EXECUTION COPY
CREDIT AGREEMENT
Dated as of April 28, 2003
among
MacDERMID, INCORPORATED
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
and
BANC OF AMERICA SECURITIES LLC,
as
Co-Lead Arranger and Sole Book Manager
and
FLEET SECURITIES, INC.
as
Co-Lead Arranger
* * *
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . 25
1.03 Accounting Terms. . . . . . . . . 25
1.04 Rounding. . . . . . . . . . . . . 26
1.05 References to Agreements and Laws 26
1.06 Times of Day. . . . . . . . . . . 26
1.07 Letter of Credit Amounts. . . . . 26
1.08 Currency Equivalents Generally. . 26
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans; . . . . . . . . . . . . . . . . . . . . 27
2.02 Borrowings, Conversions and Continuations of Loans 27
2.03 Letters of Credit. . . . . . . . . . . . . . . . . 29
2.04 Swing Line Loans . . . . . . . . . . . . . . . . . 36
2.05 Prepayments. . . . . . . . . . . . . . . . . . . . 39
2.06 Termination or Reduction of Commitments. . . . . . 41
2.07 Repayment of Loans . . . . . . . . . . . . . . . . 41
2.08 Interest . . . . . . . . . . . . . . . . . . . . . 41
2.09 Fees . . . . . . . . . . . . . . . . . . . . . . . 42
2.10 Computation of Interest and Fees . . . . . . . . . 43
2.11 Evidence of Indebtedness . . . . . . . . . . . . . 43
2.12 Payments Generally.. . . . . . . . . . . . . . . . 44
2.13 Sharing of Payments. . . . . . . . . . . . . . . . 46
2.14 Nature of Obligations. . . . . . . . . . . . . . . 47
2.15 Increase in Commitments. . . . . . . . . . . . . . 48
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 50
3.02 Illegality 51
3.03 Inability to Determine Rates 51
3.04. . . . . . . . . . Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans 51
3.05 Funding Losses 52
3.06 Matters Applicable to all Requests for Compensation 53
3.07 Survival 53
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. . . . . . . . . . . . . 53
4.02 Conditions to all Credit Extensions . . . . . . . . . . . . . . 56
4.03 Conditions to initial Credit Extension to any Eligible Borrower 56
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws . . . . . . . . . . . 57
5.02 Authorization; No Contravention. . . . . . . . . . . . . . . . . . . . . . . . 57
5.03 Governmental Authorization; Other Consents . . . . . . . . . . . . . . . . . . 58
5.04 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.05 Financial Statements; No Material Adverse Effect . . . . . . . . . . . . . . . 58
5.06 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.07 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.08 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.09 Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.12 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.13 Subsidiaries; Equity Interests . . . . . . . . . . . . . . . . . . . . . . . . 61
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act 61
5.15 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.17 Tax Shelter Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.18 Intellectual Property; Licenses, Etc.. . . . . . . . . . . . . . . . . . . . . 62
5.19 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.20 Casualty, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.21 Perfection, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.22 Swap Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.23 Representation of Eligible Borrowers . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements. . . . . . . . . . . . . . . . 64
6.02 Certificates; Other Information . . . . . . . . . . 65
6.03 Notices . . . . . . . . . . . . . . . . . . . . . . 66
6.04 Payment of Obligations. . . . . . . . . . . . . . . 66
6.05 Preservation of Existence, Etc. . . . . . . . . . . 67
6.06 Maintenance of Properties . . . . . . . . . . . . . 67
6.07 Maintenance of Insurance. . . . . . . . . . . . . . 67
6.08 Compliance with Laws. . . . . . . . . . . . . . . . 67
6.09 Books and Records . . . . . . . . . . . . . . . . . 67
6.10 Inspection Rights . . . . . . . . . . . . . . . . . 67
6.11 Use of Proceeds . . . . . . . . . . . . . . . . . . 68
6.12 Covenant to Guarantee Obligations and Give Security 68
6.13 Compliance with Environmental Laws. . . . . . . . . 69
6.14 Further Assurances. . . . . . . . . . . . . . . . . 69
6.15 Lien Searches . . . . . . . . . . . . . . . . . . . 69
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens. . . . . . . . . . . . . . . . 70
7.02 Investments. . . . . . . . . . . . . 70
7.03 Indebtedness . . . . . . . . . . . . 71
7.04 Fundamental Changes. . . . . . . . . 72
7.05 Dispositions . . . . . . . . . . . . 72
7.06 Restricted Payments. . . . . . . . . 73
7.07 Change in Nature of Business . . . . 73
7.08 Transactions with Affiliates . . . . 73
7.09 Burdensome Agreements. . . . . . . . 74
7.10 Use of Proceeds. . . . . . . . . . . 74
7.11 Financial Covenants. . . . . . . . . 74
7.12 Amendments of Organization Documents 76
7.13 Accounting Changes . . . . . . . . . 76
7.14 Prepayments, Etc. of Indebtedness. . 76
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. . . . . . . 76
8.02 Remedies Upon Event of Default 78
8.03 Application of Funds . . . . . 79
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent. . . . . . . 80
9.02 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . 81
9.03 Liability of Administrative Agent. . . . . . . . . . . . . . . . . 81
9.04 Reliance by Administrative Agent . . . . . . . . . . . . . . . . . 81
9.05 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . 82
9.06 Credit Decision; Disclosure of Information by Administrative Agent 82
9.07 Indemnification of Administrative Agent. . . . . . . . . . . . . . 83
9.08 Administrative Agent in its Individual Capacities. . . . . . . . . 83
9.09 Successor Administrative Agent . . . . . . . . . . . . . . . . . . 83
9.10 Administrative Agent May File Proofs of Claim. . . . . . . . . . . 84
9.11 Collateral and Guaranty Matters. . . . . . . . . . . . . . . . . . 85
9.12 Administrative Agent as English Trustee. . . . . . . . . . . . . . 85
9.13 Assignment under Dutch Law . . . . . . . . . . . . . . . . . . . . 86
9.14 Other Agents; Arrangers and Managers . . . . . . . . . . . . . . . 86
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. . . . . . . . . . . . . . . . . . 87
10.02 Notices and Other Communications; Facsimile Copies 88
10.03 No Waiver; Cumulative Remedies . . . . . . . . . . 89
10.04 Attorney Costs, Expenses and Taxes . . . . . . . . 89
10.05 Indemnification by the Company . . . . . . . . . . 90
10.06 Payments Set Aside . . . . . . . . . . . . . . . . 91
10.07 Successors and Assigns . . . . . . . . . . . . . . 91
10.08 Confidentiality. . . . . . . . . . . . . . . . . . 94
10.09 Setoff . . . . . . . . . . . . . . . . . . . . . . 95
10.10 Interest Rate Limitation . . . . . . . . . . . . . 96
10.11 Counterparts . . . . . . . . . . . . . . . . . . . 96
10.12 Integration. . . . . . . . . . . . . . . . . . . . 96
10.13 Survival of Representations and Warranties . . . . 96
10.14 Severability . . . . . . . . . . . . . . . . . . . 97
10.15 Tax Forms. . . . . . . . . . . . . . . . . . . . . 97
10.16 Replacement of Lenders . . . . . . . . . . . . . . 98
10.17 Governing Law. . . . . . . . . . . . . . . . . . . 99
10.18 Judgment . . . . . . . . . . . . . . . . . . . . . 100
10.19 Substitution of Currency . . . . . . . . . . . . . 100
10.20 Binding Effect . . . . . . . . . . . . . . . . . . 101
10.21 Waiver of Right to Trial by Jury . . . . . . . . . 101
SIGNATURES S-1
SCHEDULES
I. . . . . Guarantors
II . . . . Existing Eligible Borrowers
III. . . . Existing Letters of Credit
2.01 . . . Commitments and Pro Rata Shares
5.05 . . . Supplement to Interim Financial Statements
5.06 . . . Litigation
5.08(b). . Existing Liens
5.08(c). . Owned Real Property
5.08(d). . Existing Investments
5.09 . . . Environmental Matters
5.11 . . . INTENTIONALLY OMITTED
5.13 . . . Subsidiaries and Other Equity Investments
5.18 . . . Intellectual Property Matters
5.22 . . . Existing Swap Contracts
7.02(a). . Existing Investments
7.03 . . . Existing Indebtedness
10.02. . . Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
A . Committed Loan Notice
B . Swing Line Loan Notice
C . Note
D . Assignment and Assumption
F . Guaranty
G . Security Agreement
H . Opinion Matters - Counsel to Loan Parties
I . Election to Participate
J . Election to Terminate
K . Compliance Certificate
CREDIT AGREEMENT
April 28, 2003
MacDERMID, INCORPORATED, a Connecticut corporation (the "Company"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms
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. As used in this Agreement, the following terms shall have the meanings
set forth below:
"Accounts Receivable" has the meaning of "Receivables" and "Related Contracts",
each as defined in Section 1 (b) of the Security Agreement.
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"Administrative Agent" means Bank of America in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or
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account as the Administrative Agent may from time to time notify the Company and
the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person (other than, in
the case of the Loan Parties, a Subsidiary of such Person) that directly, or
indirectly through one or more intermediaries, Governs or is Governed by or is
under common Governance with the Person specified. "Govern" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "Governing" and "Governed"
have meanings correlative thereto. Without limiting the generality of the
foregoing, a Person shall be deemed to be Governed by another Person if such
other Person possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of directors, managing
general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent and the Arrangers,
together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Revolving Credit Commitments of all the
Lenders.
"Aggregate Credit Exposures" means, at any time, the sum of (i) the unused
portion of the Revolving Credit Commitment then in effect and (ii) the Total
Outstandings at such time.
"Agreement" means this Credit Agreement.
"Applicable Rate" means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
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Applicable Rate
Pricing Level . Consolidated Leverage Ratio Facility Fee Euro-currency Rate Letters of Credit Base Rate +
1 . . . . . . . <2.25:1 0.250% 1.250% 1.250% 0.000%
-
2 . . . . . . . >2.25:1 but <2.50:1 0.375% 1.375% 1.375% 0.000%
-
3 . . . . . . . >2.50:1 but <2.75:1 0.500% 1.500% 1.500% 0.000%
-
4 . . . . . . . >2.75:1 but <3.00:1 0.500% 1.750% 1.750% 0.250%
-
5 . . . . . . . >3.00:1 0.625% 1.875% 1.875% 0.375%
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if a Compliance Certificate is not
---------------------------
delivered when due in accordance with such Section, then Pricing Level 5 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. The Applicable Rate in effect
on the Closing Date shall be determined based upon Pricing Level IV.
"Arrangers" means each of Banc of America Securities LLC, in its capacity
as co-lead arranger and sole book manager, and Fleet Securities, Inc., in its
capacity as co-lead arranger.
"Assignment and Assumption" means an Assignment and Assumption substantially in
the form of Exhibit E.
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"Assuming Lender" has the meaning specified in Section 2.15(d).
----------------
"Assumption Agreement" has the meaning specified in Section 2.15(d)(ii).
--------------------
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any capital
lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet of
the Company and its Subsidiaries for the fiscal year ended December 31, 2001,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
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2.03(b)(iii).
------------
"Availability Period" means the period from and including the Closing Date to
the earliest of (a) the Maturity Date, (b) the date of termination of the
Revolving Credit Commitments pursuant to Section 2.06, and (c) the date of
-------------
termination of the commitment of each Revolving Credit Lender to make Revolving
Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02.
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"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its "prime rate." The "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan denominated in Dollars that bears interest based
on the Base Rate.
"Blankets Business" means the business and assets of the Company and its
Subsidiaries used in manufacturing, developing and selling printing blankets.
"Borrower" means the Company and each Eligible Borrower.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurocurrency Rate Loan, on which dealings in deposits
are conducted by and between banks in the London interbank eurocurrency market
and banks are open for business in the country of issue of the currency of such
Eurocurrency Rate Advance (or, in the case of an Advance denominated in Euro, on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open).
"Cash Collateralize" has the meaning specified in Section 2.03(g).
----------------
"Cash Distributions" means, with respect to any Person for any period, all
dividends and other distributions on any of the outstanding Equity Interests in
such Person, all purchases, redemptions, retirements, defeasances or other
acquisitions of any of the outstanding Equity Interests in such Person and all
returns of capital to the stockholders, partners or members (or the equivalent
persons) of such Person, in each case to the extent paid in cash by or on behalf
of such Person during such period.
"Cash Equivalents" means any of the following types of Investments, to the
extent owned by the Company or any of its Subsidiaries free and clear of all
Liens (other than Liens created under the Collateral Documents):
(a) readily marketable obligations issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of acquisition
thereof; provided that the full faith and credit of the United States of
America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers'
acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized
under the laws of the United States of America, any state thereof or the
District of Columbia or is the principal banking subsidiary of a bank holding
company organized under the laws of the United States of America, any state
thereof or the District of Columbia, and is a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and
surplus of at least $1,000,000,000, in each case with maturities of not more
than one year from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of any
state of the United States of America and rated at least "Prime-1" (or the then
equivalent grade) by Xxxxx'x or at least "A-1" (or the then equivalent grade) by
S&P, in each case with maturities of not more than 180 days from the date of
acquisition thereof; and
(d) Investments, classified in accordance with GAAP as Current Assets of the
Company or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, which are administered by
financial institutions that have the highest rating obtainable from either
Xxxxx'x or S&P, and the portfolios of which are limited solely to Investments of
the character, quality and maturity described in clauses (a), (b) and (c) of
this definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"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 Securities Exchange Act of 1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such person or
group has the right to acquire (such right, an "option right"), whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, a majority of the equity securities of the Company entitled to vote
for members of the board of directors or equivalent governing body of such
Person on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); or
(b) during any period of 12 consecutive months, a majority of the members of
the board of directors or other equivalent governing body of the Company
cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors), or
(c) any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, that has resulted in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Company, or control over the equity securities of
such Person entitled to vote for members of the board of directors or equivalent
governing body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right) representing 30% or more of the combined voting power of
such securities.
"Closing Date" means the first date all the conditions precedent in Section
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4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of
---- ------------
Section 4.01(b), waived by the Person entitled to receive the applicable
----------------
payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all of the "Collateral" referred to in the Collateral
Documents and all of the other property and assets that are or are intended
under the terms of the Collateral Documents to be subject to Liens in favor of
the Administrative Agent for the benefit of the Secured Parties.
"Collateral Documents" means, collectively, the Security Agreement, each of the
collateral assignments, Security Agreement Supplements, security agreements,
pledge agreements or other similar agreements delivered to the Administrative
Agent and the Lenders pursuant to Section 6.12, and each of the other
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agreements, instruments or documents that creates or purports to create a Lien
in favor of the Administrative Agent for the benefit of the Secured Parties.
"Colorspan" means the Company's digital printing business.
"Commitment Date" has the meaning specified in Section 2.15(b).
----------------
"Commitment Increase" has the meaning specified in Section 2.15(a).
----------------
"Committed Currencies" means lawful currency of the United Kingdom of Great
Britain and Northern Ireland, lawful currency of Japan and Euros.
"Committed Loan Notice" means a notice of (a) a Revolving Credit Borrowing, (b)
a conversion of Loans from one Type to the other, or (c) a continuation of
Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,
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shall be substantially in the form of Exhibit A.
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"Company" has the meaning specified in the recital of parties to this
Agreement.
"Compensation Period" has the meaning specified in Section 2.12(c)(ii).
--------------------
"Compliance Certificate" means a certificate substantially in the form of
Exhibit K.
"Consolidated EBIT" means, for any period, for the Company and its Subsidiaries
on a consolidated basis, an amount equal to Consolidated Net Income for such
period plus (a) the following to the extent deducted in calculating such
----
Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for federal, state, local and foreign income taxes payable by
the Company and its Subsidiaries for such period and (iii) other expenses of the
Company and its Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period minus (b) all non-cash
-----
items increasing Consolidated Net Income for such period; provided, however,
that for all purposes for any businesses acquired or divested during the period
of determination, Consolidated EBIT for such period shall be determined on a pro
forma basis as if such acquisition or divestiture had occurred as of the
beginning of such period; provided, further, that, in the case of an acquisition
for which audited financial statements of the acquiree have not been provided,
without the consent of the Administrative Agent and the Required Lenders, the
Consolidated EBIT of the acquiree on a stand alone basis being added from such
acquisition shall not exceed 15% of the otherwise applicable amount of
Consolidated EBIT of the Company and its Subsidiaries (other than the acquiree)
taken as a whole.
"Consolidated EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
----
such Consolidated Net Income: (i) Consolidated Interest Charges for such
period, (ii) the provision for federal, state, local and foreign income taxes
payable by the Company and its Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense deducted in determining such Consolidated
Net Income and (iv) other expenses of the Company and its Subsidiaries reducing
such Consolidated Net Income which do not represent a cash item in such period
or any future period and minus (b) all non-cash items increasing Consolidated
-----
Net Income for such period; provided, that, in the case of an acquisition for
which audited financial statements of the acquiree have not been provided,
without the consent of the Administrative Agent and the Required Lenders, the
Consolidated EBITDA of the acquiree on a stand alone basis being added from such
acquisition shall not exceed 15% of the otherwise applicable amount of
Consolidated EBITDA of the Company and its Subsidiaries (other than the
acquiree) taken as a whole.
"Consolidated Funded Indebtedness" means, as of any date of determination, for
the Company and its Subsidiaries on a consolidated basis, without duplication,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) all Off-Balance Sheet Liabilities, (g) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Company or any
Subsidiary, and (h) all Indebtedness of the types referred to in clauses (a)
through (g) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which the
Company or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is made non-recourse to the Company or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, without limitation, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of
the Company and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP
and (b) the portion of rent expense of the Company and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated EBIT for the period of the four prior fiscal
quarters ending on such date to (b) Consolidated Interest Charges for such
period.
"Consolidated Leverage Ratio" means, as of any date of determination, the ratio
of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated
EBITDA for the period of the four fiscal quarters most recently ending on such
date.
"Consolidated Net Income" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the net income (including, without
duplication, interest income) of the Company and its Subsidiaries for that
period.
"Consolidated Senior Secured Funded Indebtedness" means, as of any date of
determination, for the Company and its Subsidiaries on a consolidated basis, the
sum of (a) the outstanding principal amount of all senior secured obligations,
whether current or long-term, for borrowed money (including Obligations
hereunder) and all senior secured obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments and (b) without duplication,
all Guarantees with respect to outstanding Indebtedness of the type specified in
clause (a) above.
"Consolidated Senior Secured Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Senior Secured Funded Indebtedness
as of such date to (b) Consolidated EBITDA for the period of the four fiscal
quarters most recently ending on such date.
"Contractual Obligation" means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b) an L/C
Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
"Default" means any event or condition that constitutes an Event of Default or
that, with the giving of any notice, the passage of time, or both, would be an
Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b) the
----
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default
-------- -------
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any portion of
the Revolving Credit Loans, participations in L/C Obligations or participations
in Swing Line Loans required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disclosed Litigation" has the meaning set forth in Section 5.06.
-------------
"Disposition" or "Dispose" means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws of
any political subdivision of the United States.
"Election to Participate" means an Election to Participate executed by an
Eligible Borrower in substantially the form of Exhibit I hereto.
"Election to Terminate" means an Election to Terminate executed by an Eligible
Borrower in substantially the form of Exhibit J hereto.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
-----------------
"Eligible Borrower" means any (a) of the Subsidiaries listed on Schedule II
-----------
hereto, (b) Wholly-Owned Consolidated Subsidiary that is a Domestic Subsidiary,
the capital stock of which has been delivered to the Administrative Agent
pursuant to the Security Agreement, and (c) Wholly-Owned Consolidated Subsidiary
that is a Foreign Subsidiary whose ultimate non-U.S. parent's capital stock has
been delivered to the Administrative Agent pursuant to the Security Agreement;
and, in each case, as to which an Election to Participate shall have been
delivered to the Administrative Agent and as to which an Election to Terminate
shall not have been delivered to the Administrative Agent. Each such Election
to Participate shall be duly executed on behalf of such Wholly-Owned
Consolidated Subsidiary and the Company in such number of copies as the
Administrative Agent may request. The delivery of an Election to Terminate
shall not affect any Obligation of an Eligible Borrower theretofore incurred.
The Administrative Agent shall promptly give notice to the Lenders of the
receipt of any Election to Participate or Election to Terminate.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Company, any other Loan Party or any of their respective Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are outstanding on any date
of determination.
"Equivalent" in Dollars of any Committed Currency on any date means the
equivalent in Dollars of such Committed Currency determined by using the quoted
spot rate at which the Administrative Agent's principal office in London offers
to exchange Dollars for such Committed Currency in London prior to 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement) on
such date as is required pursuant to the terms of this Agreement, and the
"Equivalent" in any Committed Currency of Dollars means the equivalent in such
Committed Currency of Dollars determined by using the quoted spot rate at which
the Administrative Agent's principal office in London offers to exchange such
Committed Currency for Dollars in London prior to 4:00 P.M. (London time)
(unless otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate.
"Euro" and the symbol " " means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European Community, as
such treaty may be amended from time to time and as referred to in the EMU
legislation.
"Eurocurrency Rate" means for any Interest Period with respect to any
Eurocurrency Rate Loan:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Moneyline Telerate
screen (or any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in the applicable Committed
Currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
or
(b) if the rate referenced in the preceding clause (a) does not appear on
such page or service or such page or service shall not be available, the rate
per annum equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in the
applicable Committed Currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum determined by the Administrative Agent as the rate
of interest at which deposits in the applicable Committed Currency for delivery
on the first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the London interbank
eurocurrency market at their request at approximately 4:00 p.m. (London time)
two Business Days prior to the first day of such Interest Period.
"Eurocurrency Rate Loan" means a Loan denominated in Dollars or a Committed
Currency that bears interest at a rate based on the Eurocurrency Rate.
"Event of Default" has the meaning specified in Section 8.01.
-------------
"Excess Cash" means, at any time of determination, cash on the Consolidated
balance sheet of the Company in excess of $20,000,000.
"Existing Credit Agreement" means that certain Second Amended and Restated
Multicurrency Credit Agreement dated as of October 25, 1998, amended and
restated as of Dec ember 15, 1998 and further amended and restated as of June
15, 1999, as amended, among the Company, Bank of America, N.A. (as successor to
NationsBank, N.A.), as agent, and a syndicate of lenders.
"Existing Letters of Credit" means the letters of credit set forth on Schedule
--------
III hereto.
---
"Federal Funds Rate" means, for any day, the 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 by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
--------
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated _____________, among the Company,
the Administrative Agent and the Arrangers.
"Foreign Government Scheme or Arrangement" has the meaning specified in Section
-------
5.12(d).
-------
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
--------------------
"Foreign Plan" has the meaning specified in Section 5.12(d).
----------------
"Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the United
States.
"Fund" has the meaning specified in Section 10.07(g).
-----------------
"GAAP" means generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government including,
without limitation, any agency of the European Union or similar monetary or
multinational authority.
"Grupo Eurocir" means Eurocir SA, its Subsidiaries and its Affiliates.
"Guarantors" means, collectively, the Subsidiaries of the Company listed on
Schedule I and each other Subsidiary of the Company that shall be required to
execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12.
------------
"Guaranty" means, collectively, the Guaranty made by the Guarantors in favor of
the Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit F, together with each other guaranty and guaranty supplement delivered
----------
pursuant to Section 6.12.
-------------
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedge Bank" means any Person that is a Lender or an Affiliate of a Lender, in
its capacity as a party to a Secured Hedge Agreement.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
-------------------
"Increase Date" has the meaning specified in Section 2.15(a).
----------------
"Increasing Lender" has the meaning specified in Section 2.15(d).
----------------
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements,
convertible securities (to the extent that they have put provisions that are
exercisable during the term of this Agreement) or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business);
(d) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse;
(e) capital leases and Synthetic Lease Obligations;
(f) all Off-Balance Sheet Liabilities (other than non-recourse factoring of
receivables); and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
--------------
"Indemnitees" has the meaning set forth in Section 10.05.
--------------
"Information" has the meaning specified in Section 10.08.
--------------
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a Eurocurrency Rate
-------- -------
Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment
Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last
Business Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Company in its Committed Loan
Notice; provided that:
--------
(i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Inventory" has the meaning specified in Section 1 (a) of the Security
-------------
Agreement.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor incurs
debt of the type referred to in clause (h) of the definition of "Indebtedness"
set forth in this Section 1.01 in respect of such Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IP Rights" has the meaning set forth in Section 5.18.
-------------
"IRS" means the United States Internal Revenue Service.
"ISDA Master Agreement" means the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc., as in
effect from time to time.
"Joint Venture Agreement" means the Joint Venture Agreement dated September 21,
2000 between the Company and Grupo Eurocir.
"Laws" means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Revolving Credit Lender, such Lender's
funding of its participation in any L/C Borrowing in accordance with its Pro
Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Revolving Credit Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of
the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto and, as
the context requires, includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such Lender
described as such in such Lender's Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Company and the
Administrative Agent.
"Letter of Credit" means any letter of credit denominated in Dollars issued
hereunder and shall include the Existing Letters of Credit. A Letter of Credit
shall be a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day).
"Letter of Credit Sublimit" means an amount equal to $15,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit
Facility.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Company under Article II
in the form of a Revolving Credit Loan or a Swing Line Loan.
"Loan Documents" means, collectively, (a) for purposes of this Agreement and the
Notes and any amendment, supplement or other modification hereof or thereof and
for all other purposes other than for purposes of the Guaranty and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents, (v) the Fee Letter, and (vi) each Letter of
Credit Application and (b) for purposes of the Guaranty and the Collateral
Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the
Collateral Documents, (v) each Letter of Credit Application, (vi) the Fee Letter
and (vii)each Secured Hedge Agreement.
"Loan Parties" means, collectively, the Company and each Qualified Subsidiary.
"Material Adverse Effect" means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), condition (financial or otherwise) or prospects of the Company
or the Company and its Subsidiaries taken as a whole; (b) a material impairment
of the rights and remedies of any Agent or any Lender under any Loan Document,
or of the ability of the Loan Parties, taken as a whole, to perform their
obligations under the Loan Documents; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.
"Maturity Date" means the earlier of (i) the third anniversary of the Closing
Date and (ii) the date of termination in whole of the Revolving Credit
Commitments, the Letter of Credit Commitments, and the Swing Line Commitments
pursuant to Section 2.06 or 8.02.
-----------------------
"Maximum Rate" has the meaning specified in Section 10.10.
--------------
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes
or is obligated to make contributions, or during the preceding five plan years,
has made or been obligated to make contributions.
"Net Cash Proceeds" means, with respect to the sale of any asset by the Company
or any of its Subsidiaries, the excess, if any, of (a) the sum of cash and Cash
Equivalents received in connection with such sale (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) over (b)
the sum of (i) the principal amount of any Indebtedness that is secured by such
asset and that is required to be repaid in connection with the sale thereof
(other than Indebtedness under the Loan Documents), (ii) the out-of-pocket
expenses incurred by the Company or such Subsidiary in connection with such sale
and (iii) income taxes reasonably estimated to be actually payable within two
years of the date of the relevant asset sale as a result of any gain recognized
in connection therewith.
"Non-Qualified Subsidiary" means any Subsidiary that is not a Qualified
Subsidiary.
"Nonrenewal Notice Date" has the meaning specified in Section 2.03(b)(iii).
--------------------
"Note" means a promissory note of the Company payable to the order of any
Revolving Credit Lender, in substantially the form of Exhibit C hereto,
evidencing the aggregate indebtedness of the Company to such Revolving Credit
Lender resulting from the Revolving Credit Loans made by such Revolving Credit
Lender.
"NPL" means the National Priorities List under CERCLA.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding. Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Loan Documents
include (a) the obligation to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by any Loan Party under any Loan Document
and (b) the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its reasonable sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Off-Balance Sheet Liabilities" means all liabilities of the Company and its
Subsidiaries to the extent that such liabilities do not appear on the
Consolidated balance sheet of the Company, including, without limitation,
liabilities, if any, in respect of the factoring and securitization of
receivables.
"Offering Memorandum" means the offering memorandum dated February 2003 used by
the Arrangers in connection with the syndication of the Commitments.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" has the meaning specified in Section 3.01(b).
----------------
"Outstanding Amount" means (i) with respect to Revolving Credit Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof
(based on the Equivalent in Dollars at such time) after giving effect to any
borrowings and prepayments or repayments of Revolving Credit Loans and Swing
Line Loans, as the case may be, occurring on such date; and (ii) with respect to
any L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
-----------------
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan"(as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by the Company or any ERISA
Affiliate or to which the Company or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Liens" means:
(a) in the case of real property, easements, restrictions, exceptions,
reservations or defects which, in the aggregate, do not materially interfere
with the continued use of such property for which they are used and do not
materially affect the value thereof;
(b) Liens (other than in respect of the Collateral), if contested in good
faith by appropriate proceedings and appropriate reserves are maintained, in
accordance with generally accepted accounting principles, with respect thereto;
(c) pledges or deposits to secure obligations under workmen's compensation
laws or similar legislation or to secure performance in connection with bids,
tenders and contracts (other than contracts for the payment of borrowed money)
to which the Company or any of its Subsidiaries is a party;
(d) deposits to secure public or statutory obligations of the Company or any
of its Subsidiaries;
(e) materialmen's, mechanics', carriers', workmen's or similar Liens arising
in the ordinary course of business, or deposits of cash or United States
obligations to obtain the release of such Liens;
(f) deposits to secure surety or appeal bonds in proceedings to which the
Company or any of its Subsidiaries is a party; and
(g) Liens for Taxes not yet due and payable.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts with Lenders or their Affiliates, provided that each of the following
criteria is satisfied: (I) (a) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets held or
reasonably anticipated by such Person, or changes in the value of securities
issued by such Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of speculation or taking a
"market view" and (b) such Swap Contracts do not contain any provision
("walk-away" provision) exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party or (II)
such Swap Contract was entered into prior to the Closing Date and is listed on
Schedule 5.22.
--------------
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in Section
3(3) of ERISA) established by the Company or, with respect to any such plan that
is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
"Pledged Debt" has the meaning specified in Section 1 (c) of the Security
-------------
Agreement.
"Pledged Equity" has the meaning specified in Section 1 (c) of the Security
-------------
Agreement.
"Pro Rata Share" means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Revolving Credit Commitment of such
Lender at such time and the denominator of which is the amount of the Aggregate
Commitments at such time; provided that if the commitment of each Lender to make
--------
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, then the Pro Rata Share of each Lender
------------
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
-------------
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Qualified Subsidiary" means any Guarantor and any Eligible Borrower.
"Register" has the meaning set forth in Section 10.07(c).
-----------------
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing, conversion
or continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having more
than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition) and (b) aggregate unused Revolving Credit Commitments; provided that
--------
the unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer, corporate secretary of a
Loan Party Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such
Loan Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (except dividends
payable solely in shares of such Person's capital stock) with respect to any
capital stock or other Equity Interest of the Company or any Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such capital stock
or other Equity Interest, or on account of any return of capital to the
Company's stockholders, partners or members (or the equivalent Persons thereof).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate
Loans, having the same Interest Period made by each of the Revolving Credit
Lenders pursuant to Section 2.01.
-------------
"Revolving Credit Borrowing Minimum" means, in respect of Revolving Credit Loans
denominated in Dollars, $5,000,000, in respect of Revolving Credit Loans
denominated in Sterling, 5,000,000, in respect of Revolving Credit Loans
denominated in Yen, 600,000,000 and, in respect of Revolving Credit Loans
denominated in Euros, 5,000,000.
"Revolving Credit Borrowing Multiple" means, in respect of Revolving Credit
Loans denominated in Dollars, $1,000,000 in respect of Revolving Credit Loans
denominated in Sterling, 1,000,000, in respect of Revolving Credit Loans
denominated in Yen, 120,000,000 and, in respect of Revolving Credit Loans
denominated in Euros, 1,000,000.
"Revolving Credit Commitment" means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Company pursuant to Section
-------
2.01, (b) purchase participations in L/C Obligations, and (c) purchase
----
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 under the caption "Revolving Credit Commitment" or in the
--------------
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.
"Revolving Credit Facility" means, at any time, the aggregate amount of the
Revolving Credit Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means, at any time, any Lender that has a Revolving
Credit Commitment at such time.
"Revolving Credit Loan" has the meaning specified in Section 2.01.
-------------
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Hedge Agreement" means any interest rate Swap Contract permitted under
Article VI or VII that is entered into by and between the Company and any Hedge
------------------
Bank.
"Secured Obligations" has the meaning specified in Section 2 of the Security
Agreement.
"Secured Parties" means, collectively, the Administrative Agent, the Lenders,
the Hedge Banks, each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.01(c) and the other Persons the
Obligations owing to which are or are purported to be secured by the Collateral
under the terms of the Collateral Documents.
"Security Agreement" has the meaning specified in Section 4.01(a)(iii).
---------------------
"Security Agreement Supplement" has the meaning specified in Section 16(b) of
-------------
the Security Agreement.
"Shareholders' Equity" means, as of any date of determination, consolidated
shareholders' equity of the Company and its Subsidiaries as of that date
determined in accordance with GAAP.
"Significant Subsidiary" means, at any date of determination, any Subsidiary of
the Company that, either individually or together with its Subsidiaries, taken
as a whole, has revenues, assets or earnings in an amount equal to at least 5%
of (a) the consolidated revenues of the Company and its Subsidiaries for the
most recently completed fiscal quarter for which the Lenders have received
financial statements of the Company and its Subsidiaries pursuant to Section
-------
6.01(a) or 6.01(b), (b) the consolidated assets of the Company and its
--------------------
Subsidiaries as of the last day of the most recently completed fiscal quarter
for which the Lenders have received financial statements of the Company and its
Subsidiaries pursuant to Section 6.01(a) or 6.01(b), or (c) the consolidated net
--------------------------
earnings of the Company and its Subsidiaries for the most recently completed
fiscal quarter for which the Lenders have received financial statements of the
Company and its Subsidiaries pursuant to Section 6.01(a) or 6.01(b),
-----------------------------
respectively, in each case determined in accordance with GAAP for such period.
"Solvent" and "Solvency" mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Sterling" and the symbol "" each mean the lawful currency of the United
Kingdom.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
---------- ------------
the Company.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after the date
such Swap Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the Swing
Line Lender pursuant to Section 2.04.
-------------
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
-------------
"Swing Line Lender" means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
----------------
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of
----------------
Exhibit B.
----------
"Swing Line Sublimit" means an amount equal to the lesser of (a) $10,000,000 and
(b) the Revolving Credit Commitments. The Swing Line Sublimit is part of, and
not in addition to, the Revolving Credit Facility.
"Synthetic Lease Obligation" means the monetary obligation of a Person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Tangible Assets" means the total Consolidated assets of the Company and its
Subsidiaries less good will (as determined under GAAP) as disclosed in the
----
financial statements of the Company for the most recently ended quarter
delivered pursuant to Section 6.01.
-------------
"Taxes" has the meaning specified in Section 3.01(a).
----------------
"Threshold Amount" means $10,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans (based
on the Equivalent in Dollars at such time)and all L/C Obligations.
"Transaction" means, collectively, (a) the entering into by the Loan Parties and
their applicable Subsidiaries of the Loan Documents to which they are or are
intended to be a party, (b) the refinancing of certain outstanding Indebtedness
of the Company and its Subsidiaries and the termination of all commitments
thereunder and (c) the payment of the fees and expenses incurred in connection
with the consummation of the foregoing.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
-------------------
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary all of
the Equity Interests in which (except directors' qualifying shares) are, at the
time, directly or indirectly owned by the Company.
"Yen" and the symbol "" each mean the lawful currency of Japan.
1.02 Other Interpretive Provisions
-------------------------------
. With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words of
------ ------ ------ ---------
similar import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments, documents,
---------
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
---- ------------------ --
"until" each mean "to but excluding;" and the word "through" means "to and
------ ------------------ ------- ------
including."
---------
(b) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 Accounting Terms
-----------------
. (a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
------
as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Company or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
--------
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 Rounding
--------
. Any financial ratios required to be maintained by the Company pursuant
to this Agreement shall be calculated by dividing the appropriate component by
the other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws
-------------------------------------
. Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day
--------------
. Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts
---------------------------
. Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.
1.08 Currency Equivalents Generally
--------------------------------
. Any amount specified in this Agreement (other than in Articles II, IX
---------------
and X) or any of the other Loan Documents to be in Dollars shall also include
------
the equivalent of such amount in any currency other than Dollars, such
equivalent amount to be determined at the rate of exchange quoted by Bank of
America in New York at the close of business on the Business Day immediately
preceding any date of determination thereof, to prime banks in New York, New
York for the spot purchase in the New York foreign exchange market of such
amount in Dollars with such other currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans;
-----------
(a) The Revolving Credit Borrowings. Subject to the terms and conditions
----------------------------------
set forth herein, each Revolving Credit Lender severally agrees to make loans
(each such loan, a "Revolving Credit Loan") to each Borrower from time to time,
on any Business Day during the Availability Period, in an aggregate amount
(based in respect of any Revolving Credit Loans to be denominated in a Committed
Currency by reference to the Equivalent thereof in Dollars determined on
the date of delivery of the applicable Committed Loan Notice) of up to, at any
time outstanding, the amount of such Lender's Revolving Credit Commitment;
provided, however, that after giving effect to any Revolving Credit Borrowing,
(i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii)
the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender,
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Revolving Credit Commitment.
Within the limits of each Lender's Revolving Credit Commitment, and subject to
the other terms and conditions hereof, each Borrower may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
------------- ------------ ------------
Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
-------------------------------------------------------
(a) Each Revolving Credit Borrowing, each conversion of Revolving Credit
Loans from one Type to the other, and each continuation of Eurocurrency Rate
Loans shall be made upon the applicable Borrower's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than (w) 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Loans in the case of a Revolving Credit Loans denominated in
Dollars, (x) 4:00 P.M. (London time) on the third Business Day prior to the date
of the proposed Revolving Credit Loan in the case of Revolving Credit Loans
denominated in Sterling or Euros, (y) 11:00 A.M. (New York time) on the fifth
Business Day prior to the date of the proposed Revolving Credit Loan in the case
of Revolving Credit Loans denominated in Yen or (z) 11:00 A.M. (New York City
time) on the date of the proposed Revolving Credit Loans in the case of Base
Rate Loans. Each telephonic notice by a Borrower pursuant to this Section
-------
2.02(b) must be confirmed promptly by delivery to the Administrative Agent of a
-------
written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of such Borrower. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in the Revolving Credit
Borrowing Minimum or a Revolving Credit Borrowing Multiple in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or
-------------------------------
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether such Borrower is
requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Revolving Credit Loans are to be converted, and (v) if
applicable, the Committed Currency and duration of the Interest Period with
respect thereto. If a Borrower fails to specify a Type of Loan in a Committed
Loan Notice or if a Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Revolving Credit Loans shall be
made as, or converted to, Dollar denominated Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If a Borrower requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but
fails to specify a Committed Currency, it will be deemed to have specified
Dollars or, in the case of a conversion, an exchange of such Loans into an
Equivalent amount of Dollars, and if a Borrower fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by a Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in Section 2.02(a). In the case of a Revolving Credit Borrowing, each
---------------
Lender shall make the amount of its Loan available to the Administrative Agent
in immediately available funds at the Administrative Agent's Office not later
than 1:00 p.m. on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section
-------
4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
---- -------------
Administrative Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the Administrative Agent either
by (i) crediting the account of such Borrower on the books of Bank of America
with the amount of such funds or (ii) wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by such Borrower; provided, however, that if, on the date
-------- -------
the Committed Loan Notice with respect to any such Borrowing denominated in
Dollars is given by such Borrower, there are Swing Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in full of
------
any such Swing Line Loans, and third, to the applicable Borrower as provided
-----
above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrowers and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. The determination of the
Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrowers and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Revolving Credit Borrowings, all conversions
of Revolving Credit Loans from one Type to the other, and all continuations of
Revolving Credit Loans as the same Type, there shall not be more than ten
Interest Periods in effect.
(f) The failure of any Lender to make the Loan to be made by it as part of
any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
2.03 Letters of Credit.
-------------------
(a) The Letter of Credit Commitment.
-----------------------------------
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer
agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the period
-------------
from the Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of any Borrower, and to amend or renew Letters
of Credit previously issued by it, in accordance with Section 2.03(b), and (2)
---------------
to honor drafts under the Letters of Credit; and (B) the Revolving Credit
Lenders severally agree to participate in Letters of Credit issued for the
account of any Borrower; provided that the L/C Issuer shall not be obligated to
--------
make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit if as of the
date of such L/C Credit Extension, (x) the Total Outstandings would exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
----
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all
----
Swing Line Loans would exceed such Lender's Revolving Credit Commitment, or (z)
the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit; provided further that upon the resignation of Bank of America as L/C
-----------------
Issuer, Bank of America shall have no obligation hereunder to issue any new
Letter of Credit or to extend or renew any existing Letter of Credit under this
Agreement, and all Letters of Credit issued by Bank of America for the account
of any Borrower hereunder shall either be replaced or, if acceptable to Bank of
America in its sole discretion, backstopped with Letters of Credit issued
hereunder or fully cash collateralized no later than thirty (30) days following
such resignation. Within the foregoing limits, and subject to the terms and
conditions hereof, each Borrower's ability to obtain Letters of Credit shall be
fully revolving, and accordingly each Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter of
Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from
issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested
---------------------
Letter of Credit would occur more than twelve months after the date of issuance
or last renewal, unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such
expiry date;
(D) the issuance of such Letter of Credit would violate one or more policies
of the L/C Issuer; or
(E) such Letter of Credit is to be denominated in a currency other than
Dollars or a Committed Currency.
(iii) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal
------------------------------------------------------------------------
Letters of Credit.
-------------------
(i) Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the relevant Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of such
Borrower. Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least three Business
Days (or such later date and time as the L/C Issuer may agree in a particular
instance in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such Letter of Credit
Application from the applicable Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the L/C
Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the applicable Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance
with the L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Revolving Credit Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Pro Rata Share times the amount of such Letter
of Credit.
(iii) If a Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal Letter of
--------
Credit must permit the L/C Issuer to prevent any such renewal at least once in
each twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the applicable Borrower shall not be required to make a specific
request to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C Issuer shall not permit any such renewal if (A)
-------- -------
the L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has
-------------------
received notice (which may be by telephone or in writing) on or before the day
that is three Business Days before the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Revolving Credit Lender or any
Borrower that one or more of the applicable conditions specified in Section 4.02
------------
is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to
a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the L/C Issuer will also deliver to the Company and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings and Reimbursements; Funding of Participations.
-----------------------------------------------------------
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice
of a drawing under such Letter of Credit, the L/C Issuer shall notify the
Company and the Administrative Agent thereof. Not later than 11:00 a.m. on the
date of any payment by the L/C Issuer under a Letter of Credit (each such date,
an "Honor Date"), the applicable Borrower shall reimburse the L/C Issuer through
the Administrative Agent in an amount equal to the amount of such drawing.
If the applicable Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Revolving Credit Lender of
the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Revolving Credit Lender's Pro Rata Share
thereof. In such event, the applicable Borrower shall be deemed to have
requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of Base
------------
Rate Loans, but subject to the amount of the unutilized portion of the Revolving
Credit Commitments and the conditions set forth in Section 4.02 (other than the
------------
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
-------------------
telephone if immediately confirmed in writing; provided that the lack of such an
--------
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Revolving Credit Lender (including the Lender acting as L/C
Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds
-------------------
available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available
--------------------
shall be deemed to have made a Base Rate Loan to the applicable Borrower in such
amount. The Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced
by a Revolving Credit Borrowing of Base Rate Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
-------------
applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Revolving
Credit Lender's payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
-------------------
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Lender in satisfaction of its participation obligation under this Section
-------
2.03.
----
(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
---------------
amount drawn under any Letter of Credit, interest in respect of such Lender's
Pro Rata Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
----------------
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, any Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Credit Lender's obligation to make
------------------
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the
-----------------
conditions set forth in Section 4.02 (other than delivery by a Borrower of a
------------
Committed Loan Notice ). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the applicable Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c)
---------------
by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
-------------------
to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from time
to time in effect. A certificate of the L/C Issuer submitted to any Revolving
Credit Lender (through the Administrative Agent) with respect to any amounts
owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
-------------------
(d) Repayment of Participations.
-----------------------------
(i) At any time after the L/C Issuer has made a payment under any Letter of
Credit and has received from any Revolving Credit Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c), if the
---------------
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the applicable Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under
------------------
any of the circumstances described in Section 10.06 (including pursuant to any
-------------
settlement entered into by the L/C Issuer in its discretion), each Revolving
Credit Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.
(e) Obligations Absolute. The obligation of the applicable Borrower to
---------------------
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or other
right that such Borrower may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the L/C Issuer under such
Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law;
(v) any exchange, release or nonperfection of any Collateral, or any release
or amendment or waiver of or consent to departure from the Guaranty or any other
guarantee, for all or any of the Obligations of such Borrower in respect of such
Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, such Borrower.
Each Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with such Borrower's instructions or other irregularity, such
Borrower will immediately notify the L/C Issuer. Each Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying
------------------
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application.
Each Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
-------- -------
preclude any Borrower's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
---------------
provided, however, that anything in such clauses to the contrary
-------- -------
notwithstanding, the applicable Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the such Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by such Borrower which such Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible 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.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
----------------
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the applicable Borrower
shall immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. Each
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked deposit accounts at Bank of America. If at any
time the Administrative Agent determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than the Administrative
Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the deposit accounts at Bank of
America as aforesaid, an amount equal to the excess of (a) such aggregate
Outstanding Amount over (b) the total amount of funds, if any, then held as Cash
Collateral that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit as Cash Collateral, such funds shall be applied, to the extent
permitted under applicable law, to reimburse the L/C Issuer.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
------------------------
Issuer and the applicable Borrower when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. Each Borrower shall pay to the Administrative
------------------------
Agent for the account of each Revolving Credit Lender in accordance with its Pro
Rata Share a Letter of Credit fee for each Letter of Credit equal to the
Applicable Rate times the daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit). Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the
daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
------------------------------------------------------------------------
Issuer. Each Borrower shall pay directly to the L/C Issuer for its own account
------
a fronting fee with respect to each Letter of Credit in the amounts and at the
times specified in the Fee Letter. In addition, each Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
-----------------------------------------------
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans
------------------
.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
----------------
the Swing Line Lender agrees to make loans denominated in Dollars (each such
loan, a "Swing Line Loan") to the Company from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender's Commitment; provided,
--------
however, that after giving effect to any Swing Line Loan, (i) the Total
-------
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
----
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
----
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Revolving Credit Commitment, and provided further
-------- -------
that the Company shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Company may borrow under this Section
-------
2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each
---- ------------- ------------
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Swing Line Loan.
-----
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
---------------------
Company's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $500,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request
of any Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed
Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable
----------------
conditions specified in Article IV is not then satisfied, then, subject to the
----------
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Company at its office by
crediting the account of the Company on the books of the Swing Line Lender in
immediately available funds.
(c) Refinancing of Swing Line Loans.
-----------------------------------
(i) The Swing Line Lender at any time in its sole and absolute discretion
may request, on behalf of the Company (which hereby irrevocably authorizes the
Swing Line Lender to so request on its behalf), that each Revolving Credit
Lender make a Base Rate Loan in an amount equal to such Lender's Pro Rata Share
of the amount of Swing Line Loans then outstanding. Such request shall be made
in writing (which written request shall be deemed to be a Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
-------------
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Credit Commitments and the conditions set forth in Section
-------
4.02. The Swing Line Lender shall furnish the Company with a copy of the
----
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Revolving Credit Lender shall make an amount equal
to its Pro Rata Share of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds
-------------------
available shall be deemed to have made a Base Rate Loan to the Company in
such amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request
------------------
for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall
be deemed to be a request by the Swing Line Lender that each of the Revolving
Credit Lenders fund its risk participation in the relevant Swing Line Loan and
each Revolving Credit Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
------------------
payment in respect of such participation.
(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line
---------------- ------------------
Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A certificate of the Swing
Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Revolving Credit Lender's obligation to make Revolving Credit
Loans or to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall not be
----------------
affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender, the Company or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
-------- -------
that each Revolving Credit Lender's obligation to make Revolving Credit Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in
----------------
Section 4.02. No such funding of risk participations shall relieve or otherwise
------------
impair the obligation of the Company to repay Swing Line Loans, together with
interest as provided herein.
(d) Repayment of Participations.
-----------------------------
(i) At any time after any Revolving Credit Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by the
Swing Line Lender under any of the circumstances described in Section 10.06
-------------
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender
its Pro Rata Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned, at a
rate per annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
------------------------------------------
be responsible for invoicing the Company for interest on the Swing Line Loans.
Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata
------------
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company shall make all
-------------------------------------------
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 Prepayments
-----------
.
(a) Optional. (i) Each Borrower may, upon notice to the Administrative
--------
Agent, at any time or from time to time voluntarily prepay Loans in whole or in
part without premium or penalty; provided that (1) such notice must be received
--------
by the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurocurrency Rate Loans, (B) five Business
Days prior to any date of prepayment of Loans denominated in Yen and (C) on the
date of prepayment of Base Rate Loans; (2) any prepayment of Eurocurrency Rate
Loans shall be in a principal amount of the Revolving Credit Borrowing Minimum
or a Revolving Credit Borrowing Multiple in excess thereof; and (3) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's Pro Rata Share
of such prepayment. If such notice is given by a Borrower, such Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest thereon, together
with any additional amounts required pursuant to Section 3.05.
-------------
(ii) The Company may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
--------
that (1) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(2) any such prepayment shall be in a minimum principal amount of $500,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(b) Mandatory. (i) If for any reason the Total Outstandings at any time
---------
exceed the Aggregate Commitments then in effect, the Borrowers shall immediately
prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrowers shall not be
-------- -------
required to Cash Collateralize the L/C Obligations pursuant to this Section
-------
2.05(b)(iv) unless after the prepayment in full of the Loans and Swing Line
-----------
Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
(ii) If, on any date, the Administrative Agent notifies the Borrowers
that the sum of (A) the aggregate principal amount of all Loans denominated in
Dollars then outstanding plus (B) the Equivalent in Dollars (determined on the
third Business Day prior to such interest payment date) of the aggregate
principal amount of all Loans denominated in Committed Currencies then
outstanding exceeds 105% of the Aggregate Commitments on such date, the
Borrowers shall, as soon as practicable and in any event within two Business
Days after receipt of such notice, subject to the proviso to this sentence set
forth below, prepay the outstanding principal amount of any Loans owing by the
Borrowers in an aggregate amount sufficient to reduce such sum to an amount not
to exceed 100% of the Aggregate Commitments on such date together with any
interest accrued to the date of such prepayment on the aggregate principal
amount of Loans prepaid; provided that if the aggregate principal amount of Base
--------
Rate Loans outstanding at the time of such required prepayment is less than the
amount of such required prepayment, the portion of such required prepayment in
excess of the aggregate principal amount of Base Rate Loans then outstanding
shall be deferred until the earliest to occur of the last day of the Interest
Period of the outstanding Eurocurrency Rate Loans in an amount equal to the
excess of such required prepayment. The Administrative Agent shall give prompt
notice of any prepayment required under this Section 2.05(b) to the Borrowers
---------------
and the Lenders, and shall provide prompt notice to the Borrowers of any such
notice of required prepayment received by it from any Lender
(iii) Each prepayment of Loans pursuant to this Section 2.05(b), first,
shall be applied to prepay L/C Borrowings outstanding at such time until all
such L/C Borrowings are paid in full, second, shall be applied to prepay Swing
------
Line Loans outstanding at such time until all such Swing Line Loans are paid in
full, third, shall be applied to prepay Revolving Credit Loans outstanding at
-----
such time until all such Revolving Credit Loans are paid in full and, fourth,
------
shall be used to Cash Collateralize the L/C Obligations. Upon the drawing of
any Letter of Credit which has been Cash Collateralized, such funds shall be
applied (without any further action by or notice to or from any Borrower or any
other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders,
as applicable.
(c) Prepayments to Include Accrued Interest, Etc. All prepayments under
-------------------------------------------------
this Section 2.05 shall be made together with (i) accrued and unpaid interest to
the date of such prepayment on the principal amount so prepaid and (ii) in
the case of any such prepayment of a Eurocurrency Rate Loan on a date other than
the last day of an Interest Period therefor, any amounts owing in respect of
such Eurocurrency Rate Loan pursuant to Section 3.05.
2.06 Termination or Reduction of Commitment
------------------------------------------
(a) Optional. The Company may, upon notice to the Administrative Agent,
--------
terminate the unused portion of the Letter of Credit Sublimit, or the unused
Revolving Credit Commitments, or from time to time permanently reduce the unused
portion of the Letter of Credit Sublimit, or the unused Revolving Credit
Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof and (iii) the Company shall not terminate or reduce the unused portion
of the Letter of Credit Sublimit, or the unused Revolving Credit Commitments if,
after giving effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Aggregate Commitments.
(b) Mandatory. If after giving effect to any reduction or termination of
---------
unused Commitments under this Section 2.06, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess.
(c) Application of Commitment Reductions; Payment of Fees. The
-----------------------------------------------------------
Administrative Agent will promptly notify the Lenders of any termination or
reduction of unused portions of the Letter of Credit Sublimit, or the unused
Revolving Credit Commitment under this Section 2.06. Upon any reduction of
unused Revolving Credit Commitments, the Revolving Credit Commitment of each
Lender shall be reduced by such Lender's Pro Rata Share of the amount by which
the Revolving Credit Facility is reduced. All facility fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.
2.07 Repayment of Loans
--------------------
(a) Revolving Credit Loans. The Borrowers shall repay to the Administrative
Agent for the ratable account of the Revolving Credit Lenders on the
Maturity Date the aggregate principal amount of all Revolving Credit Advances
outstanding on such date.
(b) Swing Line Loans. The Company shall repay each Swing Line Loan on the
earlier to occur of (i) the date five Business Days after such Loan is made and
(ii) the Maturity Date.
2.08 Interest
.
(a) Subject to the provisions of Section 2.08(b), (i) each Eurocurrency Rate
Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrowers under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees
. In addition to certain fees described in Sections 2.03(i) and (j):
(a) Facility Fee. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a facility fee
equal to the Applicable Rate times the actual daily amount of the aggregate
Revolving Credit Commitments (or, if the Revolving Credit Commitments have
terminated, on the Outstanding Amount of all Revolving Credit Loans, Swing Line
Loans and L/C Obligations); in each case, regardless of usage; provided,
however, that any facility fee accrued with respect to any of the Commitments of
a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Company so
long as such Lender shall be a Defaulting Lender except to the extent that such
facility fee shall otherwise have been due and payable by the Company prior to
such time; and provided further that no facility fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender. The facility fee shall accrue at all times during the Availability
Period (and thereafter so long as any Revolving Credit Loans, Swing Line Loans
or L/C Obligations remain outstanding), including at any time during which one
or more of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date (and, if applicable, thereafter on demand). The
facility fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Company shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees, and, where
applicable, for the account of each Lender, in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
(ii) The Company shall pay to the Agents such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
2.10 Computation of Interest and Fees
. All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
(or, in each case of Loans denominated in Committed Currencies where market
practice differs, in accordance with market practice) and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
2.11 Evidence of Indebtedness
.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent
manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrowers hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, each Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to Section 2.11(b), and by each Lender in its account or accounts
pursuant to Section 2.11(a), shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error; provided that the failure of the
Administrative Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrowers under this Agreement and
the other Loan Documents.
2.12 Payments Generally.
(a) All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except
as otherwise expressly provided herein, all payments by the Borrowers hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars or the applicable Committed Currency and in immediately available funds
not later than 2:00 p.m. on the date specified herein. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by a Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be provided, however, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Loans to be made in the next
succeeding calendar month, such payment shall be made on the immediately
preceding Business Day.
(c) Unless a Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Company or such Lender, as the case may
be, will not make such payment, the Administrative Agent may assume that such
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the applicable Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately available
funds, together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent in
immediately available funds at the higher of the Federal Funds Rate from time to
time in effect and the cost of funds incurred by the Administrative Agent
in respect of such amount in the case of Loans denominated in Committed
Currencies; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith
on demand pay to the Administrative Agent the amount thereof in immediately
available funds, together with interest thereon for the period from the date
such amount was made available by the Administrative Agent to the applicable
Borrower to the date such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the higher of the Federal
Funds Rate from time to time in effect and the cost of funds incurred by the
Administrative Agent in respect of such amount in the case of Loans denominated
in Committed Currencies. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent may make a
demand therefor upon the applicable Borrower, and such Borrower shall pay such
amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable
to the applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or any Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this Section 2.12(c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to any Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
(g) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or, in the case of a
Lender, under the Note held by such Lender, to charge from time to time against
any or all of such Borrower's accounts with such Lender any amount so due.
(h) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Agents and the Lenders under or in respect of
this Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Administrative Agent and applied by the Agents and the
Lenders in the order of priority set forth in Section 8.03.
(i) To the extent that the Administrative Agent receives funds for
application to the amounts owing by a Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Section 2.12, the Administrative Agent
shall be entitled to convert or exchange such funds into Dollars or into a
Committed Currency or from Dollars to a Committed Currency or from a Committed
Currency to Dollars, as the case may be, to the extent necessary to enable the
Administrative Agent to distribute such funds in accordance with the terms of
this Section 2.12; provided that each Borrower and each of the Lenders hereby
agree that the Administrative Agent shall not be liable or responsible for any
loss, cost or expense suffered by such Borrower or such Lender as a result of
any conversion or exchange of currencies affected pursuant to this Section
2.12(i) or as a result of the failure of the Administrative Agent to effect any
such conversion or exchange; and provided further that each Borrower agrees to
indemnify the Administrative Agent and each Lender, and hold the Administrative
Agent and each Lender harmless, for any and all losses, costs and expenses
incurred by the Administrative Agent or any Lender for any conversion or
exchange of currencies (or the failure to convert or exchange any currencies) in
accordance with this Section 2.12(i).
2.13 Sharing of Payments
(a) . If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations
or Swing Line Loans held by them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement entered into by
the purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. Each Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff, but subject
to Section 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of such Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
2.14 Nature of Obligations
. (a) The Borrowers agree that all Obligations of each Borrower under or
in respect of this Agreement or any other Loan Document shall be joint and
several obligations of all the Borrowers.
(b) Each Borrower waives presentment to, demand of payment from and
protest to the other Borrowers of any of the Obligations, and also waives notice
of acceptance of its Obligations and notice of protest for nonpayment. The
Obligations of a Borrower hereunder shall not be affected by (i) the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against the other Borrowers under the provisions of
this Agreement or any of the other Loan Documents or otherwise; (ii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Agreement, any of the other Loan Documents or any other agreement; or
(iii) the failure of any Lender to exercise any right or remedy against any
other Borrower.
(c) Each Borrower further agrees that its agreement hereunder constitutes a
promise of payment when due and not of collection, and waives any right to
require that any resort be had by any Lender to any balance of any deposit
account or credit on the books of any Lender in favor of any other Borrower or
any other Person.
(d) The Obligations of each Borrower hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, compromise, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations of the other
Borrowers or otherwise. Without limiting the generality of the foregoing, the
Obligations of each Borrower hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under this Agreement or
under any other Loan Document or any other agreement, by any waiver or
modification in respect of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations of the other
Borrowers, or by any other act or omission which may or might in any manner or
to any extent vary the risk of such Borrower or otherwise operate as a discharge
of such Borrower as a matter of law or equity.
(e) Each Borrower further agrees that its Obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation of
the other Borrowers is rescinded or must otherwise be restored by the
Administrative Agent or any Lender upon the occurrence of a Bankruptcy Event in
respect of such Borrower, any of the other Borrowers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right
which the Administrative Agent or any Lender may have at law or in equity
against any Borrower by virtue hereof, upon the failure of a Borrower to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each other Borrower
hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligations, and thereupon each Lender shall, in a reasonable
manner, assign the amount of the Obligations of the other Borrowers owed to it
and paid by such Borrower pursuant to this guarantee to such Borrower, such
assignment to be pro tanto to the extent to which the Obligations in question
were discharged by such Borrower, or make such disposition thereof as such
Borrower shall direct (all without recourse to any Lender and without any
representation or warranty by any Lender).
(g) Upon payment by a Borrower of any amount as provided above, all rights
of such Borrower against another Borrower, as the case may be, arising as a
result thereof by way of right of subrogation or otherwise shall in all respects
be subordinated and junior in right of payment to the prior indefeasible payment
in full of all the Obligations to the Lenders.
2.15 Increase in Commitments.
(a) The Company may, at any time prior to the Maturity Date, with the
consent of the Administrative Agent (not to be unreasonably withheld), request
that the aggregate amount of the Commitments be increased by an amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (each a
"Commitment Increase") to be effective as of a date that is at least 90 days
prior to the scheduled Maturity Date then in effect (the "Increase Date") as
specified in the related notice to the Administrative Agent; provided, however,
that (i) in no event shall the aggregate amount of the Commitment Increases
exceed $50,000,000 and (ii) on the date of any request by the Company for a
Commitment Increase and on the related Increase Date, the applicable conditions
set forth in Article IV shall be satisfied.
(b) The Administrative Agent shall promptly notify such Eligible
Assignees as it shall identify of a request by the Company for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested
Commitment Increase, (ii) the proposed Increase Date and (iii) the date by which
Lenders wishing to participate in the Commitment Increase must commit to an
increase in the amount of their respective Commitments (the "Commitment Date").
The requested Commitment Increase shall be allocated among the Eligible
Assignees willing to participate therein in such amounts as are agreed between
the Company and the Administrative Agent. The Company shall prepay any
Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Committed Loans ratable with any revised Pro Rata Shares
arising from any nonratable increase in the Commitments under this Section.
(c) Promptly following each Commitment Date, the Administrative Agent shall
notify the Company as to the amount, if any, by which the Eligible Assignees are
willing to participate in the requested Commitment Increase; provided,
however, that the Commitment of each such Eligible Assignee shall be in an
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that was not, prior to
such date, a Lender hereunder and accepts an offer to participate in a requested
Commitment Increase in accordance with Section 2.15(c) (each such Eligible
Assignee, an "Assuming Lender") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each Eligible Assignee that, prior
to such date, was a Lender and accepts an offer to participate in such a
requested Commitment Increase (an "Increasing Lender") shall be so increased by
such amount as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) (A) certified copies of resolutions of the board of directors of
the Company approving the Commitment Increase and the corresponding
modifications to this Agreement, (B) a consent executed by each Guarantor
approving the Commitment Increase and the corresponding modifications to this
Agreement and (C) an opinion of counsel for the Company (which may be in-house
counsel), in form and substance satisfactory to, and covering such matters as
may be reasonably requested by, the Administrative Agent;
(ii) an assumption agreement from each Assuming Lender, if any, in form and
substance satisfactory to the Company and the Administrative Agent (each an
"Assumption Agreement"), duly executed by such Eligible Assignee, the
Administrative Agent and the Company;
(iii) confirmation from each Increasing Lender of the increase in the amount
of its Commitment in a writing satisfactory to the Company and the
Administrative Agent;
(iv) Notes, if requested, payable to the order of the Assuming Lenders and
the Increasing Lenders evidencing the aggregate indebtedness of the Company to
such Lenders after giving effect to the applicable Commitment Increase; and
(v) a revised Schedule 2.01 hereto setting forth the Commitment of each
Lender after giving effect to the applicable Commitment Increase.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.15(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Company, on or before 1:00 P.M. (New York City time), by telecopier, of
the occurrence of the Commitment Increase to be effected on such Increase Date
and shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes
.
(a) Any and all payments by the Borrowers to or for the account of any Agent
or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Agent and each
Lender, taxes imposed on or measured by its overall net income, and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the Laws of which such Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If a Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to any Agent or
any Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section), each of such Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions, (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, such Borrower shall furnish to such Agent or Lender (as the case may
be) (which shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof to the extent such a receipt is
issued therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent.
(b) In addition, each Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If a Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to any Agent
or any Lender, such Borrower shall also pay to such Agent or to such Lender, as
the case may be, at the time interest is paid, such additional amount that such
Agent or such Lender specifies is necessary to preserve the after-tax yield
(after factoring in all taxes, including taxes imposed on or measured by net
income) that such Agent or such Lender would have received if such Taxes or
Other Taxes had not been imposed.
(d) Each Borrower agrees to indemnify each Agent and each Lender for (i) the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this Section) paid by
such Agent and such Lender, (ii) amounts payable under Section 3.01(c) and (iii)
any liability (including additions to tax, penalties, interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this Section 3.01(d) shall be
made within 30 days after the date such Lender or such Agent makes a demand
therefor.
3.02 Illegality
. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or
to determine or charge interest rates based upon the Eurocurrency Rate, then, on
notice thereof by such Lender to the Company through the Administrative Agent,
any obligation of such Lender to make or continue Eurocurrency Rate Loans or to
convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
each Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate
Loans of such Lender to Dollar denominated Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon
any such prepayment or conversion, the applicable Borrower shall also pay
accrued interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates
. If the Required Lenders determine that (i) for any reason adequate and
reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan,
(ii) they are unable to obtain matching deposits in the London inter-bank market
at or about 11:00 A.M. (London time) on the second Business Day before the
making of a Borrowing in sufficient amounts to fund their respective Revolving
Credit Loans as a part of such Borrowing during its Interest Period or (iii) the
Eurocurrency Rate for any Interest Period for such Loans will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurocurrency Rate Loans for such Interest Period, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate
Loans in the applicable currency shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, each Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Dollar denominated Base Rate Loans in the amount
specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans
.
(a) If any Lender determines that as a result of the introduction of or any
change in or in the interpretation of any Law, in each case after the date
hereof, or such Lender's compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Loans or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this
Section 3.04(a) any such increased costs or reduction in amount resulting from
(i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its Lending
Office, and (iii) reserve requirements contemplated by Section 3.04(c), then
from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), each Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, in each
case after the date hereof, or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital), then
from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), each Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) Each Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided such Borrower
shall have received at least 15 days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 Funding Losses
. Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, each Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by such
Borrower; or
(c) any assignment of a Eurocurrency Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Company
pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Each Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by any Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency
Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurocurrency market for a
comparable amount and for a comparable period, whether or not such Eurocurrency
Rate Loan was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation
.
(a) A certificate of any Agent or any Lender claiming compensation under
this Article III and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Agent or such Lender may use any reasonable
averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01 or
3.04, the Company may replace such Lender in accordance with Section 10.16.
3.07 Survival
. All of the Borrowers' obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension
. The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which shall
be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in
number for distribution to each Agent, each Lender and the Company;
(ii) a Note executed by each Borrower in favor of each Lender requesting a
Note;
(iii) a security agreement, in substantially the form of Exhibit G hereto
(together with each other security agreement and security agreement supplement
delivered pursuant to Section 6.12, in each case as amended, the "Security
Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Interests referred to therein
accompanied by undated stock powers executed in blank and instruments evidencing
the Pledged Debt indorsed in blank,
(B) acknowledgment copies of proper financing statements, duly filed on or
before the day of the initial Credit Extension under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first priority liens and security
interests created under the Security Agreement, covering the Collateral
described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the
initial Credit Extension, listing the financing statements referred to in clause
(B) above and all other effective financing statements filed in the
jurisdictions referred to in clause (B) above that name any Loan Party as
debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or
with respect to the Security Agreement that the Administrative Agent may deem
reasonably necessary or desirable in order to perfect and protect the Liens
created thereby,
(E) evidence of the insurance required by the terms of the Security
Agreement, and
(F) evidence that all other action that the Administrative Agent may deem
reasonably necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security Agreement has
been taken (including, without limitation, receipt of duly executed payoff
letters and UCC-3 termination statements);
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party or is to be a party;
(v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed,
and that each of the Company and each Loan Party is validly existing, in good
standing and qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Xxxxxxx & Xxxxxxxx, counsel to the Loan Parties,
addressed to each Agent and each Lender, as to the matters set forth in Exhibit
H and such other matters concerning the Loan Parties and the Loan Documents as
the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals required in connection
with the execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Company
certifying (A) that the conditions specified in Sections 4.02(a) and (b) have
been satisfied; (B) that there has been no event or circumstance since the date
of the Audited Financial Statements that has had or could be reasonably expected
to have, either individually or in the aggregate, a Material Adverse Effect; and
(C) a calculation of the Consolidated Leverage Ratio as of the last day of the
fiscal quarter of the Company most recently ended prior to the Closing Date;
(ix) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;
(x) a Notice of Borrowing or Notice of Issuance, as applicable, relating to
the initial Credit Extension;
(xi) evidence that the Existing Credit Agreement has been or concurrently
with the Closing Date is being terminated and all Liens securing obligations
under the Existing Credit Agreement have been or concurrently with the Closing
Date are being released; and
(xii) such other assurances, certificates, documents, consents or opinions
as any Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may
require.
By execution of this Agreement, each of the Lenders that is a lender of the
Existing Credit Agreement referred to in clause (xi) above hereby waives the
requirement set forth in Section 2.10(b) of such Existing Credit Agreement of
three business days' prior notice to the termination of their commitments
thereunder.
(b) All fees required to be paid on or before the Closing Date shall have
been paid.
(c) The Closing Date shall have occurred on or before April 28, 2003.
4.02 Conditions to all Credit Extensions
. The obligation of each Lender to honor any Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Loans to the
other Type, or a continuation of Eurocurrency Rate Loans) is subject to the
following conditions precedent:
(a) The representations and warranties of the Company and each other Loan
Party contained in Article V or any other Loan Document shall be true and
correct on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in Sections 5.05(a) and (b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections
6.01(a) and (b), respectively.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing
Line Lender shall have received a Request for Credit Extension in accordance
with the requirements hereof.
(d) The Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
4.03 Conditions to initial Credit Extension to any Eligible Borrower
. The obligation of each Lender to honor any Request for Credit Extension
in connection with the initial Credit Extension to any Eligible Borrower shall
be subject to satisfaction of the additional conditions precedent:
(a) The Administrative Agent shall have received a Note executed by such
Eligible Borrower in favor of each Lender requesting a Note.
(b) The Administrative Agent shall have received an Authorization Letter and
an Election to Participate, in each case, duly executed by such Eligible
Borrower.
(c) The Administrative Agent shall have received, to the extent not already
in its possession, such certificates, together with executed and undated stock
powers, of such Eligible Borrower or, where such Eligible Borrower is a Foreign
Subsidiary, of the first-tier Foreign Subsidiary parent entity of such Eligible
Borrower.
(d) The Administrative Agent shall have received an opinion of counsel for
such Eligible Borrower in form and substance reasonably acceptable to the
Administrative Agent and covering such matters relating to the transactions
contemplated hereby as the Administrative Agent may reasonably request; provided
that in the event that such opinion is not delivered on the date of such initial
Credit Extension to such Eligible Borrower, such opinion shall be delivered no
later that the 30th day following such date and the aggregate amount of
Revolving Loans and L/C Obligations of all such Eligible Borrowers for which
opinions have not been delivered shall not at any time exceed $1,000,000 prior
to the date such opinion is delivered in compliance with this subsection (e).
(e) The Administrative Agent shall have received all documents that it may
reasonably request relating to the existence of such Eligible Borrower, the
corporate authority for and the validity of this Agreement, the Authorization
Letter, the Election to Participate and the Notes, if any, of such Eligible
Borrower, and any other matters relevant thereto, all in form and substance
satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a letter from US
Corporation System in New York, New York (or such other agent to receive service
of process in New York, New York reasonably acceptable to the Administrative
Agent) indicating its consent to its appointment by such Eligible Borrower (that
is a Foreign Subsidiary) as its agent to receive service of process.
(g) The representations and warranties contained in Article V shall be true
and correct on and as of the date of such Credit Extension as though made on and
as of such date (except for representations and warranties that refer to a
specific date, and then as of such specific date), and no Default shall have
occurred and be continuing or would result therefrom.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type or a continuation of
Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a),
(b) and, in the case of a Credit Extension to an Eligible Borrower, (c), have
been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agents and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws
. Each Loan Party and each of its Subsidiaries (a) is duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, (c) is duly qualified and is licensed and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification or license, and (d) is
in compliance with all Laws; except in each case referred to in clause (b)(i),
(c) or (d), to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
5.02 Authorization; No Contravention
. The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's corporate or other powers, have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any material Lien under, or require any
material payment to be made under (i) any Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person or
any of its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law that would adversely affect the
rights of the Lenders or the Agents under the Loan Documents. No Loan Party or
any of its Subsidiaries is in violation of any Law or in breach of any such
Contractual Obligation, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
5.03 Governmental Authorization; Other Consents
. No approval, consent, exemption, authorization, or other action by, or
notice to, or filing (other than security filings) with, any Governmental
Authority or any other Person is necessary or required in connection with (i)
the execution, delivery or performance by, or enforcement against, any Loan
Party of this Agreement or any other Loan Document, or for the consummation of
the Transaction, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or maintenance of the
Liens created under the Collateral Documents (including the first priority
nature thereof) or (iv) the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents.
5.04 Binding Effect
. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except to the extent that enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
5.05 Financial Statements; No Material Adverse Effect
.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Company and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness,
to the extent required by GAAP.
(b) The unaudited consolidated financial statements of the Company and its
Subsidiaries dated September 30, 2002, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material Indebtedness and other liabilities, direct
or contingent, of the Company and its consolidated Subsidiaries as of the date
of such financial statements, including liabilities for taxes, material
commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, other than as publicly announced to date, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.
5.06 Litigation
. There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Company after due and diligent investigation, threatened
or, in the case of the Loan Parties, contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Company or
any of its Subsidiaries or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement, any other Loan Document or the
consummation of the Transaction, or (b) except as specifically disclosed on
Schedule 5.06 (the "Disclosed Litigation"), either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect, and there has been no material adverse change in the
status, or financial effect on any Loan Party, of the matters described on
Schedule 5.06 hereto.
5.07 No Default
. Neither the Company nor any Subsidiary is in default under or with
respect to, or a party to, any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 Ownership of Property; Liens
.
(a) Each Loan Party and each of its Subsidiaries has good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(b) Set forth on Schedule 5.08(b) hereto is a complete and accurate list of
all material Liens on the property or assets of any Loan Party, showing as of
the Closing Date, the principal amount of the obligations secured thereby and
the property or assets of such Loan Party or such Subsidiary subject thereto.
The property of the Company and its Subsidiaries is subject to no Liens, other
than Liens set forth on Schedule 5.08(b), and as otherwise permitted by Section
7.01.
(c) Set forth on Schedule 5.08(c) hereto is a complete and accurate list of
all real property located within the United States owned by any Loan Party
showing as of the Closing Date the street address, county or other relevant
jurisdiction, state and record owner.
(d) Set forth on Schedule 5.08(d) hereto is a complete and accurate list of
all material Investments (other than Investments in Cash Equivalents) held by
any Loan Party on the date hereof, showing as of the Closing Date the amount,
obligor or issuer and maturity, if any, thereof.
5.09 Environmental Compliance
.
(a) The Company and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Company has reasonably concluded that, except as
specifically disclosed in Schedule 5.09, such claims alleging violation of
Environmental Laws could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Except as otherwise set forth on Schedule 5.09, none of the properties
currently owned or operated by any Loan Party or any of its Subsidiaries is
listed or proposed for listing on the NPL or on the CERCLIS.
(c) All Hazardous Materials generated, used, treated, handled or stored at,
or transported to or from, any property currently owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to the Company and its
Subsidiaries, taken as a whole.
5.10 Insurance
. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Company, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or the applicable Subsidiary
operates, provided that no coverage in respect of terrorism shall be required.
5.11 Taxes
. The Company and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that would, if made, have a
Material Adverse Effect.
5.12 ERISA Compliance
.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that
is intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Company, nothing has occurred which would prevent, or cause the
loss of, such qualification. The Company and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA.
(d) With respect to each scheme or arrangement mandated by a government
other than the United States (a "Foreign Government Scheme or Arrangement") and
with respect to each employee benefit plan maintained or contributed to by any
Loan Party or any Subsidiary of any Loan Party that is not subject to United
States law (a "Foreign Plan"):
(A) Any employer and employee contributions required by law or by the terms
of any Foreign Government Scheme or Arrangement or any Foreign Plan have been
made, or, if applicable, accrued, in accordance with normal accounting
practices.
(B) Each Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities.
5.13 Subsidiaries; Equity Interests
. As of the Closing Date, the Company has no Subsidiaries other than those
specifically disclosed in Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries (other than Grupo Eurocir) have been validly
issued, are fully paid and non-assessable and are directly or indirectly owned
by a Loan Party free and clear of all Liens except those created under the
Collateral Documents. All of the outstanding Equity Interests in the Company
have been validly issued, are fully paid and non-assessable.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act
.
(a) The Company is not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock and no proceeds of
any Borrowings or drawings under any Letter of Credit will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(b) None of the Company, any Person Controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940. Neither the making of any
Loan, nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Company, nor the consummation of the other
transactions contemplated by the Loan Documents, will violate any provision of
any such Act or any rule, regulation or order of the SEC thereunder.
5.15 Disclosure
. The Company has disclosed to the Agents and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. All written information and information orally presented in any
Organized Setting, in each case, heretofore furnished by the Company or any of
its Subsidiaries to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Company to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
date as of which such information is stated or certified. For purposes of this
Section 5.15, "Organized Setting" means any formal meeting with any of the
Agents and/or the Lenders or any conference call with any of the Agents and/or
Lenders relating to the Loan Documents.
5.16 Compliance with Laws
. Each of the Company and each Subsidiary is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b)
the failure to comply therewith, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
5.17 Tax Shelter Regulations.
No Borrower intends to treat the Loans and/or Letters of Credit and
related transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4). In the event the Company determines to
take any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. If any Borrower so notifies the Administrative
Agent, the Company acknowledges that one or more of the Lenders may treat its
Committed Loans, Bid Loans and/or its interest in Swing Line Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Treasury Regulation.
5.18 Intellectual Property; Licenses, Etc.
The Company and its Subsidiaries own, or possess the right to use, all of
the trademarks, service marks, trade names, copyrights, patents, and licenses
(collectively, "IP Rights") that are used in the operation of their respective
businesses, without conflict with the rights of any other Person. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed by the Company
or any Subsidiary infringes upon any rights held by any other Person. Except as
disclosed on Schedule 5.18, no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Company, threatened,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.19 Solvency
. The Company is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.
5.20 Casualty, Etc
. Neither the business nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of
the public enemy or other casualty (whether or not covered by insurance) that
could be reasonably likely to have a Material Adverse Effect.
5.21 Perfection, Etc
. All filings and other actions necessary or desirable to perfect and
protect the security interest in the Collateral created under the Collateral
Documents have been duly made or taken and are in full force and effect, and the
Collateral Documents create in favor of the Administrative Agent for the benefit
of the Secured Parties a valid and, together with such filings and other
actions, perfected first priority security interest in the Collateral, securing
the payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such security interest have been
duly taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and security
interests created or permitted under the Loan Documents.
5.22 Swap Obligations
. Neither the Company nor any of its Subsidiaries has incurred any
outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations. All of the Swap Contracts of the Company and its Subsidiaries in
effect as of the date of this Agreement are set forth on Schedule 5.22.
5.23 Representation of Eligible Borrowers
. Each Eligible Borrower shall be deemed by the execution and delivery of
its Election to Participate to have represented and warranted as of the date
thereof that:
(a) It is a corporation duly incorporated, validly existing in good standing
under the laws of its jurisdiction of incorporation and is a Wholly-Owned
Consolidated Subsidiary of the Company;
(b) The execution and delivery by it of its Authorization Letter, its
Election to Participate, the Guaranty (in the case of a Domestic Subsidiary
only), the Security Agreement (in the case of a Domestic Subsidiary only) and
its Notes, if any, and the performance by it of this Agreement and the other
Loan Documents to which it is a party are within its corporate powers; have been
duly authorized by all necessary corporate action; require no action by or in
respect of, or filing with, any governmental body, agency or official; do not
contravene, or constitute a default under, any provision of any applicable law
or regulation or of its certificate of incorporation or by-laws or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Company or such Eligible Borrower; and will not result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries
other than Permitted Liens;
(c) This Agreement and each other Loan Document to which it is a party
constitutes a legal, valid and binding obligation of such Eligible Borrower,
enforceable against such Eligible Borrower in accordance with its terms, except
to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability and the time
barring of claims under any applicable limitations act;
(d) Except as disclosed in such Election to Participate, to the best
knowledge the applicable Eligible Borrower, there is no income, stamp or other
tax of any country, or any taxing authority thereof or therein, in the nature of
withholding or otherwise, which is imposed on any payment to be made by such
Eligible Borrower pursuant hereto or on any of its Notes, if any, or imposed on
or by virtue of the execution, delivery, performance or enforcement of its
Election to Participate or any of its Notes.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:
6.01 Financial Statements
. Deliver to the Administrative Agent, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Company, a consolidated and consolidating balance sheet
of the Company and its Subsidiaries as at the end of such fiscal year, and the
related consolidated and consolidating statements of income or operations,
shareholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit that would material to the Company and its Subsidiaries, taken as a
whole; and
(b) as soon as available, but in any event within 60 days after the end of
each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated and consolidating balance sheet of the Company and its Subsidiaries
as at the end of such fiscal quarter, and the related consolidated and
consolidating statements of income or operations, shareholders' equity and cash
flows for such fiscal quarter and for the portion of the Company's fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of the Company as fairly presenting the financial condition,
results of operations, shareholders' equity and cash flows of the Company and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(b), the Company shall not be separately required to furnish such
information under Section 6.01(a) or (b), but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in Sections 6.01(a) and (b) at the times specified therein.
6.02 Certificates; Other Information
. Deliver to the Administrative Agent, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Company;
(b) promptly after the same are available, copies of each Form 10-K, Form
10-Q, Form 8-K and Form S-3, in each case, as filed with the SEC;
(c) promptly upon receipt thereof, copies of all notices, requests and other
documents received by any Loan Party or any of its Subsidiaries under or
pursuant to any instrument, indenture, loan or credit or similar agreement, in
each case, that is material, regarding or related to any breach or default by
any party thereto or any other event that could materially impair the value of
the interests or the rights of any Loan Party or otherwise have a Material
Adverse Effect and copies of any amendment, modification or waiver of any
provision of any instrument, indenture, loan or credit or similar agreement and,
from time to time upon request by the Administrative Agent, such information and
reports regarding such instruments, indentures and loan and credit and similar
agreements as the Administrative Agent may reasonably request;
(d) promptly after the assertion or occurrence thereof, notice of any
Environmental Action against or of any noncompliance by any Loan Party or any of
its Subsidiaries with any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect;
(e) promptly after the Company has notified the Administrative Agent of any
intention by the Company to treat the Loans and/or Letters of Credit and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or
any successor form; and
(f) promptly, such additional information regarding the business, financial
or corporate affairs of any Loan Party or any Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may from
time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Company's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and each Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Company shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Company to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Company shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(c)
to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.
6.03 Notices
. Promptly notify the Administrative Agent and each Lender:
(a) within 10 days after any officer of the Company obtains knowledge of the
occurrence of any Default;
(b) within 10 days after any officer of the Company obtains knowledge of any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Company; and
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 Payment of Obligations
. Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary; (b) all material lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all material Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.05 Preservation of Existence, Etc
. (a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05;
provided, however, that the Company and its Subsidiaries may cause to occur or
consummate any merger or consolidation permitted under Section 7.04 or
dissolution permitted under Section 7.05(f); (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary in
the normal conduct of its business, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
6.06 Maintenance of Properties
. Maintain, preserve and protect all of its material properties and
equipment useful and necessary in the operation of its business in good working
order and condition, ordinary wear and tear excepted.
6.07 Maintenance of Insurance
. Maintain with financially sound and reputable insurance companies not
Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons,
provided that insurance coverage in respect of terrorism shall not be required.
6.08 Compliance with Laws
. Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its business
or property, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records
. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Company or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Company or
such Subsidiary, as the case may be.
6.10 Inspection Rights
. Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company.
6.11 Use of Proceeds
. Use the proceeds of the Credit Extensions for working capital or other
general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12 Covenant to Guarantee Obligations and Give Security
. Upon (x) the request of the Administrative Agent following the
occurrence and during the continuance of a Default, (y) the formation or
acquisition of any new direct or indirect Domestic Subsidiaries by any Loan
Party or (z) the acquisition of any property of a type described in the
definition of Collateral by any Loan Party, and such property, in the judgment
of the Administrative Agent, shall not already be subject to a perfected first
priority security interest in favor of the Administrative Agent for the benefit
of the Secured Parties, then the Company shall, in each case at the Company's
expense:
(i) in connection with the formation or acquisition of a Domestic
Subsidiary, within 10 Business Days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of such
Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and substance
satisfactory to the Administrative Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents,
(ii) within 10 Business Days after such request, formation or acquisition,
furnish to the Administrative Agent a description of all of the property of a
type described in the definition of Collateral of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the Administrative Agent,
(iii) within 15 Business Days after such request, formation or acquisition,
duly execute and deliver, and cause each such Subsidiary and each direct and
indirect parent of such Subsidiary (if it has not already done so) to duly
execute and deliver, to the Administrative Agent pledges, assignments, Security
Agreement Supplements and other security agreements (in each case, in respect of
property of a type described in the definition of Collateral), as specified by
and in form and substance reasonably satisfactory to the Administrative Agent,
securing payment of all the Obligations of the applicable Loan Party, such
Subsidiary or such parent, as the case may be, under the Loan Documents and
constituting Liens on all such properties,
(iv) within 60 days after such request, formation or acquisition, deliver to
the Administrative Agent, upon the request of the Administrative Agent in its
sole discretion, a signed copy of a favorable opinion, addressed to the
Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties reasonably acceptable to the Administrative Agent as to the matters
contained in clauses (i) and (iii) above, as to such guaranties, guaranty
supplements, pledges, assignments, Security Agreement Supplements, and security
agreements being legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms, and
(v) at any time and from time to time, promptly execute and deliver any and
all further instruments and documents and take all such other action as the
Administrative Agent may deem reasonably necessary or desirable in obtaining the
full benefits of, or in perfecting and preserving the Liens of, such guaranties,
pledges, assignments, Security Agreement Supplements and security agreements;
provided, however, that the Company shall be permitted to exempt any
Subsidiary from the requirements of this Section 6.12 (whereby such Subsidiary
will be a Non-Qualified Subsidiary for purposes of this Agreement), so long as
(x) the consolidated assets of such Non-Qualified Subsidiary shall not exceed
2.5% of the total assets of the Company and its Subsidiaries, taken as a whole,
and (y) the assets of all Non-Qualified Subsidiaries, taken as a whole, shall
not exceed 10% of the total assets of the Company and its Subsidiaries taken as
a whole.
6.13 Compliance with Environmental Laws
. (a) Comply, and cause all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; (b) obtain and renew
all Environmental Permits necessary for its operations and properties; and (c)
if required by Environmental Law, conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws; except in each case
of (a), (b) and/or (c) above, where such non-compliance does not or could not be
reasonably expected to have a Material Adverse Effect; provided, however, that
neither the Company nor any of its Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.
6.14 Further Assurances
. Promptly upon request by the Administrative Agent, (i) correct any
material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (ii) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Administrative Agent, may reasonably require, whether in
consultation with any other Agent or otherwise, from time to time in order to
carry out more effectively the purposes of the Loan Documents.
6.15 Lien Searches
. Promptly following receipt of the acknowledgment copy of any UCC
financing statements filed in any applicable jurisdiction by or on behalf of the
Secured Parties, deliver to the Administrative Agent completed requests for
information listing such financing statement and all other effective financing
statements filed in such jurisdiction that name any Loan Party as debtor,
together with copies of such other financing statements.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall
not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 Liens
. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign
or file or suffer to exist under the Uniform Commercial Code of any jurisdiction
a financing statement that names the Company or any of its Subsidiaries as
debtor, or sign or suffer to exist any security agreement authorizing any
secured party thereunder to file such financing statement, or assign any
accounts or other right to receive income, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Permitted Liens;
(c) Liens existing on the date hereof and listed on Schedule 5.08(b) and any
renewals or extensions thereof, provided that the property covered thereby is
not changed and the amount not increased or the direct or any contingent obligor
changed and any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b); and
(d) Liens securing (i) factoring programs of Foreign Subsidiaries in an
aggregate amount up to $20,000,000 at any time outstanding and (ii) Indebtedness
permitted by Section 7.03(c) in an aggregate amount up to $25,000,000 at any
time outstanding.
7.02 Investments
. Make or hold any Investments, except:
(a) Investments outstanding as of the Closing Date (such Investments in
excess of $1,000,000 are set forth on Schedule 7.02(a)) and any replacements of
such Investments with Investments of equal amount thereto;
(b) deposits with, or time deposits with, including certificates of deposits
issued by, (i) any office located in the United States of any bank or trust
company that is organized under the laws of the United States or any state
thereof and has capital surplus and undivided profits aggregating at least
$100,000,000, (ii) any Lender or (iii) any foreign bank for which S&P or Xxxxx'x
issues a rating of "A" or higher and which has capital surplus and undivided
profits aggregating at least $100,000,000;
(c) Investments held by the Company or such Subsidiary in the form of Cash
Equivalents;
(d) Investments made in another Person pursuant to a merger, stock or asset
acquisition made in compliance with subsection (i) of Section 7.04(a);
(e) Investments to the extent permitted pursuant to Section 7.03 or 7.08;
(f) Investments consisting of Permitted Swap Obligations;
(g) Investments in Blankets Business; and
(h) other Investments in an aggregate amount not to exceed $50,000,000 (of
which an aggregate amount of up to $20,000,000 shall be available for
Investments in joint ventures of the Company or its Subsidiaries, provided that,
with respect to Grupo Eurocir, such transactions shall be required pursuant to
the Joint Venture Agreement as in effect on the date hereof);
For the purposes hereof, the amount of any Investment shall be the original
costs of such Investment plus the cost of all additions thereto, without
adjustments for increases or decreases in value, write-ups, write-downs or
write-offs with respect to such Investment.
7.03 Indebtedness
. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under this Agreement and the other Loan Documents;
(b) Indebtedness (including, without limitation, credit lines) outstanding
on the date hereof and listed on Schedule 7.03 and any refinancings, refundings,
renewals or extensions thereof; provided that the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder and, in respect of any such Indebtedness that is material, the direct
and contingent obligors thereof shall not be changed, in each case, as a result
of or in connection with such refinancing, refunding, renewal or extension;
provided still further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such extending, refunding or
refinancing Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any material
respect to the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being extended, refunded or refinanced;
(c) Indebtedness (in addition to the allowances in the other subsections of
this Section 7.03) in an aggregate principal amount at any time outstanding not
to exceed 10% of Tangible Assets; provided that the Company and its Subsidiaries
shall not be permitted to incur additional Indebtedness under this subsection
(c) during the existence of an Event of Default or if an Event of Default would
occur after giving effect to the incurrence of such Indebtedness;
(d) Indebtedness consisting of Guarantees of the Company with respect to (i)
Indebtedness of any Subsidiary to the extent that such Subsidiary's Indebtedness
is permitted to be incurred pursuant to a subsection (other than this subsection
(d)) and (ii) Indebtedness of any Person that is not a Subsidiary, provided that
the aggregate principal amount of such Indebtedness shall not at any time exceed
$10,000,000 (without giving effect to any write-offs or write-downs of such
Indebtedness);
(e) intercompany loans (other than intercompany loans made to or by Grupo
Eurocir in an amount exceeding $1,000,000) (i) involving only the Company and a
Qualified Subsidiary, (ii) between Qualified Subsidiaries, (iii) between
Non-Qualified Subsidiaries, (iv) from a Non-Qualified Subsidiary to the Company
or a Qualified Subsidiary, in each case, so long as the payee with respect to
such intercompany loans is Solvent, both before and after giving effect to such
intercompany loan and (v) intercompany loans from the Company or any Qualified
Subsidiary to a Non-Qualified Subsidiary in an aggregate amount for all such
Indebtedness under this clause (v) not to exceed $20,000,000 at any time;
(f) Indebtedness consisting of Permitted Swap Obligations;
(g) Indebtedness of Grupo Eurocir or Indebtedness incurred pursuant to the
terms of its existing joint venture arrangements; and
(h) Indebtedness (other than Indebtedness of a type described in subsections
(a) through (g) above) subordinated to Indebtedness under this Agreement.
7.04 Fundamental Changes
. Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:
(a) the Company or any Subsidiary may merge with or acquire another Person,
through a stock, asset or any other similar transaction, which is the business
of specialty chemicals or any related business and related equipment if (i) the
Company or such Subsidiary is the surviving entity, (ii) such acquisition is
friendly and is done with the recommendation of the acquiree's board of
directors or similar governing body and (iii) the Company has delivered to the
Administrative Agent a certificate executed by a Responsible Officer (A)
certifying that no Default has occurred and is continuing both before and after
giving effect to such transaction and (B) demonstrating pro forma compliance
with Section 7.11 after giving effect to such transaction; and
(b) any Subsidiary of a Loan Party may merge with a Loan Party or a
Wholly-Owned Consolidated Subsidiary of a Loan Party if (i) such Loan Party or
such Wholly-Owned Consolidated Subsidiary, as the case may be, is the surviving
entity of such merger and (ii) immediately after giving effect to such merger,
no Default shall have occurred or be continuing.
7.05 Dispositions
. Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions by the Company to any Qualified Subsidiary;
(d) other Dispositions (i) for fair market value, (ii) the proceeds of which
shall be reinvested into the business of the Company and its Subsidiaries within
270 days from receipt of the Net Cash Proceeds therefor and (iii) so long as the
Company is in pro forma compliance with the covenants contained in Section 7.11,
both before and after giving effect to such Disposition;
(e) Disposition of Grupo Eurocir, Colorspan and/or the Blankets Business;
(f) the dissolution of any Subsidiary that (i) is not a Loan Party and (ii)
is not material to the business of the Company and its Subsidiaries, taken as a
whole; and
(g) Dispositions otherwise expressly permitted under the terms of this
Agreement.
7.06 Restricted Payments
. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, or issue or sell any
Equity Interests or accept any capital contributions, other than (a) so long as
no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, Restricted Payments in an aggregate
amount for all such Restricted Payments not to exceed (i) the sum of (A)
$50,000,000 and (B) 50% of Consolidated Net Income minus (ii) 100% of
consolidated net losses (other than non-cash losses) and (b) in addition to
Restricted Payments permitted under subsection (a) above, cash dividends by the
Company not to exceed an aggregate amount of up to $7,200,000 for all such cash
dividends; provided that this Section 7.06 shall not prohibit any dividend or
distribution within 60 days after the declaration thereof if such declaration
was not prohibited by this Section 7.06; provided further that, notwithstanding
the foregoing, this Section 7.06 shall not prohibit or otherwise restrict the
use of Excess Cash to repurchase capital stock of the Company, but solely to the
extent that no Revolving Credit Loans are outstanding at the time of any such
repurchase.
7.07 Change in Nature of Business
. Engage in any material line of business substantially different from
those lines of business conducted by the Company and its Subsidiaries on the
date hereof or any business substantially related or incidental thereto.
7.08 Transactions with Affiliates
. Enter into any transaction of any kind with any Affiliate of the
Company, whether or not in the ordinary course of business, other than on fair
and reasonable terms substantially as favorable to the Company or such
Subsidiary as would be obtainable by the Company or such Subsidiary at the time
in a comparable arm's length transaction with a Person other than an Affiliate,
provided that the foregoing restriction shall not apply to:
(a) participation by the Company or any Subsidiary in, or effecting any
transaction in connection with, any joint enterprise or other joint arrangement
with any Affiliate if the Company or such Subsidiary, as applicable,
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates;
(b) any transactions among the Company and its wholly-owned Subsidiaries or
with Grupo Eurocir, provided that, with respect to Grupo Eurocir, such
transactions shall be required pursuant to the Joint Venture Agreement as in
effect on the date hereof;
(c) any payment from any Subsidiary to the Company; or
(d) intercompany Indebtedness permitted under Section 7.03.
7.09 Burdensome Agreements
. Enter into or permit to exist any Contractual Obligation (other than
this Agreement or any other Loan Document) that (a) limits the ability (i) of
any Loan Party to perform its obligations under any Loan Document or (ii) except
as permitted under Section 7.01, of the Company or any Subsidiary to create,
incur, assume or suffer to exist Liens on property of such Person or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person.
7.10 Use of Proceeds
. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund Indebtedness originally incurred for such purpose.
7.11 Financial Covenants
.
(a) Consolidated Minimum Net Worth. Permit Consolidated minimum net worth
at any time to be less than an amount equal to (a) the sum of (i) $180,000,000,
(ii) an amount equal to 50% of the Consolidated Net Income earned in each full
fiscal quarter ending after December 31, 2002 (with no deduction for a net loss
in any such fiscal quarter) and (iii) an amount equal to 50% of the aggregate
increases in Shareholders' Equity of the Company and its Subsidiaries after the
date hereof by reason of the issuance and sale of capital stock or other Equity
Interests of the Company or any Subsidiary (other than issuances to the Company
or a wholly-owned Subsidiary), including upon any conversion of debt
securities of the Company into such capital stock or other Equity Interests
minus (b) the actual cumulative amount of Excess Cash used to repurchase capital
stock of the Company since the Closing Date, to the extent that no Revolving
Credit Loans were outstanding at the time of any such repurchase minus (c)
non-cash charges that are not reasonably likely to become future cash charges.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Company to be less
than the ratio set forth below opposite such fiscal quarter:
Four Fiscal Quarters Ending: Minimum Consolidated Interest Coverage Ratio
March 31, 2003 . . . . . . . 2.25:1.0
June 30, 2003. . . . . . . . 2.25:1.0
September 30, 2003 . . . . . 2.25:1.0
December 31, 2003. . . . . . 2.25:1.0
March 31, 2004 . . . . . . . 2.50:1.0
June 30, 2004. . . . . . . . 2.50:1.0
September 30, 2004 . . . . . 2.50:1.0
December 31, 2004. . . . . . 2.50:1.0
March 31, 2005 . . . . . . . 2.75:1.0
June 30, 2005. . . . . . . . 2.75:1.0
September 30, 2005 . . . . . 2.75:1.0
December 31, 2005. . . . . . 2.75:1.0
March 31, 2006 . . . . . . . 3.00:1.0
June 30, 2006. . . . . . . . 3.00:1.0
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at
any time during any period of four fiscal quarters of the Company set forth
below to be greater than the ratio set forth below opposite such period:
Four Fiscal Quarters Ending: Maximum Consolidated Leverage Ratio
March 31, 2003 . . . . . . . 3.75:1.0
June 30, 2003. . . . . . . . 3.75:1.0
September 30, 2003 . . . . . 3.75:1.0
December 31, 2003. . . . . . 3.75:1.0
March 31, 2004 . . . . . . . 3.50:1.0
June 30, 2004. . . . . . . . 3.50:1.0
September 30, 2004 . . . . . 3.50:1.0
December 31, 2004. . . . . . 3.50:1.0
March 31, 2005 . . . . . . . 3.25:1.0
June 30, 2005. . . . . . . . 3.25:1.0
September 30, 2005 . . . . . 3.25:1.0
December 31, 2005. . . . . . 3.25:1.0
March 31, 2006 . . . . . . . 3.25:1.0
June 30, 2006. . . . . . . . 3.25:1.0
(d) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated
Senior Secured Leverage Ratio at any time during any period of four fiscal
quarters of the Company set forth below to be greater than the ratio set forth
below opposite such period:
Four Fiscal Quarters Ending for each quarter during the period below: Maximum Consolidated Senior Secured Leverage Ratio
Closing Date through the Maturity Date. . . . . . . . . . . . . . . . 1.25:1.0
7.12 Amendments of Organization Documents
. Amend any of its Organization Documents in any manner that would
conflict with its obligations under the Loan Documents.
7.13 Accounting Changes
. Make any (i) significant change in accounting policies or reporting
practices, except as permitted or required by generally accepted accounting
principles, or (ii) change its fiscal year.
7.14 Prepayments, Etc. of Indebtedness
. Unless the Company can demonstrate to the Administrative Agent, in a
certificate of a Responsible Officer of the Company, pro forma compliance with
the covenants contained in Section 7.11, both before and after giving effect to
such prepayment, redemption, purchase, defeasance or other satisfaction of such
Indebtedness, prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in violation
of any subordination terms of, any Indebtedness in an amount in excess of
$5,000,000, except (i) the prepayment of the Credit Extensions in accordance
with the terms of this Agreement and (ii) regularly scheduled or required
repayments or redemptions of Indebtedness listed on Schedule 7.03, or amend,
modify or change in any material manner any term or condition of any such
Indebtedness listed on Schedule 7.03.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default
. Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Company or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within five days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any facility or other fee due
hereunder, or (iii) within five days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or observe any term,
covenant or agreement contained in any of (i) Section 6.01, 6.02, or 6.03, if
such failure continues for 3 Business Days or (ii) Section 6.05, 6.09, 6.10,
6.11, 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading, in each case in any material respect, when made or deemed made; or
(e) Cross-Default. (i) Any Loan Party Significant Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee in excess of the Threshold Amount or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Company or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Company or any
Subsidiary is an Affected Party (as defined in such Swap Contract) and, in
either event, the Swap Termination Value owed by the Loan Party or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Significant
Subsidiary institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any
Significant Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against any Loan Party or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least "A" by A.M. Best
Company and does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect, or (ii) the Company or any ERISA Affiliate fails
to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Document. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first priority lien on
and security interest in the Collateral purported to be covered thereby and is
not, upon request of any Agent, promptly corrected; or
8.02 Remedies Upon Event of Default
. If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company;
(c) require that the Company Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the other Agents and the Lenders all
rights and remedies available to it, the other Agents and the Lenders under the
Loan Documents or applicable Law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Company under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of any
Agent or any Lender.
8.03 Application of Funds
. After the exercise of remedies provided for in Section 8.02 (or after
the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in their
capacities as such ratably among them in proportion to the amounts described in
this clause First payable to them;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth held by
them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit;
Sixth, to the payment of all other Obligations of the Loan Parties owing under
or in respect of the Loan Documents that are due and payable to the Agents and
the other Secured Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date; and
Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Company or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent
.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Agents in this Article IX with respect to any acts taken or omissions suffered
by the L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term "Agent" as used in
this Article IX and in the definition of "Agent-Related Person" included the L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.
(c) The Administrative Agent shall also act as the "collateral agent" under
the Loan Documents, and each of the Lenders (in its capacities as a Lender,
Swing Line Lender (if applicable), L/C Issuer (if applicable) and a potential
Hedge Bank) hereby irrevocably appoints and authorizes the Administrative Agent
to act as the agent of such Lender for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan Parties to
secure any of the Secured Obligations, together with such powers and discretion
as are reasonably incidental thereto. In this connection, the Administrative
Agent, as "collateral agent" (and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX (including,
without limitation, Section 9.07, as though such co-agents, sub-agents and
attorneys-in-fact were the "collateral agent" under the Loan Documents) as if
set forth in full herein with respect thereto.
9.02 Delegation of Duties
. The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document (including for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents or of exercising any rights and remedies thereunder) by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
9.03 Liability of Administrative Agent
. No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by any Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or the perfection or priority of any Lien or security interest created
or purported to be created under the Collateral Documents, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
9.04 Reliance by Administrative Agent
.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to
take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
9.05 Notice of Default
. The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Company referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action with respect
to such Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the
Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative Agent
. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Company hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
9.07 Indemnification of Administrative Agent
. Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
In the case of any investigation, litigation or proceeding giving rise to any
Indemnified Liabilities, this Section 9.07 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any other
Person. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
9.08 Administrative Agent in its Individual Capacities
. Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire Equity Interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
9.09 Successor Administrative Agent
. The Administrative Agent may resign as Agent upon 30 days' notice to the
Lenders; provided that any such resignation by Bank of America shall also
constitute its resignation as L/C Issuer and Swing Line Lender. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be consented to by the Company at all times other than
during the existence of an Event of Default (which consent of the Company shall
not be unreasonably withheld or delayed). If no successor agent is appointed
prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, the Person acting as such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent, L/C Issuer and Swing Line Lender and the respective terms
"Administrative Agent," "L/C Issuer" and "Swing Line Lender" shall mean such
successor agent, Letter of Credit issuer and swing line lender, the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring L/C Issuer's and Swing Line Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring L/C Issuer or Swing Line Lender
or any other Lender, other than the obligation of the successor L/C Issuer to
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the Administrative Agent under this Agreement. If no successor agent has
accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of this Article IX 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.
9.10 Administrative Agent May File Proofs of Claim
. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Company) shall be entitled and empowered, by intervention in such proceeding
or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
9.11 Collateral and Guaranty Matters
. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations not yet accrued and payable) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or under any
other Loan Document, or (iii) subject to Section 10.01, if approved, authorized
or ratified in writing by the Required Lenders; and
(b) to release any Guarantor from its obligations under the Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.11. In each
case as specified in this Section 9.11, the Administrative Agent will, at the
Company's expense, execute and deliver to the applicable Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.11.
9.12 Administrative Agent as English Trustee
.
(a) The Administrative Agent in its capacity as trustee or otherwise under
the Loan Documents governed by English Law:
(i) is not liable for any failure, omission, or defect in perfecting or
registering the security constituted or created by any Loan Document;
(ii) may accept without inquiry such title as any Borrower or any of its
Subsidiaries may have to any asset secured by any Loan Document; and
(iii) is not under any obligation to hold any Loan Document or any other
document in connection with the Loan Documents or the assets secured by any Loan
Document (including title deeds) in its own possession or take any steps to
protect or preserve the same. The administrative Agent may permit any Borrower
or any of its Subsidiaries to retain any Loan Document or other document in its
possession.
(b) Except as otherwise provided in the Loan Documents governed by English
law, all moneys which under the trusts contained in the Loan Documents are
received by the Administrative Agent in its capacity as trustee or otherwise may
be invested in the name of or under the control of the Administrative Agent
in any investment authorized by English law for the investment by a trustee of
trust money or in any other investments which may be selected by the
Administrative Agent. Additionally, the same may be placed on deposit in the
name or under the control of the Administrative Agent with such Lender or
institution (including the Administrative Agent itself) and upon such terms as
the Administrative Agent may think fit.
9.13 Assignment under Dutch Law
. In connection with any assignment and delegation of all, or any part of,
Loans, the Commitments, the L/C Obligations and the other rights or obligations
of any Lender (or former Lender) hereunder, the Administrative Agent is
authorized on behalf of both the assignor Lender and the assignee Lender,
without necessity of any notice to or further consent from such Lenders (or
former Lenders, if applicable), to take any action the Administrative Agent
deems reasonably necessary or appropriate to assign a corresponding interest in
the community of Lenders (which is a community in accordance with Article 166
(and subsequent articles) of Book 3 of the Dutch Civil Code), including, without
limitation, the rights and interests of such assignor Lender (whether held
directly or indirectly through the Administrative Agent) under any Loan
Documents in any pledged stock or equity interest of any corporation or other
legal entity organized under the laws of the Kingdom of the Netherlands and
constituting Collateral, to the assignee Lender. The Administrative Agent will
notify the Borrower and each pledgor of any pledged stock or entity on interests
of any such corporation or other legal entity organized under the laws of the
Kingdom of the Netherlands of the assignment of the rights under this Agreement
and under any deed of pledge or similar Loan Documents evidencing such security
interests to the assignee Lender in writing in advance. Each such pledgor and
the Borrower acknowledge and agree that Lenders may assign their interests from
time to time as described in this Section 9.13.
9.14 Other Agents; Arrangers and Managers
. None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-lead arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc
. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Company or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Company or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a), or, in the case of the
initial Credit Extension, Section 4.02, without the written consent of each
Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date scheduled for any payment of principal or interest
under Sections 2.07 or 2.08, or any date fixed by the Administrative Agent for
the payment of fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Company to pay interest at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;
(e) change any provision of this Section 10.01 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
(f) release all or substantially all of the Collateral in any transaction or
series of related transactions, without the written consent of each Lender;
(g) release all or substantially all of the value of the Guaranty, without
the written consent of each Lender; or
(h) impose any greater restriction on the ability of any Lender to assign
any of its rights or obligations hereunder without the written consent of
Lenders having more than 50% of the Aggregate Credit Exposures then in effect.
For purposes of this clause, the aggregate amount of each Lender's risk
participation and funded participation in L/C Obligations and Swing Line Loans
shall be deemed to be held by such Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of, or any fees or other amounts payable to, the Administrative
Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the contrary herein,
no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
10.02 Notices and Other Communications; Facsimile Copies
.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder or any other Loan Document shall be
in writing (including by facsimile transmission). All such written notices
shall be mailed, faxed or delivered to the applicable address, facsimile number
or (subject to Section 10.02(c)) electronic mail address, and all notices and
other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to the Company, the Administrative Agent, the L/C Issuer or the Swing
Line Lender, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number, electronic
mail address or telephone number specified in its Administrative Questionnaire
or to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the Company, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of Section 10.02(c)),
when delivered; provided, however, that notices and other communications to the
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to
Article II shall not be effective until actually received by such Person. In no
event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Company even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Company shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Company. All telephonic notices
to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 No Waiver; Cumulative Remedies
. No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder or any other Loan Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided, and provided under each other Loan Document, are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.04 Attorney Costs, Expenses and Taxes
. The Company agrees (a) to pay or reimburse the Administrative Agent for
all reasonable costs and expenses incurred in connection with the development,
preparation, negotiation, syndication and execution of this Agreement and the
other Loan Documents, and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including
all Attorney Costs, and (b) to pay or reimburse the Administrative Agent and
each Lender for all reasonable costs and expenses incurred in connection with
the enforcement of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all
Attorney Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due under this
Section 10.04 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.05 Indemnification by the Company
. Whether or not the transactions contemplated hereby are consummated, the
Company shall indemnify and hold harmless each Agent-Related Person, each Lender
and their respective Affiliates, directors, officers, employees, counsel, agents
and attorneys-in-fact (collectively the "Indemnitees") from and against any and
all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (a) the execution, delivery, enforcement,
performance or administration of any Loan Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (c) any
actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Company, any Subsidiary
or any other Loan Party, or any Environmental Liability related in any way to
the Company, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). In the case of an investigation, litigation or other proceeding
to which the indemnity in this Section 10.05 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Loan Party, its directors, shareholders or creditors or an Indemnitee or
any other Person, whether or not any Indemnitee is otherwise a party thereto and
whether or not any of the transactions contemplated hereunder or under any of
the other Loan Documents is consummated. All amounts due under this Section
10.05 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
10.06 Payments Set Aside
. To the extent that any payment by or on behalf of the Company is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the higher of the Federal Funds
Rate from time to time in effect and the cost of funds incurred by the
Administrative Agent in respect of such amount in the case of Loans denominated
in Committed Currencies.
10.07 Successors and Assigns
.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Company may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.07(b), (ii) by way of participation in accordance with
the provisions of Section 10.07(d) or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 10.07(f) or (i).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (including for purposes of this
Section 10.07(b), participations in L/C Obligations and in Swing Line Loans) at
the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loan of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Company
otherwise consents (each such consent not to be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except that
this clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii)
any assignment of a Revolving Credit Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the Person
that is the proposed assignee is itself a Revolving Credit Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500. Subject to acceptance and recording thereof by
the Administrative Agent pursuant to Section 10.07(c), from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, the Company (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 10.07(d).
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Company, shall maintain at the Administrative Agent's Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Company, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company, the Administrative Agent and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the
Company or the Administrative Agent, sell participations to any Person (other
than a natural person or the Company or any of the Company's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Company, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to Section
10.07(e), the Company agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.07(b).
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment under
Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Company's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Company
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 10.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Revolving Commitment, the L/C Issuer and the Swing Line Lender, and (iii)
unless an Event of Default has occurred and is continuing, the Company (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the Company
or any of the Company's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any Lender
that is a Fund may create a security interest in all or any portion of the Loans
owing to it and the Note, if any, held by it to the trustee for holders of
obligations owed, or securities issued, by such Fund as security for such
obligations or securities, provided that unless and until such trustee actually
becomes a Lender in compliance with the other provisions of this Section 10.07,
(i) no such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents and (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitments and Loans pursuant to
Section 10.07(b), Bank of America may, (i) upon 30 days' notice to the Company
and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the
Company, resign as Swing Line Lender. In the event of any such resignation as
L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that any failure by the Company to appoint any such successor
shall not affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. Except as provided in Section 2.03(a)(i), if Bank
of America resigns as L/C Issuer, it shall retain all the rights and obligations
of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date
of such resignation, including the right to require the Lenders to make Base
Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant
to Section 2.04(c).
10.08 Confidentiality
. Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information, except that Information may be disclosed (a)
to its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section 10.08, to (i) any Eligible Assignee of or Participant in,
or any prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Company; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section 10.08 or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Company; (i) to any state, Federal or foreign
authority or examiner (including the National Association of Insurance
Commissioners or any other similar organization) regulating any Lender; or (j)
to any rating agency when required by it (it being understood that, prior to any
such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Information relating to the Loan Parties received by it
from such Lender). In addition, the Agents and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to the Agents and the Lenders in connection with the administration
and management of this Agreement, the other Loan Documents, the Commitments, and
the Credit Extensions. For the purposes of this Section, "Information" means
all information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is available to any Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party;
provided that, in the case of information received from a Loan Party after the
date hereof, such information is clearly identified in writing at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section 10.08 shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Notwithstanding
anything herein to the contrary, "Information" shall not include, and the
Administrative Agent and each Lender may disclose without limitation of any
kind, any information with respect to the "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent or
such Lender relating to such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case contains information
concerning the tax treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby.
10.09 Setoff
. In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default and the
making of the request or the granting of the consent specified by Section 8.02
to authorize the Administrative Agent to declare the Loans due and payable
pursuant to the provisions of Section 8.02, each Lender and each of their
respective Affiliates is authorized at any time and from time to time, without
prior notice to the Company or any other Loan Party, any such notice being
waived by the Company (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other Indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of the Administrative Agent and each Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) that the
Administrative Agent, such Lender and their respective Affiliates may have.
10.10 Interest Rate Limitation
. Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If any Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Company. In determining whether the interest contracted for, charged, or
received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
10.11 Counterparts
. This Agreement and each other Loan Document may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery by telecopier of
an executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed counterpart
of this Agreement and such other Loan Document. The Agents may also require that
any such documents and signatures delivered by telecopier be confirmed by a
manually-signed original thereof; provided that the failure to request or
deliver the same shall not limit the effectiveness of any document or signature
delivered by telecopier.
10.12 Integration
. This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Agents or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.13 Survival of Representations and Warranties
. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon
by each Agent and each Lender, regardless of any investigation made by any Agent
or any Lender or on their behalf and notwithstanding that any Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.
10.14 Severability
. If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
10.15 Tax Forms
. (a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Company pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Company pursuant to this Agreement) or such other evidence satisfactory to the
Company and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Foreign Lender by the Company pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Company make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to act for
its own account with respect to any portion of any sums paid or payable to such
Lender under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the forms
or statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Company shall not be required to pay any additional amount to any
Foreign Lender under Section 3.01 (A) with respect to any Taxes required to be
deducted or withheld on the basis of the information, certificates or statements
of exemption such Lender transmits with an IRS Form W-8IMY pursuant to this
Section 10.15(a) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section 10.15(a) shall
relieve the Company of its obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any change in any applicable Law, treaty
or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any Taxes
required to be deducted and withheld from any payment under any of the Loan
Documents with respect to which the Company is not required to pay additional
amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 10.15, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders
under this Section 10.15 shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
10.16 Replacement of Lenders
. Under any circumstances set forth herein providing that the Company
shall have the right to replace a Lender as a party to this Agreement, the
Company may, upon notice to such Lender and the Administrative Agent, replace
such Lender by causing such Lender to assign its Commitment (with the assignment
fee to be paid by the Company in such instance) pursuant to Section 10.07(b) to
one or more other Lenders or Eligible Assignees procured by the Company;
provided, however, that if the Company elects to exercise such right with
respect to any Lender pursuant to Section 3.06(b), it shall be obligated to
replace all Lenders that have made similar requests for compensation pursuant to
Section 3.01 or 3.04. The Company shall (x) pay in full all principal,
interest, fees and other amounts owing to such Lender through the date of
replacement (including any amounts payable pursuant to Section 3.05), (y)
provide appropriate assurances and indemnities (which may include letters of
credit) to the L/C Issuer and the Swing Line Lender as each may reasonably
require with respect to any continuing obligation to fund participation
interests in any L/C Obligations or any Swing Line Loans then outstanding, and
(z) release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender's Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans.
10.17 Governing Law
.
(a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY, EACH AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
THE COMPANY, EACH AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
(c) THE COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS US
CORPORATION SYSTEMS WITH OFFICES ON THE DATE HEREOF IN NEW YORK, NEW YORK (OR
SUCH OTHER AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK (OR SUCH
OTHER AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK AS A REASONABLY
ACCEPTABLE TO THE ADMINISTRATIVE AGENT), AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH
DESIGNEE, APPOINTEE, AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE
COMPANY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK ON
THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH ON
SCHEDULE 12.02, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS
AGREEMENTS, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY BORROWER IN ANY OTHER JURISDICTION.
10.18 Judgment
. (a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars 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 Dollars with such
other currency at the Administrative Agent's principal office in London at 11:00
A.M. (London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder in a Committed Currency into Dollars, the parties
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 such Committed Currency with
Dollars at the Administrative Agent's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(c) The obligation of the Company in respect of any sum due from it in any
currency (the "Primary Currency") to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in any other 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 banking procedures purchase the
applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, the Company agrees, 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 applicable Primary Currency so purchased exceeds such sum due to any
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Administrative Agent (as the case may be)
agrees to remit to the Company such excess.
10.19 Substitution of Currency
. If a change in any Committed Currency occurs pursuant to any applicable
law, rule or regulation of any governmental, monetary or multi-national
authority, this Agreement (including, without limitation, the definitions of
Eurocurrency Rate) will be amended to the extent determined by the
Administrative Agent (acting reasonably and in consultation with the Company) to
be necessary to reflect the change in currency and to put the Lenders and the
Company in the same position, so far as possible, that they would have been in
if no change in such Committed Currency had occurred.
10.20 Binding Effect
. This Agreement shall become effective when it shall have been executed
by the Company and the Administrative Agent shall have been notified by each
Lender, Swing Line Lender and the L/C Issuer that each such Lender, Swing Line
Lender and the L/C Issuer has executed it and thereafter shall be binding upon
and inure to the benefit of the Company, each Agent and each Lender and their
respective successors and assigns, except that the Company shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
10.21 Waiver of Right to Trial by Jury
. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY 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 TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.21
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
NYDOCS03/666015 MacDermid 2003 Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MACDERMID, INCORPORATED
By:
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent
By: ________________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender
By: ________________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
BANC OF AMERICA SECURITIES LLC, as Co-Lead Arranger and Sole Book Manager
By:
Name:
Title:
FLEET NATIONAL BANK, as Co-Lead Arranger and Lender
By:
Name: Xxxxxx Xxxx
Title: Director
CITIZENS BANK OF MASSACHUSETTS
By:
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
COMERICA BANK
By:
Name: Xxxxxx Xxxx
Title: Account Officer
ABN-AMRO BANK N.V.
By:
Name:
Title:
EXECUTION COPY
SECURITY AGREEMENT
Dated April 28, 2003
From
The Grantors referred to herein
as Grantors
to
Bank of America, N.A.
as Administrative Agent
T A B L E O F C O N T E N T S
Section Page
Section 1 . Grant of Security 2
Section 2.. Security for Obligations 3
Section 3.. Grantors Remain Liable 4
Section 4.. Representations and Warranties 4
Section 5.. Further Assurances 6
Section 6.. As to Inventory 7
Section 7.. Insurance 7
Section 8.. Post-Closing Changes; Bailees; Collections on Receivables and Related Contracts 8
Section 9.. As to Letter-of-Credit Rights 9
Section 10. Transfers and Other Liens 10
Section 11. Administrative Agent Appointed Attorney-in-Fact 10
Section 12. Administrative Agent May Perform 10
Section 13. The Administrative Agent's Duties 10
Section 14. Remedies 11
Section 15. Indemnity and Expenses 12
Section 16. Amendments; Waivers; Additional Grantors; Etc. 13
Section 17. Notices; Etc. 13
Section 18. Continuing Security Interest; Assignments under the Credit Agreement 14
Section 19. Release; Termination 14
Section 20. Execution in Counterparts 15
Section 21. Jurisdiction 15
Section 22. Governing Law 15
Section 23. Waiver of Jury Trial 15
Schedules
------------
Schedule I - Location, Chief Executive Office, Place Where
Agreements Are Maintained, Type of Organization,
Jurisdiction of Organization and Organizational
Identification Number
Schedule II. - Pledged Equity and Pledged Debt
Schedule III - Locations of Inventory
Schedule IV. - Changes in Name, Location, Etc.
Exhibits
--------
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Sharing of Payments Letter
SECURITY AGREEMENT
SECURITY AGREEMENT dated April 28, 2003, made by MacDERMID, INCORPORATED, a
Connecticut corporation (the "Borrower"), the other Persons listed on the
signature pages hereof and the Additional Grantors (as defined in Section 16)
(the Borrower, the Persons so listed and the Additional Grantors being,
collectively, the "Grantors"), to BANK OF AMERICA, N.A., as administrative agent
(in such capacity, together with any successor collateral agent appointed
pursuant to Article IX of the Credit Agreement (as hereinafter defined), the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement),
the Administrative Agent, the Swap Creditors (as hereinafter defined) and the
Bilateral Lenders (as hereinafter defined). The Lenders, the Administrative
Agent, the Swap Creditors and the Bilateral Lenders, collectively, being the
"Secured Parties".
PRELIMINARY STATEMENTS.
(1) The Borrower, the Lenders from time to time party thereto and the
Administrative Agent are party to the Credit Agreement, dated as of April 28,
2003 (as amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with its terms and in effect, the "Credit
Agreement").
(2) Pursuant to the Credit Agreement, the Grantors are entering into this
Agreement in order to grant to the Administrative Agent for the ratable benefit
of the Secured Parties a security interest in the Collateral (as hereinafter
defined).
(3) Each Grantor is the owner of shares of stock or other Equity Interests
(the "Initial Pledged Equity") set forth opposite such Grantor's name on and as
otherwise described in Part I of Schedule II hereto and issued by the Persons
named therein and of the indebtedness (the "Initial Pledged Debt") set forth
opposite such Grantor's name on and as otherwise describe in Part II of Schedule
II hereto and issued by the obligors named therein.
(4) It is a condition precedent to the Initial Credit Extension (as defined
in the Credit Agreement), that the Grantors shall have granted the assignment
and security interest and made the pledge and assignment contemplated by this
Agreement.
(5) Each Grantor will derive substantial direct and indirect benefit from
the transactions contemplated by the Loan Documents.
(6) Terms defined in the Credit Agreement and not otherwise defined in this
Agreement are used in this Agreement as defined in the Credit Agreement.
Further, unless otherwise defined in this Agreement or in the Credit Agreement,
terms defined in Article 8 or 9 of the UCC (as defined below) and/or in the
Federal Book Entry Regulations (as defined below) are used in this Agreement as
such terms are defined in such Article 8 or 9 and/or the Federal Book Entry
Regulations. "UCC" means the Uniform Commercial Code as in effect, from time to
time, in the State of New York; provided that, if perfection or the effect of
perfection or non-perfection or the priority of any security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, "UCC" means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority. The term "Federal Book Entry
Regulations" means (a) the federal regulations contained in Subpart B
("Treasury/Reserve Automated Debt Entry System (TRADES)") governing book-entry
securities consisting of U.S. Treasury bonds, notes and bills and Subpart D
("Additional Provisions") of 31 C.F.R. Part 357, 31 C.F.R. 357.2, 357.10
through 357.14 and 357.41 through 357.44 and (b) to the extent
substantially identical to the federal regulations referred to in clause (a)
above (as in effect from time to time), the federal regulations governing other
book-entry securities.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lenders to enter into the Credit Agreement and to make Loans and issue Letters
of Credit under the Credit Agreement from time to time, each Grantor hereby
agrees with the Administrative Agent for the ratable benefit of the Secured
Parties as follows:
Section 1. Grant of Security
. Each Grantor hereby pledges to the Administrative Agent, for the ratable
benefit of the Secured Parties, and hereby grants to the Administrative Agent,
for the ratable benefit of the Secured Parties, a security interest in, such
Grantor's right, title and interest in and to the following, in each case, as to
each type of property described below, whether now owned or hereafter acquired
by such Grantor, wherever located, and whether now or hereafter existing or
arising (collectively, the "Collateral"):
(a) all inventory located in the United States of America in all of its
forms, including, without limitation, (i) all raw materials, work in process,
finished goods and materials used or consumed in the manufacture, production,
preparation or shipping thereof, (ii) similar goods in which such Grantor has an
interest in mass or a joint or other interest or right of any kind
(including, without limitation, goods in which such Grantor has an interest or
right as consignee) and (iii) goods that are returned to or repossessed or
stopped in transit by such Grantor), and all accessions thereto and products
thereof and documents therefor, and all software related thereto, including,
without limitation, software that is embedded in and is part of the inventory
but excluding in each case equipment (other than finished goods), fixtures, real
estate and improvements thereon (any and all such property being the
"Inventory");
(b) all Accounts, as defined in Section 9-102 of the UCC that are payable in
the United States of America and/or payable to any Grantor organized under a
jurisdiction located in the United States of America, arising out of or in
connection with the sale or lease of goods or the rendering of services and
whether or not earned by performance (being the "Receivables"), and all rights
now or hereafter existing in and to all supporting obligations and in and to all
security agreements, mortgages, Liens, leases, letters of credit and other
contracts securing or otherwise relating to the foregoing property (being the
"Related Contracts");
(c) the following (the "Security Collateral"):
(i) the Initial Pledged Equity and the certificates, if any, representing
the Initial Pledged Equity, and all dividends, distributions, return of capital,
cash, instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of the
Initial Pledged Equity and all subscription warrants, rights or options issued
thereon or with respect thereto;
(ii) the Initial Pledged Debt and the instruments, if any, evidencing the
Initial Pledged Debt, and all interest, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Initial Pledged Debt;
(iii) all additional shares of stock and other Equity Interests of or in any
issuer of the Initial Pledged Equity or any successor entity from time to time
acquired by such Grantor in any manner (such shares and other Equity Interests,
together with the Initial Pledged Equity, being the "Pledged Equity"; provided,
however, that at all times, with respect to capital stock of Foreign
Subsidiaries, only 66% of the capital stock of such Grantor's Foreign
Subsidiaries shall be considered Pledged Equity), and the certificates, if any,
representing such additional shares, and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such shares;
(iv) all additional indebtedness from time to time owed to such Grantor by
any obligor of the Initial Pledged Debt or any successor entity (such
indebtedness, together with the Initial Pledged Debt, being the "Pledged Debt")
and the instruments, if any, evidencing such indebtedness, and all interest,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
indebtedness; and
(d) all books and records (including, without limitation, customer lists,
credit files, computer programs, software, printouts and other computer
materials and records) of such Grantor pertaining to any of the Collateral; and
(e) all proceeds of, collateral for, and supporting obligations relating to,
any and all of the Collateral (including, without limitation, proceeds,
collateral and supporting obligations that constitute property of the types
described in clauses (a) through (d) of this Section 1 and this clause (e)) and,
to the extent not otherwise included, all payments under insurance (whether or
not the Administrative Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral.
Section 2. Security for Obligations
. This Agreement secures, in the case of each Grantor, (i) the payment of
all Obligations of such Grantor now or hereafter existing under the Loan
Documents, whether direct or indirect, absolute or contingent, and whether for
principal, reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or otherwise or any
Obligations in respect of cash management services owing to any Lender Party and
(ii) all obligations of such Grantor under any Secured Swap Contract entered
into with a Swap Creditor in compliance with the Credit Agreement, or under any
bilateral credit agreement (a "Secured Bilateral") entered into by the Borrower
or a Subsidiary of the Borrower that is organized under the laws of the United
States with any Lender (a "Bilateral Lender") in compliance with the Credit
Agreement, whether direct or indirect, absolute or contingent, and whether for
principal, reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or otherwise, but
only to the extent (x) that the Borrower has consented in writing to the
addition of any such Swap Creditor and/or Bilateral Lender and (y) each such
Swap Creditor or each such Bilateral Lender has executed and delivered to the
Administrative Agent a letter in substantially the form of Exhibit B hereto (all
such obligations being the "Secured Obligations").
Section 3. Grantors Remain Liable
. Anything herein to the contrary notwithstanding, (a) each Grantor shall
remain liable under the contracts and agreements included in such Grantor's
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Administrative Agent of any of the rights
hereunder shall not release any Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral and (c) no Secured
Party shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement, any other Loan Document,
any Swap Contract or any Secured Bilateral nor shall any Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 4. Representations and Warranties
. Each Grantor represents and warrants as follows:
(a) Such Grantor's exact legal name, as defined in Section 9-503(a) of the
UCC, is correctly set forth in Schedule I hereto. Such Grantor is located
(within the meaning of Section 9-307 of the UCC) and has its chief executive
office, and the office in which it maintains all originals of all chattel paper
that evidence Receivables of such Grantor, in the state or jurisdiction set
forth in Schedule I hereto. The information set forth in Schedule I hereto with
respect to such Grantor is true and accurate in all material respects.
(b) All Inventory (other than Inventory in transit in the ordinary course of
business) of such Grantor is located at the places specified therefor in
Schedule III hereto, as such Schedule III may be amended from time to time
pursuant to Section 6(a). All Security Collateral consisting of certificated
securities and instruments have been delivered to the Administrative Agent.
(c) Such Grantor is the legal and beneficial owner of the Collateral of such
Grantor free and clear of any Lien, claim, option or right of others, except for
the security interest created under this Agreement and as otherwise permitted
under the Credit Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of such Collateral or
listing such Grantor or any trade name of such Grantor as debtor is on file in
any recording office, except such as may have been filed in favor of the
Administrative Agent relating to the Loan Documents or as otherwise permitted
under the Credit Agreement.
(d) Such Grantor has exclusive possession and control of the Inventory other
than Inventory in transit and Inventory stored at any leased premises or
warehouse, as such Schedule III may be amended from time to time pursuant to
Section 6(a).
(e) The Pledged Equity pledged by such Grantor hereunder has been duly
authorized and validly issued and is fully paid and non-assessable. With
respect to the Pledged Equity that is an uncertificated security, such Grantor
has caused the issuer thereof either (i) to register the Administrative Agent as
the registered owner of such security or (ii) to agree in an authenticated
record with such Grantor and the Administrative Agent that such issuer will
comply with instructions with respect to such security originated by the
Administrative Agent without further consent of such Grantor. If such Grantor
is an issuer of Pledged Equity, such Grantor confirms that it has received
notice of such security interest. The Pledged Debt pledged by such Grantor
hereunder is, to the best of each Grantor's knowledge, the legal, valid and
binding obligation of the issuers thereof and is not in default and, if
evidenced by one or more promissory notes, shall be delivered to the Collateral
Agent.
(f) The Initial Pledged Equity pledged by such Grantor constitutes the
percentage of the issued and outstanding Equity Interests of the issuers thereof
indicated on Schedule II hereto. The Initial Pledged Debt constitutes all of
the outstanding indebtedness owed to such Grantor by the issuers thereof and is
outstanding in the principal amount indicated on Schedule II hereto.
(g) All filings and other actions (including, without limitation, (A)
actions necessary to obtain control of Collateral as provided in Sections 9-105
and 9-107 of the UCC, as in effect in the jurisdiction governing such
transferable record and (B) actions necessary to perfect the Administrative
Agent's security interest with respect to Collateral evidenced by a certificate
of ownership) necessary to perfect the security interest in the Collateral of
such Grantor created under this Agreement have been duly made or taken and are
in full force and effect.
(h) No authorization or approval or other action by (other than UCC filings)
any governmental authority or regulatory body or any other third party is
required for (i) the grant by such Grantor of the assignment, pledge and
security interest granted hereunder or for the execution, delivery or
performance of this Agreement by such Grantor, (ii) the perfection or
maintenance of the assignment, pledge and security interest created hereunder
(including the first priority nature of such assignment, pledge or security
interest, if applicable), except for the filing of financing and continuation
statements under the UCC, which financing statements have been duly filed and
are in full force and effect, or (iii) the exercise by the Administrative Agent
of its rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement.
(i) The Inventory that has been produced or distributed by such Grantor has
been produced in compliance with all requirements of applicable law, including,
without limitation, the Fair Labor Standards Act.
Section 5. Further Assurances
. (a) Each Grantor agrees that from time to time, at the expense of such
Grantor, such Grantor will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further action
that may be necessary or reasonably desirable, or that the Administrative Agent
may reasonably request, in order to perfect and protect any pledge or security
interest granted or purported to be granted by such Grantor hereunder or to
enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral of such Grantor. Without limiting the
generality of the foregoing, each Grantor will promptly with respect to
Collateral of such Grantor: (i) upon the occurrence and during the continuance
of an Event of Default, at the request of the Administrative Agent, xxxx
conspicuously each document included in Inventory, each chattel paper included
in Receivables, each Related Contract and, each of its records pertaining to
such Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such document, chattel paper or Collateral
is subject to the security interest granted hereby; (ii) upon the occurrence and
during the continuance of an Event of Default, at the request of the
Administrative Agent, if any such Collateral shall be evidenced by a promissory
note or other instrument or chattel paper, deliver and pledge to the
Administrative Agent hereunder such note or instrument or chattel paper duly
indorsed and accompanied by duly executed instruments of transfer or assignment,
all in form and substance satisfactory to the Administrative Agent; (iii)
execute or authenticate and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or reasonably desirable, or as the Administrative Agent may reasonably request,
in order to perfect and preserve the security interest granted or purported to
be granted by such Grantor hereunder; (iv) upon the occurrence and during the
continuance of an Event of Default, at the request of the Administrative Agent,
take all action necessary to ensure that the Administrative Agent has control of
Collateral consisting of electronic chattel paper, letter-of-credit rights and
transferable records as provided in Sections 9-105 and 9-107 of the UCC; (v)
upon the occurrence and during the continuance of an Event of Default, at the
request of the Administrative Agent, take all action to ensure that the
Administrative Agent's security interest hereunder is noted on any certificate
of ownership related to any Collateral evidenced by a certificate of ownership;
and (vi) deliver to the Administrative Agent evidence that all other action that
the Administrative Agent may deem reasonably necessary or desirable in order to
perfect and protect the security interest created by such Grantor under this
Agreement has been taken.
(b) Each Grantor hereby authorizes the Administrative Agent to file one or
more financing or continuation statements, and amendments thereto covering all
assets and personal property of a type described in the definition of
Collateral, including, without limitation, one or more financing statements, in
each case without the signature of such Grantor, and regardless of whether any
particular asset described in such financing statements falls within the scope
of the UCC, provided that in each case all such assets fall within the granting
clause of this Agreement. A photocopy or other reproduction of this Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Grantor
ratifies its authorization for the Administrative Agent to have filed such
financing statements, continuation statements or amendments filed prior to the
date hereof.
(c) Each Grantor will furnish to the Administrative Agent from time to time
statements and schedules further identifying and describing the Collateral of
such Grantor and such other reports in connection with such Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
Section 6. As to Inventory
. (a) Each Grantor will keep Inventory of such Grantor (other than
Inventory sold in the ordinary course of business) at the places therefor
specified in Section 4(b) or at such other places designated by such Grantor in
such notice. Upon the giving of such notice, Schedule II hereto shall be
automatically amended to add any new locations specified in the notice.
(b) Each Grantor will promptly furnish to the Administrative Agent a
statement respecting any loss or damage exceeding $1,000,000 to any of the
Inventory of such Grantor.
(c) Each Grantor will pay promptly, unless being contested in good faith,
when due all property and other taxes, assessments and governmental charges or
levies imposed upon, and all claims (including, without limitation, claims for
labor, materials and supplies) against, the Inventory of such Grantor. In
producing its Inventory, each Grantor will comply in all material respects with
all requirements of applicable law, including, without limitation, the Fair
Labor Standards Act.
Section 7. Insurance
. (a) Each Grantor will, at its own expense, maintain insurance with
respect to the Inventory of such Grantor in such amounts, against such risks, in
such form and with such insurers, as shall be reasonably satisfactory to the
Administrative Agent from time to time. Each policy of each Grantor for
liability insurance shall provide for all losses to be paid on behalf of the
Administrative Agent and such Grantor as their interests may appear. Each such
policy shall in addition (i) name such Grantor and the Administrative Agent as
insured parties thereunder (without any representation or warranty by or
obligation upon the Administrative Agent) as their interests may appear, (ii)
not provide for any recourse against the Administrative Agent or any other
Secured Party for payment of premiums or other amounts with respect thereto and
(iii) provide that at least 10 days' prior written notice of cancellation or of
lapse shall be given to the Administrative Agent by the insurer. Each Grantor
will, if so requested by the Administrative Agent, deliver to the Administrative
Agent original or duplicate certificates of such insurance and, as often as the
Administrative Agent may reasonably request, a report of a reputable insurance
broker with respect to such insurance.
(b) Reimbursement under any liability insurance maintained by any Grantor
pursuant to this Section 7 may be paid directly to the Person who shall have
incurred liability covered by such insurance. In case of any loss involving
damage to Inventory when subsection (c) of this Section 7 is not applicable, the
applicable Grantor will make or cause to be made the necessary repairs to
or replacements of such Inventory, and any proceeds of insurance properly
received by or released to such Grantor shall be used by such Grantor, except as
otherwise required hereunder or by the Credit Agreement, to pay or as
reimbursement for the costs of such repairs or replacements.
(c) So long as no Event of Default shall have occurred and be continuing,
all insurance payments received by the Administrative Agent in connection with
any loss, damage or destruction of any Inventory will be released by the
Administrative Agent to the applicable Grantor for the repair, replacement or
restoration thereof. Upon the occurrence and during the continuance of any
Event of Default or the actual or constructive total loss (in excess of
$10,000,000 per occurrence) of any Inventory, all insurance payments in respect
of such Inventory shall be paid to the Administrative Agent and shall, in the
Administrative Agent's sole discretion, (i) be released to the applicable
Grantor to be applied as set forth in the first sentence of this subsection (c)
or (ii) be held as additional Collateral hereunder or applied as specified in
Section 15(b).
Section 8. Post-Closing Changes; Bailees; Collections on Receivables and
Related Contracts
. (a) No Grantor will change its name, type of organization, jurisdiction
of organization, organizational identification number from those set forth in
Section 4(a) without first giving at least 30 days' prior written notice to the
Administrative Agent and taking all action reasonably required by the
Administrative Agent for the purpose of perfecting or protecting the security
interest granted by this Agreement. Each Grantor will hold and preserve its
records relating to the Collateral, including, without limitation, the Related
Contracts, and will permit representatives of the Administrative Agent at any
time during normal business hours to inspect and make abstracts from such
records and other documents. If the Grantor does not have an organizational
identification number and later obtains one, it will forthwith notify the
Administrative Agent of such organizational identification number.
(b) If any Collateral of any Grantor is at any time in the possession or
control of a warehouseman, bailee or agent, or if the Administrative Agent so
requests, such Grantor will (i) notify such warehouseman, bailee or agent of the
security interest created hereunder, (ii) upon the occurrence and during
the continuance of an Event of Default, at the request of the Administrative
Agent, instruct such warehouseman, bailee or agent to hold all such Collateral
solely for the Administrative Agent's account subject only to the Administrative
Agent's instructions, (iii) upon the occurrence and during the continuance of an
Event of Default, at the request of the Administrative Agent, use best efforts
to cause such warehouseman, bailee or agent to authenticate a record
acknowledging that it holds possession of such Collateral for the Administrative
Agent's benefit and shall act solely on the instructions of the Administrative
Agent without the further consent of the Grantor or any other Person, and (iv)
upon the occurrence and during the continuance of an Event of Default, at the
request of the Administrative Agent, make such authenticated record available to
the Administrative Agent.
(c) Except as otherwise provided in this subsection (c), each Grantor will
continue to collect, at its own expense, all amounts due or to become due to
such Grantor under the Receivables and Related Contracts. In connection with
such collections, such Grantor may take (and, at the Administrative Agent's
direction, will take) such action as such Grantor or the Administrative Agent
may deem necessary or reasonably advisable to enforce collection of the
Receivables and Related Contracts; provided, however, that the Administrative
Agent shall have the right at any time, upon the occurrence and during the
continuance of a Default or an Event of Default and upon written notice to such
Grantor of its intention to do so, to notify the obligors under any Receivables
and Related Contracts of the assignment of such Receivables and Related
Contracts to the Administrative Agent and to direct such obligors to make
payment of all amounts due or to become due to such Grantor thereunder directly
to the Administrative Agent and, upon such notification and at the expense of
such Grantor, to enforce collection of any such Receivables and Related
Contracts, to adjust, settle or compromise the amount or payment thereof, in the
same manner and to the same extent as such Grantor might have done, and to
otherwise exercise all rights with respect to such Receivables and Related
Contracts, including, without limitation, those set forth set forth in Section
9-607 of the UCC. After receipt by any Grantor of the notice from the
Administrative Agent referred to in the proviso to the preceding sentence, (i)
all amounts and proceeds (including, without limitation, instruments) received
by such Grantor in respect of the Receivables and Related Contracts of such
Grantor shall be received in trust for the benefit of the Administrative Agent
and the other Secured Parties hereunder, shall be segregated from other funds of
such Grantor and shall be forthwith paid over to the Administrative Agent in the
same form as so received (with any necessary indorsement) and if any Event of
Default shall have occurred and be continuing, applied as provided in Section
14(b) and (ii) such Grantor will not adjust, settle or compromise the amount or
payment of any Receivable or amount due on any Related Contract, release wholly
or partly any obligor thereof, or allow any credit or discount thereon. No
Grantor will permit or consent to the subordination of its right to payment
under any of the Receivables and Related Contracts to any other indebtedness or
obligations of the obligor thereof.
Section 9. As to Letter-of-Credit Rights
. (a) Each Grantor, by granting a security interest in its Receivables
consisting of letter-of-credit rights to the Administrative Agent, intends to
(and hereby does) assign to the Administrative Agent for the benefit of the
Secured Parties its rights (including its contingent rights) to the proceeds of
all Related Contracts consisting of letters of credit of which it is or
hereafter becomes a beneficiary.
(b) Upon the occurrence and during the continuance of a Default or Event of
Default, each Grantor will, promptly upon request by the Administrative Agent,
(i) notify (and such Grantor hereby authorizes the Administrative Agent to
notify) the issuer and each nominated person with respect to each of the Related
Contracts consisting of letters of credit that the proceeds thereof have
been assigned to the Administrative Agent hereunder and any payments due or to
become due in respect thereof are to be made directly to the Administrative
Agent or its designee and (ii) arrange for the Administrative Agent to become
the transferee beneficiary of letter of credit.
Section 10. Transfers and Other Liens
. Each Grantor agrees that it will not (i) sell, assign or otherwise
dispose of, or grant any option with respect to, any of the Collateral, other
than sales, assignments and other dispositions of Collateral, and options
relating to Collateral, permitted under the terms of the Credit Agreement, or
(ii) create or suffer to exist any Lien upon or with respect to any of the
Collateral of such Grantor except for the pledge, assignment and security
interest created under this Agreement and Permitted Liens.
Section 11. Administrative Agent Appointed Attorney-in-Fact
. Upon the occurrence and during the continuance of an Event of Default,
each Grantor hereby irrevocably appoints the Administrative Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument that the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to the Administrative
Agent pursuant to Section 7,
(b) to ask for, demand, collect, xxx for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) or (b) above, and
(d) to file any claims or take any action or institute any proceedings that
the Administrative Agent may deem necessary or reasonably desirable for the
collection of any of the Collateral or otherwise to enforce compliance with the
terms and conditions of any rights of the Administrative Agent with respect to
any of the Collateral.
Section 12. Administrative Agent May Perform
. If any Grantor fails to perform any agreement contained herein, the
Administrative Agent may, upon the occurrence and during the continuance of a
Default or an Event of Default, take such action as the Administrative Agent
reasonably deems necessary to protect the security interest granted hereunder in
the Collateral or to protect the value thereof, but without any obligation to do
so and without notice, itself perform, or cause performance of, such agreement,
and the reasonable expenses of the Administrative Agent incurred in connection
therewith shall be payable by such Grantor under Section 15.
Section 13. The Administrative Agent's Duties
. (a) The powers conferred on the Administrative Agent hereunder are
solely to protect the Secured Parties' interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Administrative Agent shall have no duty
as to any Collateral, or as to the taking of any necessary steps to preserve
rights against any parties or any other rights pertaining to any Collateral.
The Administrative Agent shall be deemed to have exercised reasonable care in
the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which it accords
its own property.
(b) Anything contained herein to the contrary notwithstanding, the
Administrative Agent may from time to time, when the Administrative Agent deems
it to be necessary, appoint one or more subagents (each a "Subagent") for the
Administrative Agent hereunder with respect to all or any part of the
Collateral. In the event that the Administrative Agent so appoints any Subagent
with respect to any Collateral, (i) the assignment and pledge of such
Collateral and the security interest granted in such Collateral by each Grantor
hereunder shall be deemed for purposes of this Security Agreement to have been
made to such Subagent, in addition to the Administrative Agent, for the ratable
benefit of the Secured Parties, as security for the Secured Obligations of such
Grantor, (ii) such Subagent shall automatically be vested, in addition to the
Administrative Agent, with all rights, powers, privileges, interests and
remedies of the Administrative Agent hereunder with respect to such Collateral,
and (iii) the term "Administrative Agent," when used herein in relation to any
rights, powers, privileges, interests and remedies of the Administrative Agent
with respect to such Collateral, shall include such Subagent; provided, however,
that no such Subagent shall be authorized to take any action with respect to any
such Collateral unless and except to the extent expressly authorized in writing
by the Administrative Agent.
Section 14. Remedies
. If any Event of Default shall have occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default under
the UCC (whether or not the UCC applies to the affected Collateral) and also
may: (i) require each Grantor to, and each Grantor hereby agrees that it will
at its expense and upon request of the Administrative Agent forthwith, assemble
all or part of the Collateral as directed by the Administrative Agent and make
it available to the Administrative Agent at a place and time to be designated by
the Administrative Agent that is reasonably convenient to both parties; (ii)
without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery (without assumption of any credit risk), and upon such other terms as
the Administrative Agent may deem commercially reasonable; (iii) occupy any
premises owned or leased by any of the Grantors where the Collateral or any part
thereof is assembled or located for a reasonable period in order to effectuate
its rights and remedies hereunder or under law, without obligation to such
Grantor in respect of such occupation; and (iv) exercise any and all rights and
remedies of any of the Grantors under or in connection with the Collateral, or
otherwise in respect of the Collateral, including, without limitation, (A) any
and all rights of such Grantor to demand or otherwise require payment of any
amount under, or performance of any provision of, the Receivables, the Related
Contracts and the other Collateral and (B) exercise all other rights and
remedies with respect to the Receivables, the Related Contracts and the other
Collateral, including, without limitation, those set forth in Section 9-607 of
the UCC. Each Grantor agrees that, to the extent notice of sale shall be
required by law, at least ten business days' prior notice to such Grantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(b) Any cash held by or on behalf of the Administrative Agent and all cash
proceeds received by or on behalf of the Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 15) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations, in the following manner:
(i) first, paid to the Administrative Agent for any amounts then owing to
the Administrative Agent pursuant to Article IX of the Credit Agreement, or
otherwise under the Loan Documents; and
(ii) second, ratably (A) paid to the Lenders for any amounts then owing to
them, in their capacities as such, under the Loan Documents ratably in
accordance with such respective amounts then owing to such Lenders, provided
that, for purposes of this Section 14, the amount owing to any such Lender
pursuant to any Loan Document to which it is a party (other than any amount
therefore accrued and unpaid) shall be deemed to be equal to the Agreement Value
therefor (as defined in the Credit Agreement) and (B) used to Cash Collateralize
Letters of Credit in accordance with Section 2.03 of the Credit Agreement up to
an amount equal to 100% of the aggregate maximum amounts available to be drawn
under all outstanding Letters of Credit.
Any surplus of such cash or cash proceeds held by or on the behalf of the
Administrative Agent and remaining after payment in full of all the Secured
Obligations shall be paid over to the applicable Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
Section 15. Indemnity and Expenses
. (a) Each Grantor agrees to indemnify, defend and save and hold harmless
each Secured Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(b) Each Grantor will upon demand pay to the Administrative Agent the amount
of any and all reasonable expenses, including, without limitation, the
reasonable fees and expenses of its counsel and of any experts and agents, that
the Administrative Agent may incur in connection with (i) the administration of
this Agreement, (ii) the custody, preservation, use or operation of, or the sale
of, collection from or other realization upon, any of the Collateral of such
Grantor, (iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the other Secured Parties hereunder or (iv) the failure
by such Grantor to perform or observe any of the provisions hereof.
Section 16. Amendments; Waivers; Additional Grantors; Etc.
(a) No amendment or waiver of any provision of this Agreement, and no
consent to any departure by any Grantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent (acting with the requisite consent of the Lenders as provided in the
Credit Agreement), and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No failure
on the part of the Administrative Agent or any other Secured Party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise, of any such right preclude
any other or further exercise thereof or the exercise of any other right.
(b) Upon the execution and delivery, or authentication, by any Person of a
security agreement supplement in substantially the form of Exhibit A hereto
(each a "Security Agreement Supplement"), (i) such Person shall be referred to
as an "Additional Grantor" and shall be and become a Grantor hereunder, and each
reference in this Agreement and the other Loan Documents to "Grantor" shall
also mean and be a reference to such Additional Grantor, and each reference in
this Agreement and the other Loan Documents to "Collateral" shall also mean and
be a reference to the Collateral of such Additional Grantor, and (ii) the
supplemental schedules I-IV attached to each Security Agreement Supplement shall
be incorporated into and become a part of and supplement Schedules I-IV,
respectively, hereto, and the Administrative Agent may attach such supplemental
schedules to such Schedules; and each reference to such Schedules shall mean and
be a reference to such Schedules as supplemented pursuant to each Security
Agreement Supplement.
Section 17. Notices; Etc.
All notices and other communications provided for hereunder shall be
either (i) in writing (including telegraphic, telecopier or telex communication)
and mailed, telegraphed, telecopied, telexed or otherwise delivered or (ii) by
electronic mail (if electronic mail addresses are designated as provided below)
confirmed immediately in writing, in the case of the Borrower or the
Administrative Agent, addressed to it at its address specified in the Credit
Agreement and, in the case of each Grantor other than the Borrower, addressed to
it at its address set forth opposite such Grantor's name on the signature pages
hereto or on the signature page to the Security Agreement Supplement pursuant to
which it became a party hereto; or, as to any party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and other communications shall, when mailed, telegraphed,
telecopied, telexed, sent by electronic mail or otherwise, be effective when
deposited in the mails, delivered to the telegraph company, telecopied,
confirmed by telex answerback, sent by electronic mail and confirmed in writing,
or otherwise delivered (or confirmed by a signed receipt), respectively,
addressed as aforesaid; except that notices and other communications to the
Administrative Agent shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or of any Security Agreement
Supplement or Schedule hereto shall be effective as delivery of an original
executed counterpart thereof.
Section 18. Continuing Security Interest; Assignments under the Credit
Agreement
. This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the latest of (i)
the indefeasible payment in full in cash of the Secured Obligations under the
Credit Agreement, (ii) the Revolving Loan Termination Date and (iii) the
termination or expiration of all Letters of Credit, (b) be binding upon each
Grantor, its successors and assigns and (c) inure, together with the rights and
remedies of the Administrative Agent hereunder, to the benefit of the Secured
Parties and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
commitments, the advances or loans owing to it and the note or notes, if any,
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or
otherwise, in each case as provided in the Credit Agreement.
Section 19. Release; Termination
. (a) Upon any sale, lease, transfer or other disposition of any item of
Collateral of any Grantor in accordance with the terms of the Loan Documents
(other than sales of Inventory in the ordinary course of business), the
Administrative Agent will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence
the release of such item of Collateral from the assignment and security interest
granted hereby; provided, however, that (i) at the time of such request and such
release no Default or Event of Default shall have occurred and be continuing,
(ii) such Grantor shall have delivered to the Administrative Agent, at least ten
Business Days prior to the date of the proposed release, a written request for
release describing the item of Collateral and the terms of the sale, lease,
transfer or other disposition in reasonable detail, including, without
limitation, the price thereof and any expenses in connection therewith, together
with a form of release for execution by the Administrative Agent and a
certificate of such Grantor to the effect that the transaction is in compliance
with the Loan Documents and as to such other matters as the Administrative Agent
may request and (iii) the proceeds of any such sale, lease, transfer or other
disposition required to be applied, or any payment to be made in connection
therewith, in accordance with the Credit Agreement shall, to the extent so
required, be paid or made to, or in accordance with the instructions of, the
Administrative Agent when and as required under the Credit Agreement.
(b) Upon the latest of (i) the indefeasible payment in full in cash of the
Secured Obligations under the Credit Agreement, (ii) the Revolving Loan
Termination Date and (iii) the termination or expiration of all Letters of
Credit, the pledge and security interest granted hereby shall terminate and all
rights to the Collateral shall revert to the applicable Grantor. Upon any such
termination, the Administrative Agent will, at the applicable Grantor's expense,
execute and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence such termination.
Section 20. Execution in Counterparts
. This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of an original executed counterpart of this Agreement.
Section 21. Jurisdiction
. Any legal action or proceeding with respect to this Agreement may be
brought in the courts of the State of New York or of the United States for the
Southern District of New York, and by execution and delivery of this Agreement,
each of the parties hereto consents, for itself and in respect of its property,
to the non-exclusive jurisdiction of those courts. Each of the parties hereto
irrevocably waives any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of any action or proceeding in such jurisdiction in respect
of this Agreement. Each of the parties hereto waives personal service of any
summons, complaint or other process, which may be made by any other means
permitted by New York law.
Section 22. Governing Law
. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Section 23. Waiver of Jury Trial
. Each of the parties hereto waives its respective rights to a trial by
jury of any claim or cause of action based upon or arising out of or related to
this Agreement or the transactions contemplated hereby, in any action,
proceeding or other litigation of any type brought by any of the parties against
any other party or any Administrative Agent related Person or assignee, whether
with respect to contract claims, tort claims or otherwise. Each of the parties
hereto agrees that any such claim or cause of action shall be tried by a court
trial without a jury. Without limiting the generality of the foregoing, the
parties hereto further agree that their respective right to a trial by jury is
waived by operation of this Section 23 as to any action, counterclaim or other
proceeding which seeks, in whole or in part, to challenge the validity or
enforceability of this Agreement or any provision hereof. This waiver shall
apply to any subsequent amendments, renewals, supplements or modifications to
this Agreement.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
MacDERMID, INCORPORATED
By:
Title:
Address for Notices for all other Grantors: MacDERMID TOWER, INC.
MacDERMID TARTAN, INC.
MacDERMID ACUMEN, INC.
MacDERMID EQUIPMENT, INC.
MacDERMID SOUTH ATLANTIC, INC.
MacDERMID OVERSEAS ASIA, LIMITED
MacDERMID EUROPE, INC.
MacDERMID INVESTMENT CORPORATION
MacDERMID SOUTH AMERICA, INC.
SPECIALTY POLYMERS, INC.
ECHO INTERNATIONAL, INC.
X. XXXXXXX INC.
X. XXXXXXX USA, LLC
DYNACIRCUITS, LLC
CANNING GUM, LLC
MacDERMID PRINTING SOLUTIONS, LLC
SUPRATECH SYSTEMS INC.
NAPP SYSTEMS INC.
MacDERMID COLORSPAN, INC.
By:
Title:
