse Effect.
Section 5.11. Environmental Matters. To the knowledge of the
Responsible Officers of the Company, the on-going operations of the Company and
each of its Subsidiaries comply in all respects with all Environmental Laws,
except such non-compliance which would not reasonably be likely to have a
Material Adverse Effect. To the knowledge of the Responsible Officers of the
Company, the Company and each of its Subsidiaries have obtained all licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental Permits") necessary for its ordinary course operations, all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits, except where the failure to obtain or maintain such
Environmental Permits or such noncompliance would not be reasonably likely to
have a Material Adverse Effect.
Section 5.12. Subsidiaries. As of the Closing Date, the
Company has no Subsidiaries other than those specifically disclosed on Schedule
5.12.
Section 5.13. Insurance. The material real Properties of the
Company and its Subsidiaries are insured with financially sound and reputable
insurance companies (except to the extent self-insurance is permitted pursuant
to Section 6.06), in such amounts, 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 Company or such Subsidiary operates.
Section 5.14. Full Disclosure. The Company has made available
to the Lenders all material agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject and all reports
or other filings made by the Company under the Exchange Act or Securities Act,
and disclosed, through the reports and other filings made by the Company under
the Exchange Act or Securities Act or
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otherwise, all other matters known to it that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information certified as being true and correct by or on
behalf of the Company to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so certified) contains any untrue statement of
a material fact or omits 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 Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
Section 5.15. Public Utility Holding Company Act; Investment
Company Act. Neither the Company nor any of its Subsidiaries are a "holding
company", or a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended. The Company is
not and is not required to be registered as an "investment company" under the
Investment Company Act of 1940.
Section 5.16. Title to Properties.
(a) The Company and each of its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all real Property
necessary or used in the ordinary conduct of its business, except for Liens
permitted by Section 7.01 and for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b) The Company and each of its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Company and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force:
Section 6.01. Financial Statements. The Company shall deliver
to the Administrative Agent, with sufficient copies for each Lender or via
electronic image:
(a) as soon as available, but not later than 120 days after
the end of each Fiscal Year, a copy of the audited consolidated balance sheet of
the Company and its Subsidiaries as at the end of such year and the related
statements of income and cash
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flows for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous year, and accompanied by the opinion of Deloitte &
Touche LLP or another nationally-recognized independent public accounting firm
which report shall state that such consolidated financial statements present
fairly, in all material respects, the financial position of the Company and its
Subsidiaries for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years. Such opinion shall not be qualified or
limited because of a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 60 days
after the end of each of the first three Fiscal Quarters of each year, a copy of
the unaudited consolidated balance sheet of the Company and its Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for the period commencing on the first day and ending on the last day
of such quarter, setting forth the financial position and the results of
operations of the Company and its Subsidiaries in conformity with GAAP applied
on a basis consistent with prior years, subject to changes resulting from audit
and normal year-end adjustments.
Section 6.02. Certificates; Other Information. The Company
shall deliver to the Administrative Agent, with sufficient copies for each
Lender or via electronic image:
(a) concurrently with the delivery of the financial
statements referred to in Sections 6.01(a) and 6.01(b) a Compliance Certificate
signed by a Responsible Officer; and
(b) promptly, such additional business, financial,
corporate affairs and other information in form and detail satisfactory to the
Agent and the Requisite Lenders as the Administrative Agent, at the request of
any Lender, may from time to time reasonably request.
Section 6.03. Notices. Promptly upon a Responsible Officer of
the Company becoming aware of the same, the Company shall promptly notify the
Administrative Agent (who shall notify each Lender)
(a) of the occurrence of any Default or Event of Default;
(b) of any dispute, litigation, investigation, proceeding
or suspension which may exist at any time between the Company or any of its
Subsidiaries and any Governmental Authority or any Person which would reasonably
be expected to have a Material Adverse Effect;
(c) upon, but in no event later than 10 days after, a
Responsible Officer becoming aware of (i) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or
threatened against the Company, any of its Subsidiaries or any of their
respective Properties pursuant to any
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applicable Environmental Laws, and (ii) any other material Environmental Claims,
which in the case of clauses (i) and (ii) would reasonably be expected to have a
Material Adverse Effect;
(d) upon, but in no event later than 10 days after, any
ERISA Event that would reasonably be expected to have a Material Adverse Effect,
together with (i) a copy of any notice with respect to such ERISA Event that may
be required to be filed with the PBGC and (ii) any notice delivered by the PBGC
to the Company or any member or its Controlled Group with respect to such ERISA
Event;
(e) any public announcement of any change in the Pricing
Ratings; and
(f) of any material change in accounting policies or
financial reporting practices by the Company or any of its Subsidiaries and the
specific effects of any such change on the Company or any of its Subsidiaries
unless any such changes are required to be made by companies generally in
response to rules of the Securities and Exchange Commission, the Financial
Accounting Standards Board (FASB) or any other similar governmental agency or
other organization and the effects of any such change are disclosed by the
Company in any reports or other filings made under the Exchange Act.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, and stating what action (if any is required) the
Company proposes to take with respect thereto.
Section 6.04. Preservation of Corporate Existence, Etc. The
Company shall, and shall cause its Significant Subsidiaries to, preserve and
maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation and preserve and
maintain in full force and effect all rights, privileges, qualifications,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business the non-preservation of which would reasonably be expected to have
a Material Adverse Effect; provided that nothing herein shall prevent to the
extent not otherwise prohibited by the provisions of Section 7.02 or 7.03, a
consolidation or merger of the Company.
Section 6.05. Maintenance of Property. The Company shall, and
shall cause each of its Significant Subsidiaries to, maintain and preserve all
its Property which is used or useful in its business in good working order and
condition, ordinary wear and tear excepted, in the Company's reasonable judgment
the non-maintenance or non-preservation of which would reasonably be expected to
have a Material Adverse Effect; provided that nothing in this Section shall
require the making of any repair or replacement of or to any particular Property
that would not be required in the exercise of sound business judgment.
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Section 6.06. Insurance. The Company shall, and shall cause
each of its Subsidiaries to, maintain with financially sound and reputable
independent insurers, insurance with respect to its Properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons;
including workers' compensation insurance, public liability and Property and
casualty insurance; provided that the Company or any of its Subsidiaries may
self-insure to the extent that it maintains adequate reserves therefor and
self-insurance is customary and prudent in its business judgment.
Section 6.07. Compliance with Laws. The Company shall, and
shall cause each of its Subsidiaries to, comply, in all material respects with
any Requirement of Law of any Governmental Authority having jurisdiction over it
or its business (including the Federal Fair Labor Standards Act), except such
Requirement of Law the non-compliance with which would not be reasonably
expected to have a Material Adverse Effect.
Section 6.08. Inspection of Property and Books and Records.
The Company shall, and shall cause each of its Subsidiaries to, maintain proper
books of record and account, in which full, true and correct entries shall be
made of all financial transactions and matters involving the assets and business
of the Company and such Subsidiaries. The Company shall permit, and shall cause
each of its Subsidiaries to permit, representatives and independent contractors
of the Administrative Agent or any Lender to visit and inspect any of their
respective Properties, to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants (provided that the
Company may, if it chooses, be present at any such discussions) at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided that the
foregoing shall be subject to compliance with applicable security regulations of
any Governmental Authority and shall not require the Company to permit
inspection of any Properties or financial or operating records to an extent that
would require the Company or any of its Subsidiaries to reveal any of its trade
secrets, research data or proprietary information which its management in good
faith believes to be irrelevant to this Agreement.
Section 6.09. Environmental Laws. The Company shall, and shall
cause each of its Subsidiaries to, conduct its operations and keep and maintain
its Properties in compliance with all Environmental Laws, except for such
non-compliance as would not reasonably be expected to have a Material Adverse
Effect.
Section 6.10. Use of Proceeds. The Company shall use the
proceeds (a) to pay outstanding Indebtedness and all other amounts owing under
the Existing Agreement, and (b) for working capital, capital expenditures and
other general corporate purposes not in contravention of any Requirement of Law.
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Section 6.11. Regulatory Approvals. The Company shall, and
shall cause each of its subsidiaries to, maintain all material licenses,
permits, authorizations and regulatory approvals necessary to own and operate
facilities and to comply with all applicable laws and regulations, except for
such non-maintenance or non-compliance as would not be reasonably expected to
have a Material Adverse Effect.
Section 6.12. Transactions with Officers, Directors and
Affiliates.
(a) The Company shall not, and shall cause each of its
Subsidiaries not to, engage in transactions with their respective officers and
directors other than on an arms-length basis.
(b) The Company shall, and shall cause each of its
Subsidiaries to, exercise reasonable business judgment in entering in
transactions with their Affiliates.
ARTICLE VII
NEGATIVE COVENANTS
So long as any principal of, or interest on, any Loan or fee due
hereunder remains unpaid, or any portion of the Commitments remains in force,
the Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:
Section 7.01. Liens, Negative Pledges. Make, create, incur,
assume or suffer to exist any Lien of any nature upon or with respect to any of
their respective Properties, whether now owned or hereafter acquired, except:
(a) Liens securing Indebtedness and other obligations
existing on the Closing Date, and, in the case of Liens securing Indebtedness
and other obligations in excess of $1,000,000 set forth in Schedule 7.01;
(b) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed and all
such liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $50,000,000;
(c) Liens securing obligations not exceeding $100,000,000 in
the aggregate on the assets of single purpose Subsidiaries;
(d) Permitted Liens;
(e) Liens in connection with Synthetic Leases permitted under
Section 7.05;
(f) (i) any Lien that replaces, extends or renews any Lien
securing any Indebtedness permitted hereunder, provided such replacement,
extension or renewal Lien shall not encumber any additional Property; (ii) any
Lien on Property previously subject
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to a Synthetic Lease, provided (A) such Lien secures Indebtedness used to
refinance or replace such Synthetic Lease and (B) the aggregate principal amount
of such Indebtedness does not exceed the fair value attributable to the Property
subject to the Synthetic Lease at the time such Property is being refinanced or
replaced; and
(g) Liens not otherwise permitted by the foregoing
clauses of this Section provided that the aggregate amount of Indebtedness or
other obligations secured by such other Liens permitted by this subsection (g)
does not at any time exceed an amount equal to 7.5% of the Company's
consolidated tangible assets, determined as of the end of the immediately
preceding fiscal quarter.
Section 7.02. Dispositions. Make any Disposition of its
Property, whether now owned or hereafter acquired, except for:
(a) Permitted Dispositions;
(b) any Disposition consisting of a merger or consolidation
permitted pursuant to Section 7.03; and
(c) Dispositions of assets not otherwise permitted
hereunder which are made for fair market value; provided, that assets so
disposed in any fiscal year contributed no more than 5% to the Company's
consolidated revenues in the prior fiscal year; and provided further, that at
the time of any such Disposition, no Event of Default shall exist or shall
result from such Disposition.
Section 7.03. Mergers. Merge or consolidate with or into any
Person, except:
(a) any Subsidiary may merge with the Company, provided
that the Company shall be the continuing or surviving corporation, or with any
one or more Subsidiaries of the Company;
(b) any Subsidiary of the Company may sell all or
substantially all of its assets (upon voluntary liquidation or otherwise), to
the Company or a Subsidiary of the Company; and
(c) The Company may merge with another corporation,
provided that the Company shall be the surviving corporation, and that after
giving effect to such merger, no Default or Event of Default shall then have
occurred or exist.
Section 7.04. Limitation on Guaranty Obligations. Create,
incur, assume, suffer to exist, or otherwise be liable with respect to, any
Guaranty Obligations, except for:
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(a) guaranties of loans to employees for the purchase of
capital stock of the Company not exceeding $15,000,000 in aggregate principal
amount outstanding at any time;
(b) Guaranty Obligations consisting of bid and
performance bonds for the benefit of third parties not exceeding $150,000,000 in
aggregate principal amount at any time;
(c) Ordinary Course Guaranty Obligations; and
(d) other Guaranty Obligations not exceeding 7.5% of the
Company's consolidated tangible assets.
The Guaranty Obligations limited by this Section 7.04 shall not include claims
for refunds or the imposition of charges made by customers of the Company and
its Subsidiaries based on unsatisfactory work by the Company or any of its
Subsidiaries in the Ordinary Course of Business, except that such claims shall
be included, and shall be taken into account, with respect to the other
covenants set forth in this Article VII when recognized as liabilities on the
Company's balance sheet in accordance with GAAP.
Section 7.05. Synthetic Leases. Create, incur, assume, suffer
to exist, or otherwise be liable, directly or indirectly, with respect to, any
Synthetic Leases, except for Synthetic Leases related to tangible Property
having a value (determined at the time of each transaction) not exceeding
$250,000,000 in aggregate amount at any time.
Section 7.06. Compliance with ERISA. To the extent an event or
condition specified in this Section has a reasonable likelihood of having a
Material Adverse Effect, (a) terminate any Plan subject to Title IV of ERISA,
(b) permit to exist any ERISA Event, (c) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder except in the
Ordinary Course of Business or (d) permit the existence of Unfunded Pension
Liabilities.
Section 7.07. Interest Coverage Ratio. The Company shall
maintain an Interest Coverage Ratio of not less than 3.5 to 1.0 for each period
of four consecutive fiscal quarters, commencing with the four fiscal quarters
ended April 30, 2002.
Section 7.08. Ratio of Consolidated Funded Debt to EBITDA. The
Company shall maintain a ratio of Consolidated Funded Debt to EBITDA of not more
than 2.75 to 1.00 for each period of four consecutive fiscal quarters,
commencing with the four fiscal quarters ended April 30, 2002.
Section 7.09. Accounting Changes. Make any significant change
in accounting treatment or reporting practices, except as required or permitted
by GAAP, or change the Fiscal Year of the Company or of any of its Significant
Subsidiaries.
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Section 7.10. Change in Nature of Business. Make any material
change in the nature of the business of the Company and its Subsidiaries, taken
as a whole.
Section 7.11. Hedging Agreements. Enter into any Hedging
Agreement, other than Hedging Agreements entered into to hedge or mitigate risks
to which the Company or any of its Subsidiaries is exposed in the conduct of its
business or management of its assets or liabilities.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
Section 8.01. Events of Default. The existence or occurrence
of any one or more of the following events, whatever the reason therefor and
under any circumstances whatsoever, shall constitute an Event of Default:
(a) Non-Payment. The Company fails to pay, (i) within one
day after the same shall become due any amount of principal of any Loan, or (ii)
within five days after the same shall become due, any interest on any Loan, fee
or any other amount payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any material
representation or warranty by the Company made or deemed made herein, in any
Loan Document, or which is contained in any certificate, document or financial
or other statement by the Company, any of its Subsidiaries, or their respective
Responsible Officers, furnished at any time under this Agreement, or in or under
any Loan Document, shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in Section 6.04, 7.03, 7.07 or 7.08;
or
(d) Other Defaults. The Company fails to perform other
term, covenant or agreement contained in any Loan Document not specifically
mentioned in this Section 8.01 and, such default shall continue unremedied for a
period of 30 days after notice by the Administrative Agent thereof; or
(e) Cross Default. The Company or any of its Subsidiaries (i)
fails to make any payment in respect of any Indebtedness (other than
non-recourse Indebtedness) owing to any Person (other than the Obligations
hereunder) when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) having an aggregate principal amount
(including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $35,000,000; or (ii) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness having an aggregate principal amount (including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$35,000,000, if the effect
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of such failure, 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 such Indebtedness to be declared to be
due and payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. The Company or any
of its Significant Subsidiaries, (i) ceases or fails to be solvent or generally
fails to pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company or any of its
Significant Subsidiaries, or any writ, judgment, warrant of attachment,
execution or similar process, in each case relating to an Insolvency Proceeding,
is issued or levied against a substantial part of the Company's or any
Significant Subsidiary's Properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Company or any of its Significant
Subsidiaries admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Company or any of its
Significant Subsidiaries acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its Property or
business; or
(h) ERISA. Any of the following events or conditions
occurs or exists which has a reasonable likelihood of having a Material Adverse
Effect: (i) the Company or an ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under a Multiemployer Plan; (ii) the Company
or an ERISA Affiliate shall fail to satisfy its contribution requirements under
Section 412(c) (11) of the Code, whether or not it has sought a waiver under
Section 412(d) of the Code; (iii) an ERISA Event; (iv) the IRS shall have
determined that a Plan that is intended to be qualified under Section 401(a) of
the Code is not qualified; or (v) the occurrence of any combination of events
listed in clauses (iii) through (iv) that involves a net increase in aggregate
Unfunded Pension Liabilities and other liabilities; or
(i) Monetary Judgments. One or more final (non-interlocutory)
judgments, orders or decrees shall be entered against the Company or any of its
Subsidiaries, involving in the aggregate a liability (not fully covered by
independent third-party insurance and for which the relevant insurer has
acknowledged liability) as to any single or related series of transactions,
incidents or conditions, of $35,000,000 or
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more, and the same shall remain unsatisfied, unvacated and unstayed pending
appeal for a period of 30 days after the entry thereof or such later time as may
be provided for the filing of an appeal; or
(j) Change in Control. (i) Any Person (other than a Plan
or Plans) or two or more Persons (other than a Plan or Plans) acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Company (or
other securities convertible into such securities) representing 20% or more of
the combined voting power of all securities of the Company entitled to vote in
the election of directors, other than securities having such power only by
reason of the happening of a contingency; or (ii) individuals who at the
beginning of any two year period constituted the Company's Board of Directors
cease for any reason to constitute a majority of directors then in office.
Section 8.02. Remedies Upon Event of Default. Without limiting
any other rights or remedies of the Administrative Agent or the Lenders provided
for elsewhere in this Agreement, or the other Loan Documents, or by any
Requirement of Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of
any Event of Default other than an Event of Default described in Section 8.01(f)
or 8.01(g) in respect of the Company, the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon shall, terminate
the Commitments and/or declare all or any part of the unpaid principal of all
Loans, all interest accrued and unpaid thereon and all other amounts payable
under the Loan Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which are
expressly waived by the Company.
(b) Upon the occurrence of any Event of Default described
in Section 8.01(f) or 8.01(g) in respect of the Company, the Commitments and all
other obligations of the Administrative Agent or the Lenders and all rights of
the Company under the Loan Documents shall terminate without notice to or demand
upon the Company, which are expressly waived by the Company and the unpaid
principal of all Loans, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents shall be forthwith due and payable,
without protest, presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by the Company.
(c) Upon the occurrence of any Event of Default, the
Administrative Agent shall, at the request of the Requisite Lenders, or may with
the consent of the Requisite Lenders, without notice to (except as expressly
provided for in any Loan Document) or demand upon the Company, which are
expressly waived by the Company (except as to notices expressly provided for in
any Loan Document), proceed to protect,
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exercise and enforce the rights and remedies of the Administrative Agent and the
Lenders under the Loan Documents against the Company and such other rights and
remedies as are provided by Requirement of Law or equity.
(d) The rights provided for in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement not existing or hereafter arising.
(e) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders in
their sole discretion, and all payments received by the Administrative Agent and
the Lenders, or any of them, shall be applied first to the costs and expenses
(including reasonable Attorneys Costs incurred by the Administrative Agent and
the Lenders), and thereafter paid pro rata to the Lenders in the same
proportions that the aggregate Obligations owed to each Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders. Regardless of how
each Lender may treat payments for the purpose of its own accounting, for the
purpose of computing the Company's Obligations hereunder, payments shall be
applied first, to the costs and expenses of the Administrative Agent and the
Lenders, as set forth above, second, to the payment of accrued and unpaid
interest due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and third, to the payment
of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents. No application of
payments will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of the Lenders hereunder
or thereunder or under any Requirement of Law or in equity.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01. Appointment and Authorization. Subject to
Section 9.07, each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the Loans and does not
constitute appointment of the Administrative Agent as trustee for any Lender or
as representative of any Lender for any other purpose and, except as
specifically set forth in the Loan Documents to the contrary, the Administrative
Agent shall take such action and exercise such powers only in an administrative
and ministerial capacity.
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Section 9.02. Administrative Agent and Affiliates. JPMorgan
Chase Bank (and each successor Administrative Agent) has the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the term "Lender" or "Lenders"
includes JPMorgan Chase Bank in its individual capacity. JPMorgan Chase Bank
(and each successor Administrative Agent) and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Company, any Subsidiary thereof, or any Affiliate of the
Company or any Subsidiary thereof, as if it were not the Administrative Agent
and without any duty to account therefor to the Lenders. JPMorgan Chase Bank
(and each successor Administrative Agent) need not account to any other Lender
for any monies received by it for reimbursement of its costs and expenses as
Administrative Agent hereunder, or for any monies received by it in any other
capacity. The Administrative Agent shall not be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent, regardless of
whether a Default or an Event of Default has occurred and is continuing.
Section 9.03. Lenders' Credit Decisions. Each Lender agrees
that it has, independently and without reliance upon the Administrative Agent,
any other Lender or the directors, officers, agents, employees or attorneys of
the Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of the Company and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
Section 9.04. Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent
of the existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent (or the
Lender that is then the Administrative Agent) has received notice from the
Company stating the nature of the Default or has received notice from a Lender
stating the nature of the Default and that such Lender considers the Default to
have occurred and to be continuing.
(b) The Administrative Agent has only those duties under the
Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, except that the
Administrative Agent shall be
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required to act or not act upon the instructions of the Requisite Lenders (or of
all the Lenders, to the extent required by Section 10.01) and those instructions
shall be binding upon the Administrative Agent and all the Lenders, provided
that the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to any applicable Requirement of
Law or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in subsection (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the instructions of
the Requisite Lenders, or of all the Lenders, as required hereunder, provided
that the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to any applicable Requirement of
Law or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that if
the Requisite Lenders, or all the Lenders, if required hereunder, fail, for five
Business Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of the
interests of the Lenders.
(e) The Administrative Agent shall have no liability to
any Lender for acting, or not acting, as instructed by the Requisite Lenders, or
all the Lenders, if required hereunder, notwithstanding any other provision
hereof.
Section 9.05. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat any Lender as a Lender until the
Administrative Agent receives notice of the assignment or transfer thereof, in
form satisfactory to the Administrative Agent, signed by the payee, and may
treat each Lender as the owner of that Lender's interest in the Obligations for
all purposes of this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by that Lender.
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel, accountants or
other professionals or experts for the Company and/or their Subsidiaries or the
Lenders, and shall not be liable for any action taken or not taken by it in good
faith in accordance with any advice of such legal counsel, accountants or other
professionals or experts.
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(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents or in
any notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by the Company or its Subsidiaries of any of the terms, conditions or
covenants of any of the Loan Documents or to inspect the Property, books or
records of the Company or its Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith.
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed by it to be genuine and signed
or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by the Company or any Subsidiary
or Affiliate thereof or paid or payable to or received or receivable from any
Lender under any Loan Document, including, without limitation, principal,
interest, Facility Fees, Loans and other amounts; provided that, promptly upon
discovery of such an error in computation, the Administrative Agent, the Lenders
and (to the extent applicable) the Company and/or its Subsidiaries or Affiliates
shall make such adjustments as are necessary to correct such error and to
restore the parties to the position that they would have occupied had the error
not occurred.
Section 9.06. Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share (if the Commitments are then in effect) or in
accordance with its proportion of the aggregate outstanding Loans (if the
Commitments have then been terminated), indemnify and hold the Administrative
Agent and its Affiliates, directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, Attorneys Costs that
may be imposed on, incurred by or asserted against it or them in any way
relating to or arising out of the Loan Documents (other than Loan losses
incurred by reason of the failure of the Company to pay the Loans) or any action
taken or not taken by it as Administrative Agent thereunder, except such as
result from its own gross negligence or willful misconduct. Without limitation
on the foregoing, each Lender shall reimburse the Administrative Agent upon
demand for that Lender's Pro Rata Share of any out-of-pocket cost or expense
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
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reorganization (including a bankruptcy reorganization), enforcement or attempted
enforcement of the Loan Documents, to the extent that the Company is required by
Section 10.04 to pay that cost or expense but fails to do so upon demand.
Nothing in this Section 9.06 shall entitle the Administrative Agent to recover
any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from the Company or any of its Subsidiaries. To the
extent that the Administrative Agent is later reimbursed such cost or expense by
the Company or any of its Subsidiaries, it shall return the amounts paid to it
by the Lenders in respect of such cost or expense.
Section 9.07. Successor Administrative Agent. The
Administrative Agent may, and at the request of the Requisite Lenders shall,
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Company. If the Administrative Agent shall resign as Administrative Agent under
this Agreement, the Company shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, unless an Event of Default has occurred
and is continuing, in which case such successor administrative agent shall be
selected from among the Lenders by the Requisite Lenders. If no successor
Administrative Agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Company, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor Administrative Agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX, and Sections 10.04 and 10.16 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as a successor administrative agent is
appointed as provided for above.
Section 9.08. No Obligations of the Company. Nothing contained
in this Article IX shall be deemed to impose upon the Company any obligation in
respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and, except as
expressly provided in any Articles of the Agreement other than this Article IX,
the Company shall have no liability to the Administrative Agent or any of the
Lenders in respect of any failure by the Administrative Agent or any Lender to
perform any of its obligations to the Administrative Agent or the Lenders under
this Agreement. Without limiting the generality of the foregoing, where any
provision of this Agreement relating to the payment of any amounts due and owing
under the Loan Documents provides that such payments shall be made by the
Company to the Administrative Agent for the account of
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the Lenders, the Company's obligations to the Lenders in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement.
Section 9.09. Documentation Agent; Syndication Agent. None of
the Lenders identified on the facing page or signature pages of this Agreement
as Documentation Agent or Syndication Agent shall have any right, power,
obligation, liability or responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders so identified shall have or be deemed to have any fiduciary
relations with any Lender. Each Lender acknowledges that it has not relied, and
will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking any action hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments; Consents. No amendment,
modification, supplement, extension, termination or waiver of any provision of
this Agreement or any other Loan Document, no approval or consent thereunder,
and no consent to any departure by the Company therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
the Company is a party, signed by the Company and, in the case of any amendment,
modification or supplement affecting the rights and duties of the Administrative
Agent, signed by the Administrative Agent), and then only in the specific
instance and for the specific purpose given; and, without the approval in
writing of each Lender affected thereby, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To decrease the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any Loan,
or to increase the amount of the Commitment or the Pro Rata Share of such
Lender, or to decrease the amount of any Facility Fee payable to such Lender, or
any other fee or amount payable to such Lender under the Loan Documents or to
waive an Event of Default consisting of the failure of the Company to pay when
due principal, interest or any Facility Fee;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of interest on, any
Loan or any installment of any Facility Fee, or to extend the term of the
Commitments;
(c) To amend the provisions of the definition of "Requisite
Lenders," Article IV or this Article; or
(d) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
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Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
Section 10.02. Notices. Except as otherwise expressly provided
in the Loan Documents, all notices, requests, demands, directions and other
communications provided for therein shall be given by Requisite Notice and shall
be effective as follows:
Mode of Delivery Effective on earlier of actual receipt and:
---------------- -------------------------------------------
Courier On scheduled delivery date
Facsimile When transmission complete
Mail Fourth Business Day after deposit in U.S. mail
Personal delivery When received
Telephone When answered
provided, however, that notice to the Administrative Agent pursuant to Article
II or IX shall not be effective until actually received by the Administrative
Agent. The Administrative Agent and any Lender shall be entitled to rely and act
on any notice purportedly given by or on behalf of the Company even if such
notice (i) was not made in a manner specified herein, (ii) was incomplete, or
(iii) was not preceded or followed by any other notice specified herein or the
terms of such notice as understood by the recipient varied from any subsequent
related notice provided for herein. The Company shall indemnify the
Administrative Agent and any Lender from any loss, cost, expense or liability as
a result of relying on any notice permitted herein.
Section 10.03. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of any Lender or the
Administrative Agent, 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, powers, privileges and remedies of the Administrative Agent and the
Lenders provided herein or other Loan Document are cumulative and not exclusive
of any right, power, privilege or remedy provided by Requirement of Law or
equity. The terms and conditions of Article IX are inserted for the sole benefit
of the Administrative Agent and the Lenders; the same may be waived in whole or
in part, with or without terms or conditions, in respect of any Loan without
prejudicing the Administrative Agent's or the Lenders' rights to assert them in
whole or in part in respect of any other Loan.
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Section 10.04. Costs and Expenses. The Company shall pay,
whether or not the Transactions shall be consummated:
(a) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), X.X. Xxxxxx
Securities, Xxxxxxx Xxxxx Barney and Citicorp USA, Inc. in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and
(b) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement after a Default or Event of Default, including its rights under
this Section, or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
Section 10.05. Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
the Company is a party will be binding upon and inure to the benefit of the
Company, the Administrative Agent, each of the Lenders, and their respective
successors and assigns, except that (i) the Company may not assign its rights
hereunder or thereunder or any interest herein or therein without the prior
written consent of all the Lenders, and (ii) no Lender may assign or transfer
its rights or obligations hereunder except in accordance with this Section. Any
Lender may at any time pledge its Note or any other instrument evidencing its
rights as a Lender under this Agreement to a Federal Reserve Lender, but no such
pledge shall release that Lender from its obligations hereunder or grant to such
Federal Reserve Lender the rights of a Lender hereunder absent foreclosure of
such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more assignees all or any portion of its Pro Rata Share;
provided that so long as no Default or Event of Default exists, (i) such
assignee is an Eligible Assignee, and (ii) if such assignee is not then a
Lender, an Affiliate of the assigning Lender or a CLO administered or managed by
the assigning Lender or an Affiliate of the assigning Lender, shall be approved
by each of the Administrative Agent and the Company (neither of which approvals
shall be unreasonably withheld or delayed; it being understood that it shall not
be deemed unreasonable to withhold such consent if based solely on the desire to
avoid the payment of additional costs or taxes), and (iii) except in the case of
an assignment to an Affiliate of the assigning Lender, to a CLO administered or
managed by the assigning Lender or an Affiliate of the assigning Lender, to
another Lender or of the entire remaining Commitment of the assigning Lender;
the assignment shall not assign a
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Pro Rata Share which is equivalent to less than the Minimum Amount therefor. A
copy of a Notice of Assignment and Acceptance shall be delivered to the
Administrative Agent with respect to any assignment. The effective date of any
such assignment shall be as specified in the Notice of Assignment and
Acceptance, but not earlier than the date which is five Business Days after the
date the Administrative Agent has received the Notice of Assignment and
Acceptance. Upon acceptance by the Administrative Agent of such Notice
Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender
for all purposes of this Agreement, with the Pro Rata Share therein set forth
and, to the extent of such Pro Rata Share, the assigning Lender shall be
released from its further obligations under this Agreement. The Company agrees
that it shall execute and deliver upon request (against delivery by the
assigning Lender to the Company of any Note) to such assignee Lender, one or
more Notes evidencing that assignee Lender's Pro Rata Share, and to the
assigning Lender if requested, one or more Notes evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Notice of Assignment
and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
(i) other than the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share being assigned thereby free and clear of
any adverse claim, the assigning Lender has made no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness or sufficiency of this Agreement
or any other Loan Document; (ii) the assigning Lender has made no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Company or the performance by the Company of the Obligations;
(iii) it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) it
will, independently and without reliance upon the Administrative Agent or any
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) it appoints and authorizes the Administrative
Agent to take such action and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by this Agreement; and (vi) it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $3,500 from such Eligible
Assignee, the Administrative Agent shall, promptly following the effective date
thereof, provide to the Company and the Lenders a revised Schedule 10.02 giving
effect thereto.
(e) Each Lender may from time to time grant participations to
one or more banks or other financial institutions (including another Lender) in
a portion of its Pro Rata Share; provided, however, that (i) such Lender's
obligations under this
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Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other financial institutions shall not be a
Lender hereunder for any purpose except, if the participation agreement so
provides, for the purposes of Article III but only to the extent that the cost
of such benefits to the Company does not exceed the cost which the Company would
have incurred in respect of such Lender absent the participation, (iv) the
Company, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation shall not restrict an
increase in the Commitments or in the granting Lender's Pro Rata Share, so long
as the amount of the participation interest is not affected thereby and (vi) the
consent of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents other than those which
(A) extend the Maturity Date as to such participant or any other date upon which
any payment of money is due to such participant, (B) reduce the rate of interest
owing to such participant, any fee or any other monetary amount owing to such
participant or (C) reduce the amount of any installment of principal owing to
such participant. A Lender granting a participation in accordance with this
clause (e) shall give Requisite Notice to the Company on by executing and
delivering a Notice of Participation no later than 5 Business Days after the
effective date of such participation.
Section 10.06. Sharing of Setoffs. Each Lender severally
agrees that if it, through the exercise of any right of setoff, banker's lien or
counterclaim against the Company or otherwise, receives payment of the
Obligations held by it that is ratably more than all Extensions of Credit
(including Competitive Loans) made by any other Lender, through any means, then,
subject to any applicable Requirement of Law: (a) the Lender exercising the
right of setoff, banker's lien or counterclaim or otherwise receiving such
payment shall purchase, and shall be deemed to have simultaneously purchased,
from the other Lenders a participation in the Obligations held by the other
Lenders and shall pay to the other Lenders a purchase price in an amount so that
the share of the Obligations held by each Lender after the exercise of the right
of setoff, banker's lien or counterclaim or receipt of payment shall be in the
same proportion that existed prior to the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Lenders share any payment obtained
in respect of the Obligations ratably in accordance with each Lender's share of
the Obligations immediately prior to, and without taking into account, the
payment; provided that, if all or any portion of a disproportionate payment
obtained as a result of the exercise of the right of setoff, banker's lien,
counterclaim or otherwise is thereafter recovered from the purchasing Lender by
the Company or any Person claiming through or succeeding to the rights of the
Company, the purchase of a participation shall be rescinded and the purchase
price thereof shall be restored to the extent of the recovery, but without
interest. Each Lender that purchases a participation in the Obligations pursuant
to this Section shall from and after the purchase have the right to give all
notices, requests, demands, directions and other communications under this
Agreement
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with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations
purchased. The Company expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in an Obligation so purchased may, to
the fullest extent permitted by any applicable Requirement of Law, exercise any
and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
Section 10.07. Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
Section 10.08. Severability. The illegality or
unenforceability of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
Section 10.09. No Third Parties Benefited. This Agreement is
made and entered into for the sole protection and legal benefit of the Company,
the Administrative Agent and the Lenders, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. Neither the Administrative Agent
nor any Lender shall have any obligation to any Person not a party to this
Agreement or other Loan Documents.
Section 10.10. Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.
Section 10.11. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
COUNTY OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENT OF LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF
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FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE COMPANY WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
Section 10.12. WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS
AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 10.13. Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and understanding
between the Company, the Administrative Agent and the Lenders, and supersedes
all prior or contemporaneous agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and thereof, and any
prior arrangements made with respect to the payment by the Company of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of the Administrative Agent or any Lender.
Section 10.14. Interpretation. This Agreement is the result of
negotiations between and has been reviewed by counsel to the Administrative
Agent, the Lenders, the Company and other parties, and is the product of all
parties hereto. Accordingly, this Agreement and the other Loan Documents shall
not be construed against the Administrative Agent or any Lender merely because
of the Administrative Agent's or any Lender's involvement in the preparation of
such documents and agreements.
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Section 10.15. Nature of Lenders' Obligations. The obligations
of the Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Company or any Affiliate of the Company. Each Lender's obligation to make
any Loan pursuant hereto is several and not joint or joint and several. A
default by any Lender will not increase the Pro Rata Share attributable to any
other Lender. Any Lender not in default may, if it desires, assume in such
proportion as the nondefaulting Lenders agree the obligations of any Lender in
default, but is not obligated to do so. The Administrative Agent agrees that it
will use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to the Company, to replace such a Lender in default.
Section 10.16. Indemnity; Damage Waiver.
(a) The Company shall indemnify the Administrative Agent
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Company or any of its Subsidiaries, or any Environmental Liability related in
any way to the Company or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
(b) The Company shall indemnify the Administrative Agent
and each Lender for funding costs or funding losses (excluding loss of margin)
if prepayment or conversion of a LIBOR Loan occurs prior to the end of an
Interest Period, if caused or requested by the Company or if the Company fails
to consummate a LIBOR Loan because conditions precedent to borrowing or
conversion are not satisfied.
Section 10.17. Nonliability of the Lenders. The Company
acknowledges and agrees that the relationship between the Company and the
Administrative Agent and the Lenders is, and shall at all times remain, solely
that of borrowers and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be construed to
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be partners or joint venturers of the Company or its Affiliates; neither the
Administrative Agent nor the Lenders shall under any circumstance be deemed to
be in a relationship of confidence or trust or a fiduciary relationship with the
Company or its Affiliates, or to owe any fiduciary duty to the Company or its
Affiliates; neither the Administrative Agent nor the Lenders undertake or assume
any responsibility or duty to the Company or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform the Company or its Affiliates
of any matter in connection with its Property or the operations of the Company
or its Affiliates; the Company and its Affiliates shall rely entirely upon their
own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or assumed
by the Administrative Agent or the Lenders in connection with such matters is
solely for the protection of the Administrative Agent and the Lenders and
neither the Company nor any other Person is entitled to rely thereon.
Section 10.18. Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Agent or any Lender not to require payment of any
interest (including Default Interest), fee, cost or other amount payable under
any Loan Document, or to calculate any amount payable by a particular method, on
any occasion shall in no way limit or be deemed a waiver of the Administrative
Agent's or such Lender's right to require full payment of any interest
(including Default Interest), fee, cost or other amount payable under any Loan
Document, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
Section 10.19. Headings. Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
Section 10.20. Foreign Lenders and Participants. Each Lender,
and each holder of a participation interest herein, that is a "foreign
corporation, partnership or trust" within the meaning of the Code shall deliver
to the Administrative Agent, (a) within 20 days after the Closing Date, or (b)
prior to accepting an assignment or receiving a participation interest herein,
two duly signed completed copies of either Form W-8BEN (relating to such Person
and entitling it to a complete exemption from withholding on all payments to be
made to such Person by the Company pursuant to this Agreement) or Form W-8ECI
(relating to all payments to be made to such Person by the Company pursuant to
this Agreement) of the United States Internal Revenue Service or such other
evidence (including, if reasonably necessary, Form W-8 or W-9) satisfactory to
the Company and the Administrative Agent that no withholding under the U.S.
federal income tax laws is required with respect to such Person. Thereafter and
from time to time, each such Person shall (a) promptly submit to the
Administrative Agent two such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Company and the Administrative Agent of any available
exemption from, United States withholding taxes
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in respect of all payments to be made to such Person by the Company pursuant to
this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office, if
any) to avoid any Requirement of Law that the Company make any deduction or
withholding for taxes from amounts payable to such Person. If such Persons fails
to timely deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest and costs
and expenses (including reasonable Attorneys Fees of the Administrative Agent.
The obligation of the Lenders under this Section shall survive the payment of
all Obligations and the resignation or replacement of the Administrative Agent.
Section 10.21. Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from the Company pursuant to this
Agreement in confidence, except for disclosure: (a) to a Lender's Affiliates;
(b) to other Lenders and their Affiliates; (c) to legal counsel and accountants
for the Company or any Lender; (d) to other professional advisors to the Company
or any Lender, provided that the recipient has accepted such information subject
to a confidentiality agreement substantially similar to this Section; (e) to
regulatory officials having jurisdiction over that Lender; (f) as required by
Requirement of Law or legal process or in connection with any legal proceeding
to which that Lender and the Company is adverse parties; and (g) to another
financial institution in connection with a disposition or proposed disposition
to that financial institution of all or part of that Lender's interests
hereunder or a participation interest in its Loans, provided that the recipient
has agreed to treat such information confidentially on a basis similar to the
foregoing. For purposes of the foregoing, "confidential information" shall mean
any information respecting the Company or its Subsidiaries reasonably considered
by the Company to be confidential, other than (i) information previously filed
with any Governmental Authority and available to the public, (ii) information
previously published in any public medium from a source other than, directly or
indirectly, that Lender, and (iii) information previously disclosed by the
Company to any Person on a non-confidential basis. Nothing in this Section shall
be construed to create or give rise to any fiduciary duty on the part of the
Administrative Agent or the Lenders to the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By:
--------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By:
--------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as a Lender
By:
--------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Syndication Agent and as a Lender
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXXXX BANK,
as Co-Documentation Agent and as a Lender
By:
--------------------------------------
Name:
Title:
S-1
WACHOVIA BANK, N.A.
as Co-Documentation Agent and as a Lender
By:
--------------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc,
as Co-Documentation Agent and as a Lender
By:
--------------------------------------
Name:
Title:
THE BANK OF TOKYO -- MITSUBISHI TRUST
COMPANY,
as a Lender
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as a Lender
By:
--------------------------------------
Name:
Title:
MELLON BANK, N.A.
as a Lender
By:
--------------------------------------
Name:
Title:
S-2
KEY BANK,
as a Lender
By:
--------------------------------------
Name:
Title:
SOCIETE GENERALE (NEW YORK BRANCH),
as a Lender
By:
--------------------------------------
Name:
Title:
MIZUHO FINANCIAL GROUP,
as a Lender
By:
--------------------------------------
Name:
Title:
CREDIT LYONNAIS (NEW YORK BRANCH),
as a Lender
By:
--------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY,
as a Lender
By:
--------------------------------------
Name:
Title:
S-3
U.S. BANK N.A.,
as a Lender
By:
--------------------------------------
Name:
Title:
ALLFIRST BANK,
as a Lender
By:
--------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
as a Lender
By:
--------------------------------------
Name:
Title:
S-4
Schedules and Exhibits have been omitted.
