EXHIBIT 10.82
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of January 14, 2003
among
▇▇▇▇▇▇▇ NAVIGATION LIMITED,
as the Company,
THE SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Issuing Bank, and Swing Line Bank,
FLEET NATIONAL BANK,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Documentation Agent,
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Arranged By
THE BANK OF NOVA SCOTIA,
as Lead Arranger and Sole Book Runner,
and
FLEET SECURITIES, INC.,
as Co-Arranger
-2-
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 14,
2003, is entered into by and among, ▇▇▇▇▇▇▇ NAVIGATION LIMITED, a California
corporation (the "Company"), the institutions from time to time parties hereto
as Lenders, whether by execution of this Agreement or an Assignment Agreement
pursuant to Section 14.3, THE BANK OF NOVA SCOTIA ("BNS"), in its capacity as
administrative agent for itself and the other Lenders (the "Administrative
Agent"), FLEET NATIONAL BANK, in its capacity as syndication agent (the
"Syndication Agent"), and BANK OF AMERICA, N.A., in its capacity as
documentation agent (the "Documentation Agent").
R E C I T A L S:
A. Pursuant to the Credit Agreement, dated as of July 14, 2000 (as
amended, supplemented, amended and restated or otherwise modified prior to the
date hereof, the "Existing Credit Agreement"), among the Company, the various
financial institutions and other Persons from time to time parties thereto as
lenders (the "Existing Lenders"), the Syndication Agent, BNS, as documentation
agent, and ABN Amro Bank N.V., as administrative agent thereunder, the Existing
Lenders were committed to make extensions of credit to the Company and the
Subsidiary Borrowers on the terms and conditions set forth therein and made
revolving loans (the "Existing Revolving Loans") and term loans (the "Existing
Term Loans", and collectively with the Existing Revolving Loans, the "Existing
Loans") to the Company and the Subsidiary Borrowers.
B. In order to provide for the ongoing working capital and general
corporate needs of the Company, the Company desires to, among other things,
continue certain of the Existing Loans as Loans under this Agreement and to
obtain the commitments to make Loans set forth herein.
C. The Company has requested that the Existing Credit Agreement be
amended and restated in its entirety to become effective and binding on the
Company pursuant to the terms of this Agreement, and the Lenders (including the
Existing Lenders) have agreed (subject to the terms of this Agreement) to amend
and restate the Existing Credit Agreement in its entirety to read as set forth
in this Agreement, and it has been agreed by the parties to the Existing Credit
Agreement that (a) the commitments which the Existing Lenders have agreed to
extend to the Company under the Existing Credit Agreement shall be extended or
advanced upon the amended and restated terms and conditions contained in this
Agreement and (b) the Existing Loans and other Obligations outstanding under the
Existing Credit Agreement shall be governed by and deemed to be outstanding
under the amended and restated terms and conditions contained in this Agreement,
with the intent that the terms of this Agreement shall supersede the terms of
the Existing Credit Agreement (each of which shall hereafter have no further
effect upon the parties thereto, other than for accrued fees and expenses, and
indemnification provisions, accrued and owing under the terms of the Existing
Credit Agreement on or prior to the date hereof or arising (in the case of an
indemnification) under the terms of the Existing Credit Agreement); provided
that any Hedging Agreements with any one or more Existing Lenders (or their
respective Affiliates) shall continue unamended and in full force and effect.
D. All Obligations are and shall continue to be secured by, among other
things, the Collateral Documents and the other Loan Documents.
E. The Lenders are willing to extend such financial accommodations on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the
Lenders and the Administrative Agent hereby agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (a) acquires any going business concern or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (b) directly
or indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"Acquisition Documents" means the Stock and Asset Purchase Agreement,
the documents evidencing the Subordinated Seller Debt and the other documents,
certificates and agreements delivered in connection with the Spectra Precision
Acquisition.
"Administrative Agent" is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to Section
12.11.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loan(s) made by some or all of the Lenders to the
applicable Borrower of the same Type and, in the case of Eurocurrency Rate
Advances and Alternate Currency Loans, in the same currency and for the same
Interest Period.
"Affected Lender" is defined in Section 2.20 hereof.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"Aggregate Revolving Loan Commitment" means, as of any date of
determination, the sum of (a) the Aggregate Tranche A Revolving Loan Commitment
as of such date, (b) the Aggregate Tranche B Revolving Loan Commitment as of
such date, (c) the Aggregate Tranche C Revolving Loan Commitment as of such date
and (d) the Aggregate Tranche D Revolving Loan Commitment as of such date.
"Aggregate Tranche A Revolving Loan Commitment" means the aggregate of
the Tranche A Revolving Loan Commitments of all the Lenders, as they may be
adjusted from time to time pursuant to the terms hereof. The Aggregate Tranche A
Revolving Loan Commitment shall not be greater than the difference between the
Aggregate Tranche C Revolving Loan Commitment and Fifty Million and 00/100
Dollars ($50,000,000.00).
"Aggregate Tranche B Revolving Loan Commitment" means the aggregate of
the Tranche B Revolving Loan Commitments of all the Lenders, as they may be
adjusted from time to time pursuant to the terms hereof. The Aggregate Tranche B
Revolving Loan Commitment shall not be greater than the difference between the
Aggregate Tranche D Revolving Loan Commitment and Fifty Million and 00/100
Dollars ($50,000,000.00).
"Aggregate Tranche C Revolving Loan Commitment" means the aggregate of
the Tranche C Revolving Loan Commitments of all the Lenders, as they may be
adjusted from time to time pursuant to the terms hereof. The Aggregate Tranche C
Revolving Loan Commitment shall not be greater than Fifty Million and 00/100
Dollars ($50,000,000.00).
"Aggregate Tranche D Revolving Loan Commitment" means the aggregate of
the Tranche D Revolving Loan Commitments of all the Lenders, as they may be
adjusted from time to time pursuant to the terms hereof. The Aggregate Tranche D
Revolving Loan Commitment shall not be greater than Fifty Million and 00/100
Dollars ($50,000,000.00).
"Agreed Currencies" means (a) Dollars, (b) so long as such currency
remains an Eligible Currency, euros, and (c) any other Eligible Currency which
the applicable Borrower requests the Administrative Agent to include as an
Agreed Currency hereunder and which is agreed to by all of the Lenders with a
Tranche B Revolving Loan Commitment and a Tranche D Revolving Loan Commitment;
provided that the Administrative Agent shall promptly notify each such Lender of
each such request and each such Lender shall be deemed not to have agreed to
each such request unless and until its written consent thereto has been received
by the Administrative Agent.
"Agreement" means, on any date, the Existing Credit Agreement as
amended and restated hereby and as further amended, supplemented, amended and
restated or otherwise modified from time to time and in effect on such date.
"Agreement Accounting Principles" means generally accepted accounting
principles as applied in a manner consistent with that used in preparing the
financial statements of the Company referred to in Section 6.4 hereof; provided
that for the purposes of determining compliance with the financial covenants set
forth in Section 7.4 hereof, "Agreement Accounting Principles" means generally
accepted accounting principles as in effect as of the date of this Agreement.
"Alternate Base Rate" means, for any day, a fluctuating rate of
interest per annum equal to in the case of Loans in Dollars, the higher of (a)
the Prime Rate for such day and (b) the sum of (i) the Federal Funds Effective
Rate for such day and (ii) one half percent (.50%) per annum and in the case of
Loans in other Eligible Currencies, the comparable rate for such other Eligible
Currency, as reasonably determined by the Administrative Agent or the Alternate
Currency Bank, as applicable.
"Alternate Currency" shall mean any Eligible Currency which is not an
Agreed Currency and which the applicable Borrower requests the applicable
Alternate Currency Bank to include as an Alternate Currency hereunder and which
is acceptable to the applicable Alternate Currency Bank and with respect to
which an Alternate Currency Addendum has been executed by a Subsidiary Borrower
or the Company and the applicable Alternate Currency Bank in connection
therewith.
"Alternate Currency Addendum" means an addendum substantially in the
form of Exhibit H hereto with such modifications thereto as shall be approved by
the applicable Alternate Currency Bank and the Administrative Agent.
"Alternate Currency Bank" means BNS and any other Lender with a Tranche
B Revolving Loan Commitment or a Tranche D Revolving Loan Commitment (or any
Affiliate, branch or agency thereof) to the extent it is party to an Alternate
Currency Addendum as the "Alternate Currency Bank" thereunder. If any agency,
branch or Affiliate of such Lender shall be a party to an Alternate Currency
Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of such Lender
hereunder; provided that such Lender shall to the exclusion of such agency,
branch or Affiliate, continue to have all the voting rights vested in it by the
terms hereof.
"Alternate Currency Borrowing" means any borrowing consisting of a Loan
made in an Alternate Currency.
"Alternate Currency Commitment" means, for any Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum, as such amount may be modified from time
to time pursuant to the terms of this Agreement and the applicable Alternate
Currency Addendum.
"Alternate Currency Interest Period" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth in, or determined in
accordance with, the applicable Alternate Currency Addendum.
"Alternate Currency Loan" means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Bank to a Subsidiary Borrower
or the Company pursuant to Section 2.21 and an Alternate Currency Addendum.
"Alternate Currency Rate" means, for any day for any Alternate Currency
Loan, the per annum rate of interest selected by the applicable Borrower under
and as set forth in the applicable Alternate Currency Addendum.
"Amendment Effective Date" means the date upon which the applicable
conditions precedent set forth in Article V have been satisfied and the Loans
hereunder made.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(c)(i) hereof determined in accordance with the
provisions of Section 2.15(d)(ii) hereof.
"Applicable Eurocurrency Margin" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(d)(ii) hereof.
"Applicable Floating Rate Margin" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(d)(ii) hereof.
"Applicable L/C Fee Percentage" means, as at any date of determination,
a rate per annum equal to the Applicable Eurocurrency Margin for Eurocurrency
Rate Loans in effect on such date.
"Approved Fund" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Approximate Equivalent Amount" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time.
"Arrangers" means each of BNS, as Lead Arranger and Sole Book Runner,
and Fleet Securities, Inc., as Co-Arranger, in their respective capacities as
arrangers for the loan transaction evidenced by this Agreement.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction) to any Person other than the
Company or any of its Wholly-Owned Subsidiaries other than (a) the sale or lease
of Inventory in the ordinary course of business, (b) the sale or other
disposition of any obsolete, excess, damaged or worn-out Equipment disposed of
in the ordinary course of business and (c) the sale or liquidation of Cash
Equivalents, (d) dispositions or transfers in the nature of a license or
sublicense of intellectual property, other than licenses that are exclusive
across all regions and fields and (e) other sales, dispositions, leases,
conveyances or transfers in the ordinary course of business, consistent with
past practices; provided that sales, dispositions, leases, conveyances or
transfers described in clauses (b), (d) and (e) shall only be excluded from the
definition of Asset Sale to the extent that they do not exceed $10,000,000 in
any fiscal year.
"Assigning Lender" is defined in Section 14.3.
"Assignment Agreement" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit D hereto.
"Assumption Letter" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit J hereto pursuant
to which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be
bound by the terms and conditions hereof.
"Authorized Officer" means any of the Chairman of the Board, the
President, the Treasurer, any Vice President or the Chief Financial Officer of
the Company, acting singly.
"Benefit Plan" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
and in respect of which the Company or any other member of the Controlled Group
is, or within the immediately preceding six (6) years was, an "employer" as
defined in Section 3(5) of ERISA.
"BNS" is defined in the preamble.
"Borrower" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"Borrowers" shall mean, collectively, the Company and the Subsidiary Borrowers.
"Borrowing Date" means a date on which a Loan is made hereunder.
"Borrowing/Conversion/Continuation Notice" is defined in Section 2.8
hereof.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate, a day (other than
a Saturday or Sunday) on which banks are open for business in Chicago, Illinois,
New York, New York and San Francisco, California and (i) in addition, for Loans
denominated in Agreed Currencies (other than euro), on which dealings in Dollars
and the other applicable Agreed Currencies are carried on in the London
interbank market and (ii) in addition, for Loans denominated in euro, on which
dealings in euro are carried on in Brussels, Belgium interbank market, and (b)
for all other purposes a day (other than a Saturday or Sunday) on which banks
are open for business in Chicago, Illinois, New York, New York and San
Francisco, California.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (a) the cost of assets acquired with Capitalized Lease Obligations,
(b) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss and (c) leasehold improvement expenditures for which the Company
or a Subsidiary is reimbursed promptly by the lessor.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership, partnership interests
(whether general or limited) and (d) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person; provided that "Capital Stock"
shall not include any debt securities convertible into equity securities prior
to such conversion.
"Capitalized Lease" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed by
the full faith and credit of the United States government; (b) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by ▇▇▇▇▇'▇
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (c) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (i) investment grade securities (i.e., securities rated at
least Baa by ▇▇▇▇▇'▇ Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (ii) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by ▇▇▇▇▇'▇ Investors Services, Inc. (all such institutions
being, "Qualified Institutions"); (d) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof
and (e) other Investments properly classified as "cash" or "cash equivalents" in
accordance with Agreement Accounting Principles and made in accordance with the
Company's investment policy, as approved by the Company's Board of Directors
from time to time.
"Change" is defined in Section 4.2 hereof.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act of 1934), becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act of 1934,
provided that a person shall be deemed to have "beneficial ownership"
of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of twenty-five percent (25%) or more of
the combined voting power of the Company's outstanding Capital Stock
ordinarily having the right to vote at an election of directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property
to any Person, or any corporation consolidates with or merges into the
Company, in either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or changed
into or exchanged for cash, securities or other property.
"Closing Date" means July 14, 2000, the date the initial Existing Loans
were made under the Existing Credit Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Agent" means the collateral agent for the Lenders, selected
pursuant to Section 12.13.
"Collateral Documents" means, collectively, (a) the Security
Agreements, the Mortgages, the Pledge Agreements and all other security
agreements, mortgages, deeds of trust, patent and trademark assignments, lease
assignments, guarantees and other similar agreements between any Borrower or
Guarantor and the Lenders, the Administrative Agent or the Collateral Agent for
the benefit of the Lenders now or hereafter delivered to the Lenders, the
Administrative Agent or the Collateral Agent pursuant to or in connection with
the transactions contemplated hereby, and all financing statements (or
comparable documents now or hereafter fixed in accordance with the UCC or
comparable law) against any Borrower or Guarantor as debtor in favor of the
Lenders, the Administrative Agent or the Collateral Agent for the benefit of the
Lenders as secured party, and (b) any amendments, supplements, modifications,
renewals, replacements, consolidations, substitutions and extensions of any of
the foregoing.
"Commission" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"Company" is defined in the preamble and includes such Person's
successors and assigns, including a debtor-in-possession on behalf of such
Person.
"Consolidated Net Assets" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill and other
intangible assets under Agreement Accounting Principles.
"Consolidated Net Worth" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, in each case as determined in
accordance with Agreement Accounting Principles but excluding the effects,
whether positive or negative, of foreign exchange translation adjustments after
the Closing Date.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"Contingent Obligation", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the portion of the obligation so
guaranteed or otherwise supported, in the case of known recurring obligations,
and the maximum reasonably anticipated liability in respect of the portion of
the obligation so guaranteed or otherwise supported assuming such Person is
required to perform thereunder, in all other cases.
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the date hereof or (b) was nominated
for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board at the time of such
nomination or election.
"Contractual Obligation", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"Controlled Group" means the group consisting of (a) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (b) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(c) a member of the same affiliated service group (within the meaning of Section
414(m) of the Code) as the Company, in each case ((a), (b) or (c)) giving effect
to the consummation of the transactions contemplated by the Loan Documents and
the Acquisition Documents.
"Customary Permitted Liens" means:
(a) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (so long as foreclosure, distraint, sale or other similar
proceedings shall not have been commenced or any such proceeding after
being commenced is stayed) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(b) Statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or which thereafter can be paid without penalty or which are being
contested in good faith by appropriate proceedings properly instituted
and diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(c) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(d) Liens arising in the ordinary course of business out of
pledges or deposits under worker's compensation laws, unemployment
insurance, old age pensions, or other social security or retirement
benefits, or similar legislation;
(e) Liens arising from or upon any judgment or award; provided
that such judgment or award is being contested in good faith by proper
appeal proceedings and only so long as execution thereon shall be
stayed;
(f) Deposits to secure the performance of bids, trade
contracts (other than for Indebtedness for borrowed money), leases,
statutory obligations, surety bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of the
Company's or any Subsidiary's business;
(g) Leases or subleases and licenses and sublicenses granted
to others in the ordinary course of the Company's business not
interfering in any material respect with the business of the Company
and its Subsidiaries taken as a whole, and any interest or title of a
lessor, licensor or under any lease or license;
(h) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods; and
(i) Liens that are subordinate to the Lien of the
Administrative Agent or Lenders which constitute rights of set-off of a
customary nature or bankers' liens with respect to amounts on deposit,
whether arising by operation of law or by contract, in connection
with arrangements entered into with banks in the ordinary course of
business.
"Default" means an event described in Article VIII hereof.
"Disqualified Stock" means any class or series of capital stock of any
Person that by its terms or otherwise: (a) is required to be redeemed prior to
the date which is six months after the Facility Termination Date, (b) is
redeemable at the option of the holder of such class or series of capital stock
at any time prior to the date which is six months after the Facility Termination
Date; or (c) is convertible into or exchangeable or exchangeable for capital
stock referred to in clause (a) or (b) or Indebtedness having a scheduled
maturity prior to the date which is six months after the Facility Termination
Date.
"Documentation Agent" is defined in the preamble and includes such
Person's successors and assigns.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollar" and "$" means dollars in the lawful currency of the United
States of America.
"Dollar Amount" of any currency at any date shall mean (a) the amount
of such currency if such currency is Dollars or (b) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"Domestic Subsidiary" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America.
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (a) Net Income, plus (b) cash Interest Expense to the extent
deducted in computing Net Income, plus (c) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (d) depreciation expense to the extent deducted in computing Net Income,
plus (e) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (f) other extraordinary non-cash charges to the extent deducted in
computing Net Income, minus (g) other extraordinary cash or non-cash credits to
the extent added in computing Net Income.
"Eligible Currency" means any currency other than Dollars with respect
to which the Administrative Agent or the applicable Borrower has not given
notice in accordance with Section 2.23 and that is readily available, freely
traded, in which deposits are customarily offered to banks in the London
interbank market (or other market where the Administrative Agent's or Alternate
Currency Bank's, as applicable, foreign currency operations in respect of such
currency are then being conducted), convertible into Dollars in the
international interbank market available to the Lenders in such market and as to
which an Equivalent Amount may be readily calculated. If, after the designation
pursuant to the terms of this Agreement of any currency as an Agreed Currency or
Alternate Currency, (a) currency control or other exchange regulations are
imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, such country's currency is, in
the determination of the Administrative Agent, no longer readily available or
freely traded or (b) in the determination of the Administrative Agent, an
Equivalent Amount for such currency is not readily calculable (each of clause
(a) and (b), a "Disqualifying Event"), then the Administrative Agent shall
promptly notify the Lenders and the Company, and such country's currency shall
no longer be an Agreed Currency or Alternate Currency until such time as the
Disqualifying Event(s) no longer exist, but in any event within five (5)
Business Days of receipt of such notice from the Administrative Agent, the
applicable Borrowers shall repay all Loans in such currency to which the
Disqualifying Event applies or convert such Loan into Loans in Dollars or
another Agreed Currency or Alternate Currency, subject to the other terms
contained in Articles II and IV.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"Environmental Lien" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Equipment" means all of the Company's and its Subsidiaries' present
and future (a) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(b) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (c) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent or Alternate Currency Bank, as
applicable, in the London interbank market (or other market where the
Administrative Agent's or Alternate Currency Bank's, as applicable, foreign
exchange operations in respect of such currency are then being conducted) for
such other currency at or about 11:00 a.m. (local time) two (2) Business Days
prior to the date on which such amount is to be determined, rounded up to the
nearest amount of such currency as determined by the applicable Alternate
Currency Bank from time to time; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or Alternate Currency Bank, as applicable, may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"euro" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Rate
Loan for any specified Interest Period, (a) for any Eurocurrency Rate Loan in
any Agreed Currency other than euro, either (i) the rate of interest per annum
equal to the rate for deposits in the applicable Agreed Currency in the
approximate amount of the Pro Rata Tranche A Revolving Share, Pro Rata Tranche B
Revolving Share, Pro Rata Tranche C Revolving Share, Pro Rata Tranche D
Revolving Share or Pro Rata Term Share, as applicable, of the Administrative
Agent of such Eurocurrency Rate Advance with a maturity approximately equal to
such Interest Period which appears on Telerate Page 3740 or Telerate Page 3750,
as applicable, or, if there is more than one such rate, the average of such
rates rounded to the nearest 1/100 of 1%, as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period or (ii) if no such
rate of interest appears on Telerate Page 3740 or Telerate Page 3750, as
applicable, for any specified Interest Period, the rate at which deposits in the
applicable Agreed Currency are offered by the Administrative Agent to
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest
Period, in the approximate amount of the Pro Rata Tranche A Revolving Share, Pro
Rata Tranche B Revolving Share, Pro Rata Tranche C Revolving Share, Pro Rata
Tranche D Revolving Share or Pro Rata Term Share, as applicable, of the
Administrative Agent of such Eurocurrency Rate Loan and having a maturity
approximately equal to such Interest Period; and (b) with respect to any
Eurocurrency Rate Loan in euro for any Interest Period, the interest rate per
annum equal to the rate determined by the Administrative Agent to be the rate at
which deposits in euro appear on Telerate Page 248 as of 11:00 a.m. (Brussels
time), on the date that is two (2) TARGET Settlement Days preceding the first
day of such Interest Period; provided that if such rate does not appear on
Telerate Page 248, then the Eurocurrency Base Rate shall be an interest rate per
annum equal to the arithmetic mean determined by the Administrative Agent
(rounded upwards to the nearest .01%) of the rates per annum at which deposits
in euro are offered by the three (3) leading banks in the euro-zone interbank
market on or about 11:00 a.m. (Brussels time), on the date which is two (2)
TARGET Settlement Days prior to the first day of such Interest Period to other
leading banks in the euro-zone interbank market. The terms "Telerate Page 3740",
"Telerate Page 3750" and "Telerate Page 248" mean the display designated as
"Page 3740", "Page 3750" and "Page 248", as applicable, on the Associated
Press-Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace Page 3740,
Page 3750 or Page 248, as applicable, on the Associated Press-Dow ▇▇▇▇▇ Telerate
Service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association interest rate settlement rates for the relevant Agreed
Currency).
"Eurocurrency Payment Office" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency in Exhibit A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the sum of (a) the quotient of (i) the
Eurocurrency Base Rate applicable to such Interest Period divided by (ii) one
minus the Reserve Requirement plus (b) the then Applicable Eurocurrency Margin,
changing as and when the Applicable Eurocurrency Margin changes.
"Eurocurrency Rate Advance" means an Advance which bears interest at
the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Loan made by a Lender pursuant to
Section 2.1, which bears interest at the Eurocurrency Rate.
"Excess Cash Flow" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, (a) the sum of (i) Net Income, plus (ii)
amortization, depreciation and other non-cash charges, minus (b) the sum of (i)
Capital Expenditures, plus (ii) principal payments made on all Indebtedness
(exclusive of mandatory prepayments made for Excess Cash Flow during such
period), and minus (c) the increase (or plus the decrease, as the case may be),
as of the last day of a fiscal year from the last day of the previous fiscal
year in the excess of Current Assets over Current Liabilities. For purposes of
this definition, "Current Assets" means all accounts receivable and Inventory of
the Company and its Subsidiaries, calculated in accordance with Agreement
Accounting Principles, excluding cash and Cash Equivalents and excluding
Accounts due from Affiliates and "Current Liabilities" means all liabilities of
the Company and its Subsidiaries which should, in accordance with Agreement
Accounting Principles, be classified as current liabilities, and in any event
shall include all Indebtedness payable on demand or within one year from the
date of determination without any option on the part of the obligor to extend or
renew beyond such year, all accruals for federal or other taxes based on or
measured by income and payable within such year, and the current portion of
long-term Indebtedness required to be paid within one year (excluding the
Revolving Credit Obligations).
"Existing Credit Agreement" is defined in the first recital.
"Existing Lenders" is defined in the first recital.
"Existing Loans" is defined in the first recital.
"Existing Revolving Loans" is defined in the first recital.
"Existing Term Loans" is defined in the first recital.
"Facility Termination Date" is defined in Section 2.19.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the ratio of (a) EBITDA to (b) Fixed Charges in each case for the period of four
fiscal quarters ending on such date.
"Fixed Charges" means, with respect to the Company and its Subsidiaries
on a consolidated basis, as of any date of determination, (a) cash interest
expenses (other than unscheduled payments of interest under the Subordinated
Seller Note) paid on outstanding Indebtedness for the period of four fiscal
quarters ending on the date of determination, plus (b) scheduled principal
payments on Indebtedness (other than the Subordinated Seller Note) made during
such period, plus (c) dividends paid on stock, plus (d) Capital Expenditures
made during such period.
"Fixed-Rate Advance" means an Advance which bears interest at the
Eurocurrency Rate or at a fixed Alternate Currency Rate.
"Fixed-Rate Loans" means, collectively, the Eurocurrency Rate Loans and
the Alternate Currency Loans.
"Floating Rate" means, for any day for any Loan, a rate per annum equal
to (a) in the case of Loans in Dollars, the Alternate Base Rate for such day,
changing when and as the Alternate Base Rate changes, plus the then Applicable
Floating Rate Margin, and (b) in the case of Alternate Currency Loans, the rate
specified as such in the applicable Alternate Currency Addendum.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"Foreign Employee Benefit Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"Foreign Subsidiary" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA which (a) is maintained or contributed to for the benefit
of employees of the Company, any of its Subsidiaries or any member of its
Controlled Group, (b) is not covered by ERISA pursuant to Section 4(b)(4) of
ERISA, and (c) under applicable local law, is required to be funded through a
trust or other funding vehicle.
"Governmental Acts" is defined in Section 3.10(a) hereof.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"Guaranteed Obligations" is defined in Section 10.1 hereof.
"Guarantor" means each Domestic Subsidiary of the Company that from
time to time is party to a Guaranty.
"Guaranty" means each of (a) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Subsidiary and each other Domestic Subsidiary of the Company as
required pursuant to Section 7.2(k) in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, in substantially the form of
Exhibit G-1 attached hereto, and (b) the guaranty by the Company of all of the
Obligations of the Subsidiary Borrowers pursuant to this Agreement and the
Alternate Currency Addenda, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Hedging Agreements" is defined in Section 7.3(n) hereof.
"Hedging Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"Holders of Obligations" means the holders of the Obligations from time
to time and shall include (a) each Lender in respect of its Loans, (b) each
Issuing Bank in respect of Reimbursement Obligations owed to it, (c) the
Administrative Agent, the Lenders and the Issuing Banks in respect of all other
present and future obligations and liabilities of the Company or any of its
Subsidiaries of every type and description arising under or in connection with
this Agreement or any other Loan Document, (d) each Indemnitee in respect of the
obligations and liabilities of the Company or any of its Subsidiaries to such
Person hereunder or under the other Loan Documents, and (e) their respective
successors, transferees and assigns.
"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens on or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (d) obligations which are evidenced by notes,
acceptances, or other similar instruments, (e) Capitalized Lease Obligations,
(f) Hedging Obligations, (g) Contingent Obligations, (h) actual and contingent
reimbursement obligations in respect of letters of credit, and (i) the implied
debt component of synthetic leases of which such Person is lessee or any other
off-balance sheet financing arrangements (including, without limitation, any
such arrangements giving rise to any Off-Balance Sheet Liabilities); provided
that the term "Indebtedness" shall not include any (a) accrued or deferred
interest or other expenses, unless capitalized in accordance with Agreement
Accounting Principles, or (b) lease properly classified as an operating lease in
accordance with Agreement Accounting Principles. The amount of any item of
Indebtedness, except for any item of Indebtedness described in clause (h), shall
be the amount of any liability in respect thereof appearing on a balance sheet
properly prepared in accordance with Agreement Accounting Principles, except
that the amount of any item of Indebtedness described in clause (g) shall be
determined in accordance with the definition of Contingent Obligations and the
amount of any item of Indebtedness described in clause (i) above shall be the
"principal-equivalent" amount of such obligation.
"Interest Expense" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit), all as determined in conformity with
Agreement Accounting Principles.
"Interest Period" means (a) with respect to Alternate Currency Loans,
any Alternate Currency Interest Period and (b) with respect to a Eurocurrency
Rate Loan, a period of one (1), two (2), three (3) or six (6) months or, with
the consent of all of the Lenders, nine (9) months, commencing on a Business Day
selected by the applicable Borrower on which a Eurocurrency Rate Advance is made
to such Borrower pursuant to this Agreement. Such Interest Period described in
clause (b) above shall end on (but exclude) the day which corresponds
numerically to such date one, two, three, six or nine months thereafter;
provided that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided that if
said next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.
"Inventory" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale, rental or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of the Company or any of its Subsidiaries, and shall include all
right, title and interest of the Company or any of its Subsidiaries in any
property the sale or other disposition of which has given rise to Receivables
and which has been returned to or repossessed or stopped in transit by the
Company or any of its Subsidiaries.
"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (b) any purchase by that Person of
all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (c) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"Issuing Banks" means BNS or any of its Affiliates in its separate
capacity as an issuer of Letters of Credit pursuant to Sections 3.1 and 3.2.
"L/C Documents" is defined in Section 3.4 hereof.
"L/C Draft" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C Interest" shall have the meaning ascribed to such term in Section
3.6 hereof.
"L/C Obligations" means, without duplication, an amount equal to the
sum of (a) the aggregate amount then available for drawing under each of the
Letters of Credit, (b) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, (c) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (d) the aggregate amount equal to the
face amount of all Letters of Credit requested by the Borrowers but not yet
issued (unless the request for an unissued Letter of Credit has been denied).
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, and their successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent.
"Letter of Credit" means standby letters of credit to be (a) issued by
the Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.
"Leverage Ratio" means, as of any date of determination, the ratio of
(a) Total Indebtedness (not including the Seller Subordinated Debt) on such date
of determination to (b) EBITDA for the most recently ended period of four fiscal
quarters (including any fiscal quarters ending on the date of determination.)
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement of any kind or nature whatsoever (including,
without limitation, the interest of a vendor or lessor under any conditional
sale, Capitalized Lease or other title retention agreement); provided that in no
event shall the lessor's interest under any lease properly classified as an
operating lease in accordance with Agreed Accounting Principles be a "Lien" for
purposes of this definition.
"Loan(s)" means, (a) in the case of any Lender, such Lender's portion
of any Advance made pursuant to Section 2.1 hereof, in the case of any Alternate
Currency Bank, any Alternate Currency Loan made by it pursuant to Section 2.21
and the applicable Alternate Currency Addendum, and in the case of the Swing
Line Bank, any Swing Line Loan made by it pursuant to Section 2.3, and (b)
collectively, all Revolving Loans, Term Loans, Alternate Currency Loans, and
Swing Line Loans.
"Loan Account" is defined in Section 2.13(a) hereof.
"Loan Documents" means this Agreement, each Alternate Currency Addendum
executed hereunder, each Assumption Letter executed hereunder, the Collateral
Documents, the Guaranty, the Subordination Agreement, the New Fee Letter and all
other documents, instruments, notes and agreements executed in connection
therewith or contemplated thereby, as the same may be amended, restated or
otherwise modified and in effect from time to time.
"Loan Parties" means each of the Company, each Subsidiary Borrower and
each of the Guarantors.
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or the Company and its Subsidiaries,
taken as a whole, (b) the ability of the Company or any of its Subsidiaries to
perform their respective obligations under the Loan Documents, or (c) the
ability of the Lenders or the Administrative Agent to enforce the Obligations.
"Mortgages" means one or more deeds of trust, mortgages, leasehold
mortgages, assignments of rents or similar documents, satisfactory in form and
substance to the Administrative Agent, executed and delivered by the Company and
its Domestic Subsidiaries pursuant to or in connection with the transactions
contemplated hereby, as the same may be amended, supplemented or otherwise
modified from time to time.
"Multiemployer Plan" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, or was required to be, contributed to by either the Company or any member
of the Controlled Group.
"National Currency Unit" means the unit of currency (other than a euro)
of each member state of the European Union that participates in the third stage
of Economic and Monetary Union.
"Net Income" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"Net Proceeds" means (a) with respect to any Asset Sale, the sum of
cash or readily marketable cash equivalents received (including by way of a cash
generating sale or discounting of a note or receivable, but excluding any other
consideration received in the form of assumption by the acquiring Person of debt
or other obligations relating to the properties or assets so disposed of or
received in any other non-cash form) therefrom, whether at the time of such
disposition or subsequent thereto, or (b) with respect to any sale or issuance
of any debt or equity securities of the Company or any Subsidiary, cash or
readily marketable cash equivalents received (but excluding any other non-cash
form) therefrom, whether at the time of such disposition, sale or issuance or
subsequent thereto, net, in either case, of all legal, title and recording tax
expenses, commissions and other fees and all costs and expenses incurred and all
federal, state, local and other taxes required to be paid or accrued as a
liability as a consequence of such transactions.
"New Fee Letter" means that certain fee letter, dated as of November
2002, by and between the Company and BNS, as the Administrative Agent.
"Notice of Assignment" is defined in Section 14.3(b) hereof.
"Obligations" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank,
any Arranger, any Affiliate of the Administrative Agent or any Lender, any
Issuing Bank or any Indemnitee, of any kind or nature, present or future,
arising under this Agreement, the L/C Documents, any Alternate Currency Addendum
or any other Loan Document, whether or not evidenced by any note, guaranty or
other instrument, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Company or any of its Subsidiaries
under this Agreement or any other Loan Document.
"Obligor" is defined in Section 10.1 hereof.
"Off-Balance Sheet Liabilities" of a Person means (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (ii) any
liability of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (iii) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (iv)
any obligations of such Person or any of its Subsidiaries arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"Original Fee Letter" means that certain fee letter, dated as of May
15, 2000, by and between the Company and ABN AMRO Bank N.V., as the
Administrative Agent.
"Other Taxes" is defined in Section 2.15(e)(ii) hereof.
"Participants" is defined in Section 14.2(a) hereof.
"Payment Date" means the last day of each March, June, September and
December, the date on which the Aggregate Revolving Loan Commitment shall
terminate or be cancelled, and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 7.3(f) hereof.
"Permitted Existing Contingent Obligations" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"Permitted Existing Investments" means the Investments of the Company
and its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"Permitted Existing Liens" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"Person" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements" means one or more pledge agreements, each in form
and substance satisfactory to the Administrative Agent, executed and delivered
by the Company and/or certain of its Subsidiaries pursuant to or in connection
with transactions contemplated by this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Prime Rate" means the "prime rate" of interest announced by BNS from
time to time at its Chicago office, changing when and as said prime rate
changes.
"Pro Rata Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (a) such Lender's Revolving Loan Commitment at
such time (as adjusted from time to time in accordance with the provisions of
this Agreement) by (b) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
provided that if all of the Revolving Loan Commitments are terminated pursuant
to the terms of this Agreement, then "Pro Rata Revolving Share" means, with
respect to any Lender, the percentage obtained by dividing (i) the sum of (A)
such Lender's Revolving Loans, plus (B) such Lender's share of the obligations
to purchase participations in Alternate Currency Loans and Letters of Credit
plus (C) such Lender's share of the obligations to refund or purchase
participations in Swing Line Loans, by (ii) the sum of (A) the aggregate
outstanding amount of all Revolving Loans, plus (B) the aggregate outstanding
amount of all Alternate Currency Loans and all Letters of Credit, plus (C) the
aggregate outstanding amount of all Swing Line Loans.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (a) the sum of (i) such Lender's Revolving Loan Commitment
at such time (as adjusted from time to time in accordance with the provisions of
this Agreement) plus (ii) such Lender's Term Loans by (b) the sum of (i) the
Aggregate Revolving Loan Commitment at such time (as adjusted from time to time
in accordance with the provisions of this Agreement) plus (ii) the aggregate
outstanding amount of all Term Loans; provided that if all of the Revolving Loan
Commitments are terminated pursuant to the terms of this Agreement, then "Pro
Rata Share" means, with respect to any Lender, the percentage obtained by
dividing (i) the sum of (A) such Lender's Revolving Loans, plus (B) such
Lender's Term Loans, plus (C) such Lender's share of the obligations to purchase
participations in Alternate Currency Loans and Letters of Credit plus (D) such
Lender's share of the obligations to refund or purchase participations in Swing
Line Loans, by (ii) the sum of (A) the aggregate outstanding amount of all
Revolving Loans, plus (B) the aggregate outstanding amount of all Term Loans,
plus (C) the aggregate outstanding amount of all Alternate Currency Loans and
all Letters of Credit, plus (D) the aggregate outstanding amount of all Swing
Line Loans.
"Pro Rata Term Share" means, with respect to any Lender, the percentage
obtained by dividing such Lender's Term Loans by the aggregate outstanding
amount of all Term Loans.
"Pro Rata Tranche A Revolving Share" means, with respect to any Lender,
the percentage obtained by dividing (a) such Lender's Tranche A Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (b) the Aggregate Tranche A Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided that if all of the Tranche A Revolving
Loan Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Tranche A Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (i) such Lender's Tranche A Revolving Loans by
(ii) the aggregate outstanding amount all Tranche A Revolving Loans.
"Pro Rata Tranche B Revolving Share" means, with respect to any Lender,
the percentage obtained by dividing (a) such Lender's Tranche B Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (b) the Aggregate Tranche B Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided that if all of the Tranche B Revolving
Loan Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Tranche B Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (i) the sum of (A) such Lender's Tranche B
Revolving Loans plus (B) such Lender's share of the obligations to purchase
Alternate Currency Loans, by (ii) the sum of (A) the aggregate outstanding
amount of all Tranche B Revolving Loans, plus (B) the aggregate outstanding
amount of all Alternate Currency Loans.
"Pro Rata Tranche C Revolving Share" means, with respect to any Lender,
the percentage obtained by dividing (a) such Lender's Tranche C Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (b) the Aggregate Tranche C Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided that if all of the Tranche C Revolving
Loan Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Tranche C Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (i) the sum of (A) such Lender's Tranche C
Revolving Loans, plus (B) such Lender's share of the obligations to purchase
participations in Letters of Credit plus (C) such Lender's share of the
obligations to refund or purchase participations in Swing Line Loans by (ii) the
sum of (A) the aggregate outstanding amount of all Tranche C Revolving Loans,
plus (B) the aggregate outstanding amount of all Letters of Credit, plus (C) the
aggregate outstanding amount of all Swing Line Loans.
"Pro Rata Tranche D Revolving Share" means, with respect to any Lender,
the percentage obtained by dividing (a) such Lender's Tranche D Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (b) the Aggregate Tranche D Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided that if all of the Tranche D Revolving
Loan Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Tranche D Revolving Share" means, with respect to any Lender, the
percentage obtained by dividing (i) the sum of (A) such Lender's Tranche D
Revolving Loans plus (B) such Lender's share of the obligations to purchase
Alternate Currency Loans, by (ii) the sum of (A) the aggregate outstanding
amount of all Tranche D Revolving Loans, plus (B) the aggregate outstanding
amount of all Alternate Currency Loans.
"Purchasers" is defined in Section 14.3(a) hereof.
"Rate Option" means the Eurocurrency Rate, the Floating Rate or the
Alternate Currency Rate, as applicable.
"Receivable(s)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, notes receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing, including,
without limitation, any right of stoppage in transit.
"Register" is defined in Section 14.3(c) hereof.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligation" is defined in Section 3.7 hereof.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"Replacement Lender" is defined in Section 2.20 hereof.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided that a failure to meet the
minimum funding standards of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are at least fifty-one percent (51%).
"Requirements of Law" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"Reserve Requirement" shall mean, at any time, the maximum reserve
requirement, as the prescribed by the Board of Governors of the Federal Reserve
System (or any successor) with respect to "Eurocurrency liabilities" or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurocurrency Rate Loans is determined or
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in the Company's or such Subsidiaries' Equity Interests other than Disqualified
Stock or in options, warrants or other rights to purchase such common stock, (b)
any redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of the Company or any of its Subsidiaries now
or hereafter outstanding, other than in exchange for Equity Interests other than
Disqualified Stock of the Company, and (c) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness subordinated to the Obligations.
"Revolving Credit Obligations" means, at any particular time, the sum
of (a) the Tranche A Revolving Credit Obligations at such time, plus (b) the
Tranche B Revolving Credit Obligations at such time, plus (c) the Tranche C
Revolving Credit Obligations at such time, plus (d) the Tranche D Revolving
Credit Obligations at such time.
"Revolving Loan" is defined in Section 2.1 hereof.
"Revolving Loan Commitment" means, for each Lender, the aggregate of
such Lender's Tranche A Revolving Loan Commitment, such Lender's Tranche B
Revolving Loan Commitment, such Lender's Tranche C Revolving Loan Commitment and
such Lender's Tranche D Revolving Loan Commitment.
"Revolving Loan Termination Date" means, as the case may be, the
Tranche A Revolving Loan Termination Date, the Tranche B Revolving Loan
Termination Date, the Tranche C Revolving Loan Termination Date or the Tranche D
Revolving Loan Termination Date.
"Sale and Leaseback Transaction" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (a) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (b) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Security Agreements" means one or more security agreements, each in
form and substance satisfactory to the Administrative Agent, executed and
delivered by the Company and its Domestic Subsidiaries pursuant to or in
connection with transactions contemplated by this Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Seller" means Spectra Precision Holdings, Inc. and each party to the
Stock and Asset Purchase Agreement, other than the Company.
"Single Employer Plan" means a Benefit Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Solvent" means, when used with respect to any Person, that at the time
of determination:
(a) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(b) it is then able and expects to be able to pay its debts
as they mature; and
(c) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"Spectra Precision Acquisition" means the acquisition made pursuant to
the Stock and Asset Purchase Agreement and pursuant to which the Company
purchased substantially all of the assets and all of the capital stock of the
Seller and certain Subsidiaries thereof and modified the corporate structure of
the Seller's European holdings for tax planning purposes and pursuant to which
the Seller became a Subsidiary of the Company.
"Stock and Asset Purchase Agreement" means that certain Stock and Asset
Purchase Agreement dated May 11, 2000 by and among the Company, Spectra Physics
Holdings USA, Inc., Spectra Precision AB and Spectra Precision Europe Holdings,
BV, as amended, supplemented, amended and restated or otherwise modified from
time to time.
"Subordinated Seller Debt" means the Indebtedness of the Company to
Spectra Physics Holdings USA, Inc., evidenced by the Seller Subordinated Note,
which Indebtedness is subordinated to the Obligations.
"Subordinated Seller Note" means the $80,000,000 promissory note issued
to Spectra Physics Holdings USA, Inc. by the Company pursuant to the Stock and
Asset Purchase Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"Subordination Agreement" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Subsidiary of the Company which may now or in the future have any claim against
any Loan Party and each other Subsidiary of the Company as required pursuant to
Section 7.2(k) in favor of the Administrative Agent for the benefit of itself
and the Holders of Obligations, in substantially the form of Exhibit G-2
attached hereto, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Subsidiary" of a Person means (a) any corporation more than fifty
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (b) any partnership, association, limited liability company,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" mean a Subsidiary of the Company.
"Subsidiary Borrower" means each Subsidiary of the Company (whether now
existing or hereafter formed) duly designated by the Company pursuant to Section
2.24 to request Advances hereunder, which Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 2.24 and
such other documents as may be required pursuant to this Agreement, in each case
together with its respective successors and assigns, including a
debtor-in-possession on behalf of such Subsidiary Borrower.
"Swing Line Bank" means BNS and its successors and assigns.
"Swing Line Commitment" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $10,000,000 at any one
time outstanding.
"Swing Line Loan" means a Loan made to the Company by the Swing Line
Bank pursuant to Section 2.3 hereof.
"Syndication Agent" is defined in the preamble and includes such
Person's successors and assigns.
"TARGET Settlement Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"Taxes" is defined in Section 2.15(e)(i) hereof.
"Term Loan" means the Existing Term Loans, as continued under the terms
of this Agreement, in an aggregate amount on the Amendment Effective Date equal
to $32,600,000 and, collectively, all such term loans.
"Term Loan Maturity Date" means June 30, 2004.
"Termination Event" means (a) a Reportable Event with respect to any
Benefit Plan; (b) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (c) the
imposition of an obligation on the Company or any member of the Controlled Group
under Section 4041 of ERISA to provide affected parties written notice of intent
to terminate a Benefit Plan in a distress termination described in Section
4041(c) of ERISA; (d) the institution by the PBGC or any similar foreign
governmental authority of proceedings to terminate a Benefit Plan or Foreign
Pension Plan; (e) any event or condition which constitutes grounds under Section
4042 of ERISA which are reasonably likely to lead to the termination of, or the
appointment of a trustee to administer, any Benefit Plan; (f) that a foreign
governmental authority shall appoint or institute proceedings to appoint a
trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (g) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"Total Indebtedness" means, without duplication, (a) all Indebtedness
for borrowed money of the Company and its Subsidiaries, on a consolidated basis,
plus, without duplication, (b) (i) the face amount of all outstanding letters of
credit (including Letters of Credit) in respect of which the Company or any
Subsidiary has any actual or contingent reimbursement obligation, plus (ii) the
principal amount of all Indebtedness of any Person in respect of which the
Company or any Subsidiary has a Contingent Obligation, plus (iii) Indebtedness
of the Company and its Subsidiaries evidenced by notes, acceptances or similar
instruments, plus (iv) Capitalized Lease Obligations of the Company and its
Subsidiaries, plus (v) the implied debt component of synthetic leases of which
the Company or any of its Subsidiaries is lessee, plus (vi) Hedging Obligations
of the Company and its subsidiaries.
"Tranche A Advance" means an Advance comprised of Tranche A Revolving
Loans.
"Tranche A Revolving Credit Availability" means, at any particular
time, the amount by which (a) the Aggregate Tranche A Revolving Loan Commitment
at such time exceeds (b) the Dollar Amount of the Tranche A Revolving Credit
Obligations outstanding at such time.
"Tranche A Revolving Credit Obligations" means, at any particular time,
the sum of the outstanding principal Dollar Amount of the Tranche A Revolving
Loans at such time.
"Tranche A Revolving Loan" is defined in Section 2.1 hereof.
"Tranche A Revolving Loan Commitment" means, for each Lender, the
obligation of such Lender to make Tranche A Revolving Loans not exceeding the
amount set forth on Exhibit A to this Agreement opposite its name thereon under
the heading "Tranche A Revolving Loan Commitment" or the signature page of the
assignment and acceptance by which it became a Lender as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable assignment and acceptance.
"Tranche A Revolving Loan Termination Date" means July 14, 2003.
"Tranche B Advance" means an Advance comprised of Tranche B Revolving
Loans.
"Tranche B Revolving Credit Availability" means, at any particular
time, the amount by which (a) the Aggregate Tranche B Revolving Loan Commitment
at such time exceeds (b) the sum of (i) the Dollar Amount of the Tranche B
Revolving Credit Obligations outstanding at such time plus (ii) the aggregate
unused Alternate Currency Commitments at such time.
"Tranche B Revolving Credit Obligations" means, at any particular time,
(a) the outstanding principal Dollar Amount of the Tranche B Revolving Loans at
such time, plus (b) the Dollar Amount of the outstanding principal amount of the
Alternate Currency Loans at such time.
"Tranche B Revolving Loan" is defined in Section 2.1 hereof.
"Tranche B Revolving Loan Commitment" means, for each Lender, the
obligation of such Lender to make Tranche B Revolving Loans and to participate
in Alternate Currency Loans not exceeding the amount set forth on Exhibit A to
this Agreement opposite its name thereon under the heading "Tranche B Revolving
Loan Commitment" or the signature page of the assignment and acceptance by which
it became a Lender as such amount may be modified from time to time pursuant to
the terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"Tranche B Revolving Loan Termination Date" means July 14, 2003.
"Tranche C Advance" means an Advance comprised of Tranche C Revolving
Loans.
"Tranche C Revolving Credit Availability" means, at any particular
time, the amount by which (a) the Aggregate Tranche C Revolving Loan Commitment
at such time exceeds (b) the Dollar Amount of the Tranche C Revolving Credit
Obligations outstanding at such time.
"Tranche C Revolving Credit Obligations" means, at any particular time,
the sum of (a) the outstanding principal Dollar Amount of the Tranche C
Revolving Loans at such time, plus (b) the outstanding L/C Obligations at such
time, plus (c) the outstanding principal amount of all Swing Line Loans at such
time.
"Tranche C Revolving Loan" is defined in Section 2.1 hereof.
"Tranche C Revolving Loan Commitment" means, for each Lender, the
obligation of such Lender to make Tranche C Revolving Loans, to purchase
participations in Letters of Credit and to refund or participate in Swing Line
Loans not exceeding the amount set forth on Exhibit A to this Agreement opposite
its name thereon under the heading "Tranche C Revolving Loan Commitment" or the
signature page of the assignment and acceptance by which it became a Lender as
such amount may be modified from time to time pursuant to the terms of this
Agreement or to give effect to any applicable assignment and acceptance.
"Tranche C Revolving Loan Termination Date" means April 7, 2004.
"Tranche D Advance" means an Advance comprised of Tranche D Revolving
Loans.
"Tranche D Revolving Credit Availability" means, at any particular
time, the amount by which (a) the Aggregate Tranche D Revolving Loan Commitment
at such time exceeds (b) the sum of (i) the Dollar Amount of the Tranche D
Revolving Credit Obligations outstanding at such time plus (ii) the aggregate
unused Alternate Currency Commitments at such time.
"Tranche D Revolving Credit Obligations" means, at any particular time,
(a) the outstanding principal Dollar Amount of the Tranche D Revolving Loans at
such time, plus (b) the Dollar Amount of the outstanding principal amount of the
Alternate Currency Loans at such time.
"Tranche D Revolving Loan" is defined in Section 2.1 hereof.
"Tranche D Revolving Loan Commitment" means, for each Lender, the
obligation of such Lender to make Tranche D Revolving Loans and to participate
in Alternate Currency Loans not exceeding the amount set forth on Exhibit A to
this Agreement opposite its name thereon under the heading "Tranche D Revolving
Loan Commitment" or the signature page of the assignment and acceptance by which
it became a Lender as such amount may be modified from time to time pursuant to
the terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"Tranche D Revolving Loan Termination Date" means April 7, 2004.
"Transferee" is defined in Section 14.5 hereof.
"Trigger Event Date" means the date on which the Company shall have
demonstrated to the reasonable satisfaction of the Administrative Agent that (a)
no Default or Unmatured Default then exists and (b) the Leverage Ratio of the
Company and its Subsidiaries, as reflected in the financial statements delivered
pursuant to Section 7.1(a)(i) and (ii) shall have been less than 2.00 for four
consecutive fiscal quarters after the Closing Date.
"Type" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of
Illinois.
"Unfunded Liabilities" means (a) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date for which actuarial valuations have been
completed and certified to the Company, all as determined under FAS 87 using the
methods and assumptions used by the Company for financial accounting purposes,
and (b) in the case of Multiemployer Plans, the withdrawal liability that would
be incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled, in each case, other than director qualifying shares.
Unless the context otherwise requires, "Wholly-Owned Subsidiary" means a
wholly-owned subsidiary of the Company.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 References. Any references to Subsidiaries of the Company set forth
herein shall not in any way be construed as consent by the Administrative Agent
or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
1.3 Rounding and Other Consequential Changes. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in euro as the Administrative Agent may
from time to time specify unless such National Currency Unit remains available
and the Company and the Administrative Agent agree to use such National Currency
Unit instead of the euro.
ARTICLE II: LOAN FACILITIES
On the terms and subject to the conditions of this Agreement, the Lenders
severally agree to the continuation and reallocation (as the case may be) of the
Existing Loans and to make the Loans as set forth below.
2.1 Revolving Loans.
(a) Each of the parties hereto acknowledges and agrees that the
Existing Revolving Loans shall continue as Revolving Loans for all
purposes under this Agreement and the Loan Documents, subject to
reallocation pursuant to Section 2.26.
(b) Upon the satisfaction of the conditions precedent set forth in
Sections 5.1, 5.2 and 5.3, as applicable, from and including the
Amendment Effective Date and prior to the applicable Revolving Loan
Termination Date, each Lender severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to make revolving
loans to the Borrowers from time to time (i) in Dollars, in a Dollar
Amount not to exceed such Lender's Pro Rata Tranche A Revolving Share
of Tranche A Revolving Credit Availability at such time (each
individually, a "Tranche A Revolving Loan" and, collectively, the
"Tranche A Revolving Loans"); (ii) in Dollars or any Agreed Currency,
in a Dollar Amount not to exceed such Lender's Pro Rata Tranche B
Revolving Share of Tranche B Revolving Credit Availability at such time
(each individually, a "Tranche B Revolving Loan" and, collectively, the
"Tranche B Revolving Loans"); (iii) in Dollars, in a Dollar Amount not
to exceed such Lender's Pro Rata Tranche C Revolving Share of Tranche C
Revolving Credit Availability at such time (each individually, a
"Tranche C Revolving Loan" and, collectively, the "Tranche C Revolving
Loans"); and (iv) in Dollars or any Agreed Currency, in a Dollar Amount
not to exceed such Lender's Pro Rata Tranche D Revolving Share of
Tranche D Revolving Credit Availability at such time (each
individually, a "Tranche D Revolving Loan", and, collectively, the
"Tranche D Revolving Loans" and, together with the Tranche A Revolving
Loans, the Tranche B Revolving Loans and the Tranche C Revolving Loans,
the "Revolving Loans"); provided that (i) at no time shall the Dollar
Amount of the Tranche A Revolving Credit Obligations exceed the
Aggregate Tranche A Revolving Loan Commitment; (ii) at no time shall
the Dollar Amount of the Tranche B Revolving Credit Obligations exceed
the Aggregate Tranche B Revolving Loan Commitment; (iii) at no time
shall the Dollar Amount of the Tranche C Revolving Credit Obligations
exceed the Aggregate Tranche C Revolving Loan Commitment; (iv) at no
time shall the Dollar Amount of the Tranche D Revolving Credit
Obligations exceed the Aggregate Tranche D Revolving Loan Commitment;
(v) at no time shall the Dollar Amount of the Revolving Credit
Obligations of any Subsidiary Borrower that is a Domestic Subsidiary
exceed $40,000,000; (vi) at no time shall the aggregate Dollar Amount
of the Revolving Credit Obligations of all Foreign Subsidiaries exceed
$30,000,000 and (vii) no Tranche A Revolving Loans or Tranche C
Revolving Loans shall be made to any Borrower which is not organized
under the laws of a jurisdiction located in the United States of
America. Subject to the terms of this Agreement, the Borrowers may
borrow, repay and reborrow Revolving Loans at any time prior to the
applicable Revolving Loan Termination Date. Revolving Loans shall be,
at the option of the applicable Borrower, selected in accordance with
Section 2.10, and shall be either Floating Rate Loans or Eurocurrency
Rate Loans. On the applicable Revolving Loan Termination Date, each
Borrower shall repay in full the outstanding principal balance of
Revolving Loans made to it. The Tranche A Revolving Loans shall be made
by each Lender ratably in proportion to such Lender's respective Pro
Rata Tranche A Revolving Share, the Tranche B Revolving Loans shall be
made by each Lender ratably in proportion to such Lender's respective
Pro Rata Tranche B Revolving Share, the Tranche C Revolving Loans shall
be made by each Lender ratably in proportion to such Lender's
respective Pro Rata Tranche C Revolving Share and the Tranche D
Revolving Loans shall be made by each Lender ratably in proportion to
such Lender's respective Pro Rata Tranche D Revolving Share.
(c) Making of Tranche A Revolving Loans. Promptly after receipt of the
Borrowing/ Conversion/Continuation Notice under Section 2.8 in respect
of Tranche A Revolving Loans, the Administrative Agent shall notify
each Lender with a Tranche A Revolving Loan Commitment, of the
requested Tranche A Revolving Loan. Each Lender with a Tranche A
Revolving Loan Commitment shall make available its Tranche A Revolving
Loan in accordance with the terms of Section 2.7. The Administrative
Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall
disburse such proceeds in accordance with the applicable Borrower's
disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Tranche A Revolving Loan on such
Borrowing Date.
(d) Making of Tranche B Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect
of Tranche B Revolving Loans, the Administrative Agent shall notify
each Lender with a Tranche B Revolving Loan Commitment, of the
requested Tranche B Revolving Loan. Each Lender with a Tranche B
Revolving Loan Commitment shall make available its Tranche B Revolving
Loan in accordance with the terms of Section 2.7. The Administrative
Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall
disburse such proceeds in accordance with the applicable Borrower's
disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Tranche B Revolving Loan on such
Borrowing Date.
(e) Making of Tranche C Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect
of Tranche C Revolving Loans, the Administrative Agent shall notify
each Lender with a Tranche C Revolving Loan Commitment, of the
requested Tranche C Revolving Loan. Each Lender with a Tranche C
Revolving Loan Commitment shall make available its Tranche C Revolving
Loan in accordance with the terms of Section 2.7. The Administrative
Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall
disburse such proceeds in accordance with the applicable Borrower's
disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Tranche C Revolving Loan on such
Borrowing Date.
(f) Making of Tranche D Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect
of Tranche D Revolving Loans, the Administrative Agent shall notify
each Lender with a Tranche D Revolving Loan Commitment, of the
requested Tranche D Revolving Loan. Each Lender with a Tranche D
Revolving Loan Commitment shall make available its Tranche D Revolving
Loan in accordance with the terms of Section 2.7. The Administrative
Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's
office in New York, New York on the applicable Borrowing Date and shall
disburse such proceeds in accordance with the applicable Borrower's
disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Tranche D Revolving Loan on such
Borrowing Date.
2.2 Term Loans.
(a) Each of the parties hereto acknowledges and agrees that the
Existing Term Loans shall continue as Term Loans for all purposes under
this Agreement and the Loan Documents, with each Lender's share of Term
Loans being set forth opposite its name on Exhibit A to this Agreement
or set forth in a Lender Assignment Agreement under the Term Loan
column, as such amount may be adjusted from time to time pursuant to
the terms hereof. Amounts borrowed as a Term Loan which are repaid or
prepaid by the Company may not be reborrowed. The Company shall repay
all outstanding principal and all accrued but unpaid interest on the
Term Loan Maturity Date.
(b) Term Loan Amortization. The Term Loans shall continue to be
payable in quarterly installments in the amounts and on the dates as
follows:
PAYMENT DATE AMOUNT
March 31, 2003 $6,000,000
June 30, 2003 $6,000,000
September 30, 2003 $6,000,000
December 31, 2003 $6,000,000
March 31, 2004 $6,000,000
June 30, 2004 $2,600,000 or such other
amount as shall then be
outstanding.
2.3 Swing Line Loans.
(a) Amount of Swing Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 5.1, 5.2 and 5.3, as applicable, from
and including the Amendment Effective Date and prior to the Tranche C
Revolving Loan Termination Date, the Swing Line Bank agrees, on the
terms and conditions set forth in this Agreement, to make revolving
swing line loans (each, individually, a "Swing Line Loan" and
collectively, the "Swing Line Loans") to the Company from time to time
in Dollars; provided that at no time shall the aggregate outstanding
principal amount of all Swing Line Loans exceed the Swing Line
Commitment; provided, further, that, at no time shall the Dollar Amount
of the Tranche C Revolving Credit Obligations exceed the Aggregate
Tranche C Revolving Loan Commitment; provided, further, that at no time
shall the sum of (i) the outstanding principal amount of the Swing Line
Loans plus (ii) the Dollar Amount of the Swing Line Bank's Pro Rata
Tranche C Revolving Share of the amount equal to the Tranche C
Revolving Credit Obligations less the outstanding principal amount of
Swing Line Loans, exceed the Swing Line Bank's Tranche C Revolving Loan
Commitment at such time.
(b) Borrowing/Conversion/Continuation Notice; Interest Rate. The
Company and/or the applicable Borrower shall deliver to the
Administrative Agent and the Swing Line Bank (if the Swing Line Bank is
not BNS) a Borrowing/Conversion/Continuation Notice, signed by it, not
later than 12:00 noon (New York time) on the Borrowing Date of each
Swing Line Loan (or at such later time as may be acceptable to the
Swing Line Bank in its sole discretion), specifying (i) the applicable
Borrowing Date (which date shall be a Business Day and which may be the
same date as the date the Borrowing/Conversion/Continuation Notice is
given, (ii) the aggregate amount of the requested Swing Line Loan, the
amount of which shall be not less than $1,000,000 and (iii) payment
instructions for the disbursement of such Loans. The Swing Line Loans
shall bear interest at the Floating Rate.
(c) Making of Swing Line Loans. Not later than 3:00 p.m. (New York
time) on the applicable Borrowing Date, the Swing Line Bank shall make
available its Swing Line Loan, in funds immediately available in New
York, New York to the Administrative Agent at its address specified
pursuant to Article XV. The Administrative Agent will promptly make the
funds so received from the Swing Line Bank available to the Company on
the Borrowing Date at the Administrative Agent's aforesaid address.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid
in full by the Company on or before the seventh (7th) Business Day
after the Borrowing Date for such Swing Line Loan. The Company may at
any time pay, without penalty or premium, all outstanding Swing Line
Loans. In addition, the Administrative Agent (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan, (ii)
shall at any time upon the request of the Swing Line Bank in its sole
discretion, or (iii) shall on the seventh (7th) Business Day after the
Borrowing Date of any Swing Line Loan, require (by giving notice
thereof to each Lender with a Tranche C Revolving Loan Commitment not
later than 10:00 a.m. (New York time) one Business Day before the date
of such Loan) each Lender with a Tranche C Revolving Loan Commitment
(including the Swing Line Bank) to make a Tranche C Revolving Loan in
the amount of such Lender's Pro Rata Tranche C Revolving Share of such
Swing Line Loan, for the purpose of repaying all or any outstanding
portion of such Swing Line Loan. Not later than 2:00 p.m. (New York
time) on the date of any notice received pursuant to this Section
2.3(d), each Lender shall make available its required Tranche C
Revolving Loan, in funds immediately available in New York to the
Administrative Agent at its address specified pursuant to Article XV.
Tranche C Revolving Loans made pursuant to this Section 2.3(d) shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurocurrency Rate Loans in the
manner provided in Section 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this Article II. Unless
a Lender shall have notified the Swing Line Bank, prior to its making
any Swing Line Loan, that any applicable condition precedent set forth
in Sections 5.1, 5.2 and 5.3, as applicable, had not then been
satisfied, such Lender's obligation to make Tranche C Revolving Loans
pursuant to this Section 2.3(d) to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Administrative Agent, the Swing Line Bank
or any other Person, (b) the failure to satisfy any condition set forth
herein or the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or
otherwise) of the Company, or (d) any other circumstances, happening or
event whatsoever. In the event that any Lender fails to make payment to
the Administrative Agent of any amount due under this Section 2.3(d),
the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to
such Lender hereunder until the Administrative Agent receives such
payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Administrative Agent of any amount due
under this Section 2.3(d) or may not make any Revolving Loan required
by this Section 2.3, such Lender shall be deemed, at the option of the
Administrative Agent or the Swing Line Bank, to have unconditionally
and irrevocably purchased from the Swing Line Bank, without recourse or
warranty, an undivided interest and participation in the Swing Line
Loan in the amount of such Revolving Loan, and such interest and
participation shall be paid by such Lender upon demand by the Swing
Line Bank together with interest thereon at the Federal Funds Effective
Rate for each day during the period commencing on the date of demand
and ending on the date such amount is received. On the Tranche C
Revolving Loan Termination Date, the Company shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.4 Rate Options for all Advances; Maximum Interest Periods.
The Revolving Loans and Term Loans may be Floating Rate Advances or
Eurocurrency Rate Advances, or a combination thereof, selected by the Company or
the applicable Borrower in accordance with Section 2.9; provided that Loans
denominated in euros may not be Floating Advances. The Company or the applicable
Borrower may select, in accordance with Section 2.9, Rate Options and Interest
Periods applicable to portions of the Revolving Loans, Term Loans and Alternate
Currency Loans; provided that there shall be no more than twelve (12) Interest
Periods in effect with respect to all of the Loans at any time (unless otherwise
provided in the applicable Alternate Currency Addendum with respect to Alternate
Currency Loans). Each Alternate Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at the Alternate Currency Rate as set forth in the applicable Alternate
Currency Addendum.
2.5 Optional Payments; Mandatory Prepayments.
(a) Optional Payments. The Company or the applicable Borrower may from
time to time and at any time upon at least one (1) Business Day's prior
written notice repay or prepay without penalty or premium all or any
part of outstanding Floating Rate Advances in an aggregate minimum
amount of $5,000,000 and in integral multiples of $1,000,000 in excess
thereof. Eurocurrency Rate Advances may be voluntarily repaid or
prepaid prior to the last day of the applicable Interest Period,
subject to the indemnification provisions contained in Section 4.4,
provided that the applicable Borrower may not so prepay Eurocurrency
Rate Advances unless it shall have provided at least four (4) Business
Days' prior written notice to the Administrative Agent of such
prepayment. Each Subsidiary Borrower may, upon prior written notice to
the Administrative Agent and to the applicable Alternate Currency Bank
as prescribed in the applicable Alternate Currency Addendum and
specifying that it is prepaying all or a portion of its Alternate
Currency Loans, prepay its Alternate Currency Loans in whole at any
time, or from time to time in part in a Dollar Amount aggregating
$5,000,000 or any larger multiple Dollar Amount of $1,000,000 (or as
otherwise specified in the applicable Alternate Currency Addendum) by
paying the principal amount to be paid together with all accrued and
unpaid interest thereon to and including the date of payment; provided
that any such payment occurring prior to the last day of any Interest
Period related to such Alternate Currency Loan shall be subject to the
indemnification provisions contained in Section 4.4.
(b) Mandatory Prepayments of Loans.
(i) If at any time and for any reason (other than
fluctuations in currency exchange rates) the Dollar Amount of the
Tranche A Revolving Credit Obligations, the Tranche B Revolving
Credit Obligations, the Tranche C Revolving Credit Obligations or
the Tranche D Revolving Credit Obligations is greater than the
Aggregate Tranche A Revolving Loan Commitment, the Aggregate
Tranche B Revolving Loan Commitment, the Aggregate Tranche C
Revolving Loan Commitment or the Aggregate Tranche D Revolving
Loan Commitment, respectively, the Company shall immediately make
or cause to be made a mandatory prepayment of the Tranche A
Revolving Credit Obligations, the Tranche B Revolving Credit
Obligations, the Tranche C Revolving Credit Obligations or the
Tranche D Revolving Credit Obligations, as the case may be, in an
amount equal to such excess.
(ii) On the last Business Day of each month, the
Administrative Agent shall calculate the Dollar Amount of all
outstanding Alternate Currency Loans, Tranche B Revolving Credit
Obligations and Tranche D Revolving Credit Obligations using, for
each currency, the arithmetic mean of the buy and sell spot rates
of exchange of the Administrative Agent in the London interbank
market (or other market where the Administrative Agent's foreign
exchange operations in respect of such currency are then being
conducted) and if, on such Business Day:
(A) the Dollar Amount of the Tranche B Revolving Credit
Obligations exceeds one hundred percent (100%) of the
Aggregate Tranche B Revolving Loan Commitment as a
result of fluctuations in currency exchange rates,
the Borrowers shall immediately prepay Tranche B
Revolving Loans in an aggregate amount such that
after giving effect thereto the Dollar Amount of the
Tranche B Revolving Credit Obligations is less than
or equal to the Aggregate Tranche B Revolving Loan
Commitment; or
(B) the Dollar Amount of the Tranche D Revolving Credit
Obligations exceeds one hundred percent (100%) of the
Aggregate Tranche D Revolving Loan Commitment as a
result of fluctuations in currency exchange rates,
the Borrowers shall immediately prepay Tranche D
Revolving Loans in an aggregate amount such that
after giving effect thereto the Dollar Amount of the
Tranche D Revolving Credit Obligations is less than
or equal to the Aggregate Tranche D Revolving Loan
Commitment; or
(C) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans in the
same Alternate Currency exceeds the aggregate
Alternate Currency Commitments with respect thereto
as a result of fluctuations in currency exchange
rates, the applicable Borrowers shall on such date
prepay Alternate Currency Loans in such Alternate
Currency in an aggregate amount such that after
giving effect thereto the Dollar amount of all
Alternate Currency Loans is less than or equal to the
aggregate Alternate Currency Commitments with respect
thereto.
(iii) The Company shall make all mandatory prepayments
required under Section 2.6.
(iv) At any time prior to the Trigger Event Date and so long
as any Term Loans are outstanding, the Company shall prepay the
Term Loans in an amount equal to 100% of (A) the Net Proceeds
realized upon any Asset Sale made by the Company or its
Subsidiaries, (B) any insurance proceeds received by the Company
or its Subsidiaries in respect of any casualty involving such
Person's property and (C) any payments received by the Company or
its Subsidiaries from a condemnation of such Person's property,
to the extent any of the foregoing amounts are not applied (or
committed to be applied) within one hundred and twenty (120) days
after the consummation or receipt thereof, as applicable, to the
purchase of similar assets that are not classified as current
assets under Agreement Accounting Principles and are used or
useful in the business of the Company or its Subsidiaries or to
the repair or restoration of the Company's or its Subsidiaries'
property. If the Company or the applicable Subsidiary does intend
to so reinvest any such amounts, the Company shall give notice of
such intent (and the amount intended to be reinvested) to the
Administrative Agent upon receipt of such proceeds. Pending such
reinvestment, the Company shall use such amounts to pay down the
principal amount of the Revolving Loans to the extent thereof
(but without a permanent reduction of the Revolving Loan
Commitments). If the Company or the applicable Subsidiary does
not intend to so reinvest such proceeds or if the period set
forth in the immediately preceding sentence expires without the
Company or such Subsidiary having reinvested such proceeds, the
Company shall prepay the Term Loans (within one (1) Business Day
of the expiration of said one hundred and twenty (120) day
period) in an amount equal to such proceeds after giving effect
to all reinvestments permitted by this subsection.
(v) At any time prior to the Trigger Event Date and so long
as any Term Loans are outstanding, within ninety (90) days after
the end of each fiscal year, the Company shall prepay the Term
Loans in an amount equal to fifty percent (50%) of the Excess
Cash Flow, if any, generated by the Company and its Subsidiaries
during the immediately preceding fiscal year of the Company.
(vi) At any time prior to the Trigger Event Date and so long
as any Term Loans are outstanding, if the Company or any
Subsidiary shall issue new Equity Interests or receive any
capital contributions other than Equity Interests issued to the
Company or another Subsidiary and capital contributions received
from the Company or another Subsidiary, the Company shall
promptly notify the Administrative Agent of the estimated Net
Proceeds of such issuance or of such capital contribution to be
received in respect thereof. Promptly upon, and in no event later
than one (1) Business Day after, receipt by the Company or such
Subsidiary of Net Proceeds of such issuance or of such capital
contribution, the Company shall prepay the Term Loans in an
amount equal to 50% of such Net Proceeds or capital contribution
(unless a Default or Unmatured Default shall have occurred and be
continuing, in which case the Company shall prepay the Term Loans
in an amount equal to 100% of such Net Proceeds or capital
contribution). Notwithstanding the foregoing, in no event shall
the Company's obligation to prepay the Term Loans pursuant to an
issuance under this Section 2.5(b)(vi) exceed an amount equal to
the Net Proceeds of such issuance less any prepayment of the
Subordinated Seller Note made with respect to such issuance and
required under Section 4.2 of the Subordinated Seller Note (but
only to the extent otherwise permitted by the subordination
provisions of the Subordinated Seller Note).
(vii) At any time prior to the Trigger Event Date and so
long as any Term Loans are outstanding, the Company shall
immediately prepay the Term Loans in an amount equal to 100% of
the Net Proceeds of any Indebtedness issued by the Company or any
Subsidiary (excluding Indebtedness permitted pursuant to Section
7.3(c)).
(viii) All of the mandatory prepayments made under Section
2.5(b)(i)-(iii) shall be applied to the Tranche A Revolving
Credit Obligations, the Tranche B Revolving Credit Obligations,
the Tranche C Revolving Credit Obligations or the Tranche D
Revolving Credit Obligations, as applicable, first to Floating
Rate Loans and to any Eurocurrency Rate Loans and Alternate
Currency Loans maturing on such date and then to subsequently
maturing Eurocurrency Rate Loans and Alternate Currency Loans in
order of maturity.
(ix) Any prepayments pursuant to Sections 2.5(b)(iv)-(vii)
shall be applied to the outstanding principal balance of the Term
Loans against all remaining scheduled principal installments in
inverse order of maturity.
2.6 Reductions and Adjustments of Revolving Loan Commitments.
(a) The Company may permanently reduce (i) the Aggregate Tranche A
Revolving Loan Commitment in whole, or in part ratably among the
Lenders with a Tranche A Revolving Loan Commitment, in an aggregate
minimum amount of $5,000,000 and in integral multiples of $1,000,000
in excess of that amount (unless the Aggregate Tranche A Revolving
Loan Commitment is reduced in whole), (ii) the Aggregate Tranche B
Revolving Loan Commitment in whole, or in part ratably among the
Lenders with a Tranche B Revolving Loan Commitment, in an aggregate
minimum amount of $5,000,000 and in integral multiples of $1,000,000
in excess of that amount (unless the Aggregate Tranche B Revolving
Loan Commitment is reduced in whole), (iii) the Aggregate Tranche C
Revolving Loan Commitment in whole, or in part ratably among the
Lenders with a Tranche C Revolving Loan Commitment, in an aggregate
minimum amount of $5,000,000 and in integral multiples of $1,000,000
in excess of that amount (unless the Aggregate Tranche C Revolving
Loan Commitment is reduced in whole), (iv) the Aggregate Tranche D
Revolving Loan Commitment in whole, or in part ratably among the
Lenders with a Tranche D Revolving Loan Commitment, in an aggregate
minimum amount of $5,000,000 and in integral multiples of $1,000,000
in excess of that amount (unless the Aggregate Tranche D Revolving
Loan Commitment is reduced in whole) or (v) the Swing Line Commitments
in whole or in part in amounts of $1,000,000 upon at least three (3)
Business Day's prior written notice to the Administrative Agent and
the Swing Line Bank, which notice shall specify the amount of any such
reduction; provided that (a) the amount of the Aggregate Tranche A
Revolving Loan Commitment may not be reduced below the aggregate
principal Dollar Amount of the outstanding Tranche A Revolving Credit
Obligations, (b) the amount of the Aggregate Tranche B Revolving Loan
Commitment may not be reduced below the aggregate principal Dollar
Amount of the outstanding Tranche B Revolving Credit Obligations or
below the aggregate amount of Alternate Currency Commitments, (c) the
amount of the Aggregate Tranche C Revolving Loan Commitment may not be
reduced below the aggregate principal Dollar Amount of the outstanding
Tranche C Revolving Credit Obligations or below the aggregate amount
of the Swing Line Commitment and (d) the amount of the Aggregate
Tranche D Revolving Loan Commitment may not be reduced below the
aggregate principal Dollar Amount of the outstanding Tranche D
Revolving Credit Obligations or below the aggregate amount of
Alternate Currency Commitments. All accrued commitment fees shall be
payable on the effective date of any termination of all or any part
the obligations of the Lenders to make Loans hereunder. Each
Subsidiary Borrower may, upon three (3) Business Days prior written
notice to the Administrative Agent and to the applicable Alternate
Currency Bank, terminate entirely at any time or reduce from time to
time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000 (or as set forth on the applicable Alternate Currency
Addendum), the unused portions of the applicable Alternate Currency
Commitment as specified by the applicable Subsidiary Borrower in such
notice to the Administrative Agent and the applicable Alternate
Currency Bank; provided that at no time shall the Alternate Currency
Commitment of any Lender in respect of any Alternate Currency be
reduced to an amount less than the total outstanding principal amount
of all Alternate Currency Loans of such Lender made in such Alternate
Currency.
(b) Any Lender (i) with a Tranche A Revolving Loan Commitment may,
upon three (3) Business Day's prior written notice to the
Administrative Agent and the Company, convert all of its Tranche A
Revolving Loan Commitment to a Tranche C Revolving Loan Commitment and
upon such conversion such Lender shall have a Tranche C Revolving Loan
Commitment in an amount equal to such Lender's prior Tranche A
Revolving Loan Commitment, such Lender's prior Tranche A Revolving
Loan Commitment shall be permanently reduced to zero and the Aggregate
Tranche A Revolving Loan Commitment shall be permanently reduced by an
amount equal to such Lender's new Tranche C Revolving Loan Commitment
and (ii) with a Tranche B Revolving Loan Commitment may, upon three
(3) Business Day's prior written notice to the Administrative Agent
and the Company, convert all of its Tranche B Revolving Loan
Commitment to a Tranche D Revolving Loan Commitment and upon such
conversion such Lender shall have a Tranche D Revolving Loan
Commitment in an amount equal to such Lender's prior Tranche B
Revolving Loan Commitment, such Lender's prior Tranche B Revolving
Loan Commitment shall be permanently reduced to zero and the Aggregate
Tranche B Revolving Loan Commitment shall be permanently reduced by an
amount equal to such Lender's new Tranche D Revolving Loan Commitment.
(c) If any prospective Lender has indicated its desire to provide
commitments (i) with respect to Tranche C Revolving Loans, the Company
may, simultaneously with the execution by such prospective Lender of
an Assignment Agreement pursuant to Section 14.3, permanently reduce
the Aggregate Tranche A Revolving Loan Commitment ratably among the
Lenders with a Tranche A Revolving Loan Commitment in an amount equal
to the new Tranche C Revolving Loan Commitment of such prospective
Lender with a concurrent ratable transfer of any outstanding Tranche A
Revolving Loans to Tranche C Revolving Loans and (ii) with respect to
Tranche D Revolving Loans, the Company may, simultaneously with the
execution by such prospective Lender of an Assignment Agreement
pursuant to Section 14.3, permanently reduce the Aggregate Tranche B
Revolving Loan Commitment ratably among the Lenders with a Tranche B
Revolving Loan Commitment in an amount equal to the new Tranche D
Revolving Loan Commitment of such prospective Lender with a concurrent
ratable transfer of any outstanding Tranche B Revolving Loans to
Tranche D Revolving Loans.
2.7 Method of Borrowing. Not later than 2:00 p.m. (New York time) on each
Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the applicable Agreed Currency to the
Administrative Agent at its address specified on its signature page hereto or as
otherwise specified pursuant to Article XV, unless the Administrative Agent has
notified the Lenders that such Loan is to be made available to the applicable
Borrower at the Administrative Agent's Eurocurrency Payment office, in which
case each Lender shall make available its Loan or Loans, in funds immediately
available to the Administrative Agent at its Eurocurrency Payment Office, not
later than 12:00 noon (local time in the city of the Administrative Agent's
Eurocurrency Payment Office) in the Agreed Currency designated by the
Administrative Agent. The Administrative Agent will promptly make the funds so
received from the Lenders available to the applicable Borrower at the
Administrative Agent's aforesaid address or Eurocurrency Payment Office, as
applicable.
2.8 Method of Selecting Types and Interest Periods for Advances. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period, Agreed Currency and/or Alternate
Currency applicable to each Advance from time to time. The applicable Borrower
shall give the Administrative Agent irrevocable notice in substantially the form
of Exhibit B hereto (a "Borrowing/Conversion/Continuation Notice") not later
than 11:00 a.m. (New York time) (a) one (1) Business Day before the Borrowing
Date of each Floating Rate Advance, and (b) three (3) Business Days before the
Borrowing Date for each Eurocurrency Rate Advance to be made in Dollars, and (c)
four (4) Business Days before the Borrowing Date for each Eurocurrency Rate
Advance to be made in any Agreed Currency other than Dollars and (d) three (3)
Business Days before the Borrowing Date for each Alternate Currency Loan (or
such other period as may be agreed to by the Administrative Agent and the
applicable Borrower), and the applicable Borrower shall give the applicable
Alternate Currency Bank irrevocable notice by 11:00 a.m. (local time) three (3)
Business Days prior to the Borrowing Date for such Alternate Currency Loan (or
such other period as may be agreed to by the applicable Alternate Currency Bank
or specified in the applicable Alternate Currency Addendum), specifying: (i) the
Borrowing Date (which shall be a Business Day) of such Advance; (ii) the
aggregate amount of such Advance; (iii) the Type of Advance selected; (iv)
whether the Advance will be a Tranche A Advance, a Tranche B Advance, a Tranche
C Advance or a Tranche D Advance; and (v) in the case of each Eurocurrency Rate
Loan, the Interest Period and Agreed Currency or Alternate Currency applicable
thereto. Each Floating Rate Advance, each Alternate Currency Loan bearing a
fluctuating Alternate Currency Rate and all Obligations other than Loans shall
bear interest from and including the date of the making of such Advance, in the
case of Loans, and the date such Obligation is due and owing in the case of such
other Obligations, to (but not including) the date of repayment thereof at the
Floating Rate or Alternate Currency Rate, as applicable, changing when and as
such Floating Rate or Alternate Currency Rate, as applicable, changes. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Loan will take effect simultaneously with each change in the Alternate Base
Rate. Changes in the rate of interest on any portion of any Alternate Currency
Loan bearing a fluctuating Alternate Currency Rate will take effect
simultaneously with each change in such Alternate Currency Rate. Each
Eurocurrency Rate Advance shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance and shall change as and when the Applicable
Eurocurrency Margin changes.
2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance
to repay a Swing Line Loan or Reimbursement Obligation) shall be in the minimum
Dollar Amount of $5,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) and in Dollar Amount
multiples of $1,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) if in excess thereof (or
such other amounts as may be specified in the applicable Alternate Currency
Addendum), provided that any Floating Rate Advance may be in the amount of the
unused Aggregate Tranche A Revolving Loan Commitment, Aggregate Tranche B
Revolving Loan Commitment, Aggregate Tranche C Revolving Loan Commitment or
Aggregate Tranche D Revolving Loan Commitment, as the case may be.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(a) Right to Convert. The applicable Borrower may elect from time to
time, subject to the provisions of Section 2.4 and this Section 2.10,
to convert all or any part of a Loan (other than a Swing Line Loan) of
any Type into any other Type or Types of Loans (other than a Swing Line
Loan); provided that any conversion of any Eurocurrency Rate Advance
shall be made on, and only on, the last day of the Interest Period
applicable thereto.
(b) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate
Loans are converted into Eurocurrency Rate Loans. Eurocurrency Rate
Loans shall continue as Eurocurrency Rate Loans until the end of the
then applicable Interest Period therefor, at which time such
Eurocurrency Rate Loans shall be automatically converted into Floating
Rate Loans unless the Company shall have given the Administrative Agent
notice in accordance with Section 2.10(d) requesting that, at the end
of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan. Unless a Borrowing/Conversion/Continuation
Notice shall have timely been given in accordance with the terms of
this Section 2.10, Eurocurrency Rate Advances in an Agreed Currency
other than Dollars and Alternate Currency Loans shall automatically
continue as Eurocurrency Rate Advances in the same Agreed Currency or
Alternate Currency Loans in the same Alternate Currency, as applicable,
with an Interest Period of one (1) month.
(c) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(a)
or Section 2.10(b), no Loan may be converted into or continued as a
Eurocurrency Rate Loan (except with the consent of the Required
Lenders) when any Default or Unmatured Default has occurred and is
continuing.
(d) Borrowing/Conversion/Continuation Notice. The Company shall give
the Administrative Agent a Borrowing/Conversion/Continuation Notice
with respect to each conversion of a Floating Rate Loan into a
Eurocurrency Rate Loan or continuation of a Eurocurrency Rate Loan not
later than 11:00 a.m. (New York time) (i) three (3) Business Days prior
to the date of the requested conversion or continuation, with respect
to any Loan to be converted or continued as a Eurocurrency Rate Loan in
Dollars, (ii) four (4) Business Days prior to the date of the requested
conversion or continuation with respect to any Loan to be converted or
continued as a Eurocurrency Rate Loan in an Agreed Currency other than
Dollars, and (iii) five (5) Business Days before the date of the
requested conversion or continuation Borrowing Date with respect to the
conversion or continuation of any Alternate Currency Loan (or such
other period as may be agreed to by the Administrative Agent), and the
applicable Subsidiary Borrower shall give the applicable Alternate
Currency Bank irrevocable notice by 11:00 a.m. (local time) three (3)
Business Days prior to the conversion or continuation of such Alternate
Currency Loan (or such other period as may specified in the applicable
Alternate Currency Addendum), specifying: (x) the requested date (which
shall be a Business Day) of such conversion or continuation; (y) the
amount and Type of the Loan to be converted or continued; and (z) the
amount of Eurocurrency Rate Loan(s) or Alternate Currency Loan(s), as
applicable, into which such Loan is to be converted or continued, the
Agreed Currency or Alternate Currency, as applicable, and the duration
of the Interest Period applicable thereto.
(e) Notwithstanding anything herein to the contrary, (i) Eurocurrency
Rate Advances in an Agreed Currency may be continued as Eurocurrency
Rate Advances only in the same Agreed Currency, (ii) Alternate Currency
Loans in an Alternate Currency may be continued as Alternate Currency
Loans only in the same Alternate Currency, (iii) Tranche A Advances may
only be continued as Tranche A Advances, (iv) Tranche B Advances may
only be continued as Tranche B Advances, (v) Tranche C Advances may
only be continued as Tranche C Advances and (vi) Tranche D Advances may
only be continued as Tranche D Advances.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, each outstanding Loan shall bear interest at a rate equal to the rate
otherwise applicable thereto (giving effect to the provisions of Section
2.15(d)(ii)) plus 2% per annum.
2.12 Method of Payment. All payments of principal, interest, fees,
commissions, and other amounts payable hereunder shall be made, without setoff,
deduction or counterclaim in immediately available funds to the Administrative
Agent (a) at the Administrative Agent's address specified pursuant to Article XV
with respect to Advances or other Obligations denominated in Dollars and (b) at
the Administrative Agent's Eurocurrency Payment Office with respect to any
Advance or other Obligations denominated in an Agreed Currency other than
Dollars, or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent to the Company, by 1:00 p.m.
(New York time) on the date when due and shall be applied ratably among the
applicable Lenders with respect to any principal and interest due in connection
with Loans. Each Advance shall be repaid or prepaid in the Agreed Currency in
which it was made in the amount borrowed and interest payable thereon shall also
be paid in such currency. Each payment delivered to the Administrative Agent for
the account of any Lender shall be delivered promptly by the Administrative
Agent to such Lender in the same type of funds which the Administrative Agent
received at its address specified pursuant to Article XV or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. The Company authorizes the Administrative Agent to charge the
account of the Company maintained with BNS for each payment of principal,
interest, fees, commissions and L/C Obligations as it becomes due hereunder.
Each reference to the Administrative Agent in this Section 2.12 shall also be
deemed to refer, and shall apply equally, to each Issuing Bank, in the case of
payments required to be made by the Company to any Issuing Bank pursuant to
Article III.
All payments to be made by the Borrowers hereunder in respect of any
Alternate Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, at the office or branch from
which the Loan was made pursuant to Section 2.20 and the applicable Alternate
Currency Addendum not later than 3:00 p.m. (local time) on the date on which
such payment shall become due. Promptly, and in any event within two (2)
Business Days after receipt, upon receipt of any payment of principal of the
Alternate Currency Loans the applicable Alternate Currency Bank shall give
written notice to the Administrative Agent by telex or telecopy of the receipt
of such payment.
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such Agreed
Currency or Alternate Currency, as applicable, with the result that different
types of such Agreed Currency or Alternate Currency, as applicable, (the "New
Currency") are introduced and the type of currency in which the Advance was made
(the "Original Currency") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders or Alternate
Currency Bank, as applicable, in such Original Currency, then all payments to be
made by the Borrowers hereunder in such currency shall be made to the
Administrative Agent or Alternate Currency Bank, as applicable, in such amount
and such type of the New Currency or Dollars as shall be equivalent to the
amount of such payment otherwise due hereunder in the Original Currency, it
being the intention of the parties hereto that the Borrowers take all risks of
the imposition of any such currency control or exchange regulations. In
addition, notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, the applicable
Borrower is not able to make payment to the Administrative Agent for the account
of the Lenders or the applicable Alternate Currency Bank in the type of currency
in which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead be repaid when
due in Dollars in a principal amount equal to the Dollar Amount (as of the date
of repayment) of such Advance.
2.13 Evidence of Debt.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "Loan Account") evidencing the indebtedness of
the Borrowers owing to such Lender hereunder from time to time,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 14.3(c) shall reflect (i) the date and the amount of each Loan
made hereunder, the Type thereof and the Interest Period, if any,
applicable thereto, (ii) the amount and the currency of any principal
or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the effective date and amount
of each Assignment Agreement delivered to and accepted by it and the
parties thereto pursuant to Section 14.3, (iv) the amount of any sum
received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof, and (v) all other appropriate
debits and credits as provided in this Agreement, including, without
limitation, all fees, charges, expenses and interest.
(c) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to subsections (a) or (b) of this Section
shall be presumptively correct for all purposes, absent manifest error;
provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Obligations in
accordance with the terms of this Agreement.
(d) Any Lender may request that the Tranche A Revolving Loans, the
Tranche B Revolving Loans, the Tranche C Revolving Loans, the Tranche D
Revolving Loans or the Term Loans made by it each be evidenced by a
promissory note in substantially the forms of Exhibit I-1, Exhibit I-2,
Exhibit I-3, Exhibit I-4 or Exhibit I-5, respectively, to evidence such
Lender's Tranche A Revolving Loans, Tranche B Revolving Loans, Tranche
C Revolving Loans, Tranche D Revolving Loans or Term Loans, as
applicable. In such event, the applicable Borrower shall promptly
prepare, execute and deliver to such Lender a promissory note for such
Loans payable to the order of such Lender and in a form approved by the
Administrative Agent and consistent with the terms of this Agreement.
Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to
Section 14.3) be represented by one or more promissory notes in such
form payable to the order of the payee named therein.
2.14 Telephonic Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Loans, effect selections of Types of Advances and
to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf
of the applicable Borrower. The Borrowers agree to deliver promptly to the
Administrative Agent a written confirmation, signed by an Authorized Officer. If
the written confirmation differs in any material respect from the action taken
by the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.
(a) Promise to Pay. Each Borrower unconditionally promises to pay when
due the principal amount of each Loan and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the other Loan
Documents.
(b) Interest Payment Dates. Interest accrued on each Floating Rate Loan
and each Alternate Currency Loan bearing a fluctuating Alternate
Currency Rate shall be payable on each Payment Date, commencing with
the first such date to occur after the date hereof, upon any prepayment
whether by acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Fixed-Rate Loan
shall be payable on the last day of its applicable Interest Period, on
any date on which the Fixed-Rate Loan is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each
Fixed-Rate Loan having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval
during such Interest Period. Interest accrued on the principal balance
of all other Obligations shall be payable in arrears (i) on the last
day of each calendar month, commencing on the first such day following
the incurrence of such Obligation, (ii) upon repayment thereof in full
or in part, and (iii) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Fees.
(i) The Company shall pay to the Administrative Agent (A) for
the account of the Lenders in accordance with their Pro Rata Tranche A
Revolving Shares, from and after the date of this Agreement until the
Tranche A Revolving Loan Termination Date, a commitment fee accruing at
the rate of the then Applicable Commitment Fee Percentage on the
unutilized portion of such Lender's Tranche A Revolving Loan
Commitment, (B) for the account of the Lenders in accordance with their
Pro Rata Tranche B Revolving Shares, from and after the date of this
Agreement until the Tranche B Revolving Loan Termination Date, a
commitment fee accruing at the rate of the then Applicable Commitment
Fee Percentage on the unutilized portion of such Lender's Tranche B
Revolving Loan (treating Alternate Currency Loans as usage), (C) for
the account of the Lenders in accordance with their Pro Rata Tranche C
Revolving Shares, from and after the date of this Agreement until the
Tranche C Revolving Loan Termination Date, a commitment fee accruing at
the rate of the then Applicable Commitment Fee Percentage on the
unutilized portion of such Lender's Tranche C Revolving Loan Commitment
(treating Letters of Credit, but not Swing Line Loans, as usage) and
(D) for the account of the Lenders in accordance with their Pro Rata
Tranche D Revolving Shares, from and after the date of this Agreement
until the Tranche D Revolving Loan Termination Date, a commitment fee
accruing at the rate of the then Applicable Commitment Fee Percentage
on the unutilized portion of such Lender's Tranche D Revolving Loan
(treating Alternate Currency Loans as usage). The commitment fee shall
be payable in arrears on each Payment Date hereafter, and, in addition,
on any date on which the Tranche A Revolving Loan Commitment, the
Tranche B Revolving Loan Commitment, the Tranche C Revolving Loan
Commitment or the Tranche D Revolving Loan Commitment, as applicable,
shall be terminated in whole or, with respect to such terminated
amount, in part.
(ii) The Company agrees to pay to the Administrative Agent,
for the sole account of the Administrative Agent (unless otherwise
agreed between the Administrative Agent and any Lender) the fees set
forth in the Original Fee Letter, payable at the times and in the
amounts set forth therein.
(iii) The applicable Borrower agrees to pay to each Alternate
Currency Bank, for its sole account, a fronting fee equal to 0.25% of
the average daily outstanding Dollar Amount of all Alternate Currency
Loans made by such Alternate Currency Bank.
(d) Interest and Fee Basis; Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage.
(i) Interest on all Fixed-Rate Loans (except as provided
otherwise in the applicable Alternate Currency Addendum in the case of
an Alternate Currency Loan) and fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest on all Floating
Rate Loans shall be calculated for actual days elapsed on the basis of
a 365-, or when appropriate 366-, day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of any
payment on the amount paid if payment is received prior to 3:00 p.m.
(local time) at the place of payment. If any payment of principal of or
interest on a Loan or any payment of any other Obligations shall become
due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage shall be
determined from time to time on the basis of the then applicable
Leverage Ratio in accordance with the following table:
APPLICABLE APPLICABLE APPLICABLE
FLOATING RATE EUROCURRENCY COMMITMENT
LEVERAGE RATIO MARGIN MARGIN FEE PERCENTAGE
Less than 1.50 0.25% 1.25% 0.375%
1.50 or greater,
but less than 2.00 0.75% 1.75% 0.375%
2.00 or greater,
but less than 2.50 1.25% 2.25% 0.500%
2.50 or greater,
but less than 2.75 1.75% 2.75% 0.500%
2.75 or greater,
but less than 3.00 2.00% 3.00% 0.500%
3.00 or greater 2.25% 3.25% 0.500%
Upon receipt of the financial statements to be delivered by
the Company in accordance with Section 7.1(a)(i) or (ii), as
applicable, for any fiscal quarter or, if earlier, upon receipt of the
Company's audited financial statements for any fiscal year, the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Commitment Fee Percentage shall be adjusted, such adjustment
being effective five (5) Business Days following the Administrative
Agent's receipt of such financial statements and the compliance
certificate required to be delivered in connection therewith pursuant
to Section 7.1(a)(iii); provided that if the Company shall not have
timely delivered its financial statements in accordance with Section
7.1(a)(i) or (ii), as applicable, then commencing on the date upon
which such financial statements should have been delivered and
continuing until such financial statements are actually delivered, it
shall be assumed for purposes of determining the Applicable Floating
Rate Margin, Applicable Eurocurrency Margin and Applicable Commitment
Fee Percentage that the Leverage Ratio was greater than 2.50 to 1.0.
Notwithstanding the foregoing, for so long as any Default shall have
occurred and be continuing, the Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee Percentage
shall be the highest Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Margin set forth in
the foregoing table.
(e) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether
in respect of principal, interest, fees or otherwise) shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any interest, penalties and liabilities with respect thereto but
excluding, in the case of each Lender and the Administrative Agent,
such taxes (including income taxes, franchise taxes and branch profit
taxes) as are imposed on or measured by such Lender's or the
Administrative Agent's, as the case may be, net income by the United
States of America or any Governmental Authority of the jurisdiction
under the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments,
the Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder or
under the other Loan Documents to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholdings (including
deductions applicable to additional sums payable under this Section
2.15(e)) such Lender or Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions or
withholdings been made, (ii) the applicable Borrower shall make such
deductions or withholdings, and (iii) the applicable Borrower shall pay
the full amount deducted or withheld to the relevant taxation authority
or other authority in accordance with applicable law.
(ii) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "Other Taxes").
(iii) The Company and each Subsidiary Borrower shall indemnify
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under
this Section 2.15(e)) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date
such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section
2.15(e) submitted to the applicable Borrower and the Administrative
Agent (if a Lender is so submitting) by such Lender or the
Administrative Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties
hereto.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Company or any Subsidiary Borrower, the
Company shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of the Company and the Subsidiary Borrowers hereunder, the agreements
and obligations of the Borrowers contained in this Section 2.15(e)
shall survive the payment in full of all Obligations, the termination
of the Letters of Credit and the termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"Non-U.S. Lender") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to Section 14.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), either (A) two (2) duly completed copies of
either (x) IRS Form W-8BEN, or (y) IRS Form W-8ECI, or in either case
an applicable successor form or (B) in the case of a Non-U.S. Lender
that is not legally entitled to deliver either form listed in clause
(vi)(A)(I), (I) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (x) a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (y) a
"10 percent shareholder" of the Company or any Subsidiary Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (z) a
controlled foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "Exemption Certificate") and (II) two (2) duly
completed copies of IRS Form W-8BEN or applicable successor form. Each
such Lender further agrees to deliver to the Company and the
Administrative Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender in a
form satisfactory to the Company and the Administrative Agent, before
or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Company and
the Administrative Agent pursuant to this Section 2.15(e)(vi). Further,
each Lender which delivers a form or certificate pursuant to this
clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration
of such form, for so long as this Agreement is still in effect, another
such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or
forms required under the Code or the applicable regulations promulgated
thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this Section
2.15(e), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to Section 2.15(e)(i), or to indemnify any Lender
pursuant to Section 2.15(e)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.15(e)(vi), or (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any
material respect, provided that the applicable Borrower shall be
obligated to gross up any payments to any such Lender pursuant to
Section 2.15(e)(i), and to indemnify any such Lender pursuant to
Section 2.15(e)(iii), in respect of United States federal withholding
taxes if (x) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or the certifications made
in such form or forms or Exemption Certificate untrue or inaccurate in
any material respect, or (y) the obligation to gross up payments to any
such Lender pursuant to Section 2.15(e)(i), or to indemnify any such
Lender pursuant to Section 2.15(e)(iii), is with respect to a Purchaser
that becomes a Purchaser as a result of an assignment made at the
request of the Company.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice,
Borrowing/Conversion/Continuation Notice, and repayment notice received by it
hereunder. The Administrative Agent will notify the Company or applicable
Borrower and each Lender of the interest rate and Agreed Currency applicable to
each Fixed-Rate Loan promptly upon determination of such interest rate and
Agreed Currency and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans or Letters
of Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case
of any Borrower, a payment of principal, interest fees or other Obligations to
the Administrative Agent for the account of any of the Lenders, that it does not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the applicable Borrower, as the
case may be, has not in fact made such payment to the Administrative Agent, the
recipient of such payment shall, on demand by the Administrative Agent, repay to
the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such day
or (ii) in the case of payment by a Borrower, the interest rate applicable to
the relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the date
(the "Facility Termination Date") upon which (a) all of the Obligations (other
than contingent indemnity obligations) shall have been fully and indefeasibly
paid and satisfied, (b) all commitments of the Lenders to extend credit
hereunder have expired or have been terminated and (c) all of the Letters of
Credit shall have expired, been canceled or terminated. Notwithstanding the
occurrence of the Facility Termination Date, obligations of the Borrowers and
other terms hereof which by the terms of this Agreement survive termination
shall survive the Facility Termination Date.
2.20 Replacement of Certain Lenders. In the event a Lender ("Affected
Lender") shall have: (a) failed to fund its Pro Rata Tranche A Revolving Share,
Pro Rata Tranche B Revolving Share, Pro Rata Tranche C Revolving Share or Pro
Rata Tranche D Revolving Share of any Advance requested by the applicable
Borrower, or to make payment in respect of any Alternate Currency Loan purchased
by such Lender pursuant to Section 2.21(e), which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured, (b)
requested compensation from any Borrower under Sections 2.15(e), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders except as provided
under any applicable Alternate Currency Addendum, or (c) delivered a notice
pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Company for reasons not generally applicable to
the other Lenders, then, in any such case, after the engagement of one or more
"Replacement Lenders" (as defined below) by the Company and/or the
Administrative Agent, the Company or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in the
case of a demand by the Company and a copy to the Company in the case of a
demand by the Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall use commercially reasonable efforts to assign pursuant to
one or more duly executed Assignment Agreements five (5) Business Days after the
date of such demand, to one or more financial institutions that comply with the
provisions of Section 14.3(a) which the Company or the Administrative Agent, as
the case may be, shall have engaged for such purpose (each, a "Replacement
Lender"), all of such Affected Lender's rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Revolving Loan Commitment, all Loans owing to it, all of its participation
interests in existing Letters of Credit, and its obligation to participate in
additional Letters of Credit and Alternate Currency Loans hereunder) in
accordance with Section 14.3. The Administrative Agent is authorized to execute
one or more of such assignment agreements as attorney-in-fact for any Affected
Lender failing to execute and deliver the same within five (5) Business Days
after the date of such demand. With respect to such assignment the Affected
Lender shall be entitled to receive, in cash, all amounts due and owing to the
Affected Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount of the Loans owed to such
Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under Sections 2.15(e), 4.1, and 4.2 with respect to
such Affected Lender and compensation payable under Section 2.15(c) in the event
of any replacement of any Affected Lender under clause (b) or clause (c) of this
Section 2.20; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15(e), 4.1, 4.2, 4.4, and 11.6, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 12.8.
2.21 Alternate Currency Loans.
(a) Upon the satisfaction of the conditions precedent set forth in
Article V hereof and set forth in the applicable Alternate Currency
Addendum, from and including the later of the date of this Agreement
and the date of execution of the applicable Alternate Currency Addendum
and prior to the termination of the Aggregate Tranche B Revolving Loan
Commitment or the Aggregate Tranche D Revolving Loan Commitment, as
applicable (or such earlier termination date as shall be specified in
or pursuant to the applicable Alternate Currency Addendum), each
Alternate Currency Bank agrees, on the terms and conditions set forth
in this Agreement and in the applicable Alternate Currency Addendum, to
make Alternate Currency Loans under such Alternate Currency Addendum to
the applicable Borrower party to such Alternate Currency Addendum from
time to time in the applicable Alternate Currency, in an amount not to
exceed each such Alternate Currency Bank's applicable Alternate
Currency Commitment; provided that at no time shall the Dollar Amount
of the Alternate Currency Loans for any specific Alternate Currency
exceed the maximum amount specified as the maximum amount for such
Alternate Currency in the applicable Alternate Currency Addendum other
than as a result of currency fluctuations and then only to the extent
permitted in Section 2.5(b)(ii) and provided, further, that at no time
shall (i) the Dollar Amount of the Tranche B Revolving Credit
Obligations exceed the Aggregate Tranche B Revolving Loan Commitments
or (ii) the Dollar Amount of the Tranche D Revolving Credit Obligations
exceed the Aggregate Tranche D Revolving Loan Commitments. Subject to
the terms of this Agreement and the applicable Alternate Currency
Addendum, the applicable Borrowers may borrow, repay and reborrow
Alternate Currency Loans in the applicable Alternate Currency at any
time prior to the termination of the Aggregate Tranche B Revolving Loan
Commitment or the Aggregate Tranche D Revolving Loan Commitment, as
applicable (or such earlier termination date as shall be specified in
or pursuant to the applicable Alternate Currency Addendum). On the
termination of the Aggregate Tranche B Revolving Loan Commitment or the
Aggregate Tranche D Revolving Loan Commitment, as applicable (or such
earlier termination date as shall be specified in or pursuant to the
applicable Alternate Currency Addendum), the outstanding principal
balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the termination of the Aggregate
Tranche B Revolving Loan Commitment or the Aggregate Tranche D
Revolving Loan Commitment, as applicable (or such earlier termination
date as shall be specified in or pursuant to the applicable Alternate
Currency Addendum) prepayments of the Alternate Currency Loans shall be
made by the applicable Borrower if and to the extent required by
Section 2.5(b)(ii). For the avoidance of doubt, it is understood that
no Lender shall have any obligation hereunder to execute an Alternate
Currency Addendum and so to become an Alternate Currency Bank.
(b) Borrowing Notice. When the applicable Borrower desires to borrow
under this Section 2.21, the applicable Borrower shall deliver to the
applicable Alternate Currency Bank and the Administrative Agent a
Borrowing/Conversion/Continuation Notice, signed by it, as provided in
Section 2.8 specifying that such Borrower is requesting an Alternate
Currency Loan pursuant to this Section 2.21 and whether such borrowing
shall be made as a Tranche B Revolving Loan or Tranche D Revolving
Loan, and the Administrative Agent shall give prompt notice to the
Lenders with a Tranche B Revolving Loan Commitment or a Tranche D
Revolving Loan Commitment, as applicable, of any such request for an
Alternate Currency Loan. Any Borrowing/Conversion/Continuation Notice
given pursuant to this Section 2.21 shall be irrevocable.
(c) Termination. Except as otherwise required by applicable law, in no
event shall any Alternate Currency Bank have the right to accelerate
the Alternate Currency Loans outstanding under any Alternate Currency
Addendum or to terminate its commitments (if any) thereunder to make
Alternate Currency Loans prior to the stated termination date in
respect thereof, except that each Alternate Currency Bank shall have
such rights upon an acceleration of the Loans and a termination of the
Aggregate Revolving Loan Commitments pursuant to Article IX.
(d) Statements. Each Alternate Currency Bank shall furnish to the
Administrative Agent not less frequently than monthly, at the end of
each calendar quarter, and at any other time at the reasonable request
of the Administrative Agent, a statement setting forth the outstanding
Alternate Currency Loans made and repaid during the period since the
last such report under such Alternate Currency Addendum.
(e) Risk Participation. Immediately and automatically upon the
occurrence of a Default under Sections 8.1(a), (e) or (f), each Lender
with a Tranche B Revolving Loan Commitment or a Tranche D Revolving
Loan Commitment, as applicable, shall be deemed to have unconditionally
and irrevocably purchased from the applicable Alternate Currency Bank,
without recourse or warranty, an undivided interest in and
participation in each Alternate Currency Loan ratably in an amount
equal to such Lender's Pro Rata Tranche B Revolving Share or Pro Rata
Tranche D Revolving Share, as applicable, of the amount of principal
and accrued interest of such Loan, and immediately and automatically
all Alternate Currency Loans shall be converted to and redenominated in
Dollars equal to the Dollar Amount of each such Alternate Currency Loan
determined as of the date of such conversion; provided that to the
extent such conversion shall occur other than at the end of an Interest
Period, the applicable Borrower shall pay to the applicable Alternate
Currency Bank, all losses and breakage costs related thereto in
accordance with Section 4.4. Each of the Lenders shall pay to the
applicable Alternate Currency Bank not later than two (2) Business Days
following a request for payment from such Alternate Currency Bank, in
Dollars, an amount equal to the undivided interest in and participation
in the Alternate Currency Loan purchased by such Lender pursuant to
this Section 2.21(e). In the event that any Lender fails to make
payment to the applicable Alternate Currency Bank of any amount due
under this Section 2.21(e), the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the
Administrative Agent receives from such Lender an amount sufficient to
discharge such Lender's payment obligation as prescribed in this
Section 2.21(e) together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of
demand by the applicable Alternate Currency Bank and ending on the date
such obligation is fully satisfied. The Administrative Agent will
promptly remit all payments received as provided above to the
applicable Alternate Currency Bank. In consideration of the risk
participations prescribed in this Section 2.21(e), each Lender shall
receive, from the accrued interest paid for periods prior to the
conversion of any Alternate Currency Loan as described above by the
applicable Borrower on each Alternate Currency Loan, a fee equal to
such Lender's Pro Rata Tranche B Revolving Share or Pro Rata Tranche D
Revolving Share, as applicable, of the Applicable Eurocurrency Margin
component of the interest accrued on such Loan, as in effect from time
to time during the period such interest accrued. Such portion of the
interest paid by the applicable Borrower on Alternate Currency Loans to
the applicable Alternate Currency Bank shall be paid as promptly as
possible by such Alternate Currency Bank to the Administrative Agent,
and the Administrative Agent shall as promptly as possible convert such
amount into Dollars at the spot rate of exchange in accordance with its
normal banking practices and apply such resulting amount ratably among
the Lenders (including the Alternate Currency Banks) in proportion to
their Pro Rata Tranche B Revolving Share or Pro Rata Tranche D
Revolving Share, as applicable.
(f) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related
Alternate Currency at a specific place pursuant to this Agreement is of
the essence. Such Alternate Currency shall, subject to Section 2.21, be
the currency of account and payment of such Loans under this Agreement
and the applicable Alternate Currency Addendum. Notwithstanding
anything in this Agreement, the obligation of the applicable Borrower
in respect of such Loans shall not be discharged by an amount paid in
any other currency or at another place, whether pursuant to a judgment
or otherwise, to the extent the amount so paid, on prompt conversion
into the applicable Alternate Currency and transfer to such Lender
under normal banking procedure, does not yield the amount of such
Alternate Currency due under this Agreement or the applicable Alternate
Currency Addendum. In the event that any payment, whether pursuant to a
judgment or otherwise, upon conversion and transfer, does not result in
payment of the amount of such Alternate Currency due under this
Agreement or the applicable Alternate Currency Addendum, such Lender
shall have an independent cause of action against each of the Borrowers
for the currency deficit. In the event that any payment, upon
conversion and transfer, results in payment in excess of the amount of
such Alternate Currency due under this Agreement or the applicable
Alternate Currency Addendum, such Lender shall refund such excess to
the applicable Borrower.
2.22 Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from any Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's office in New York, New York on the Business Day preceding that on which
the final, non-appealable judgment is given. The obligations of each Borrower in
respect of any sum due to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 13.2, such Lender or the Administrative Agent, as
the case may be, agrees to remit such excess to such Borrower.
2.23 Market Disruption; Denomination of Amounts in Dollars;
Dollar Equivalent of Reimbursement Obligations.
(a) Notwithstanding the satisfaction of all conditions referred to in
this Article II with respect to any Advance in any Agreed Currency
other than Dollars or an Alternate Currency, as applicable, if there
shall occur on or prior to the date of such Advance any change in
national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the
reasonable opinion of the Company, any Subsidiary Borrower, any
Alternate Currency Bank, the Administrative Agent or the Required
Lenders make it impracticable for the Eurocurrency Rate Loans or
Alternate Currency Loans comprising such Advance to be denominated in
the Agreed Currency or Alternate Currency, as applicable, specified by
the applicable Borrower, then the Administrative Agent shall forthwith
give notice thereof to the Company or such Borrower, the applicable
Alternate Currency Bank and the Lenders, or the applicable Borrower
shall give notice to the Administrative Agent, the applicable Alternate
Currency Bank and the Lenders, as the case may be, and such
Eurocurrency Rate Loans or Alternate Currency Loans shall not be
denominated in such currency but shall be made on such Borrowing Date
in Dollars, in an aggregate principal amount equal to the Dollar Amount
of the aggregate principal amount specified in the related Borrowing
Notice, as Floating Rate Loans, unless the applicable Borrower notifies
the Administrative Agent at least one (1) Business Day before such date
that (i) it elects not to borrow on such date or (ii) it elects to
borrow on a date at least three (3) Business Days thereafter in a
different Agreed Currency or Alternate Currency, as the case may be, in
which the denomination of such Loans would in the opinion of the
Administrative Agent, any Alternate Currency Bank, if applicable, and
the Required Lenders be practicable and in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount
specified in the related Borrowing Notice.
(b) Except as set forth in Sections 2.1, 2.5 and 2.21, all amounts
referenced in this Article II shall be calculated using the Dollar
Amount determined based upon the Equivalent Amount in effect as of the
date of any determination thereof; provided to the extent that any
Borrower shall be obligated hereunder to pay in Dollars any Advance
denominated in a currency other than Dollars, such amount shall be paid
in Dollars using the Dollar Amount of the Advance (calculated based
upon the Equivalent Amount in effect on the date of payment thereof)
and in the event that the applicable Borrower does not reimburse the
Administrative Agent and the Lenders are required to fund a purchase of
a participation in such Advance, such purchase shall be made in Dollars
in an amount equal to the Dollar Amount of such Advance (calculated
based upon the Equivalent Amount in effect on the date of payment
thereof). Notwithstanding anything herein to the contrary, the full
risk of currency fluctuations shall be borne by the Borrowers and the
Borrowers agree to indemnify and hold harmless each Issuing Bank, the
Alternate Currency Banks, the Administrative Agent and the Lenders from
and against any loss resulting from any borrowing denominated in a
currency other than in Dollars and for which the Lenders are not
reimbursed on the day of such borrowing.
2.24 Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Administrative Agent, add as a party to this
Agreement any Wholly-Owned Subsidiary to be a "Subsidiary Borrower" hereunder by
the execution and delivery to the Administrative Agent and the Lenders of (a) a
duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company at the foot thereof and (b) such other guaranty, security and
subordinated intercompany indebtedness documents (and related closing
documentation) as may be reasonably required by the Administrative Agent, such
documents with respect to any additional Subsidiaries to be substantially
similar in form and substance to the Loan Documents executed on or about the
Closing Date by or in respect of the Subsidiaries parties hereto as of the
Closing Date. Upon such execution, delivery and consent such Subsidiary shall
for all purposes be a party hereto as a Subsidiary Borrower as fully as if it
had executed and delivered this Agreement. So long as the principal of and
interest on any Advances made to any Subsidiary Borrower under this Agreement
shall have been paid in full, all Letters of Credit issued for the account of
such Subsidiary Borrower have expired or been returned and terminated and all
other obligations of such Subsidiary Borrower under this Agreement shall have
been fully performed, the Company may, by not less than five (5) Business Days'
prior notice to the Administrative Agent (which shall promptly notify the
Lenders thereof), terminate such Subsidiary Borrower's status as a "Subsidiary
Borrower".
2.25 Security. All Obligations of the Borrowers under this Agreement
and all other Loan Documents shall be secured in accordance with the Collateral
Documents.
2.26 Assignment and Reallocation of Existing Commitments and Existing
Loans. Each of the parties hereto severally and for itself agrees that on the
Amendment Effective Date, each Existing Lender hereby irrevocably sells,
transfers, conveys and assigns, without recourse, representation or warranty
(except as expressly set forth herein), to each Lender that is not an Existing
Lender, and each such Lender hereby irrevocably purchases from such Existing
Lender, a portion of the rights and obligations of such Existing Lender under
the Existing Credit Agreement and each other Loan Document in respect of its
Existing Loans and Commitments under (and as defined in) the Existing Credit
Agreement such that, after giving effect to the foregoing assignment and
delegation, each Lender's Revolving Loan Commitments and portion of the Existing
Loans for the purposes of this Agreement and each other Loan Document will be as
set forth opposite such Person's name on Exhibit A to this Agreement.
(a) Each Existing Lender hereby represents and warrants to each Lender,
that immediately before giving effect to the provisions of this
Section, (i) such Existing Lender is the legal and beneficial owner of
the portion of its rights and obligations in respect of its Existing
Loans being assigned to each Lender as set forth above; and (ii) such
rights and obligations being assigned and sold by such Existing Lender
are free and clear of any adverse claim or encumbrance created by such
Existing Lender.
(b) Each of the Lenders hereby acknowledges and agrees that (i) other
than the representations and warranties contained above, no Lender nor
the Administrative Agent has made any representations or warranties or
assumed any responsibility with respect to (A) 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, the Existing Credit
Agreement or any other Loan Document or (B) the financial condition of
any Borrower or the performance by any Borrower of the Obligations;
(ii) it has received such information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Agreement;
and (iii) it has made and continues to make its own credit decisions in
taking or not taking action under this Agreement, independently and
without reliance upon the Administrative Agent or any other Lender.
(c) The Borrowers, each of the Lenders and the Administrative Agent
also agree that each of the Lenders shall, as of the Amendment
Effective Date, have all of the rights and interests as a Lender in
respect of the Loans purchased and assumed by it, to the extent of the
rights and obligations so purchased and assumed by it.
(d) Each Lender which is purchasing any portion of the Existing Loans
shall deliver to the Administrative Agent immediately available funds
in the full amount of the purchase made by it and the Administrative
Agent shall, to the extent of the funds so received, disburse such
funds to the Existing Lenders that are making sales and assignments in
the amount of the portions so sold and assigned.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in Dollars in accordance with this
Article III, from time to time during the period, commencing on the Amendment
Effective Date and ending on the Business Day prior to the termination of the
Aggregate Tranche C Revolving Loan Commitment.
3.2 Transitional Provision. Schedule 3.2 contains a schedule of certain
letters of credit issued for the account of the Company and its Subsidiaries
prior to the Amendment Effective Date. From and after the Amendment Effective
Date, such letters of credit shall be deemed to be Letters of Credit issued
pursuant to this Article III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
(a) issue (or amend) any Letter of Credit if on the date of issuance
(or amendment), before or after giving effect to the Letter of Credit
requested hereunder, (i) the amount of the Tranche C Revolving Credit
Obligations at such time would exceed the Aggregate Tranche C
Revolving Loan Commitment at such time, or (ii) the aggregate
outstanding amount of the L/C Obligations would exceed $25,000,000; or
(b) issue (or amend) any Letter of Credit which has an expiration date
later than the date which is the earlier of one (1) year after the
date of issuance thereof or the Tranche C Revolving Loan Termination
Date; provided that any Letter of Credit with a one-year tenor may
provide for the renewal thereof for additional one-year periods (not
to extend beyond the Tranche C Revolving Loan Termination Date) with
the consent of the applicable Issuing Bank.
3.4 Conditions. In addition to being subject to the satisfaction of
the conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction in
full of the following conditions:
(a) the Company shall have delivered to the applicable Issuing Bank
(at such times and in such manner as such Issuing Bank may reasonably
prescribe) and the Administrative Agent, a request for issuance of
such Letter of Credit in substantially the form of Exhibit C hereto
(each such request a "Request For Letter of Credit"), duly executed
application for such Letter of Credit, and such other documents,
instructions and agreements as may be required pursuant to the terms
thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C Documents"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(b) as of the date of issuance no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms
to enjoin or restrain the applicable Issuing Bank from issuing such
Letter of Credit and no law, rule or regulation applicable to such
Issuing Bank and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over
such Issuing Bank shall prohibit or request that such Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit.
(a) Subject to the terms and conditions of this Article III and
provided that the applicable conditions set forth in Sections 5.1, 5.2
and 5.3 hereof have been satisfied, the applicable Issuing Bank shall,
on the requested date, issue a Letter of Credit on behalf of the
Company or a Subsidiary Borrower, as applicable in accordance with
such Issuing Bank's usual and customary business practices and, in
this connection, such Issuing Bank may assume that the applicable
conditions set forth in Sections 3.3(b), 3.4(b) and 5.3 hereof have
been satisfied unless it shall have received notice to the contrary
from the Administrative Agent or a Lender or has knowledge that the
applicable conditions have not been met.
(b) Promptly, and in any event not more than one (1) Business Day
following the date of issuance of any Letter of Credit, the applicable
Issuing Bank shall give the Administrative Agent written or telex
notice, or telephonic notice confirmed promptly thereafter in writing,
of the issuance of a Letter of Credit (provided that the failure to
provide such notice shall not result in any liability on the part of
such Issuing Bank), and the Administrative Agent shall promptly give
notice to the Lenders of each such issuance.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this Section 3.5 are met as though a new Letter of
Credit was being requested and issued.
3.6 Letter of Credit Participation. On the Amendment Effective Date,
with respect to the Letters of Credit identified on Schedule 3.2, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the Company in
respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C Interest") in the amount available for drawing under such
Letter of Credit multiplied by such Lender's Pro Rata Tranche C Revolving Share.
3.7 Reimbursement Obligation.
(a) The Company agrees unconditionally, irrevocably and absolutely to
pay immediately to the Administrative Agent, for the account of the
Lenders with Tranche C Revolving Loan Commitments, the amount of each
advance drawn under or pursuant to a Letter of Credit or an L/C Draft
related thereto (such obligation of the Company to reimburse the
Administrative Agent for an advance made under a Letter of Credit or
L/C Draft being hereinafter referred to as a "Reimbursement
Obligation" with respect to such Letter of Credit or L/C Draft), each
such reimbursement to be made by the Company no later than the
Business Day on which the applicable Issuing Bank makes payment of
each such L/C Draft or, if the Company shall have received notice of a
Reimbursement Obligation later than 12:00 noon (New York time), on any
Business Day or on a day which is not a Business Day, no later than
12:00 noon (New York time), on the immediately following Business Day
or, in the case of any other draw on a Letter of Credit, the date
specified in the demand of such Issuing Bank. If the Company at any
time fails to repay a Reimbursement Obligation pursuant to this
Section 3.7, the Issuing Bank shall promptly notify the Administrative
Agent and the Administrative Agent shall promptly notify each Lender
and the Company shall be deemed to have requested to borrow Tranche C
Revolving Loans from the Lenders with Tranche C Revolving Loan
Commitments, as of the date of the advance giving rise to the
Reimbursement Obligation, equal to the amount of the unpaid
Reimbursement Obligation. Such Tranche C Revolving Loans shall be made
as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement
to satisfy the conditions precedent otherwise applicable to an Advance
of Tranche C Revolving Loans.
(b) Each Lender with a Tranche C Revolving Loan Commitment shall upon
any notice pursuant to Section 3.7(a) make available to the
Administrative Agent for the account of the relevant Issuing Bank an
amount in Dollars and in immediately available funds equal to its Pro
Rata Tranche C Revolving Share of the amount of the drawing, whereupon
such Lenders shall (subject to Section 3.7(d)) each be deemed to have
made a Revolving Loan constituting a Floating Rate Advance, the
proceeds of which Advance shall be used to repay such Reimbursement
Obligation. If any Lender so notified fails to make available to the
Administrative Agent for the account of the Issuing Bank the amount of
such Lender's Pro Rata Tranche C Revolving Share of the amount of the
drawing by no later than 2:00 p.m. (New York time) on the date of the
advance giving rise to the Reimbursement Obligation, then interest
shall accrue on such Lender's obligation to make such payment, from
such date to the date such Lender makes such payment, at a rate per
annum equal to the Federal Funds Effective Rate in effect from time to
time during such period. The Administrative Agent will promptly give
notice of the occurrence of the draw, but failure of the
Administrative Agent to give any such notice in sufficient time to
enable any Lender to effect such payment on such date shall not
relieve such Lender from its obligations under this Section 3.7.
(c) Each Lender's obligation in accordance with this Agreement to make
the Tranche C Revolving Loans, as contemplated by this Section 3.7, as
a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Banks and shall not
be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving
Lender may have against an Issuing Bank, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default, an Unmatured Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(d) If, for any reason, the Company fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for
any reason, the Lenders are unable to make or have no obligation to
make Revolving Loans, then such Reimbursement Obligation shall bear
interest from and after such day, until paid in full, at the interest
rate applicable to a Floating Rate Advance.
3.8 Letter of Credit Fees. The Company agrees to pay:
(a) quarterly, in arrears, to the Administrative Agent for the ratable
benefit of the Lenders with a Tranche C Revolving Loan Commitment a
letter of credit fee at a rate per annum equal to the Applicable L/C
Fee Percentage on the average daily outstanding amount available for
drawing under all Letters of Credit;
(b) quarterly, in arrears, to the applicable Issuing Bank, a letter of
credit fronting fee in an amount agreed to between the Company and the
applicable Issuing Bank on the average daily outstanding face amount
available for drawing under all Letters of Credit issued by such
Issuing Bank; and
(c) to the applicable Issuing Bank, all reasonable and customary fees
and other issuance, amendment, document examination, negotiation and
presentment expenses and related charges in connection with the
issuance, amendment, presentation of L/C Drafts, and the like
customarily charged by such Issuing Banks with respect to standby
letters of credit.
3.9 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(b), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount paid by the Company during such month. In
addition, upon the request of the Administrative Agent, each Issuing Bank shall
furnish to the Administrative Agent copies of any Letter of Credit and any
application for or reimbursement agreement with respect to a Letter of Credit to
which the Issuing Bank is party and such other documentation as may reasonably
be requested by the Administrative Agent. Upon the request of any Lender, the
Administrative Agent will provide to such Lender information concerning such
Letters of Credit.
3.10 Indemnification; Exoneration.
(a) In addition to amounts payable as elsewhere provided in this
Article III, the Company hereby agrees to protect, indemnify, pay and
save harmless the Administrative Agent, each Issuing Bank and each
Lender from and against any and all liabilities and costs which the
Administrative Agent, such Issuing Bank or such Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance
of any Letter of Credit other than, in the case of the applicable
Issuing Bank, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of
competent jurisdiction, or (ii) the failure of the applicable Issuing
Bank to honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority (all such acts or
omissions herein called "Governmental Acts").
(b) As among the Company, the Lenders, the Administrative Agent and
the Issuing Banks, the Company assumes all risks of the acts and
omissions of, or misuse of such Letter of Credit by, the beneficiary
of any Letters of Credit. In furtherance and not in limitation of the
foregoing, subject to the provisions of the Letter of Credit
applications and Letter of Credit reimbursement agreements executed by
the Company at the time of request for any Letter of Credit, neither
the Administrative Agent, any Issuing Bank nor any Lender shall be
responsible (in the absence of gross negligence or willful misconduct
of such party in connection therewith, as determined by the final
judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for
and issuance of the Letters of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid
or ineffective for any reason; (iii) for failure of the beneficiary of
a Letter of Credit to comply duly with conditions not expressly
provided on the face of such Letter of Credit and required in order to
draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of
technical trade terms; (vi) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks and the Lenders, including,
without limitation, any Governmental Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Bank's rights or
powers under this Section 3.10.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any
Issuing Bank under or in connection with the Letters of Credit or any
related certificates shall not, in the absence of gross negligence or
willful misconduct, as determined by the final judgment of a court of
competent jurisdiction, put the applicable Issuing Bank, the
Administrative Agent or any Lender under any resulting liability to
the Company or relieve the Company of any of its obligations hereunder
to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company
contained in this Section 3.10 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
3.11 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of a Default, the Company shall, on the Business Day that it
receives the Administrative Agent's demand, deliver to the Administrative Agent
for the benefit of the Lenders and the Issuing Banks, cash, or other collateral
of a type satisfactory to the Required Lenders, having a value, as determined by
such Lenders, equal to one hundred percent (100%) of the aggregate Dollar Amount
of the outstanding L/C Obligations. In addition, if the Tranche C Revolving
Credit Availability is at any time less than the Dollar Amount of all contingent
L/C Obligations outstanding at any time, the Company shall deposit cash
collateral with the Administrative Agent in Dollars in an amount equal to
one-hundred five percent (105%) of the Dollar Amount by which such L/C
Obligations exceed such Tranche C Revolving Credit Availability. Any such
collateral shall be held by the Administrative Agent in a separate account
appropriately designated as a cash collateral account in relation to this
Agreement and the Letters of Credit and retained by the Administrative Agent for
the benefit of the Lenders and the Issuing Banks as collateral security for the
Company's obligations in respect of this Agreement and each of the Letters of
Credit and L/C Drafts. Such amounts shall be applied to reimburse the Issuing
Banks for drawings or payments under or pursuant to Letters of Credit or L/C
Drafts, or if no such reimbursement is required, to payment of such of the other
Obligations as the Administrative Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account established
pursuant to this Section 3.11 which are not to be applied to reimburse an
Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in
respect of a Letter of Credit or L/C Draft, shall be returned to the Company
within one (1) Business Day (after deduction of the Administrative Agent's
expenses incurred in connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement or any interpretation or
application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith, subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any Borrower
(excluding taxation of the overall net income of any Lender or taxation of a
similar basis, which are governed by Section 2.14(e)), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan Commitment,
Loans, its L/C Interests, the Letters of Credit or other amounts due it
hereunder, or imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency Rate Loans)
with respect to its Revolving Loan Commitment, Loans, L/C Interests or the
Letters of Credit, or imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Revolving Loan Commitment, Loans, the L/C
Interests or the Letters of Credit or reduces any amount received by any Lender
or any applicable Lending Installation in connection with its Revolving Loan
Commitment, Loans or Letters of Credit, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the amount
of Revolving Loan Commitment, Loans or L/C Interests held or interest received
by it or by reference to the Letters of Credit, by an amount deemed material by
such Lender; and the result of any of the foregoing is to increase the cost to
that Lender of making, renewing or maintaining its Revolving Loan Commitment,
Loans, L/C Interests, or Letters of Credit or to reduce any amount received
under this Agreement, then, within fifteen (15) days after receipt by the
Company or any other Borrower of written demand by such Lender pursuant to
Section 4.5, the applicable Borrowers shall pay such Lender that portion of such
increased expense incurred or reduction in an amount received which such Lender
reasonably determines is attributable to making, funding and maintaining its
Loans, L/C Interests, Letters of Credit and its Revolving Loan Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (a)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (b) such increase
in capital will result in an increase in the cost to such Lender of maintaining
its Revolving Loan Commitment, Loans, L/C Interests, the Letters of Credit or
its obligation to make Loans hereunder, then, within fifteen (15) days after
receipt by the Company or any other Borrower of written demand by such Lender
pursuant to Section 4.5, the applicable Borrowers shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Revolving Loan Commitment, its Loans, its
L/C Interests, the Letters of Credit or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"Change" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3 Availability of Types of Advances. If (a) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (b) the Required Lenders determine
that (i) deposits of a type, currency or maturity appropriate to match fund
Fixed-Rate Advances are not available or (ii) the interest rate applicable to a
Fixed-Rate Advance does not accurately reflect the cost of making or maintaining
such an Advance, then the Administrative Agent shall suspend the availability of
the affected Type of Advance and, in the case of any occurrence set forth in
clause (a), require any Advances of the affected Type to be repaid or converted
into another Type.
4.4 Funding Indemnification. If any payment of a Fixed-Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Fixed-Rate
Advance is not made on the date specified by the applicable Borrower for any
reason other than default by the Lenders, the Borrowers shall indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed-Rate Advance or Swing Line Loan, as
applicable.
4.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of any Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not, in such Lender's
judgment, disadvantageous to such Lender. Any demand for compensation pursuant
to this Article IV shall be in writing and shall state the amount due, if any,
under Section 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Fixed-Rate Loan shall be
calculated as though each Lender funded its Fixed-Rate Loan through the purchase
of a deposit of the type, currency and maturity corresponding to the deposit
used as a reference in determining the Fixed-Rate applicable to such Loan,
whether in fact that is the case or not. The obligations of the Company and the
other Borrowers under Sections 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Effectiveness. The amendment and restatement of the Existing Credit
Agreement (and the obligations of the Lenders to continue the Existing Loans as
Loans under this Agreement) shall become effective when the Company has
furnished to the Administrative Agent each of the following, with sufficient
copies for the Lenders, and the other conditions set forth below have been
satisfied:
(a) Copies of the Certificate of Incorporation or equivalent document
of each of the Loan Parties, together with all amendments thereto,
and, to the extent applicable, a certificate of good standing, in each
case certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of each
of the Loan Parties of their respective Board of Directors'
resolutions authorizing the execution of the Loan Documents.
(c) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name
and title and bear the signature of the officers of the applicable
Loan Party authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Lenders shall be
entitled to rely until informed of any change in writing by the
applicable Loan Party.
(d) A certificate, in form and substance satisfactory to the
Administrative Agent, executed by the chief financial officer of the
Company, stating that on the Amendment Effective Date, all the
representations and warranties of the Loan Parties in the Loan
Documents are true and correct (unless such representation and
warranty is made as of a specific date, in which case, such
representation and warranty shall be true as of such date) and no
Default or Unmatured Default has occurred and is continuing.
(e) A reaffirmation of the Guaranty, in form and substance
satisfactory to the Administrative Agent, dated as of the Amendment
Effective Date, executed by the Secretary or Assistant Secretary of
each Subsidiary Borrower that is a Domestic Subsidiary and each other
Domestic Subsidiary of the Company as required pursuant to Section
7.2(k).
(f) Written opinions of the Loan Parties' United States counsel, and,
if applicable, foreign counsel, addressed to the Administrative Agent
and the Lenders, in form and substance satisfactory to the
Administrative Agent.
(g) Such other documents as the Administrative Agent or its counsel or
the Required Lenders may have reasonably requested.
(h) There shall not have occurred a material adverse change since
December 31, 2001 in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole.
(i) The Administrative Agent, Lenders and/or their Affiliates shall
have received all fees and expenses, including the reasonable fees and
expenses of Mayer, Brown, ▇▇▇▇ & Maw, required to be paid on or before
the Amendment Effective Date.
5.2 Initial Advance to Each New Subsidiary Borrower. No Lender shall be
required to make an Advance hereunder or purchase participations in Letters of
Credit or Alternate Currency Loans hereunder, no Swing Line Bank shall be
required to make any Swing Line Loans hereunder, and no Alternate Currency Bank
shall be required to make any Alternate Currency Loans, in each case, to or for
the account of a new Subsidiary Borrower added after the Amendment Effective
Date unless the Company has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders:
(a) The Assumption Letter executed and delivered by such Subsidiary
Borrower and containing the written consent of the Company thereon, as
contemplated by Section 2.24.
(b) Copies, certified by the Secretary, Assistant Secretary, Director
or Officer of the Subsidiary Borrower, of its Board of Directors'
resolutions approving the Assumption Letter.
(c) An incumbency certificate, executed by the Secretary, Assistant
Secretary, Director or Officer of the Subsidiary Borrower, which shall
identify by name and title and bear the signature of the officers of
such Subsidiary Borrower authorized to sign the Assumption Letter and
the other documents to be executed and delivered by such Subsidiary
Borrower hereunder, upon which certificate the Administrative Agent and
the Lenders shall be entitled to rely until informed of any change in
writing by the Company.
(d) An opinion of counsel to such Subsidiary Borrower, in form and
substance satisfactory to the Administrative Agent.
(e) Guaranty documentation and contribution agreement documentation
from such Subsidiary Borrower in form and substance satisfactory to the
Administrative Agent.
(f) With respect to the initial Advance made to any Subsidiary Borrower
organized under the laws of England and Wales, the Administrative Agent
shall have received originals and/or copies, as applicable, of all
filings required to be made and such other evidence as the
Administrative Agent may require establishing to the Administrative
Agent's satisfaction that each Lender and Issuing Bank is entitled to
receive payments under the Loan Documents without deduction or
withholding of any English taxes or with such deductions and
withholding of English taxes as may be acceptable to the Administrative
Agent.
5.3 Each Advance and Each Letter of Credit. The Lenders shall not be
required to make any Loan, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(a) There exists no Default or Unmatured Default and no Default or
Unmatured Default would result after giving effect to the making of
any Loan or issuance of any Letter of Credit;
(b) All of the representations and warranties contained in Article VI
are true and correct as of such Borrowing Date (unless such
representation and warranty is made as of a specific date, in which
case, such representation and warranty shall be true as of such date);
(c) (i) The Tranche A Revolving Credit Obligations do not, and after
making such proposed Advance would not, exceed the Aggregate Tranche A
Revolving Loan Commitment, (ii) the Tranche B Revolving Credit
Obligations do not, and after making such proposed Advance would not,
exceed the Aggregate Tranche B Revolving Loan Commitment, (ii) the
Tranche C Revolving Credit Obligations do not, and after making such
proposed Advance or issuing such Letter of Credit would not, exceed
the Aggregate Tranche C Revolving Loan Commitment and (iv) the Tranche
D Revolving Credit Obligations do not, and after making such proposed
Advance would not, exceed the Aggregate Tranche D Revolving Loan
Commitment; and
(d) the Administrative Agent has received a timely Borrowing Notice
with respect to the applicable Loan.
Each Borrowing/Conversion/Continuation Notice with respect to a new
Advance and the letter of credit application with respect to each Letter of
Credit or Letter of Credit amendment shall constitute a representation and
warranty by the Company that the conditions contained in Sections 5.3(a), (b)
and (c) have been satisfied.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement, to continue the Existing Loans hereunder and to make the
Loans and the other financial accommodations to the Borrowers and to issue the
Letters of Credit described herein, each of the Borrowers represents and
warrants as follows to each Lender and the Administrative Agent as of the date
of this Agreement, giving effect to the consummation of the transactions
contemplated by the Loan Documents, and thereafter on each date as required by
Sections 5.2 and 5.3:
6.1 Organization; Corporate Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2 Authorization and Validity. Each of the Loan Parties has the
requisite power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by each of the Loan Parties of the Loan Documents to
which it is a party and the performance of its obligations thereunder have been
duly authorized by proper proceedings, and the Loan Documents to which it is a
party constitute legal, valid and binding obligations of each of the Loan
Parties enforceable against each of the Loan Parties in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
6.3 No Conflict; Government Consent. Neither the execution and delivery
by the Loan Parties of the Loan Documents, nor the consummation of the
transactions contemplated thereby, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any Subsidiary or the Company's or any
Subsidiary's articles of incorporation or by-laws or other constitutive
documents and agreements or the provisions of any material indenture, instrument
or agreement to which the Company or any Subsidiary is a party or is subject, or
by which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on the
property of the Company or any of its Subsidiaries pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize any Loan Party, or is required to be obtained
by any Loan Party in connection with the execution, delivery and performance of,
or the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4 Financial Statements. Each of the consolidated financial statements
of the Company and its Subsidiaries for the fiscal years ended January 2, 1998,
January 1, 1999 and December 31, 1999 were prepared in accordance with Agreement
Accounting Principles and fairly present the consolidated financial condition
and operations of the Company and its Subsidiaries at such dates and the
consolidated results of their operations for the periods then ended.
6.5 Material Adverse Change. Since December 31, 2001, there has
occurred no change in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects, of the Company, or
the Company and its Subsidiaries taken as a whole, or any other event which has
had or could reasonably be expected to have a Material Adverse Effect.
6.6 Taxes. The Company and the Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided. No tax liens have been filed and no claims are being asserted
with respect to any such taxes. The charges, accruals and reserves on the books
of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
6.7 Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of the Borrowers, threatened against or affecting the
Company or any of its Subsidiaries (a) challenging the Spectra Precision
Acquisition or the validity or enforceability of any material provision of the
Loan Documents or (b) which could reasonably be expected to have a Material
Adverse Effect. There is no material loss contingency within the meaning of
Agreement Accounting Principles which has not been reflected in the consolidated
financial statements of the Company or prepared and delivered pursuant to
Section 7.1(a) for the fiscal period during which such material loss contingency
was incurred. Neither the Company nor any of its Subsidiaries is subject to or
in default with respect to any final judgment, writ, injunction, restraining
order or order of any nature, decree, rule or regulation of any court or
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect.
6.8 Subsidiaries. Schedule 6.8 hereto contains an accurate list of all
of the Subsidiaries of the Company in existence on the Amendment Effective Date,
setting forth their respective jurisdictions of formation and the percentage of
their respective capital stock owned directly or indirectly by the Company or
other Subsidiaries. All of the issued and outstanding Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable. Except as set forth on Schedule 6.8, no authorized but unissued
or treasury shares of capital stock of any Subsidiary are subject to any option,
warrant, right to call or commitment of any kind or character. Except as set
forth on Schedule 6.8, neither the Company nor any Subsidiary has any
outstanding stock or securities convertible into or exchangeable for any shares
of its capital stock, or any right issued to any Person (either preemptive or
other) to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to any of its capital
stock or any stock or securities convertible into or exchangeable for any of its
capital stock other than as expressly set forth in the certificate or articles
of incorporation of the Company or such Subsidiary. Neither the Company nor any
Subsidiary is subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any shares of its capital stock or any
convertible securities, rights or options of the type described in the preceding
sentence except as otherwise set forth on Schedule 6.8. Except as set forth on
Schedule 6.8, as of the date hereof the Company does not own or hold, directly
or indirectly, any capital stock or equity security of, or any equity or
partnership interest in any Person other than such Subsidiaries.
6.9 ERISA. As at December 31, 1999 the Unfunded Liabilities of all
Single Employer Plans did not in the aggregate exceed $5,000,000. Each Plan
complies and has been maintained in all material respects with all applicable
requirements of law and regulations. No Reportable Event has occurred with
respect to any Single Employer Plan having any Unfunded Liability which has or
may reasonably be expected to result in a liability to the Company in excess of
$10,000,000. Neither the Company nor any other members of the Controlled Group
has terminated any Single Employer Plan without in each instance funding all
vested benefit obligations thereunder. Each member of the Controlled Group has
fulfilled its minimum funding obligations with respect to each Multiemployer
Plan. No Termination Event has occurred or is reasonably expected to occur.
There are no material actions, suits or claims (other than routine claims for
benefits) pending or, to the knowledge of the Company or its Subsidiaries,
threatened with respect to any Plan or Multiemployer Plan.
6.10 Accuracy of Information. None of the (a) information, exhibits or
reports furnished or to be furnished by the Company or any Subsidiary to the
Administrative Agent or to any Lender in connection with the negotiation of the
Loan Documents, or (b) representations or warranties of the Company or any
Subsidiary contained in this Agreement, the other Loan Documents or any other
document, certificate or written statement furnished to the Administrative Agent
or the Lenders by or on behalf of the Company or any Subsidiary for use in
connection with the transactions contemplated by this Agreement, contained,
contains or will contain any untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. The pro forma financial information
contained in such materials is based upon good faith estimates and assumptions
believed by the Company to be reasonable at the time made. There is no fact
known to the Company (other than matters of a general economic nature) that has
had or could reasonably be expected to have a Material Adverse Effect and that
has not been disclosed herein or in such other documents, certificates and
statements furnished to the Lenders for use in connection with the transactions
contemplated by this Agreement. No information, exhibit or report furnished by
the Company or any Subsidiary to any Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not materially
misleading.
6.11 Regulation U. Margin Stock constitutes less than 25% of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
6.12 Material Agreements. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation the performance of which
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is subject to any charter or other
restriction in any constitutive agreement or document affecting its business,
properties, financial condition, prospects or results of operations which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any Contractual
Obligation to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
6.13 Compliance With Laws. The Company and its Subsidiaries have
complied with all Requirements of Law except to the extent that such
non-compliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received any notice to the
effect that its operations are not in material compliance with any Requirements
of Law or the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
6.14 Ownership of Properties. On the Amendment Effective Date, the
Company and its Subsidiaries have good title, free of all Liens, to all of the
properties and assets reflected in its December 31, 2001 audited financial
statements as owned by it (other than properties and assets disposed of in the
ordinary course of business since such date), except Liens permitted under
Section 7.3(c).
6.15 Statutory Indebtedness Restrictions. Neither the Company nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Environmental Matters. Each of the Company and its Subsidiaries is
in compliance with all Environmental, Health or Safety Requirements of Laws in
effect in each jurisdiction where it is presently doing business and as to which
the failure to so comply, in the aggregate for all such failures, would
reasonably be likely to subject the Company to liability that would have a
Material Adverse Effect. Neither the Company nor any Subsidiary is subject to
any liability under the Environmental, Health or Safety Requirements of Laws in
effect in any jurisdiction where it is presently doing business that could
reasonably be expected to have a Material Adverse Effect. As of the date hereof,
neither the Company nor any Subsidiary has received any:
(a) notice from any Governmental Authority by which any of the
Company's or such Subsidiary's present or previously-owned or leased
property has been identified in any manner by any such Governmental
Authority as a hazardous substance disposal or removal site, "Super
Fund" clean-up site or candidate for removal or closure pursuant to any
Environmental, Health or Safety Requirements of Law; or
(b) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has attached
to any of the Company's or such Subsidiary's owned or leased property
or any revenues of the Company's or such Subsidiary's owned or leased
property; or
(c) communication, written or oral, from any Governmental Authority
concerning action or omission by the Company or such Subsidiary in
connection with its ownership or leasing of any property resulting in
the release of any hazardous substance resulting in any violation of
any Environmental, Health or Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse Effect.
6.17 Insurance. The properties and assets and business of the Company
and its Subsidiaries are insured with financially sound and reputable insurance
companies not Subsidiaries of the Company, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and are similarly situated.
6.18 Labor Matters. As of the Amendment Effective Date, no labor
disputes, strikes or walkouts affecting the operations of the Company or any of
its Subsidiaries, are pending, or, to the Company's knowledge, threatened,
planned or contemplated which could reasonably be expected to have a Material
Adverse Effect.
6.19 Solvency. After giving effect to (i) the extensions of credit made
hereunder on the Closing Date or such other date as Loans requested hereunder
were made, (ii) the other transactions contemplated by this Agreement and the
other Loan Documents, including the Spectra Precision Acquisition, and (iii) the
payment and accrual of all transaction costs with respect to the foregoing, the
Company and its Subsidiaries are Solvent.
6.20 Default. No Default or Unmatured Default has occurred and is
continuing.
6.21 Foreign Employee Benefit Matters.
(a) Each Foreign Employee Benefit Plan is in compliance in all
material respects with all laws, regulations and rules applicable
thereto and the respective requirements of the governing documents for
such Plan;
(b) the aggregate of the accumulated benefit obligations under all
Foreign Pension Plans does not exceed to any material extent the
current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans;
(c) with respect to any Foreign Employee Benefit Plan (other than a
Foreign Pension Plan), reasonable reserves have been established in
accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction in which such Plan
is maintained; and (d) there are no material actions, suits or claims
(other than routine claims for benefits) pending or, to the knowledge
of the Company and its Subsidiaries, threatened against the Company or
any Subsidiary of it or any member of its Controlled Group with
respect to any Foreign Employee Benefit Plan.
6.22 Acquisition Documents. The Acquisition Documents as originally
executed and delivered by the parties thereto have not been amended, waived,
supplemented or modified without the consent of the Administrative Agent. The
representations and warranties of the Company set forth therein and, to the
knowledge of the Company, the representations and warranties of the other
parties set forth therein are true and correct in all material respects as of
the date thereof. On the date of this Agreement, neither the Company nor any
other party to any of the Acquisition Documents is in default in the performance
of or compliance with any provisions under the Acquisition Documents. The
Spectra Precision Acquisition (other than certain modifications to the corporate
structure of the Seller's European holdings in a manner acceptable to the
Administrative Agent) has been consummated in accordance with applicable laws
and regulations.
6.23 Collateral Documents. All representations and warranties of the
Borrowers contained in the Collateral Documents are true and correct.
6.24 Security. The provisions of the Collateral Documents are effective
to create and give the Administrative Agent, for the benefit of the Lenders, as
security for the repayment of the obligations secured thereby, a legal, valid,
perfected and enforceable Lien (which priority is subject only to prior Liens
permitted by such agreements) upon all right, title and interest of the Company
and its Subsidiaries in any and all of the Collateral described therein. The
Mortgages, upon their execution and delivery, will be effective to create and
give the Administrative Agent, for the benefit of the Lenders, as security for
repayment of the obligations to be secured thereby, a legal, valid, perfected
and enforceable Lien (which priority will be subject only to prior Liens
permitted by such mortgages) upon all right, title and interest of the Borrowers
in the Collateral described therein. The Pledge Agreement is effective to create
and give the Administrative Agent, for the benefit of the Lenders, as security
for the repayment of the obligations secured thereby, a legal, valid, perfected
and enforceable first priority Lien upon and security interest in the capital
stock pledged thereby.
6.25 Subordinated Seller Debt. Each Borrower incurring the same has the
corporate power and authority to incur the Indebtedness evidenced by the
Subordinated Seller Debt. The subordination provisions of the Subordinated
Seller Debt will be enforceable against the holders of the Subordinated Seller
Debt by any Holder of Obligations which has not effectively waived the benefits
thereof. All Obligations, including the Obligations to pay principal of and
interest on the Loans, constitute senior Indebtedness entitled to the benefits
of subordination created by the Subordinated Seller Debt. The Borrowers
acknowledge that the Administrative Agent and each Lender are entering into this
Agreement and are extending the Aggregate Revolving Loan Commitment and Term
Loans in reliance upon the subordination provisions of the Subordinated Seller
Note and this Section 6.25.
6.26 Subsidiaries. Except as set forth on Schedule 6.8, each Subsidiary
of the Company is a Wholly-Owned Subsidiary.
6.27 Representations and Warranties of each Subsidiary Borrower.
Each Subsidiary Borrower further represents and warrants to the Administrative
Agent and the Lenders that:
(a) Organization and Corporate Powers. Such Subsidiary Borrower (i) is
a company duly formed and validly existing and in good standing under
the laws of the state or country of its organization (such jurisdiction
being hereinafter referred to as the "Home Country"); (ii) has the
requisite power and authority to own its property and assets and to
carry on its business substantially as now conducted except where the
failure to have such requisite authority would not have a material
adverse effect on such Subsidiary Borrower; and (iii) has the requisite
power and authority and legal right to execute and deliver any
Alternate Currency Addendum to which it is a party and each other Loan
Document to which it is a party and the performance by it of its
obligations thereunder have been duly authorized by proper corporate
proceedings.
(b) Binding Effect. Each Loan Document, including, without limitation,
any Alternate Currency Addendum, executed by such Subsidiary Borrower
is the legal, valid and binding obligations of such Subsidiary Borrower
enforceable in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and general
equitable principles.
(c) No Conflict; Government Consent. Neither the execution and delivery
by such Subsidiary Borrower of the Loan Documents to which it is a
party, nor the consummation by it of the transactions therein
contemplated to be consummated by it, nor compliance by such Subsidiary
Borrower with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding
on such Subsidiary Borrower or any of its Subsidiaries or such
Subsidiary Borrower's or any of its Subsidiaries' memoranda or articles
of association or the provisions of any indenture, instrument or
agreement to which such Subsidiary Borrower or any of its Subsidiaries
is a party or is subject, or by which it, or its property, is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any lien in, of or on the property of such
Subsidiary Borrower or any of its Subsidiaries pursuant to the terms of
any such indenture, instrument or agreement in any such case which
violation, conflict, default, creation or imposition could reasonably
be expected to have a material adverse effect on such Subsidiary
Borrower. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption
by, any governmental agency is required to authorize, or is required in
connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the
Loan Documents.
(d) Filing. To ensure the enforceability or admissibility in evidence
of this Agreement and each Loan Document to which such Subsidiary
Borrower is a party (including, without limitation, any Alternate
Currency Addendum) in its Home Country, it is not necessary that this
Agreement or any other Loan Document to which such Subsidiary Borrower
is a party or any other document be filed or recorded with any court or
other authority in its Home Country or that any stamp or similar tax be
paid to or in respect of this Agreement or any other Loan Document of
such Subsidiary Borrower. The qualification by any Lender or the
Administrative Agent for admission to do business under the laws of
such Subsidiary Borrower's Home Country does not constitute a condition
to, and the failure to so qualify does not affect, the exercise by any
Lender or the Administrative Agent of any right, privilege, or remedy
afforded to any Lender or the Administrative Agent in connection with
the Loan Documents to which such Subsidiary Borrower is a party or the
enforcement of any such right, privilege, or remedy against such
Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii)
result in any tax or other monetary liability to such party pursuant to
the laws of such Subsidiary Borrower's Home Country or political
subdivision or taxing authority thereof (provided that, should any such
action result in any such tax or other monetary liability to the Lender
or the Administrative Agent, the Borrowers hereby agree to indemnify
such Lender or the Administrative Agent, as the case may be, against
(x) any such tax or other monetary liability and (y) any increase in
any tax or other monetary liability which results from such action by
such Lender or the Administrative Agent and, to the extent the
Borrowers make such indemnification, the incurrence of such liability
by the Administrative Agent or any Lender will not constitute a
Default) or (iii) violate any rule or regulation of any federation or
organization or similar entity of which the such Subsidiary Borrower's
Home Country is a member.
(e) No Immunity. Neither such Subsidiary Borrower nor any of its assets
is entitled to immunity from suit, execution, attachment or other legal
process. Such Subsidiary Borrower's execution and delivery of the Loan
Documents to which it is a party constitute, and the exercise of its
rights and performance of and compliance with its obligations under
such Loan Documents will constitute, private and commercial acts done
and performed for private and commercial purposes.
(f) Application of Representations and Warranties. It is understood and
agreed by the parties hereto that the representations and warranties of
each Subsidiary Borrower (other than any Subsidiary Borrower that shall
be a Subsidiary Borrower as of the Amendment Effective Date) in this
Section 6.27 shall only be applicable to such Subsidiary Borrower on
and after the date of its execution of an Assumption Letter and, if
applicable, an Alternate Currency Addendum.
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1 Reporting. The Company shall:
(a) Financial Reporting. Furnish to the Administrative Agent and the
Lenders:
(i) Quarterly Reports. As soon as practicable and in any event
within forty-five (45) days after the end of the first three quarterly
periods of each of its fiscal years, for itself and the Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the end
of each such period and consolidated and consolidating statement of
income and consolidated and consolidating statement of changes in
owners' equity, and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, presented on
the same basis as described in Section 7.1(a)(ii) and on a comparative
basis with the statements for such period in the prior fiscal year of
the Company.
(ii) Annual Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each of its fiscal years, (a)
an audit report, certified (as to consolidated, but not consolidating
statements) by internationally recognized independent certified public
accountants, prepared in accordance with generally accepted accounting
principles, on a consolidated and consolidating basis for itself and
the Subsidiaries, including balance sheets as of the end of such
period, related statement of income and consolidated and consolidating
statement of changes in owners' equity, and a statement of cash flows,
which audit report shall be unqualified and shall state that such
financial statements fairly present the consolidated financial position
of the Company and its Subsidiaries as at the dates indicated and the
results of operations and cash flows for the periods indicated in
conformity with generally accepted accounting principles and that the
examination by such accountants in connection with such consolidated
and consolidating financial statements has been made in accordance with
generally accepted auditing standards and (b) projected balance sheets,
statements of income and cash flows for each fiscal year through the
Termination Date, prepared in accordance with generally accepted
accounting principles, on a consolidated basis, together with the
appropriate supporting details and a statement of underlying
assumptions, all in form similar to those delivered to the Lenders
prior to the Closing Date.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 7.1(a), an Officer's Certificate of the Company, substantially
in the form of Exhibit E attached hereto and made a part hereof,
stating that as of the date of such Officer's Certificate no Default or
Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof and (b) pursuant to
clauses (i) and (ii) of this Section 7.1(a), a compliance certificate,
substantially in the form of Exhibit F attached hereto and made a part
hereof, signed by the Company's chief financial officer, chief
accounting officer or treasurer, setting forth calculations for the
period then ended for Section 2.5(b), if applicable, which demonstrate
compliance, when applicable, with the provisions of Sections 7.3(a)
through (h), Section 7.3(p) and Section 7.4, and which calculate the
Leverage Ratio for purposes of determining the then Applicable Floating
Rate Margin, Applicable Eurocurrency Margin and Applicable Commitment
Fee Percentage.
(b) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer,
controller or other executive officer of the Company obtaining actual
knowledge (i) of any condition or event which constitutes a Default or
Unmatured Default, (ii) that any Lender or Administrative Agent has
given any written notice to any Authorized Officer with respect to a
claimed Default or Unmatured Default under this Agreement, or (iii)
that any Person has given any written notice to any Authorized Officer
or any Subsidiary of the Company or taken any other action with respect
to a claimed default or event or condition of the type referred to in
Section 8.1(d), the Company shall deliver to the Administrative Agent
and the Lenders an Officer's Certificate specifying (A) the nature and
period of existence of any such claimed default, Default, Unmatured
Default, condition or event, (B) the notice given or action taken by
such Person in connection therewith, and (C) what action the Company
has taken, is taking or proposes to take with respect thereto.
(c) Lawsuits. (i) Promptly upon the Company obtaining actual knowledge
of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration, by or before any
Governmental Authority, against or affecting the Company or any of its
Subsidiaries or any property of the Company or any of its Subsidiaries
not previously disclosed pursuant to Section 6.7, which action, suit,
proceeding, governmental investigation or arbitration exposes, or in
the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of its Subsidiaries to liability in an
amount aggregating $5,000,000 or more (exclusive of claims covered by
insurance policies of the Company or any of its Subsidiaries unless the
insurers of such claims have disclaimed coverage or reserved the right
to disclaim coverage on such claims), give written notice thereof to
the Administrative Agent and the Lenders and provide such other
information as may be reasonably available to enable each Lender and
the Administrative Agent and its counsel to evaluate such matters; and
(ii) in addition to the requirements set forth in clause (i) of this
Section 7.1(c), upon request of the Administrative Agent or the
Required Lenders, promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration
covered by a report delivered pursuant to clause (i) above and provide
such other information as may be reasonably available to it to enable
the Required Lenders and the Administrative Agent and its counsel to
evaluate such matters.
(d) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the
following information and notices as soon as reasonably possible, and
in any event:
(i) within ten (10) Business Days after the Company or any
member of the Controlled Group obtains knowledge that a Termination
Event has occurred or a lawsuit involving a Plan or Multiemployer Plan
has been filed, in each case which could reasonably be expected to
subject the Company to liability in excess of $5,000,000, a written
statement of the chief financial officer, treasurer or designee of the
Company describing such Termination Event and the action, if any, which
the member of the Controlled Group has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company or any of
its Subsidiaries obtains knowledge that a material prohibited
transaction (defined in Sections 406 of ERISA and Section 4975 of the
Code) has occurred, a statement of the chief financial officer,
treasurer or designee of the Company describing such transaction and
the action which the Company or such Subsidiary has taken, is taking or
proposes to take with respect thereto;
(iii) within ten (10) Business Days after the Company or any
of its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under Section
401(a) of the Code, copies of each such letter;
(iv) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by the Company or a
member of the Controlled Group with respect to such request;
(v) within ten (10) Business Days after receipt by the Company
or any member of the Controlled Group of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to administer a
Benefit Plan, copies of each such notice;
(vi) within ten (10) Business Days after the Company or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Code on or before
the due date for such installment or payment, a notification of such
failure;
(vii) within ten (10) Business Days after the establishment of
any Foreign Employee Benefit Plan or the commencement of, or obligation
to commence, contributions to any Foreign Employee Benefit Plan to
which the Company or any Subsidiary was not previously contributing,
where the aggregate annual contributions to such Plan(s) resulting
therefrom are or could reasonably be expected to be in excess of
$5,000,000, notification of such establishment, commencement or
obligation to commence and the amount of such contributions; and
For purposes of this Section 7.1(d), the Company, any of its Subsidiaries
and any member of the Controlled Group shall be deemed to know all facts known
by the administrator of any Plan which is a Single Employer Plan.
(e) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any
material labor dispute to which the Company or any of its Subsidiaries
may become a party, including, without limitation, any strikes,
lockouts or other disputes relating to such Persons' plants and other
facilities and (ii) any material Worker Adjustment and Retraining
Notification Act liability incurred with respect to the closing of any
plant or other facility of the Company or any of its Subsidiaries.
(f) Other Indebtedness. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or
actual defaults (including any accompanying officer's certificate)
delivered by or on behalf of the Company to the holders of Indebtedness
for money borrowed with an aggregate outstanding principal amount in
excess of $10,000,000 pursuant to the terms of the agreements governing
such Indebtedness, such delivery to be made at the same time and by the
same means as such notice of default is delivered to such holders, and
(ii) a copy of each notice or other communication received by the
Company from the holders of Indebtedness for money borrowed with an
aggregate outstanding principal amount in excess of $10,000,000
regarding potential or actual defaults pursuant to the terms of such
Indebtedness, such delivery to be made promptly after such notice or
other communication is received by the Company.
(g) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial
statements, reports on Form ▇-▇, ▇-▇, ▇▇-▇ or 10-Q and non-routine
notices, if any, sent or made available generally by the Company to its
securities holders or filed with the Commission by the Company, and
(ii) all notifications received from the Commission by the Company or
its Subsidiaries pursuant to the Securities Exchange Act of 1934 and
the rules promulgated thereunder other than routine reminders or
notices that do not relate to specific violations of rules promulgated
by the Commission. The Company shall include the Administrative Agent
and the Lenders on its standard distribution lists for all press
releases made available generally by the Company or any of the
Company's Subsidiaries to the public concerning material developments
in the business of the Company or any such Subsidiary.
(h) Environmental Notices. As soon as possible and in any event within
fifteen (15) days after receipt by the Company, deliver to the
Administrative Agent and the Lenders a copy of (i) any notice or claim
to the effect that the Company or any of its Subsidiaries is or may be
liable to any Person as a result of the Release by the Company, any of
its Subsidiaries, or any other Person of any Contaminant into the
environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by the Company or
any of its Subsidiaries if, in either case, such notice or claim
relates to an event which could reasonably be expected to subject the
Company and each of its Subsidiaries to liability individually or in
the aggregate in excess of $10,000,000.
(i) Other Information. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative
Agent and the Lenders such other information with respect to the
Company or any of its Subsidiaries, as from time to time may be
reasonably requested by the Administrative Agent.
7.2 Affirmative Covenants.
(a) Corporate Existence, Etc. Subject to Section 7.3(i), the Company
shall, and shall cause each of its Subsidiaries to, at all times
maintain its corporate existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and franchises
material to its businesses except where, in the case of Subsidiaries
which are not Subsidiary Borrowers, failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Corporate Powers; Conduct of Business. The Company shall, and shall
cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business
requires it to be so qualified and where the failure to be so qualified
will have or could reasonably be expected to have a Material Adverse
Effect.
(c) Compliance with Laws, Etc. The Company shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, prospects,
properties, assets or operations of such Person, and (b) obtain as
needed all permits necessary for its operations and maintain such
permits in good standing unless failure to comply or obtain such
permits could not reasonably be expected to have a Material Adverse
Effect.
(d) Payment of Taxes and Claims; Tax Consolidation. The Company shall
pay, and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of
its properties or assets or in respect of any of its franchises,
business, income or property before any penalty or interest accrues
thereon, and (ii) all claims (including, without limitation, claims for
labor, services, materials and supplies) for material sums which have
become due and payable and which by law have or may become a Lien
(other than a Lien permitted by Section 7.3(c)) upon any of the
Company's or such Subsidiary's property or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto;
provided that no such taxes, assessments and governmental charges
referred to in clause (i) above or claims referred to in clause (ii)
above (and interest, penalties or fines relating thereto) need be paid
if being contested in good faith by appropriate proceedings diligently
instituted and conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(e) Insurance. The Company will maintain, and will cause to be
maintained on behalf of each of its Subsidiaries, insurance coverage by
financially sound and reputable insurance companies or associations,
against such casualties and contingencies, of such types and in such
amounts as are customary for companies engaged in similar businesses
and owning and operating similar properties, it being understood that
the Company and its Subsidiaries may self-insure against hazards and
risks with respect to which, and in such amounts, as the Company in
good faith determines prudent and consistent with sound financial
practice, and as are customary for companies engaged in similar
businesses and owning and operating similar properties. The Company
shall furnish to any Lender upon request full information as to the
insurance carried.
(f) Inspection of Property; Books and Records; Discussions. The Company
shall permit and cause each of the Company's Subsidiaries to permit,
any authorized representative(s) designated by either the
Administrative Agent or the Required Lenders to visit and inspect, for
a reasonable purpose, any of the properties of the Company or any of
its Subsidiaries, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental
compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and their independent
certified public accountants, all upon reasonable notice and at such
reasonable times during normal business hours, as often as may be
reasonably requested. The Company shall keep and maintain, and cause
each of the Company's Subsidiaries to keep and maintain proper books of
record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in
relation to their respective businesses and activities.
(g) ERISA Compliance. The Company shall, and shall cause each of the
Company's Subsidiaries to, establish, maintain and operate all Plans
(and, to the extent it is within the power of the Company or a
Subsidiary, all Multiemployer Plans) to comply in all material respects
with the provisions of ERISA, the Code, all other applicable laws, and
the regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans.
(h) Maintenance of Property. The Company shall cause all property used
or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and shall cause
to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times and except to the
extent that the failure to so maintain such property could not be
reasonably expected to have a Material Adverse Effect.
(i) Environmental Compliance. The Company shall, and shall cause each
of the Company's Subsidiaries to comply with, all Environmental, Health
or Safety Requirements of Law, except where noncompliance could not
reasonably be expected to have a Material Adverse Effect.
(j) Use of Proceeds. The Borrowers shall use the proceeds of the
Advances to make payments on the Seller Subordinated Note (subject to
the provisions of this Agreement and the subordination provisions of
the Seller Subordinated Note) and to provide funds for the additional
working capital needs and other general corporate purposes of the
Company and its Subsidiaries, including, without limitation, the
financing of Permitted Acquisitions. The Company will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Advances to
make any Acquisition other than a Permitted Acquisition made pursuant
to Section 7.3(g).
(k) Subsidiary Guarantees; Subsidiary Subordination Agreement. The
Company will:
(i) cause each Subsidiary Borrower that is a Domestic Subsidiary
and each Domestic Subsidiary that has assets with a book value in
excess of $10,000,000 to execute the Guaranty (and from and after the
Amendment Effective Date cause each other Subsidiary Borrower that is
a Domestic Subsidiary and each other Domestic Subsidiary which has
such assets to execute and deliver to the Administrative Agent, within
ten (10) days after becoming a Subsidiary Borrower or another Domestic
Subsidiary which has such assets, as applicable, an assumption or
joinder agreement pursuant to which it agrees to be bound by the terms
and provisions of the Guaranty (whereupon such Subsidiary shall become
a "Guarantor" under this Agreement)) and cause such Guarantors to
execute and deliver to the Administrative Agent such Collateral
Documents as the Administrative Agent may require;
(ii) in the event that at any time the book value of the assets
of all Domestic Subsidiaries which are not Guarantors exceeds the
lesser of (a) twelve percent (12%) of the Consolidated Net Assets of
the Company and its Subsidiaries at such time and (b) $25,000,000,
within ten (10) days thereafter cause one or more of such Subsidiaries
to execute and deliver to the Administrative Agent an assumption or
joinder agreement pursuant to which it or they agree to be bound by
the terms and provisions of the Guaranty (whereupon each such
Subsidiary shall become a "Guarantor" under this Agreement) such that,
after giving effect thereto, the book value of the assets of all
Domestic Subsidiaries which are not Guarantors does not exceed the
lesser of (a) twelve percent (12%) of the Consolidated Net Assets of
the Company and its Subsidiaries at such time and (b) $25,000,000, and
cause such Guarantors to execute and deliver to the Administrative
Agent such Collateral Documents as the Administrative Agent may
require;
(iii) cause each Subsidiary, before it makes a loan to any of the
Borrowers, to execute the Subordination Agreement (and from and after
the Amendment Effective Date cause each other Subsidiary to execute
and deliver to the Administrative Agent, within ten (10) days after
becoming a Subsidiary, as applicable, an assumption or joinder
agreement pursuant to which it agrees to be bound by the terms and
provisions of the Subordination Agreement);
(iv) deliver and cause such Subsidiaries to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably request, all
in form and substance reasonably satisfactory to the Administrative
Agent; and
(v) cause each Subsidiary to be a Wholly-Owned Subsidiary, except
as set forth on Schedule 6.8.
(l) Foreign Employee Benefit Compliance. The Company shall, and shall
cause each of its Subsidiaries and each member of its Controlled Group
to, establish, maintain and operate all Foreign Employee Benefit Plans
to comply in all material respects with all laws, regulations and rules
applicable thereto and the respective requirements of the governing
documents for such Plans, except for failures to comply which, in the
aggregate, would not be reasonably expected to subject the Company or
any of its Subsidiaries to liability, individually or in the aggregate,
in excess of $5,000,000.
(m) Subordinated Seller Debt. The Company shall, and shall cause each
of its Subsidiaries to, comply at all times with each covenant
contained in the documents evidencing the Subordinated Seller Debt and
shall not permit any potential or actual defaults to occur with respect
to the Seller Subordinated Debt.
7.3 Negative Covenants.
(a) Sales of Assets. The Company shall not, nor shall it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or
without recourse or consummate any Asset Sale, except:
(i) transfers of assets to the Company, between the Company and
any Guarantor which is a Domestic Subsidiary or between any such
Guarantors; and
(ii) sales, assignments, transfers, lease conveyances or other
dispositions of other assets if such transaction (a) is for not less
than fair market value (as determined in good faith by the Company's
chief financial officer), and (b) when combined with all such other
transactions (each such transaction being valued at book value) and
all Sale and Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period from the
Closing Date to the date of such proposed transaction, represents the
disposition of not greater than ten percent (10%) of the Company's
Consolidated Net Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered
into.
(b) Liens. The Company shall not, nor shall it permit any Subsidiary
to, directly or indirectly create, incur, assume or permit to exist a
Lien on or with respect to the Capital Stock of any Subsidiary of the
Company. In addition, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly create, incur, assume or permit
to exist any Lien on or with respect to any of their respective other
property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to Equipment acquired by the Company
or any of its Subsidiaries after the date hereof pursuant to a
Permitted Acquisition (and not created in contemplation of such
acquisition); provided that such Liens shall extend only to the
property so acquired;
(iv) Liens securing Indebtedness of a Subsidiary to the Company
or to another Wholly-Owned Subsidiary;
(v) Liens securing Indebtedness permitted under Section
7.3(c)(vii); and
(vi) Additional Liens; provided that the Indebtedness secured
thereby does not exceed in the aggregate $10,000,000 (less the amount
of any Indebtedness secured by Liens permitted under clause (v)).
(c) Indebtedness. The Company shall not, nor shall it permit any
Subsidiary to, cause or permit, directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:
(i) the Obligations;
(ii) the Subordinated Seller Debt;
(iii) Permitted Existing Indebtedness;
(iv) Indebtedness arising from intercompany loans and advances
from the Company or any Domestic Subsidiary to any Subsidiary, provided
that (A) such intercompany Indebtedness shall not be evidenced by any
note or similar instrument; (B) the Company and each applicable
Subsidiary shall record all intercompany transactions on their
respective books and records in a manner satisfactory to the
Administrative Agent; (C) the obligations of each Subsidiary with
respect to any such intercompany loans shall be subordinated to any
Obligations of such Subsidiary hereunder in a manner satisfactory to
the Administrative Agent; (D) no Default or Unmatured Default would
occur and be continuing after giving effect to any such proposed
intercompany loan; (E) the aggregate Dollar Amount outstanding of such
intercompany loans owing by Foreign Subsidiaries other than loans
pursuant to the Spectra Precision Acquisition shall not exceed
$30,000,000 at any time and (F) other than loans pursuant to the
Spectra Precision Acquisition, such intercompany loans shall be made in
the ordinary course of business, consistent with past practices and the
proceeds of such loans shall be used to fund operating expenses of the
applicable Subsidiary;
(v) Contingent Obligations to the extent permitted under
Section 7.3(d);
(vi) Hedging Obligations to the extent permitted under
Section 7.3(n);
(vii) Indebtedness with respect to Capital Lease Obligations
and purchase money Indebtedness with respect to real or personal
property in an aggregate amount not to exceed $10,000,000;
(viii) Indebtedness incurred for the purpose of refinancing any
of the Indebtedness permitted under clause (iii); and
(ix) additional unsecured Indebtedness in an aggregate amount
at any time outstanding not exceeding $50,000,000 (less any
Indebtedness described in clause (vii) above) of which not more than
$25,000,000 may be incurred by Subsidiaries which are not Subsidiary
Borrowers or Guarantors.
(d) Contingent Obligations. The Company shall not, nor shall it permit
any Subsidiary to, directly or indirectly create or become or be liable
with respect to any Contingent Obligation, except: (i) recourse
obligations resulting from endorsement of negotiable instruments for
collection in the ordinary course of business; (ii) Permitted Existing
Contingent Obligations; (iii) obligations, warranties, guaranties and
indemnities, not relating to Indebtedness of any Person, which have
been or are undertaken or made in the ordinary course of business and
not for the benefit of or in favor of an Affiliate of the Company or
such Subsidiary; (iv) Contingent Obligations of the Subsidiaries of the
Company under the Guaranty to which they are a party, (v) obligations
arising under or related to the Loan Documents; (vi) Contingent
Obligations in respect of the Subordinated Seller Debt or other
Indebtedness permitted by Section 7.3(c) above, and (vii) additional
Contingent Obligations in an aggregate amount not to exceed in the
aggregate five percent (5%) of Consolidated Net Worth at any one time
outstanding.
(e) Restricted Payments. The Company shall not, nor shall it permit any
Subsidiary to, make or declare any Restricted Payments (other than
Restricted Payments by a Subsidiary to the Company) except that (i) the
Company may make prepayments of the Seller Subordinated Note from the
proceeds of equity offerings as required by Section 4.2 of the Seller
Subordinated Note (but only to the extent otherwise permitted by the
subordination provisions of the Seller Subordinated Note); (ii) so long
as no Default or Unmatured Default then exists, the Company may
repurchase shares from its employees, officers or directors pursuant to
any vesting provisions with respect thereto; and (iii) so long as no
Default or Unmatured Default then exists, the Company may make
Restricted Payments not to exceed, for any fiscal year, an aggregate
amount equal to twenty-five percent (25%) of Net Income for the
previous fiscal year.
(f) Conduct of Business; Subsidiaries; Acquisitions. The Company shall
not, nor shall it permit any Subsidiary to, engage in any business
other than the businesses engaged in by the Company on the date hereof
and any business or activities which are similar, related or incidental
thereto or logical extensions thereof. The Company shall not create,
acquire or capitalize any Subsidiary after the date hereof unless (i)
no Default or Unmatured Default shall have occurred and be continuing
or would result therefrom; (ii) after such creation, acquisition or
capitalization, all of the representations and warranties contained
herein shall be true and correct in all material respects (unless such
representation and warranty is made as of a specific date, in which
case, such representation or warranty shall be true as of such date);
and (iii) after such creation, acquisition or capitalization the
Company shall be in compliance with the terms of Section 7.2(k). The
Company shall not make any Acquisitions, other than Acquisitions
meeting the following requirements (each such Acquisition constituting
a "Permitted Acquisition"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the
target company's board of directors (and shareholders, if necessary)
prior to the consummation of the Acquisition;
(iii) if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock (other than
Equity Interests (other than Disqualified Stock) of the Company)
consideration paid and Indebtedness or other liabilities assumed)
exceeds $25,000,000, prior to each such Acquisition, the Company shall
have delivered to the Administrative Agent and the Lenders a
certificate from one of the Authorized Officers, demonstrating that
after giving effect to such Acquisition, on a pro forma basis in
respect of each such Acquisition as if the Acquisition and such
incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of the Company's most
recently completed fiscal quarter, the Company would have been in
compliance with the financial covenants in Section 7.4 and not
otherwise in Default;
(iv) if the purchase price for the Acquisition (excluding
consideration in the form of the Company's Equity Interests (other than
Disqualified Stock)) exceeds, together with all other Permitted
Acquisitions permitted under this Section 7.3(f) during the same fiscal
year, $25,000,000 (the "Permitted Acquisition Basket") (including the
incurrence or assumption of any Indebtedness in connection therewith),
the Required Lenders shall have consented to such Acquisition;
(v) the businesses being acquired shall be similar to that of the
Company and its Subsidiaries as of the Closing Date, related or
incidental thereto or logical extensions thereof; and
(vi) such Acquisition shall be structured as an asset
acquisition, as an acquisition of one hundred percent (100%) of the
outstanding voting equity securities of the target company or as a
merger permitted hereby.
(g) Investments. Neither the Company nor any of its Subsidiaries shall
purchase or acquire, or make any commitment therefor, any Equity
Interest, or any obligations or other securities of, or any interest
in, any Person, or make or commit to make any advance, loan, extension
of credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Company, except for:
(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor;
(ii) Investments incurred in order to consummate Permitted
Acquisitions otherwise permitted herein;
(iii) Loans giving rise to Indebtedness permitted by Section
7.3(c)(iv);
(iv) Advances to employees for business expenses not to exceed
$1,000,000 in the aggregate outstanding at any one time;
(v) other loans to employees in the ordinary course of business
and consistent with past practices, not to exceed $5,000,000 in the
aggregate outstanding at any one time;
(vi) Investments in Cash Equivalents;
(vii) Permitted Existing Investments; and
(viii) other Investments in an aggregate amount not to exceed the
sum of (A) $20,000,000 (based on the initial amount invested) plus (B)
proceeds (net of the initial amount invested) from Investments
permitted hereunder.
(h) Transactions with Shareholders and Affiliates. Neither the Company
nor any of its Subsidiaries shall directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of
any service) with, or make loans or advances to, any Affiliate of the
Company which is not its Wholly-Owned Subsidiary, on terms that are
less favorable to the Company or any of its Subsidiaries, as
applicable, than those that might be obtained in an arm's length
transaction at the time from Persons who are not such a holder or
Affiliate, except for Restricted Payments permitted by Section 7.3(f).
(i) Restriction on Fundamental Changes. Neither the Company nor any of
its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of,
in one transaction or series of transactions, all or substantially all
of the Company's consolidated business or property (each such
transaction a "Fundamental Change"), whether now or hereafter acquired,
except (i) Fundamental Changes permitted under Sections 7.3(a), 7.3(b)
or 7.3(f), (ii) a Subsidiary of the Company may be merged into or
consolidated with the Company or any Wholly-Owned Subsidiary of the
Company (in which case the Company or such Wholly-Owned Subsidiary
shall be the surviving corporation); provided that if the predecessor
Subsidiary was a Guarantor, the surviving Subsidiary, if applicable,
shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary
of the Company into the Company or another Subsidiary of the Company,
as applicable, and (iv) the Company may merge with any other Person, or
any Subsidiary of the Company may consolidate or merge with any other
Person, provided that (A) no Default or Unmatured Default shall exist
immediately before or after giving effect to such Fundamental Change,
(B) in the case of any merger of the Company, the Company is the
surviving corporation in such merger and such merger is with a Person
in a line of business substantially similar to that of the Company and
its Subsidiaries as of the Closing Date or any business or activities
which are similar, related or incidental thereto or logical extensions
thereof, and (C) in the case of any merger or consolidation of any
Subsidiary of the Company, the surviving corporation in such
Fundamental Change is or becomes as a result thereof a Wholly-Owned
Subsidiary of the Company and if the predecessor Subsidiary was a
Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, and
(D) such transaction is with a Person in a line of business
substantially similar to or related to that of the Company and its
Subsidiaries as of the Closing Date or is a logical extension thereof.
(j) Margin Regulations. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds
of any credit extended under this Agreement to
purchase or carry Margin Stock.
(k) ERISA.
(i) The Company shall not:
(A) engage, or permit any of its Subsidiaries to engage, in
any material prohibited transaction described in Sections 406 of ERISA
or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from
the DOL;
(B) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect to
any Benefit Plan, whether or not waived;
(C) fail, or permit any Controlled Group member to fail, to
pay timely required material contributions or annual installments due
with respect to any waived funding deficiency to any Benefit Plan;
(D) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Company or any Controlled Group member under Title IV
of ERISA;
(E) fail to make any material contribution or payment to any
Multiemployer Plan which the Company or any Controlled Group member may
be required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(F) permit any unfunded liabilities with respect to any
Foreign Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by the
Company or any member of its Controlled Group and such annual
contributions are not less than the minimum amounts, if any, required
under applicable local law;
(G) fail, or permit any of its Subsidiaries or Controlled
Group members to fail, to pay any required contributions or payments to
a Foreign Pension Plan on or before the due date for such required
installment or payment;
(H) fail, or permit any Controlled Group member to fail, to
pay any required material installment or any other payment required
under Section 412 of the Code on or before the due date for such
installment or other payment; or
(I) amend, or permit any Controlled Group member to amend, a
Plan resulting in a material increase in current liability for the plan
year such that the Company or any Controlled Group member is required
to provide security to such Plan under Section 401(a)(29) of the Code.
(ii) For purposes of this Section 7.3(k), "material" means any
noncompliance or basis for liability which could reasonably be
expected to subject the Company or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $5,000,000.
(l) Certain Documents. Neither the Company nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions
of (i) the Acquisition Documents, or of any of their respective
constituent documents as in effect on the date hereof in any manner
materially adverse to the interests of the Lenders or (ii) the
documents evidencing the Subordinated Seller Debt.
(m) Fiscal Year. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax
purposes from a period consisting of the twelve-month period ending on
Friday nearest to December 31 of each year, except as required by
Agreement Accounting Principles or by law and disclosed to the Lenders
and the Administrative Agent.
(n) Hedging Obligations. The Company shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or
foreign currency exchange, swap, collar, cap or similar agreements
evidencing Hedging Obligations, other than interest rate, foreign
currency or commodity exchange, swap, collar, cap or similar agreements
entered into by the Company or its Subsidiaries pursuant to which the
Company or its Subsidiaries has hedged its actual or anticipated
interest rate, foreign currency or commodity exposure. Such permitted
hedging agreements entered into by the Company or its Subsidiaries and
any Lender or any Affiliate of any Lender are sometimes referred to
herein as "Hedging Agreements".
(o) Capital Expenditures. The Company shall not, and shall not permit
any of its Subsidiaries to, make Capital Expenditures in any fiscal
year to the extent that during any fiscal year the aggregate amount of
Capital Expenditures for the Company and its Subsidiaries would exceed
$15,000,000, excluding any amount attributable to a Permitted
Acquisition (the "Capital Expenditures Limit"). Notwithstanding the
foregoing, in the event that the Company and its Subsidiaries do not
expend the entire Capital Expenditures Limit for any fiscal year, the
Company and its Subsidiaries may carry forward to the immediately
succeeding fiscal year the unutilized portion of such Capital
Expenditures Limit.
(p) Restrictive Agreements. Other than (x) the Subordinated Seller
Note, (y) customary provisions in licenses or similar agreements that
restrict the ability of the Company or its Subsidiaries to assign,
transfer, license or sublicense any intellectual property subject to
such license or agreement and (z) negative pledge provisions in
Equipment financing agreements which restrict only Liens on the
Equipment subject to such agreement together with any accessions,
additions, replacements or proceeds of such Equipment, the Company
shall not, nor shall it permit any of its Subsidiaries to, enter into
any indenture, agreement, instrument or other arrangement which
directly or indirectly prohibits or restrains, or has the effect of
prohibiting or restraining, or imposes materially adverse conditions
upon, the ability of the Company or any Subsidiary to create Liens upon
their assets securing the Obligations or of any Subsidiary to (i) pay
dividends or make other distributions or Restricted Payments (A) on its
Capital Stock or (B) with respect to any other interest or
participation in, or measured by, its profits, (ii) make loans or
advances to or other investments in the Company or any Subsidiary,
(iii) repay loans or advances from the Company or any Subsidiary or
(iv) transfer any of its properties to the Company or any Subsidiary.
7.4 Financial Covenants.
(a) Minimum Fixed Charge Coverage Ratio. The Company shall maintain as
of the end of each fiscal quarter set forth below a Fixed Charge
Coverage Ratio for the four fiscal quarter period then ending of not
less than the ratio set forth below opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2002 through June 30, 2003 1.10:1.00
September 30, 2003 and thereafter 1.20:1.00
(b) Maximum Leverage Ratio. The Company shall at all times during the
periods specified below maintain a Leverage Ratio for the four fiscal
quarter period then ending of not greater than the ratio set forth
below opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2002 through June 30, 2003 2.00:1.00
September 30, 2003 and thereafter 1.75:1.00
(c) Minimum Consolidated Net Worth. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (i) 85%
of Consolidated Net Worth on June 28, 2002 plus (ii) fifty percent
(50%) of Net Income (if positive) calculated separately for each
subsequent quarterly accounting period, in each case, excluding changes
in cumulative foreign exchange translation adjustment, plus (iii) the
aggregate amount of all Equity Interests issued after June 28, 2002.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(a) Failure to Make Payments When Due. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations
consisting of principal with respect to any Loan or (ii) shall fail to
pay within five (5) Business Days of the date when due any of the other
Obligations under this Agreement or the other Loan Documents.
(b) Breach of Certain Covenants. The Company or any Subsidiary
Borrower shall fail duly and punctually to perform or observe any
agreement, covenant or obligation binding on it under:
(i) Sections 7.1(b), 7.1(c), 7.1(f), 7.2(j), 7.2(k), 7.2(m), 7.3
or 7.4 or
(ii) any section of this Agreement or any other Loan Document not
covered by Section 8.1(a), 8.1(b)(i) or 8.1(m) and such failure shall
continue unremedied for thirty (30) days after the occurrence thereof.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any Subsidiary Borrower
to the Administrative Agent or any Lender herein or by the Company or
any Subsidiary Borrower or any of their Subsidiaries in any of the
other Loan Documents or in any statement or certificate or information
at any time given by any such Person pursuant to any of the Loan
Documents shall be false in any material respect on the date as of
which made or deemed made.
(d) Default as to Other Indebtedness. The Company or any of its
Subsidiaries shall fail to pay when due (i) any Subordinated Seller
Debt or (ii) any Indebtedness in excess of $5,000,000 (any such
Indebtedness being "Material Indebtedness"); or the Company or any of
its Subsidiaries shall fail to perform (beyond the applicable grace
period with respect thereto, if any) any term, provision or condition
contained in any agreement under which any such Material Indebtedness
was created or is governed, or any other event shall occur or condition
exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Company or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof.
(e) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company
or any of the Company's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company or any of the Company's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company or any of the Company's Subsidiaries or over all or a
substantial part of the property of the Company or any of the Company's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of the Company or any of the Company's Subsidiaries or of all
or a substantial part of the property of the Company or any of the
Company's Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the
property of the Company or any of the Company's Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment or
issuance.
(f) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company or
any of the Company's Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, (iii) consent to the appointment
of or taking possession by a receiver, trustee or other custodian for
all or a substantial part of its property, (iv) make any assignment for
the benefit of creditors or (v) take any corporate action to authorize
any of the foregoing.
(g) Judgments and Attachments. Any money judgment(s) writ or warrant of
attachment, or similar process against the Company or any Domestic
Subsidiary or any of their respective assets involving in any single
case or in the aggregate an amount in excess of $5,000,000 is or are
entered and shall remain undischarged, unvacated, unbonded or unstayed
for a period of thirty (30) days or in any event later than fifteen
(15) days prior to the date of any proposed sale thereunder.
(h) Dissolution. Any order, judgment or decree shall be entered against
the Company or any Domestic Subsidiary decreeing its involuntary
dissolution or split up and such order shall remain undischarged and
unstayed for a period in excess of forty-five (45) days; or the Company
or any Domestic Subsidiary shall otherwise dissolve or cease to exist
except as specifically permitted by this Agreement.
(i) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to
liability in excess of $5,000,000. The Unfunded Liabilities of all
Single Employer Plans shall exceed in the aggregate $10,000,000.
(j) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(a) of the Code and the
Administrative Agent or the Required Lenders believe the substantial
business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or any
Controlled Group member to liability in excess of $5,000,000.
(k) Change of Control. A Change of Control shall occur.
(l) Guarantor Revocation. Any Guaranty shall fail to remain in full
force or effect or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any Guaranty, or any
Guarantor shall fail to comply with any of the terms or provisions of
any Guaranty to which it is a party, or any Guarantor shall deny that
it has any further liability under any Guaranty to which it is a party,
or shall give notice to such effect; in each case other than a
Guarantor's ceasing to be a Subsidiary Borrower pursuant to Section
2.23 hereof or the disposition of such Guarantor in any transaction
permitted by Section 7.3(b) hereof.
(m) Collateral Documents. Any Collateral Documents shall fail to remain
in full force or effect or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of any Collateral
Document, or any "Default" or "Unmatured Default" shall occur under and
as defined in any Collateral Document or shall deny, or give notice to
such effect, that it has any further liability under such Collateral
Document or any Collateral Document shall for any reason fail to create
a valid and perfected, first priority security interest in any
collateral purported to be covered thereby, except as permitted by the
terms of such Collateral Document.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.2.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration. If any
Default described in Section 8.1(e) or 8.1(f) occurs with respect to the Company
or any Subsidiary Borrower, the obligations of the Lenders to make Loans
(including, without limitation, Alternate Currency Loans) hereunder and the
obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders, or the
Administrative Agent acting at the direction of the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans (including,
without limitation, Alternate Currency Loans) hereunder and the obligation of
the Issuing Banks to issue Letters of Credit hereunder, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrowers expressly waive.
9.2 Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default or Unmatured Default hereunder; provided that
no such supplemental agreement shall, without the consent of each Lender
directly affected thereby:
(a) Postpone or extend the Revolving Loan Termination Date, the Term
Loan Maturity Date or any other date scheduled for any payment of
principal of, or interest on, the Loans, the Reimbursement Obligations
or any fees or other amounts payable to such Lender (except with
respect to a waiver of the application of the default rate of interest
pursuant to Section 2.12 hereof).
(b) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees
thereon.
(c) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders hereunder specified to be
the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders", "Pro Rata
Revolving Share", "Pro Rata Share", "Pro Rata Term Share", "Pro Rata
Tranche A Revolving Share", "Pro Rata Tranche B Revolving Share", "Pro
Rata Tranche C Revolving Share" or "Pro Rata Tranche D Revolving
Share".
(d) Increase the amount of the Revolving Loan Commitment of any Lender
hereunder.
(e) Permit the Company or any Subsidiary Borrower to assign its rights
under this Agreement or any Guaranty.
(f) Release the Company or any Guarantor from any of its obligations
under the Guaranty set forth in Article X hereof or any other
Guaranty.
(g) Amend this Section 9.2.
(h) Release all or a substantial portion of the collateral pledged
pursuant to the Collateral Documents (except as expressly provided
therein).
(i) Amend the definition of "Trigger Event Date".
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) any Issuing Bank shall be effective without the
written consent of such Issuing Bank and (c) any Swing Line Loan shall be
effective without the written consent of the Swing Line Bank. The Administrative
Agent may waive payment of the fee required under Section 14.3(b) without
obtaining the consent of any of the Lenders.
9.3 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Company or
any other Borrower to satisfy the conditions precedent to such Loan or issuance
of such Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to Section 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GUARANTY
10.1 Guaranty. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Subsidiary Borrower and to make, issue and participate in Letters of Credit,
Swing Line Loans and Alternate Currency Loans, the Company hereby absolutely and
unconditionally guarantees prompt payment when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of any and all
existing and future obligations including without limitation the Obligations, of
each Subsidiary Borrower to the Administrative Agent, the Lenders, the Swing
Line Bank, the Issuing Lenders, the Alternate Currency Banks, or any of them,
under or with respect to the Loan Documents or under or with respect to any
Hedging Agreement entered into in connection with this Agreement, whether for
principal, interest, (including interest accruing after the commencement of any
bankruptcy insolvency or similar proceeding whether or not allowed as a claim in
such proceeding) fees, expenses or otherwise (collectively, the "Guaranteed
Obligations", and each such Subsidiary Borrower being an "Obligor" and
collectively, the "Obligors").
10.2 Waivers. The Company waives notice of the acceptance of this
guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Company further waives presentment, protest, notice of
notices delivered or demand made on any Obligor or action or delinquency in
respect of the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to ▇▇▇ any Obligor, any
other guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Obligations or any part thereof. The
Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with the Company their assessments of the financial condition of the
Obligors.
10.3 Guaranty Absolute. This guaranty is a guaranty of payment and not
of collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent's
or any Lender's election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion any Lender's claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor; all whether or not the Company shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (n) of this paragraph. It is agreed that the Company's liability
hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that the Company's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Obligor of the
Guaranteed Obligations in the manner agreed upon between the Obligor and the
Administrative Agent and the Lenders.
10.4 Acceleration. The Company agrees that, as between the Company on
the one hand, and the Lenders and the Administrative Agent, on the other hand,
the obligations of each Obligor guaranteed under this Article X may be declared
to be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.1 hereof for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this Article X.
10.5 Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to ▇▇▇▇▇▇▇▇ any assets in
favor of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any other Borrower or any other guarantor of all or
any part of the Guaranteed Obligations makes a payment or payments to any Lender
or the Administrative Agent, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, the Company, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6 Subrogation. Until the irrevocable payment in full of the
Obligations and termination of all commitments which could give rise to any
Guaranteed Obligation, the Company shall have no right of subrogation with
respect to the Guaranteed Obligations, and hereby waives any right to enforce
any remedy which the Administrative Agent and/or the Lenders now has or may
hereafter have against the Company, any endorser or any other guarantor of all
or any part of the Guaranteed Obligations, and the Company hereby waives any
benefit of, and any right to participate in, any security or collateral given to
the Administrative Agent and/or the Lenders to secure payment of the Guaranteed
Obligations or any part thereof or any other liability of any Obligor to the
Administrative Agent and/or the Lenders.
10.7 Termination Date. Subject to Section 10.5 this guaranty shall
continue in effect until the later of (a) the Facility Termination Date, and (b)
the date on which this Agreement has otherwise expired or been terminated in
accordance with its terms and all of the Guaranteed Obligations have been paid
in full in cash.
ARTICLE XI: GENERAL PROVISIONS
11.1 Survival of Representations. All representations and warranties of
the Company contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
11.4 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Administrative Agent and the Lenders
and supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than the New Fee Letter.
11.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. Any obligation of "the Borrowers"
hereunder shall be joint and several obligation of the Borrowers. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns.
11.6 Expenses; Indemnification.
(a) Expenses. The Borrowers shall reimburse the Administrative Agent
for any reasonable costs and out-of-pocket expenses (including
reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Administrative Agent, Issuing Banks,
Swing Line Bank and Alternative Currency Banks) paid or incurred by the
Administrative Agent in connection with the preparation, negotiation,
execution, delivery, syndication, review, proposed or completed
amendment, waiver or modification, and administration of the Loan
Documents. The Borrowers also agree to reimburse the Administrative
Agent, each Alternate Currency Bank, each Arranger and each of the
Lenders for any costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent, each Alternate Currency Bank,
each Arranger and each Lender, which attorneys and paralegals may be
employees of the Administrative Agent, such Alternate Currency Bank,
such Arranger, or the Lenders) paid or incurred by the Administrative
Agent, the Alternate Currency Banks, the Arrangers or any Lender in
connection with the collection of the Obligations and enforcement of
the Loan Documents. The Administrative Agent shall provide the
Borrowers with a detailed statement of all reimbursements requested
under this Section 11.6(a).
(b) Indemnity. The Borrowers hereby further agree to indemnify the
Administrative Agent, the Arrangers, the Alternate Currency Banks, the
Issuing Banks and each and all of the Lenders and each of their
respective Affiliates, and each of the Administrative Agent's,
Arrangers', Alternate Currency Bank's, Issuing Bank's, Lender's and
Affiliate's directors, officers, employees, attorneys and agents (all
such persons, "Indemnitees") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether
or not such Indemnitee is a party thereto) which any of them may pay or
incur arising out of or relating to this Agreement, the other Loan
Documents, the Spectra Precision Acquisition, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification.
(c) Waiver of Certain Claims. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability
seeking consequential, special, indirect, exemplary or punitive
damages.
(d) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 11.6 shall survive the termination of
this Agreement.
11.7 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.8 Accounting. Except with respect to the pricing grid calculations
in Section 2.15 and the financial covenant calculations in Section 7.4, both of
which shall be made in accordance with Agreement Accounting Principles as in
effect on the date hereof, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with
generally accepted accounting principles as in effect from time to time,
consistently applied.
11.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.10 Nonliability of Lenders. The relationship between the Borrowers
and the Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrowers or the Guarantors. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any
Borrower or Guarantor to review or inform any Borrower or Guarantor of any
matter in connection with any phase of the Borrowers' business or operations.
11.11 GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS
LOCATED IN NEW YORK, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL
JURISDICTION OVER ANY BORROWERS (2) IN ORDER TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON OR (3) FORECLOSE ON
COLLATERAL LOCATED IN SUCH JURISDICTION. EACH BORROWER AGREES THAT IT
WILL NOT ASSERT ANY PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION (b).
(c) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(d) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(e) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY,
THE PROVISIONS OF SECTION 11.6 AND THIS SECTION 11.12, WITH ITS
COUNSEL.
11.13 Other Transactions. Each of the Administrative Agent, the
Arrangers, the Lenders, the Issuing Banks, the Swing Line Bank and the Borrowers
acknowledge that the Administrative Agent and the Lenders (or Affiliates of the
Administrative Agent and the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with the Administrative Agent may from time to
time provide other financial services and products to the Company and its
Subsidiaries.
ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1 Appointment; Nature of Relationship. BNS is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XII. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its Affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Person.
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(c) the satisfaction of any condition specified in Article V, except receipt of
items required to be delivered solely to the Administrative Agent; (d) the
existence or possible existence of any Default or (e) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents, or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of any
guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.
12.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans and on all Holders of
Obligations. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
12.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 The Administrative Agent's, Issuing Banks', Swing Line Bank's and
Alternate Currency Banks' Reimbursement and Indemnification.
(a) The Lenders agree to reimburse and indemnify the Administrative
Agent ratably in proportion to their respective Pro Rata Shares (i)
for any expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (ii) for any
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement
of any of the terms thereof or of any such other documents; provided
that no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of the Administrative Agent.
(b) The Lenders with a Revolving Loan Commitment agree to reimburse
and indemnify the Administrative Agent, the Issuing Banks, the Swing
Line Bank and the Alternate Currency Banks ratably in proportion to
their respective Pro Rata Revolving Shares (i) any amounts not
reimbursed by any Borrower for which the Administrative Agent, the
Issuing Banks, the Swing Line Bank and the Alternate Currency Banks
are entitled to reimbursement by any Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative
Agent, any Issuing Bank, the Swing Line Bank or any Alternate Currency
Bank on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan
Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by
or asserted against the Administrative Agent, any Issuing Bank, the
Swing Line Bank or any Alternate Currency Bank in any way relating to
or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other
documents; provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have
arisen primarily from the gross negligence or willful misconduct of
the Administrative Agent, the applicable Issuing Bank, the Swing Line
Bank or the applicable Alternate Currency Bank.
12.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
Loans made by it, Swing Line Loans made by it and Letters of Credit issued by
it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender or Issuing Bank and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders", "Swing Line Bank", "Issuing Bank" or "Issuing Banks" shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Company or any of its Subsidiaries in which such Person
is not prohibited hereby from engaging with any other Person.
12.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arrangers
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arrangers or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
12.11 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrowers and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article XII shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
12.12 No Duties Imposed Upon Syndication Agent, Documentation Agent or
Arrangers. None of the Persons identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent", "Documentation Agent" or "Arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, (a) expressly granted indemnification rights and (b) if such Person is a
Lender, those applicable to all Lenders as such. Without limiting the foregoing,
none of the Persons identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreements as a
"Syndication Agent", "Documentation Agent" or "Arranger" shall have or be deemed
to have any fiduciary duty to or fiduciary relationship with any Lender. In
addition to the agreements set forth in Section 12.10, each of the Lenders
acknowledges that it has not relied, and will not rely, on any of the Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
12.13 Collateral Agent. The Lenders agree that the Administrative Agent
may, on their behalf, appoint a Collateral Agent under the Mortgages with
respect to real estate located in the State of Ohio and related title insurance,
surveys and other documentation. All references to the "Administrative Agent" in
Article XII shall also be deemed to be references to the Collateral Agent.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to the Company or any other Borrower (including all
account balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
13.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4 and payments expressly hereunder provided to be
distributed on other than a pro rata basis or payments made and distributed in
accordance with Section 2.12) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 Application of Payments. The Administrative Agent shall apply all
payments and prepayments in respect of any Obligations in the following order:
first, to pay interest on and then principal of any portion of the Loans which
the Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
applicable Borrower and to pay any Swing Line Loan, Alternate Currency Loan or
Reimbursement Obligation that has not been paid; second, to the ratable payment
of the Obligations then due and payable; and third, to the ratable payment of
all other Obligations.
13.4 Relations Among Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (a) no
Borrower shall have any right to assign its rights or obligations under the Loan
Documents without the consent of all of the Lenders, and any such assignment in
violation of this Section 14.1(a) shall be null and void, and (b) any assignment
by any Lender must be made in compliance with Section 14.3 hereof.
Notwithstanding clause (b) of this Section 14.1 or Section 14.3, (i) any Lender
may at any time, without the consent of any Borrower or the Administrative Agent
(unless a Default or Unmatured Default has occurred and is continuing, in which
case the consent of the Administrative Agent shall be required, which consent
shall not unreasonably be withheld), assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank and (ii) any Lender which is a
fund or commingled investment vehicle that invests in commercial loans in the
ordinary course of its business may at any time, without the consent of any
Borrower or the Administrative Agent (unless a Default or Unmatured Default has
occurred and is continuing, in which case the consent of the Administrative
Agent shall be required, which consent shall not unreasonably be withheld),
pledge or assign all or any part of its rights under this Agreement to a trustee
or other representative of holders of obligations owed or securities issued by
such Lender as collateral to secure such obligations or securities; provided
that no such assignment or pledge shall release the transferor Lender from its
obligations hereunder. The Administrative Agent may treat each Lender as the
owner of the Loans made by such Lender hereunder for all purposes hereof unless
and until such Lender complies with Section 14.3 hereof in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Loan, Revolving Loan Commitment, L/C Interest or any other interest of a
lender under the Loan Documents agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of any Loan, shall be conclusive and binding
on any subsequent owner, transferee or assignee of such Loan.
14.2 Participations.
(a) Permitted Participants; Effect. Subject to the terms set forth in
this Section 14.2, any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Revolving Loan
Commitment of such Lender, any L/C Interest of such Lender or any other
interest of such Lender under the Loan Documents on a pro rata or
non-pro rata basis. Notice of such participation to the Administrative
Agent shall be required prior to any participation becoming effective
with respect to a Participant which is not a Lender or an Affiliate
thereof. Upon receiving said notice, the Administrative Agent shall
record the participation in the Register it maintains. Moreover,
notwithstanding such recordation, such participation shall not be
considered an assignment under Section 14.3 of this Agreement and such
Participant shall not be considered a Lender. In the event of any such
sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the
owner of all Loans made by it for all purposes under the Loan
Documents, all amounts payable by the applicable Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the applicable Borrower and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under the Loan Documents except that, for purposes of Article IV and
Section 9.2 hereof, the Participants shall be entitled to the same
rights as if they were Lenders.
(b) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, Letter of Credit or
Revolving Loan Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate
or fees payable pursuant to the terms of this Agreement with respect to
any such Loan or Revolving Loan Commitment, postpones any date fixed
for any regularly-scheduled payment of principal of, or interest or
fees on, any such Loan or Revolving Loan Commitment.
14.3 Assignments.
(a) Permitted Assignments.
(i) Any Lender (each such assigning Lender under this Section
14.3 being an "Assigning Lender") may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to
one or more banks or other entities (other than the Company or any of
its Affiliates) ("Purchasers") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its
Tranche A Revolving Loan Commitment, its Tranche B Revolving Loan
Commitment, its Tranche C Revolving Loan Commitment, its Tranche D
Revolving Loan Commitment, any Loans owing to it, all of its
participation interests in existing Letters of Credit, Swing Line
Loans and Alternate Currency Loans, and its obligation to participate
in additional Letters of Credit, Swing Line Loans and Alternate
Currency Loans hereunder) in accordance with the provisions of this
Section 14.3. Such assignment shall be substantially in the form of
Exhibit D hereto and shall not be permitted hereunder unless such
assignment is either for all of such Assigning Lender's rights and
obligations under the Loan Documents or, without the prior written
consent of the Administrative Agent and the Company, involves loans
and commitments as a consequence of which neither the Assigning Lender
nor the Purchaser will have a Revolving Loan Commitment or Term Loans,
as applicable, of less than $5,000,000; provided that the foregoing
restrictions with respect to such Revolving Loan Commitments or Term
Loans having a minimum aggregate amount (A) shall not apply to any
assignment between Lenders, or to an Affiliate or Approved Fund of any
Lender, and (B) in any event may be waived by the Administrative
Agent. The written consent of the Administrative Agent, and, prior to
the occurrence of a Default, the Company (which consent, in each such
case, shall not be unreasonably withheld), shall be required prior to
an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate or Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein,
any Lender (each such Lender, a "Granting Bank") may grant to a
special purpose funding vehicle (each such special purpose funding
vehicle, a "SPC"), identified as such in writing from time to time by
the applicable Granting Bank to the Administrative Agent and the
Company, the option to provide to the Company and the other Borrowers
all or any part of any Advance that such Granting Bank would otherwise
be obligated to make to the applicable Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Advance, (ii) if an SPC elects not
to exercise such option or otherwise fails to provide all or any part
of such Advance, the applicable Granting Bank shall be obligated to
make such Advance pursuant to the terms hereof. The making of an
Advance by any SPC hereunder shall utilize the Revolving Loan
Commitment of the applicable Granting Bank to the same extent, and as
if, such Advance were made by such Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or other
similar payment obligation under this Agreement (all liability for
which shall remain with the applicable Granting Bank). All notices
hereunder to any Granting Bank or the related SPC, and all payments in
respect of the Obligations due to such Granting Bank or the related
SPC, shall be made to such Granting Bank. In addition, each Granting
Bank shall vote as a Lender hereunder without giving effect to any
assignment under this Section 14.3(a)(ii), and not SPC shall have any
vote as a Lender under this Agreement for any purpose. In furtherance
of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC,
it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United
States or any State thereto. In addition, notwithstanding anything to
the contrary contained in this Section 14.3, any SPC may (A) with
notice to, but without the prior written consent of, the Company and
the Administrative Agent and without paying any processing or
administrative fee therefor, assign all or a portion of its interest
in any Advances to the Granting Bank or to any financial institutions
(consented to by the Company and the Administrative Agent in
accordance with the terms of Section 14.3(a)(i)) providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of Advances and (B) disclose on a confidential
basis any non-public information relating to its Advances to any
rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section
14.3(a)(ii) may not be amended without the written consent of each SPC
affected thereby.
(b) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent and the Alternate Currency Banks of a notice of assignment,
substantially in the form attached as Appendix I to Exhibit D hereto (a
"Notice of Assignment"), together with any consent required by Section
14.3(a) hereof, (ii) payment of a $3,500 fee by the assignee or the
assignor (as agreed) to the Administrative Agent for processing such
assignment, and (iii) the completion of the recording requirements in
Section 14.3(c), such assignment shall become effective on the later of
such date when the requirements in clauses (i), (ii), and (iii) are met
or the effective date specified in such Notice of Assignment. The
Notice of Assignment shall contain a representation by the Purchaser to
the effect that none of the consideration used to make the purchase of
the Revolving Loan Commitment, Loans and L/C Obligations under the
applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under
the Loan Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser, if not already a
Lender, shall for all purposes be a Lender party to this Agreement and
any other Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further
consent or action by any Borrower, the Lenders, the Alternate Currency
Banks or the Administrative Agent shall be required to release the
Assigning Lender with respect to the percentage of the Aggregate
Revolving Loan Commitment, Loans and Letter of Credit, Swing Line Loans
and Alternate Currency Loan participations assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this
Section 14.3(b), the Assigning Lender, the Administrative Agent, the
Alternate Currency Banks and the Borrowers shall make appropriate
arrangements so that, to the extent notes have been issued to evidence
any of the transferred Loans, replacement notes are issued to such
Assigning Lender and new notes or, as appropriate, replacement notes,
are issued to such Purchaser, in each case in principal amounts
reflecting their Revolving Loan Commitment, as adjusted pursuant to
such assignment. Notwithstanding anything to the contrary herein, no
Borrower shall, at any time, be obligated to pay under Section 2.14(e)
to any Lender that is a Purchaser, assignee or transferee any sum in
excess of the sum which such Borrower would have been obligated to pay
to the Lender that was the Assigning Lender, assignor or transferor had
such assignment or transfer not been effected.
(c) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent,
and the Administrative Agent hereby accepts such designation, to serve
as such Borrower's contractual representative solely for purposes of
this Section 14.3(c). In this connection, the Administrative Agent
shall maintain at its address referred to in Section 15.1 a copy of
each assignment delivered to and accepted by it pursuant to this
Section 14.3 and a register (the "Register") for the recordation of the
names and addresses of the Lenders, the Revolving Loan Commitment of
each Lender, the principal amount of and interest on the Loans owing
to, each Lender from time to time and whether such Lender is an
original Lender or the assignee of another Lender pursuant to an
assignment under this Section 14.3. The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Company and each of its Subsidiaries, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
14.4 Confidentiality. Subject to Section 14.5, the Administrative Agent
and the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Company; provided that each prospective Transferee
shall be required to agree that if it does not become a participant or assignee
it shall return all materials furnished to it by or on behalf of the Company in
connection with this Agreement.
14.5 Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV: NOTICES
15.1 Giving Notice. Except as otherwise permitted by Section 2.10(d)
with respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 Change of Address. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
15.3 Authority of Company. Each of the Subsidiary Borrowers, by its
execution hereof or of an Assumption Letter (a) irrevocably authorizes the
Company, on behalf of such Subsidiary Borrower, to give and receive all notices
under the Loan Documents and to make all elections under the Loan Documents and
to give all Borrowing/Conversion/Continuation Notices on its behalf, (b) agrees
to be bound by any such notices or elections and (c) agrees that the
Administrative Agent and Lenders may rely upon any such policies or elections as
if they had been given or made by such Subsidiary Borrower.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
IN WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent have executed this Agreement as of the date first
above written.
▇▇▇▇▇▇▇ NAVIGATION LIMITED, as the Company
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Asst. Secretary
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA, as Administrative Agent, Issuing Bank,
Swing Line Bank, Alternate Currency Bank, Arranger and Lender
By:/s/ ▇▇▇ ▇▇▇▇▇▇
---------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
Address: The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK, as Syndication Agent and Lender
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Director
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK of AMERICA, N.A., as Documentation Agent and as Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Credit Products Officer
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
ERSTE BANK, NEW YORK BRANCH, as Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇ ▇▇▇
------------
Name: ▇▇▇▇ ▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK, as Lender
By:/s/ ▇▇▇▇ ▇. Ta
--------------
Name: ▇▇▇▇ ▇. Ta
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Ta
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF THE WEST, as Lender
By:/s/ ▇▇▇▇ ▇▇▇
------------
Name: ▇▇▇▇ ▇▇▇
Title: Assistant Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL CITY BANK OF KENTUCKY, as Lender
By:/s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
IBM CREDIT CORPORATION, as Lender
By:/s/
Name:
Title:
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
UNION BANK OF CALIFORNIA, N.A., as Lender
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
LOAN COMMITMENTS AND AMOUNTS
Amount of Amount of Amount of Amount of
Tranche A Tranche B Tranche C Tranche D
Revolving Revolving Revolving Revolving
Loan Loan Loan Loan Total Commitment/
Commitment Commitment Commitment Commitment Term Loans Loans
Lender
------
The Bank of Nova Scotia $0 $0 $6,500,000 $8,500,000 $4,238,000 $19,238,000
Fleet National Bank $0 $0 $3,625,000 $9,875,000 $4,401,000 $17,901,000
Bank of America, N.A. $0 $0 $7,500,000 $7,500,0000 $4,075,000 $19,075,000
National City Bank of Kentucky $0 $0 $3,750,000 $3,750,000 $2,445,000 $9,945,000
Kentucky Bank of the West $1,910,377 $1,066,514 $0 $0 $2,445,000 $5,421,891
Nordea Bank Finland PLC,
New York Branch $0 $0 $3,750,000 $3,750,000 $2,445,000 $9,945,000
▇▇▇▇▇ Fargo Bank $0 $0 $3,750,000 $3,750,000 $2,445,000 $9,945,000
Erste Bank, New York Branch $0 $0 $2,500,000 $2,500,000 $1,630,000 $6,630,000
Union Bank of California, N.A. $0 $0 $6,125,000 $8,875,000 $0 $15,000,000
ABN AMRO Bank N.V. $0 $1,086,611 $0 $0 $4,401,000 $5,487,611
IBM Credit Corporation $12,500,000 $0 $0 $0 $4,075,000 $16,575,000
TOTAL $12,500,000 $1,500,000 $37,500,000 $48,500,000 $32,600,000 $132,600,000
=========== ========== =========== =========== =========== ============
Table of Contents
(continued)
-vi-
Table of Contents
-i-
ARTICLE I: DEFINITIONS.......................................................2
1.1 Certain Defined Terms.....................................................2
1.2 References...............................................................33
1.3 Rounding and Other Consequential Changes.................................33
ARTICLE II: LOAN FACILITIES..................................................33
2.1 Revolving Loans..........................................................33
2.2 Term Loans...............................................................36
2.3 Swing Line Loans.........................................................36
2.4 Rate Options for all Advances; Maximum Interest Periods..................38
2.5 Optional Payments; Mandatory Prepayments.................................38
2.6 Reductions and Adjustments of Revolving Loan Commitments.................41
2.7 Method of Borrowing......................................................43
2.8 Method of Selecting Types and Interest Periods for Advances..............43
2.9 Minimum Amount of Each Advance...........................................44
2.10 Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances.................................................44
2.11 Default Rate............................................................46
2.12 Method of Payment.......................................................46
2.13 Evidence of Debt........................................................47
2.14 Telephonic Notices......................................................48
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control
Accounts.....................................................................48
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions.........................................53
2.17 Lending Installations...................................................54
2.18 Non-Receipt of Funds by the Administrative Agent........................54
2.19 Termination Date........................................................54
2.20 Replacement of Certain Lenders..........................................54
2.21 Alternate Currency Loans................................................55
2.22 Judgment Currency.......................................................58
2.23 Market Disruption; Denomination of Amounts in Dollars;
Dollar Equivalent of Reimbursement Obligations...............................58
2.24 Subsidiary Borrowers....................................................59
2.25 Security................................................................60
2.26 Assignment and Reallocation of Existing Commitments and
Existing Loans...............................................................60
ARTICLE III: THE LETTER OF CREDIT FACILITY..................................61
3.1 Obligation to Issue Letters of Credit....................................61
3.2 Transitional Provision...................................................61
3.3 Types and Amounts........................................................61
3.4 Conditions...............................................................62
3.5 Procedure for Issuance of Letters of Credit..............................62
3.6 Letter of Credit Participation...........................................63
3.7 Reimbursement Obligation.................................................63
3.8 Letter of Credit Fees....................................................64
3.9 Issuing Bank Reporting Requirements......................................64
3.10 Indemnification; Exoneration............................................65
3.11 Cash Collateral.........................................................66
ARTICLE IV: CHANGE IN CIRCUMSTANCES.........................................66
4.1 Yield Protection.........................................................66
4.2 Changes in Capital Adequacy Regulations..................................67
4.3 Availability of Types of Advances........................................68
4.4 Funding Indemnification..................................................68
4.5 Lender Statements; Survival of Indemnity.................................68
ARTICLE V: CONDITIONS PRECEDENT.............................................69
5.1 Effectiveness............................................................69
5.2 Initial Advance to Each New Subsidiary Borrower..........................70
5.3 Each Advance and Each Letter of Credit...................................70
ARTICLE VI: REPRESENTATIONS AND WARRANTIES..................................71
6.1 Organization; Corporate Powers...........................................71
6.2 Authorization and Validity...............................................71
6.3 No Conflict; Government Consent..........................................72
6.4 Financial Statements.....................................................72
6.5 Material Adverse Change..................................................72
6.6 Taxes....................................................................72
6.7 Litigation and Contingent Obligations....................................73
6.8 Subsidiaries.............................................................73
6.9 ERISA....................................................................73
6.10 Accuracy of Information.................................................74
6.11 Regulation U............................................................74
6.12 Material Agreements.....................................................74
6.13 Compliance With Laws....................................................74
6.14 Ownership of Properties.................................................75
6.15 Statutory Indebtedness Restrictions.....................................75
6.16 Environmental Matters...................................................75
6.17 Insurance...............................................................75
6.18 Labor Matters...........................................................76
6.19 Solvency................................................................76
6.20 Default.................................................................76
6.21 Foreign Employee Benefit Matters........................................76
6.22 Acquisition Documents...................................................76
6.23 Collateral Documents....................................................76
6.24 Security................................................................76
6.25 Subordinated Seller Debt................................................77
6.26 Subsidiaries............................................................77
6.27 Representations and Warranties of each Subsidiary Borrower..............77
ARTICLE VII: COVENANTS......................................................79
7.1 Reporting................................................................79
7.2 Affirmative Covenants....................................................83
7.3 Negative Covenants.......................................................86
7.4 Financial Covenants......................................................94
ARTICLE VIII: DEFAULTS......................................................94
8.1 Defaults.................................................................94
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES......................................................97
9.1 Termination of Revolving Loan Commitments; Acceleration..................97
9.2 Amendments...............................................................97
9.3 Preservation of Rights...................................................98
ARTICLE X: GUARANTY.........................................................99
10.1 Guaranty................................................................99
10.2 Waivers.................................................................99
10.3 Guaranty Absolute.......................................................99
10.4 Acceleration...........................................................100
10.5 Marshaling; Reinstatement..............................................100
10.6 Subrogation............................................................101
10.7 Termination Date.......................................................101
ARTICLE XI: GENERAL PROVISIONS.............................................101
11.1 Survival of Representations............................................101
11.2 Governmental Regulation................................................101
11.3 Headings...............................................................101
11.4 Entire Agreement.......................................................101
11.5 Several Obligations; Benefits of this Agreement........................102
11.6 Expenses; Indemnification..............................................102
11.7 Numbers of Documents...................................................103
11.8 Accounting.............................................................103
11.9 Severability of Provisions.............................................103
11.10 Nonliability of Lenders...............................................103
11.11 Governing Law.........................................................103
11.12 Consent to Jurisdiction; Service of Process; Jury Trial...............103
11.13 Other Transactions....................................................105
ARTICLE XII: THE ADMINISTRATIVE AGENT......................................105
12.1 Appointment; Nature of Relationship....................................105
12.2 Powers.................................................................106
12.3 General Immunity.......................................................106
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc...........106
12.5 Action on Instructions of Lenders......................................106
12.6 Employment of Agents and Counsel.......................................107
12.7 Reliance on Documents; Counsel.........................................107
12.8 The Administrative Agent's, Issuing Banks', Swing Line Bank's and
Alternate Currency Banks' Reimbursement and Indemnification.................107
12.9 Rights as a Lender.....................................................108
12.10 Lender Credit Decision................................................108
12.11 Successor Administrative Agent........................................108
12.12 No Duties Imposed Upon Syndication Agent,
Documentation Agent or Arrangers............................................109
12.13 Collateral Agent......................................................109
ARTICLE XIII: SETOFF; RATABLE PAYMENTS.....................................109
13.1 Setoff.................................................................109
13.2 Ratable Payments.......................................................109
13.3 Application of Payments................................................110
13.4 Relations Among Lenders................................................110
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............110
14.1 Successors and Assigns.................................................110
14.2 Participations.........................................................111
14.3 Assignments............................................................111
14.4 Confidentiality........................................................114
14.5 Dissemination of Information...........................................114
ARTICLE XV: NOTICES........................................................115
15.1 Giving Notice..........................................................115
15.2 Change of Address......................................................115
15.3 Authority of Company...................................................115
ARTICLE XVI: COUNTERPARTS..................................................115
