Exhibit 10.43
$150,000,000.00 REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
RESPIRONICS, INC.,
THE BANKS PARTY HERETO,
PNC BANK, NATIONAL ASSOCIATION, As Agent,
and
PNC CAPITAL MARKETS, INC., As Lead Arranger,
and
CITIZENS BANK OF PENNSYLVANIA
and
FLEET NATIONAL BANK, as Documentation Agents
Dated August 19, 2002
TABLE OF CONTENTS
Section Page
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1. CERTAIN DEFINITIONS .............................................................. 1
1.1 Certain Definitions. ...................................................... 1
1.2 Construction. ............................................................. 18
1.2.1. Number; Inclusion. .............................................. 18
1.2.2. Determination. .................................................. 18
1.2.3. Agent's and Bank's Discretion and Consent. ...................... 18
1.2.4. Documents Taken as a Whole. ..................................... 18
1.2.5. Headings. ....................................................... 19
1.2.6. Implied References to this Agreement. ........................... 19
1.2.7. Persons. ........................................................ 19
1.2.8. Modifications to Documents. ..................................... 19
1.2.9. From, To and Through. ........................................... 19
1.2.10. Shall; Will. .................................................... 19
1.3 Accounting Principles. .................................................... 19
2. REVOLVING CREDIT AND SWING LOAN FACILITIES ....................................... 20
2.1 Revolving Credit and Swing Loan Commitments. .............................. 20
2.1.1. Revolving Credit Loans. ......................................... 20
2.1.2. Swing Loans. .................................................... 20
2.2 Nature of Banks' Obligations with Respect to Revolving Credit Loans. ...... 20
2.3 Commitment Fees. .......................................................... 21
2.4 Closing Fee. .............................................................. 21
2.5 Revolving Credit Loan Requests; Swing Loan Requests. ...................... 21
2.5.1. Revolving Credit Loan Requests. ................................. 21
2.5.2. Swing Loan Requests. ............................................ 22
2.6 Making Revolving Credit Loans and Swing Loans; Revolving Credit
Notes and Swing Notes. .................................................... 22
2.6.1. Making Revolving Credit Loans. .................................. 22
2.6.2. Making Swing Loans. ............................................. 22
2.6.3. Revolving Credit Notes. ......................................... 23
2.6.4. Swing Note. ..................................................... 23
2.7 Borrowings to Repay Swing Loans. .......................................... 23
2.8 Use of Proceeds. .......................................................... 23
2.9 Letter of Credit Subfacility. ............................................. 23
2.9.1. Issuance of Letters of Credit. .................................. 23
2.9.2. Letter of Credit Fees. .......................................... 24
2.9.3. Disbursements, Reimbursement. ................................... 24
2.9.4. Repayment of Participation Advances. ............................ 25
2.9.5. Documentation. .................................................. 26
2.9.6. Determinations to Honor Drawing Requests. ....................... 26
2.9.7. Nature of Participation and Reimbursement Obligations. .......... 26
2.9.8. Indemnity. ...................................................... 28
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TABLE OF CONTENTS
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2.9.9. Liability for Acts and Omissions.................................. 28
2.10 Increase of Revolving Credit Commitments.................................... 30
2.11 Estoppel.................................................................... 30
3. INTEREST RATES .................................................................... 31
3.1 Interest Rate Options....................................................... 31
3.1.1. Revolving Credit Interest Rate Options............................ 31
3.1.2. Rate Quotations................................................... 32
3.1.3. Change in Fees or Interest Rates.................................. 32
3.2 Interest Periods............................................................ 32
3.3 Interest After Default...................................................... 33
3.3.1. Letter of Credit Fees, Interest Rate.............................. 33
3.3.2. Other Obligations................................................. 33
3.3.3. Acknowledgment.................................................... 33
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available................................................................... 33
3.4.1. Unascertainable................................................... 33
3.4.2. Illegality; Increased Costs; Deposits Not Available............... 33
3.4.3. Agent's and Bank's Rights......................................... 34
3.5 Selection of Interest Rate Options.......................................... 34
4. PAYMENTS .......................................................................... 35
4.1 Payments.................................................................... 35
4.2 Pro Rata Treatment of Banks................................................. 35
4.3 Interest Payment Dates...................................................... 35
4.4 Voluntary Prepayments....................................................... 36
4.4.1. Right to Prepay................................................... 36
4.4.2. Replacement of a Bank............................................. 37
4.4.3. Change of Lending Office.......................................... 37
4.5 Additional Compensation in Certain Circumstances............................ 38
4.5.1. Increased Costs or Reduced Return Resulting from Taxes, Reserves,
Capital Adequacy Requirements, Expenses, Etc......................... 38
4.5.2. Indemnity......................................................... 38
4.6 Settlement Date Procedures.................................................. 39
5. REPRESENTATIONS AND WARRANTIES .................................................... 40
5.1 Representations and Warranties.............................................. 40
5.1.1. Organization and Qualification.................................... 40
5.1.2. Subsidiaries...................................................... 40
5.1.3. Power and Authority............................................... 40
5.1.4. Validity and Binding Effect....................................... 40
5.1.5. No Conflict....................................................... 41
5.1.6. Litigation........................................................ 41
5.1.7. Title to Properties............................................... 41
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TABLE OF CONTENTS
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5.1.8. Financial Statements.............................................. 42
5.1.9. Use of Proceeds; Margin Stock..................................... 42
5.1.10. Full Disclosure................................................... 42
5.1.11. Taxes............................................................. 43
5.1.12. Consents and Approvals............................................ 43
5.1.13. No Event of Default; Compliance with Instruments.................. 43
5.1.14. Patents, Trademarks, Copyrights, Licenses, Etc.................... 44
5.1.15. Insurance......................................................... 44
5.1.16. Compliance with Laws.............................................. 44
5.1.17. Material Contracts................................................ 44
5.1.18. Investment Companies; Regulated Entities.......................... 44
5.1.19. Plans and Benefit Arrangements.................................... 45
5.1.20. Employment Matters................................................ 45
5.1.21. Environmental Matters............................................. 46
5.1.22. Senior Debt Status................................................ 47
5.2 Updates to Schedules........................................................ 47
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT ........................... 47
6.1 First Loans and Letters of Credit........................................... 47
6.1.1. Officer's Certificate............................................. 47
6.1.2. Secretary's Certificate........................................... 48
6.1.3. Delivery of Loan Documents........................................ 48
6.1.4. Opinion of Counsel................................................ 48
6.1.5. Legal Details..................................................... 48
6.1.6. Payment of Fees................................................... 49
6.1.7. Consents.......................................................... 49
6.1.8. Officer's Certificate Regarding MACs.............................. 49
6.1.9. No Violation of Laws.............................................. 49
6.1.10. No Actions or Proceedings......................................... 49
6.1.11. Insurance Policies; Certificates of Insurance; Endorsements....... 49
6.1.12. Lien Searches..................................................... 49
6.1.13. Termination Statements: Release Statements and Other Releases.... 50
6.1.14. Repayment of Prohibited Indebtedness.............................. 50
6.1.15. Other Documents and Conditions.................................... 50
6.2 Each Additional Loan or Letter of Credit.................................... 50
7. COVENANTS ......................................................................... 51
7.1 Affirmative Covenants....................................................... 51
7.1.1. Preservation of Existence, Etc.................................... 51
7.1.2. Payment of Liabilities, Including Taxes, Etc...................... 51
7.1.3. Maintenance of Insurance.......................................... 51
7.1.4. Maintenance of Properties and Leases.............................. 52
7.1.5. Maintenance of Patents, Trademarks, Etc........................... 52
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7.1.6. Visitation Rights................................................. 52
7.1.7. Keeping of Records and Books of Account........................... 52
7.1.8. Plans and Benefit Arrangements.................................... 53
7.1.9. Compliance with Laws.............................................. 53
7.1.10. Use of Proceeds................................................... 53
7.1.11. Subordination of Intercompany Loans............................... 53
7.2 Negative Covenants.......................................................... 53
7.2.1. Indebtedness...................................................... 54
7.2.2. Liens; Negative Pledge............................................ 54
7.2.3. Guaranties........................................................ 55
7.2.4. Loans and Investments............................................. 55
7.2.5. Dividends and Related Distributions............................... 56
7.2.6. Liquidations, Mergers, Consolidations, Acquisitions............... 56
7.2.7. Dispositions of Assets or Subsidiaries............................ 57
7.2.8. Affiliate Transactions............................................ 58
7.2.9. Subsidiaries...................................................... 58
7.2.10. Continuation of or Change in Business............................. 59
7.2.11. Plans and Benefit Arrangements.................................... 59
7.2.12. Maximum Leverage Ratio............................................ 59
7.2.13. Minimum Interest Coverage Ratio................................... 59
7.2.14. Minimum Net Worth................................................. 60
7.3 Reporting Requirements...................................................... 60
7.3.1. Quarterly Financial Statements.................................... 60
7.3.2. Annual Financial Statements....................................... 60
7.3.3. Certificate of the Borrower....................................... 61
7.3.4. Notice of Default................................................. 61
7.3.5. Notice of Litigation.............................................. 61
7.3.6. Budgets, Forecasts, Other Reports and Information................. 61
7.3.7. Notices Regarding Plans and Benefit Arrangements.................. 62
8. DEFAULT ........................................................................... 64
8.1 Events of Default........................................................... 64
8.1.1. Payments Under Loan Documents..................................... 64
8.1.2. Breach of Warranty................................................ 64
8.1.3. Breach of Negative Covenants...................................... 64
8.1.4. Breach of Other Covenants......................................... 64
8.1.5. Defaults in Other Agreements or Indebtedness...................... 64
8.1.6. Final Judgments or Orders......................................... 65
8.1.7. Loan Document Unenforceable....................................... 65
8.1.8. Proceedings Against Assets........................................ 65
8.1.9. Notice of Lien or Assessment...................................... 65
8.1.10. Insolvency........................................................ 65
8.1.11. Events Relating to Plans and Benefit Arrangements................. 65
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8.1.12. Cessation of Business............................................. 66
8.1.13. Change of Control................................................. 66
8.1.14. Involuntary Proceedings........................................... 66
8.1.15. Voluntary Proceedings............................................. 66
8.2 Consequences of Event of Default............................................ 67
8.2.1. Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings........................................... 67
8.2.2. Bankruptcy, Insolvency or Reorganization Proceedings.............. 67
8.2.3. Set-off........................................................... 67
8.2.4. Suits, Actions, Proceedings....................................... 68
8.2.5. Application of Proceeds; Collateral Sharing....................... 68
8.2.6. Other Rights and Remedies......................................... 69
9. THE AGENT ......................................................................... 69
9.1 Appointment................................................................. 69
9.2 Delegation of Duties........................................................ 69
9.3 Nature of Duties; Independent Credit Investigation.......................... 69
9.4 Actions in Discretion of Agent; Instructions From the Banks................. 70
9.5 Reimbursement and Indemnification of Agent by the Borrower.................. 70
9.6 Exculpatory Provisions; Limitation of Liability............................. 71
9.7 Reimbursement and Indemnification of Agent by Banks......................... 72
9.8 Reliance by Agent........................................................... 72
9.9 Notice of Default........................................................... 72
9.10 Notices..................................................................... 72
9.11 Banks in Their Individual Capacities; Agent in its Individual Capacity...... 73
9.12 Holders of Notes............................................................ 73
9.13 Equalization of Banks....................................................... 73
9.14 Successor Agent............................................................. 74
9.15 Agent's Fee................................................................. 74
9.16 Availability of Funds....................................................... 74
9.17 Calculations................................................................ 75
9.18 Beneficiaries............................................................... 75
9.19 Documentation Agents........................................................ 75
10. MISCELLANEOUS ..................................................................... 75
10.1 Modifications, Amendments or Waivers........................................ 75
10.1.1. Increase of Commitment; Extension of Expiration Date.............. 76
10.1.2. Extension of Payment; Reduction of Principal Interest or Fees;
Modification of Terms of Payment..................................... 76
10.1.3. Release of Guarantor.............................................. 76
10.1.4. Miscellaneous..................................................... 76
10.2 No Implied Waivers; Cumulative Remedies; Writing Required................... 76
10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes........... 77
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10.4 Holidays.................................................................... 77
10.5 Funding by Branch, Subsidiary or Affiliate.................................. 78
10.5.1. Notional Funding.................................................. 78
10.5.2. Actual Funding.................................................... 78
10.6 Notices..................................................................... 78
10.7 Severability................................................................ 79
10.8 Governing Law............................................................... 80
10.9 Prior Understanding......................................................... 80
10.10 Duration; Survival.......................................................... 80
10.11 Successors and Assigns...................................................... 80
10.12 Confidentiality............................................................. 81
10.12.1. General........................................................... 81
10.12.2. Sharing Information With Affiliates of the Banks.................. 82
10.13 Counterparts................................................................ 82
10.14 Agent's or Bank's Consent................................................... 82
10.15 Exceptions.................................................................. 82
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL...................................... 83
10.17 Tax Withholding Clause...................................................... 83
10.18 Joinder of Guarantors....................................................... 84
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A)(1) - PRICING GRID
SCHEDULE 1.1(A)(2) AUTHORIZED OFFICERS
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(P)(1) - PERMITTED INVESTMENTS
SCHEDULE 1.1(P)(2) - PERMITTED LIENS
SCHEDULE 1.1(R) - RECOURSE PURCHASE AGREEMENTS
SCHEDULE 2.9.1 - EXISTING LETTERS OF CREDIT
SCHEDULE 5.1.1 - QUALIFICATIONS TO DO BUSINESS
SCHEDULE 5.1.2 - SUBSIDIARIES
SCHEDULE 5.1.6 - LITIGATION
SCHEDULE 5.1.10 - TAXES
SCHEDULE 5.1.12 - CONSENTS AND APPROVALS
SCHEDULE 5.1.14 - PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
SCHEDULE 5.1.15 - INSURANCE
SCHEDULE 5.1.19 - EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.21 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 7.2.1 - PERMITTED INDEBTEDNESS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) - GUARANTY AGREEMENT
EXHIBIT 1.1(I) - INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 1.1(S) - SWING NOTE
EXHIBIT 2.5.1 - REVOLVING CREDIT LOAN REQUEST
EXHIBIT 2.5.2 - SWING LOAN REQUEST
EXHIBIT 7.2.6 - ACQUISITION COMPLIANCE CERTIFICATE
EXHIBIT 7.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated August 19, 2002 and is made by and among
Respironics, Inc., a Delaware corporation (the "Borrower"), each of the
Guarantors (as hereinafter defined), the Banks (as hereinafter defined), PNC
Bank, National Association, in its capacity as agent for the Banks under this
Agreement (hereinafter referred to in such capacity as the "Agent"), and
Citizens Bank of Pennsylvania and Fleet National Bank, in their capacity as
documentation agents for the Banks under this Agreement (hereinafter
collectively referred to as the "Documentation Agents").
WITNESSETH:
WHEREAS, the Borrower has requested the Banks to provide a revolving credit
facility (including a letter of credit subfacility) to the Borrower in an
aggregate principal amount of One Hundred Fifty Million and 00/100 Dollars
($150,000,000.00); and
WHEREAS, the revolving credit facility shall be used to repay certain
existing indebtedness of the Borrower including amounts due under the Prior Loan
Agreement, for working capital, general corporate purposes, including capital
expenditures, and for Permitted Acquisitions (as hereinafter defined); and
WHEREAS, the Banks are willing to provide such credit including letters of
credit upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions.
In addition to words and terms defined elsewhere in this Agreement,
the following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
Adjusted EBIT shall mean, as of any date of determination, EBIT
of the Borrower and its Subsidiaries for the period equal to the immediately
preceding twelve (12) consecutive months, as adjusted to include the sum of (i)
net income plus (ii) interest expense, plus (iii) income tax expense calculated
as set forth in the definition of "EBIT" below of any Persons or assets acquired
by the Borrower or its Subsidiaries during such period on a pro forma basis for
such period as if such Permitted Acquisition had occurred on the first (1st) day
of such period, as evidenced by pro forma financial statements in form and
substance satisfactory to the Agent, in each case determined and consolidated
for the Borrower and its Subsidiaries in accordance with GAAP.
Adjusted EBITDA shall mean, as of any date of determination,
EBITDA of the Borrower and its Subsidiaries for the period equal to the
immediately preceding twelve (12) consecutive months, as adjusted to include the
sum of (i) net income plus (ii) interest expense, plus (iii) income tax expense,
all calculated as set forth in the definition of "EBIT" below, plus (iv)
depreciation and amortization for such period of any Persons or assets acquired
by the Borrower or its Subsidiaries during such period on a pro forma basis for
such period as if such Permitted Acquisition had occurred on the first (1st) day
of such period as evidenced by pro forma financial statements in form and
substance satisfactory to the Agent, in each case determined and consolidated
for the Borrower and its Subsidiaries in accordance with GAAP.
Affiliate as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common control
with such Person, (ii) which beneficially owns or holds 5% or more of any class
of the voting or other equity interests of such Person, or (iii) 5% or more of
any class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean 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 ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
Agent shall mean PNC Bank and its successors and assigns and any
successor agent pursuant to Section 9.14.
Agent's Fee shall have the meaning assigned to that term in
Section 9.15.
Agent's Letter shall have the meaning assigned to that term in
Section 9.15.
Agreement shall mean this Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules and exhibits.
Annual Statements shall have the meaning assigned to that term in
Section 5.1.8(i).
Applicable Commitment Fee Percentage shall mean, as applicable,
the percentage identified at the indicated Leverage Ratio of the Borrower and
its Subsidiaries in the Pricing Grid on Schedule 1.1(A) below the heading
"Commitment Fee Percentage".
Applicable Letter of Credit Fee Percentage shall mean, as
applicable, the percentage identified at the indicated Leverage Ratio of the
Borrower and its Subsidiaries in the Pricing Grid on Schedule 1.1(A) below the
heading "Letter of Credit Fee Percentage".
Applicable Margin shall mean, as applicable: (A) the percentage
margin to be added to the Base Rate under the Base Rate Option at the indicated
Leverage Ratio of the Borrower and its Subsidiaries in the pricing grid on
Schedule 1.1(A)(1) attached hereto and made a part hereof below the heading
"Base Rate Margin"; or (B) the percentage margin to be added to the Euro Rate
under the Euro Rate Option at the indicated Leverage Ratio of the Borrower and
its
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Subsidiaries in the pricing grid on Schedule 1.1(A)(1) below the heading
"Euro-Rate Margin". The Applicable Margin shall be computed in accordance with
the parameters set forth on Schedule 1.1(A)(1).
Assignment and Assumption Agreement shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially in the form
of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by
written notice to the Agent from the Borrower, authorized to execute notices,
reports and other documents on behalf of the Loan Parties required hereunder. As
of the date of this Agreement, the Authorized Officers of each of the Loan
Parties are set forth on Schedule 1.1(A)(2) attached hereto and made a part
hereof. The Borrower may amend such list of individuals from time to time by
giving written notice of such amendment to the Agent.
Bank-Provided Interest Rate Hedge shall mean an Interest Rate
Hedge which is provided by any Bank and with respect to which the Agent confirms
meets the following requirements: such Interest Rate Hedge (i) is documented in
a standard International Swap Dealer Association Agreement, (ii) provides for
the method of calculating the reimbursable amount of the provider's credit
exposure in a reasonable and customary manner, and (iii) is entered into for
hedging (rather than speculative) purposes. The liabilities of the Loan Parties
to the provider of any Bank-Provided Interest Rate Hedge (the "Hedge
Liabilities") shall be "Obligations" hereunder, guaranteed obligations under the
Guaranty Agreement and otherwise treated as Obligations for purposes of each of
the other Loan Documents.
Banks shall mean the financial institutions named on Schedule
1.1(B) and their respective successors and assigns as permitted hereunder, each
of which is referred to herein as a Bank.
Base Net Worth shall mean, as of any date of determination, the
sum of Two Hundred Fourteen Million Four Hundred Ten Thousand and 00/100 Dollars
($214,410,000.00) plus (i) fifty percent (50%) of consolidated net income of the
Borrower and its Subsidiaries (excluding, however, extraordinary gains) for each
fiscal quarter in which net income was earned (as opposed to a net loss), plus
(ii) fifty percent (50%) of the net proceeds of capital stock issued by the
Borrower and/or its Subsidiaries (other than capital stock issued under any
stock option plan, 401(K) plan, employee stock purchase program or other Benefit
Arrangement) during the period from the Closing Date through the date of
determination, in each case determined and consolidated for the Borrower and its
Subsidiaries in accordance with GAAP.
Base Rate shall mean the greater of (i) the interest rate per
annum announced from time to time by the Agent at its Principal Office as its
then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Agent, or (ii) the Federal Funds Rate plus one-half
of one percent (.50%) per annum.
Base Rate Option shall mean the Revolving Credit Base Rate
Option.
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Benefit Arrangement shall mean at any time an "employee benefit
plan," within the meaning of Section 3(3) of ERISA, which is neither a Plan nor
a Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
Borrower shall mean as set forth in the preamble hereof.
Borrowing Date shall mean, with respect to any Loan, the date for
the making thereof or the renewal or conversion thereof at or to the same or a
different Interest Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans
outstanding as follows: (i) any Loans to which a Euro-Rate Option applies which
become subject to the same Interest Rate Option under the same Loan Request by
the Borrower and which have the same Interest Period shall constitute one
Borrowing Tranche, and (ii) all Loans (including Swing Loans) to which a Base
Rate Option applies shall constitute one Borrowing Tranche.
Business Day shall mean any day other than a Saturday or Sunday
or a legal holiday on which commercial banks are authorized or required to be
closed for business in Pittsburgh, Pennsylvania and if the applicable Business
Day relates to any Loan to which the Euro-Rate Option applies, such day must
also be a day on which dealings are carried on in the London interbank market.
Cash Equivalents shall mean: (a) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within six (6) months from the date of acquisition
thereof; (b) commercial paper maturing no more than six (6) months from the date
issued and, at the time of acquisition, having a rating of at least A-1 from
Standard & Poor's or at least P-1 from Xxxxx'x Investors Service, Inc.; and (c)
certificates of deposits or bankers' acceptances maturing within six (6) months
from the date of issuance thereof issued by, or overnight reverse repurchase
agreements from any commercial bank organized under the laws of the United
States of America, or any state thereof or the District of Columbia, having
combined capital and surplus of not less than Two Hundred Fifty Million and
00/100 Dollars ($250,000,000.00) and not subject to setoff rights in favor of
such bank.
Closing Date shall mean the Business Day on which the first Loan
shall be made, which shall be August 19, 2002 or such other date as the parties
agree. The closing shall take place at 9:00 a.m., Pittsburgh, Pennsylvania time,
on the Closing Date at the Pittsburgh, Pennsylvania offices of Xxxxx Xxxx &
Xxxxxxxxx, LLP, or at such other time and place as the parties agree.
Closing Fee shall mean the fee referred to in Section 2.4.
Commercial Letter of Credit shall mean any letter of credit which
is a commercial letter of credit issued in respect of the purchase of goods or
services by one or more of the Loan Parties in the ordinary course of their
business.
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Commitment shall mean, as to any Bank, its Revolving Credit
Commitment and, in the case of the Agent, the aggregate of its Revolving Credit
Commitment and its Swing Loan Commitment, and Commitments shall mean the
aggregate of the Revolving Credit Commitment and Swing Loan Commitment of all of
the Banks.
Commitment Fee shall have the meaning assigned to that term in
Section 2.3.
Compliance Certificate shall have the meaning assigned to that
term in Section 7.3.3.
Consolidated Net Income shall mean, as of any date of
determination, the net income (or deficit) of the Borrower and its Subsidiaries,
for the period equal to the immediately preceding twelve (12) consecutive
months, after deducting all operating expenses, provisions for all taxes and
reserves (including reserves for all deferred income taxes) and all other proper
deductions, in each case determined and consolidated for the Borrower and its
Subsidiaries in accordance with GAAP.
Contamination shall mean the presence or release or threat of
release of Regulated Substances in, on, under or emanating to or from the
Property, which pursuant to Environmental Laws requires notification or
reporting to an Official Body, or which pursuant to Environmental Laws requires
the investigation, cleanup, removal, remediation, containment, abatement of or
other response action or which otherwise constitutes a violation of
Environmental Laws.
Documentation Agents shall collectively mean Citizens Bank of
Pennsylvania and Fleet National Bank and their respective successors and
assigns.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful
money of the United States of America.
Drawing Date shall have the meaning assigned to that term in
Section 2.9.3.2.
EBIT shall mean, as of any date of determination, the sum of (i)
Consolidated Net Income for such period, excluding therefrom (A) any
extraordinary, non-recurring or unusual items of gain or loss (including without
limitation those items created by mandated changes in accounting treatment),
provided, however, all extraordinary, non-recurring or unusual cash losses
incurred from and after June 30, 2002 in excess of Ten Million and 00/100
Dollars ($10,000,000.00) in the aggregate throughout the term of this Agreement
shall not be excluded, and (B) any gain or loss of any other Person accounted
for on the equity method, except to the extent of cash distributions received
during the relevant period, plus (ii) interest expense, plus (iii) income tax
expense, in each case determined and consolidated for the Borrower and its
Subsidiaries in accordance with GAAP.
-5-
EBITDA shall mean, as of any date of determination, the sum of
(i) EBIT plus (ii) depreciation and amortization, in each case determined and
consolidated for the Borrower and its Subsidiaries in accordance with GAAP.
Environmental Complaint shall mean any written complaint by any
Person or Official Body setting forth a cause of action for personal injury or
property damage, natural resource damage, contribution or indemnity for response
costs, civil or administrative penalties, criminal fines or penalties, or
declaratory or equitable relief arising under any Environmental Laws or any
order, notice of violation, citation, subpoena, request for information or other
written notice or demand of any type issued by an Official Body pursuant to any
Environmental Laws.
Environmental Laws shall mean all federal, state, local and
foreign Laws and any consent decrees, settlement agreements, judgments, orders,
directives, policies or programs issued by an Official Body or entered into with
an Official Body pertaining or relating to: (i) pollution or pollution control;
(ii) protection of the environment; (iii) the presence, use, management,
generation, manufacture, processing, extraction, treatment, recycling, refining,
reclamation, labeling, transport, storage, collection, distribution, disposal or
release or threat of release of Regulated Substances; (iv) the presence of
Contamination; (v) the protection of endangered or threatened species; and (vi)
the protection of Environmentally Sensitive Areas.
Environmentally Sensitive Area shall mean (i) any wetland as
defined by applicable Environmental Laws; (ii) any area designated as a coastal
zone pursuant to applicable Laws, including Environmental Laws; (iii) any area
of historic or archeological significance or scenic area as defined or
designated by applicable Laws, including Environmental Laws; (iv) habitats of
endangered species or threatened species as designated by applicable Laws,
including Environmental Laws; or (v) a floodplain or other flood hazard area as
defined pursuant to any applicable Laws.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control and all other entities which, together
with the Borrower, are treated as a single employer under Section 414 of the
Internal Revenue Code.
Euro-Rate shall mean, with respect to the Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum)
(i) the rate of interest determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to be
the average of the London interbank offered rates for U.S. Dollars quoted by the
British Bankers' Association as set forth on Dow Xxxxx Markets Service (formerly
known as Telerate) (or appropriate successor or, if the British Bankers'
Association or its successor ceases
-6-
to provide such quotes, a comparable replacement determined by the Agent)
display page 3750 (or such other display page on the Dow Xxxxx Markets Service
system as may replace display page 3750) two (2) Business Days prior to the
first day of such Interest Period for an amount comparable to such Borrowing
Tranche and having a borrowing date and a maturity comparable to such Interest
Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted
by BBA or appropriate successor as shown on
Euro-Rate = Dow Xxxxx Markets Service display page 3750
-------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Agent shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.
Euro-Rate Option shall mean the Revolving Credit Euro-Rate
Option.
Euro-Rate Reserve Percentage shall mean as of any day the maximum
percentage in effect on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirements (including supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities").
Event of Default shall mean any of the events described in
Section 8.1 and referred to therein as an "Event of Default."
Excess Interest shall have the meaning assigned to that term in
Section 3.1.
Executive Officers shall mean (i) with respect to the Borrower,
any officer identified as an executive officer in the Annual Report on Form 10-K
of the Borrower and (ii) with respect to any other Loan Party, the President,
Treasurer or General Counsel of such Loan Party.
Expiration Date shall mean August 31, 2005.
Federal Funds Rate for any day shall mean the rate per annum
(based on a year of 360 days and actual days elapsed) determined by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the "Open Rate" for federal funds transactions as
of the opening of business for federal funds transactions among members of the
Federal Reserve System arranged by federal funds brokers on such day, as quoted
by Xxxxxx Guybutler (or any successor) or any other broker selected by the
Agent, as set forth on the applicable Dow Xxxxx Markets Service (formerly known
as Telerate) display page; provided however, that if such day is not a Business
Day, the Federal Funds Rate for such day shall be the "Open Rate" on the
immediately preceding Business Day or if no such rate shall
-7-
be quoted by a federal funds broker at such time, such other rate as determined
by the Agent in accordance with its usual procedures (which determination shall
be conclusive absent manifest error). If and when the Federal Funds Rate
changes, the rate of interest hereunder with respect to any Loan to which the
Federal Funds Rate applies will change automatically without notice to the
Borrower, effective on the date of any such change.
GAAP shall mean generally accepted accounting principles as are
in effect in the United States of America from time to time, subject to the
provisions of Section 1.3, and applied on a consistent basis both as to
classification of items and amounts.
Governmental Acts shall have the meaning assigned to that term in
Section 2.9.8.
Guarantor shall mean each of the parties to this Agreement which
is designated as a "Guarantor" on the signature page hereof and each other
Person which joins this Agreement as a Guarantor after the date hereof pursuant
to Section 10.18.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor
under this Agreement and the other Loan Documents in the form of Exhibit
1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any performance
bond or other suretyship arrangement and any other form of assurance against
loss, except endorsement of negotiable or other instruments for deposit or
collection in the ordinary course of business.
Guaranty Agreement or Guaranty Agreements shall mean, singularly
or collectively, as the context may require, the Guaranty and Suretyship
Agreements in substantially the form of Exhibit 1.1(G)(2) executed and delivered
by the Guarantors to the Agent for the benefit of the Banks on or after the date
hereof, as amended, modified or supplemented from time to time.
Historical Statements shall have the meaning assigned to that
term in Section 5.1.8(i).
Indebtedness shall mean, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, currency swap agreement, interest rate
swap, cap, collar or floor agreement or other interest rate management device,
(iv) any other transaction (including forward sale or purchase agreements,
capitalized leases and conditional sales agreements) having the commercial
effect of a borrowing of money entered into by such Person to finance its
operations or capital requirements (but not including trade payables and accrued
expenses incurred in the ordinary course of business which are not represented
by a promissory note or other evidence of
-8-
indebtedness), (v) any Guaranty of Indebtedness for borrowed money or (vi) a
Receivables Financing.
Insolvency Proceeding shall mean, with respect to any
Person, (a) a case, action or proceeding with respect to such Person (i) before
any court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other similar arrangement in respect of
such Person's creditors generally or any substantial portion of its creditors
undertaken under any Law.
Intercompany Subordination Agreement shall mean a
Subordination Agreement made by the Loan Parties for the benefit of the Agent in
the form attached hereto as Exhibit 1.1(I).
Interest Coverage Ratio shall mean, as of any date of
determination, the ratio of Adjusted EBIT to interest expense, in each case
determined and consolidated for the Borrower and its Subsidiaries in accordance
with GAAP.
Interest Period shall mean the period of time selected by
the Borrower in connection with (and to apply to) any election permitted
hereunder by the Borrower to have Revolving Credit Loans bear interest under the
Euro-Rate Option. Subject to the last sentence of this definition, such period
shall be (i) one (1), two (2), three (3), six (6) or twelve (12) Months. Such
Interest Period shall commence on the effective date of such Interest Rate
Option, which shall be (i) the Borrowing Date if the Borrower is requesting new
Loans, or (ii) the date of renewal of or conversion to the Euro-Rate Option if
the Borrower is renewing or converting to the Euro-Rate Option applicable to
outstanding Loans. Notwithstanding the second sentence hereof: (A) any Interest
Period which would otherwise end on a date which is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (B) the Borrower shall not select, convert to
or renew an Interest Period for any portion of the Loans that would end after
the Expiration Date.
Interest Rate Hedge shall mean an interest rate exchange,
collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar
agreements entered into by the Loan Parties or their Subsidiaries in order to
provide protection to, or minimize the impact upon, the Borrower, the Guarantor
and/or their Subsidiaries of increasing floating rates of interest applicable to
Indebtedness.
Interest Rate Option shall mean any Euro-Rate Option or Base
Rate Option.
Interim Statements shall have the meaning assigned to that
term in Section 5.1.8(i).
-9-
Internal Revenue Code shall mean the Internal Revenue Code
of 1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Issuer shall mean the Agent or any Affiliate of the Agent
and their successors and assigns.
Labor Contracts shall mean all employment agreements,
employment contracts, collective bargaining agreements and other agreements
among any Loan Party or Subsidiary of a Loan Party and its employees.
Law shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or settlement agreement with any Official Body.
Letter of Credit shall have the meaning assigned to that
term in Section 2.9.1.
Letter of Credit Borrowing shall have the meaning assigned
to such term in Section 2.9.3.4.
Letter of Credit Fee shall have the meaning assigned to that
term in Section 2.9.2.
Letters of Credit Outstanding shall mean at any time the sum
of (without duplication) (i) the aggregate undrawn face amount of outstanding
Letters of Credit and (ii) the aggregate amount of all unpaid and outstanding
Reimbursement Obligations and Letter of Credit Borrowings.
Leverage Ratio shall mean, as of any date of determination,
the ratio of Indebtedness to Adjusted EBITDA, in each case determined and
consolidated for the Borrower and its Subsidiaries in accordance with GAAP.
Lien shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LLC Interests shall have the meaning given to such term in
Section 5.1.2.
Loan Documents shall mean this Agreement, the Agent's
Letter, the Guaranty Agreements, the Intercompany Subordination Agreement,
Letters of Credit, the Notes, and any other instruments, certificates or
documents delivered or contemplated to be delivered hereunder or thereunder or
in connection herewith or therewith, as the same may be
-10-
supplemented or amended from time to time in accordance herewith or therewith,
and Loan Document shall mean any of the Loan Documents.
Loan Parties shall mean the Borrower and the Guarantors.
Loan Request shall have the meaning given to such term in
Section 2.5.
Loans shall mean collectively and Loan shall mean separately
all Revolving Credit Loans and Swing Loans or any Revolving Credit Loan or Swing
Loan.
Material Adverse Change shall mean any set of circumstances
or events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Loan Document, (b) is or could reasonably be expected to be
material and adverse to the business, properties, assets, financial condition,
results of operations or prospects of the Loan Parties taken as a whole, (c)
impairs materially or could reasonably be expected to impair materially the
ability of the Loan Parties taken as a whole to duly and punctually pay or
perform their Indebtedness, or (d) impairs materially or could reasonably be
expected to impair materially the ability of the Agent or any of the Banks, to
the extent permitted, to enforce their legal remedies pursuant to this Agreement
or any other Loan Document.
Month, with respect to an Interest Period under the
Euro-Rate Option, shall mean the interval between the days in consecutive
calendar months numerically corresponding to the first day of such Interest
Period. If any Euro-Rate Interest Period begins on a day of a calendar month for
which there is no numerically corresponding day in the month in which such
Interest Period is to end, the final month of such Interest Period shall be
deemed to end on the last Business Day of such final month.
Multiemployer Plan shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any member of the ERISA Group is then making
or accruing an obligation to make contributions or, within the preceding five
Plan years, has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or
more contributing sponsors (including the Borrower or any member of the ERISA
Group) at least two of whom are not under common control, as such a plan is
described in Sections 4063 and 4064 of ERISA.
Net Worth shall mean, as of any date of determination, the
total stockholders equity of the Borrower and its Subsidiaries, in each case
determined and consolidated for the Borrower and its Subsidiaries in accordance
with GAAP.
Notes shall mean the Revolving Credit Notes and the Swing
Note.
Notices shall have the meaning assigned to that term in
Section 10.6.
-11-
Obligation shall mean any obligation or liability of any of
the Loan Parties to the Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Agent's Letter or any other Loan Document.
Obligations shall include the liabilities to any Bank under any Bank-Provided
Interest Rate Hedge but shall not include the liabilities to other Persons under
any other Interest Rate Hedge.
Official Body shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, board,
bureau, central bank, commission, department or instrumentality of either, or
any court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
Participation Advance shall mean, with respect to any Bank,
such Bank's payment in respect of its participation in a Letter of Credit
Borrowing according to its Ratable Share pursuant to Section 2.9.3.4.
Partnership Interests shall have the meaning given to such
term in Section 5.1.2.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Acquisitions shall mean (i) acquisitions described
in Section 7.2.6(4) and (ii) other acquisitions consented to in advance in
writing by the Required Banks.
Permitted Investments shall mean:
(i) direct obligations of the United States of
America or any agency or instrumentality thereof or obligations backed by the
full faith and credit of the United States of America maturing in twelve (12)
months or less from the date of acquisition;
(ii) commercial paper maturing in 180 days or less
rated not lower than A-1 by Standard & Poor's or P-1 by Xxxxx'x Investors
Service, Inc. on the date of acquisition;
(iii) dollar denominated demand deposits, time
deposits or certificates of deposit maturing within one year in domestic
commercial banks whose obligations are rated A-1, A or the equivalent or better
by Standard & Poor's on the date of acquisition or P-1, A or the equivalent or
better by Xxxxx'x Investors Service, Inc. on the date of acquisition;
(iv) cash management "sweep accounts" made available
to the Borrower and its Subsidiaries by the Banks which invest directly or
indirectly through common investment funds, repurchase agreements or otherwise
in securities of the type described in items (i) through (iii) inclusive above
and similar accounts made available by other financial institutions for
temporary purposes for the Borrower's foreign Subsidiaries;
-12-
(v) any investment existing on the date of this
Agreement and described on Schedule 1.1(P)(1);
(vi) existing ownership interests in Subsidiaries of
the Borrower; and
(vii) money market investments rated at least AA or
higher by Standard & Poor's or AAm-G or higher by Xxxxx'x Investor Services,
Inc. and whose net asset value remains constant $1.00 per share.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar
charges, incurred in the ordinary course of business and which are not yet due
and payable;
(ii) Pledges or deposits made in the ordinary course
of business to secure payment of workmen's compensation, or to participate in
any fund in connection with workmen's compensation, unemployment insurance,
old-age pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen,
carriers, or other like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable and Liens of landlords
securing obligations to pay lease payments that are not yet due and payable or
in default;
(iv) Good-faith pledges or deposits made in the
ordinary course of business to secure performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases, not in excess of the
aggregate amount due thereunder, or to secure statutory obligations, or surety,
appeal, indemnity, performance or other similar bonds required in the ordinary
course of business;
(v) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of real property, none of which
materially impairs the use of such property or the value thereof, and none of
which is violated in any material respect by existing or proposed structures or
land use;
(vii) Any Lien existing on the date of this Agreement
and described on Schedule 1.1(P)(2), provided that the principal amount secured
thereby is not hereafter increased, and no additional assets become subject to
such Lien, and Liens created in connection with a refinancing of Indebtedness
identified on Schedule 7.2.1 which refinancing is not in violation of the terms
of item (ii) of Section 7.2.1;
(viii) Purchase Money Security Interests arising after
the date of this Agreement, Liens pursuant to capitalized leases arising after
the date of this Agreement, and existing Liens on assets of a Person at the time
it becomes a Subsidiary in connection with a Permitted Acquisition, provided
that such Liens extend only to the assets acquired in such Permitted Acquisition
and provided further that the aggregate amount of Indebtedness secured by
-13-
such Purchase Money Security Interests, capitalized leases and such Liens
arising in connection with Permitted Acquisitions shall not exceed the amount
set forth in Section 7.2.1(iii);
(ix) Liens arising in connection with a Receivables
Financing, provided, however, that such Receivables Financing has been approved
by the Required Banks; and
(x) The following, (A) if the validity or amount
thereof is being contested in good faith by appropriate and lawful proceedings
diligently conducted so long as levy and execution thereon have been stayed and
continue to be stayed or (B) if a final judgment is entered and such judgment is
discharged within sixty (60) days of entry, and in either case they do not, in
the aggregate, constitute a Material Adverse Change:
(1) Claims or Liens for taxes, assessments or charges due
and payable and subject to interest or penalty, provided that the
applicable Loan Party maintains such reserves or other
appropriate provisions as shall be required by GAAP and pays all
such taxes, assessments or charges forthwith upon the
commencement of proceedings to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of
title to, real or personal property, including any attachment of
personal or real property or other legal process prior to
adjudication of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens;
or
(4) Liens resulting from final judgments or orders which do
not constitute an Event of Default under Section 8.1.6.
Person shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
Plan shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
PNC Bank shall mean PNC Bank, National Association, its
successors and assigns.
Potential Default shall mean any event or condition which
with notice, passage of time or a determination by the Agent or the Required
Banks, or any combination of the foregoing, would constitute an Event of
Default.
-14-
Principal Office shall mean the main banking office of the
Agent in Pittsburgh, Pennsylvania.
Prior Loan Agreement shall mean the Credit Agreement, dated
as of May 8, 1998, by and among the Borrower, the lenders party thereto and PNC
Bank as the issuing bank, administrative agent and syndication agent and Bank of
America National Trust and Savings Association as the documentation agent, as
amended, modified or supplemented from time to time.
Prohibited Transaction shall mean any prohibited transaction
as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA
for which neither an individual nor a class exemption has been issued by the
United States Department of Labor.
Property shall mean all real property, both owned and
leased, of any Loan Party or Subsidiary of a Loan Party.
Purchase Money Security Interest shall mean Liens upon
tangible personal property securing loans to any Loan Party or Subsidiary of a
Loan Party or deferred payments by such Loan Party or Subsidiary for the
purchase of such tangible personal property.
Purchasing Bank shall mean a Bank which becomes a party to
this Agreement by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Bank's
Commitment (excluding the Swing Loan Commitment) bears to the Commitments
(excluding the Swing Loan Commitment) of all of the Banks.
Receivables Financing shall mean the sale and/or pledge of
all or a portion of the accounts receivable of the Loan Parties in connection
with an "asset securitization" or similar transaction.
Recourse Purchase Agreements shall mean agreements entered
into by the Borrower or a Subsidiary pursuant to which accounts or leases are
assigned to or originated by a third party with such third party having full or
partial recourse to the Borrower or such Subsidiary for nonpayment of the
underlying account or lease obligation.
Regulated Substances shall mean, without limitation, any
substance, material or waste, regardless of its form or nature, defined under
Environmental Laws as a "hazardous substance," "pollutant," "pollution,"
"contaminant," "hazardous or toxic substance," "extremely hazardous substance,"
"toxic chemical," "toxic substance," "toxic waste," "hazardous waste," "special
handling waste," "industrial waste," "residual waste," "solid waste," "municipal
waste," "mixed waste," "infectious waste," "chemotherapeutic waste," "medical
waste," or "regulated substance" or any other material, substance or waste,
regardless of its form or nature, which otherwise is regulated by Environmental
Laws.
Regulation U shall mean Regulation U, T or X as promulgated
by the Board of Governors of the Federal Reserve System, as amended from time to
time.
-15-
Reimbursement Obligation shall have the meaning assigned to
such term in Section 2.9.3.2.
Reportable Event shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
Required Banks shall mean
(i) if there are no Revolving Credit Loans, Reimbursement
Obligations or Letter of Credit Borrowings outstanding, the Banks then holding
at least fifty and one-tenth percent (50.1%) of the sum of the aggregate
Revolving Credit Commitments of all of the Banks then in effect; or
(ii) if there are Revolving Credit Loans, Reimbursement
Obligations or Letter of Credit Borrowings outstanding, any Bank or group of
Banks if the sum of the Revolving Credit Loans, the Reimbursement Obligations
and Letter of Credit Borrowings of such Banks then outstanding aggregates at
least fifty and one-tenth percent (50.1%) of the total principal amount of all
of the Revolving Credit Loans, the Reimbursement Obligations and Letter of
Credit Borrowings then outstanding. Reimbursement Obligations and Letter of
Credit Borrowings shall be deemed, for purposes of this definition, to be in
favor of the Agent and not a participating Bank if such Bank has not made its
Participation Advance in respect thereof and shall be deemed to be in favor of
such Bank to the extent of its Participation Advance if it has made its
Participation Advance in respect thereof.
Required Environmental Notices shall mean all notices,
reports, plans, forms or other filings which pursuant to Environmental Laws,
Required Environmental Permits or at the request or direction of an Official
Body either must be submitted to an Official Body or which otherwise must be
maintained.
Required Environmental Permits shall mean all permits,
licenses, bonds, consents, programs, approvals or authorizations required under
Environmental Laws to own, occupy or maintain the Property or which otherwise
are required for the operations and business activities of the Borrower or
Guarantors.
Required Share shall have the meaning assigned to such term
in Section 4.6 (excluding the Swing Loans).
Revolving Credit Base Rate Option shall mean the option of
the Borrower to have Revolving Credit Loans bear interest at the rate and under
the terms and conditions set forth in Section 3.1.1(i).
Revolving Credit Commitment shall mean, as to any Bank at
any time, the amount initially set forth opposite its name on Schedule 1.1(B) in
the column labeled "Amount of Commitment for Revolving Credit Loans," and
thereafter on Schedule I to the most recent Assignment and Assumption Agreement,
and Revolving Credit Commitments shall mean the aggregate Revolving Credit
Commitments of all of the Banks.
-16-
Revolving Credit Euro-Rate Option shall mean the option of the
Borrower to have Revolving Credit Loans bear interest at the rate and under the
terms and conditions set forth in Section 3.1.1(ii).
Revolving Credit Loans shall mean collectively and Revolving
Credit Loan shall mean separately all Revolving Credit Loans or any Revolving
Credit Loan made by the Banks or one of the Banks to the Borrower pursuant to
Section 2.1 or 2.9.3.
Revolving Credit Notes shall mean collectively and Revolving
Credit Note shall mean separately all the Revolving Credit Notes of the Borrower
in the form of Exhibit 1.1(R) evidencing the Revolving Credit Loans together
with all amendments, extensions, renewals, replacements, refinancings or
refundings thereof in whole or in part.
Revolving Facility Usage shall mean at any time the sum of the
Revolving Credit Loans outstanding and the Letters of Credit Outstanding.
Settlement Date shall mean the Friday of each week (if such day
is a Business Day and if not, the next succeeding Business Day) and any other
Business Day in which the Agent elects to effect settlement pursuant to Section
4.6.
Standard & Poor's shall mean Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
Standby Letter of Credit shall mean a Letter of Credit issued to
support obligations of one or more of the Loan Parties, contingent or otherwise,
which finance the working capital and business needs of the Loan Parties
incurred in the ordinary course of business, but excluding any Letter of Credit
under which the stated amount of such Letter of Credit increases automatically
over time.
Subsidiary of any Person at any time shall mean (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, or (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term in
Section 5.1.2.
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Swing Loan Commitment shall mean PNC Bank's commitment to make
Swing Loans to the Borrower pursuant to Section 2.1.2 hereof in an aggregate
principal amount up to Ten Million and 00/100 Dollars ($10,000,000.00).
Swing Note shall mean the Swing Note of the Borrower in the
form of Exhibit 1.1(S) evidencing the Swing Loans, together with all amendments,
extensions, renewals, replacements, refinancings or refundings thereof in whole
or in part.
Swing Loan Request shall mean a request for Swing Loans made
in accordance with Section 2.5.2 hereof.
Swing Loans shall mean collectively and Swing Loan shall mean
separately all Swing Loans or any Swing Loan made by PNC Bank to the Borrower
pursuant to 2.1.2 hereof.
Transferor Bank shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
1.2 Construction.
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
1.2.1. Number; Inclusion.
references to the plural include the singular, the plural, the
part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2. Determination.
references to "determination" of or by the Agent or the Banks
shall be deemed to include good-faith estimates by the Agent or the Banks (in
the case of quantitative determinations) and good-faith beliefs by the Agent or
the Banks (in the case of qualitative determinations) and such determination
shall be conclusive absent manifest error;
1.2.3. Agent's and Bank's Discretion and Consent.
whenever the Agent or the Banks are granted the right herein
to act in its or their sole discretion or to grant or withhold consent such
right shall be exercised in good faith;
1.2.4. Documents Taken as a Whole.
the words "hereof," "herein," "hereunder," "hereto" and
similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document;
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1.2.5. Headings.
the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.6. Implied References to this Agreement.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7. Persons.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement or such other Loan Document, as the case may be, and reference to
a Person in a particular capacity excludes such Person in any other capacity;
1.2.8. Modifications to Documents.
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9. From, To and Through.
relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding," and "through" means
"through and including"; and
1.2.10. Shall; Will.
references to "shall" and "will" are intended to have the same
meaning.
1.3 Accounting Principles.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; provided, however, that all accounting terms
used in Section 7.2 [Negative Covenants] (and all defined terms used in the
definition of any accounting term used in Section 7.2) shall have the meaning
given to such terms (and defined terms) under GAAP as in effect on the date
hereof applied on a basis consistent with those used in preparing the Annual
Statements referred to in Section 5.1.8(i) [Historical Statements]. In the
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event of any change after the date hereof in GAAP, and if such change would
result in the inability to determine compliance with the financial covenants set
forth in Section 7.2 based upon the Borrower's regularly prepared financial
statements by reason of the preceding sentence, then the parties hereto agree to
endeavor, in good faith, to agree upon an amendment to this Agreement that would
adjust such financial covenants in a manner that would not affect the substance
thereof, but would allow compliance therewith to be determined in accordance
with the Borrower's financial statements at that time.
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 Revolving Credit and Swing Loan Commitments.
2.1.1. Revolving Credit Loans.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, each Bank severally agrees
to make Revolving Credit Loans to the Borrower at any time or from time to time
on or after the date hereof to the Expiration Date provided that after giving
effect to such Loan the aggregate amount of Loans from such Bank shall not
exceed such Bank's Revolving Credit Commitment minus such Bank's Ratable Share
of the Letters of Credit Outstanding. Within such limits of time and amount and
subject to the other provisions of this Agreement, the Borrower may borrow,
repay and reborrow pursuant to this Section 2.1.1.
2.1.2. Swing Loans.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, and in order to facilitate
loans and repayments between Settlement Dates, PNC Bank may, at its option,
cancelable at any time for any reason whatsoever, make swing loans (the "Swing
Loans") to the Borrower at any time or from time to time after the date hereof
to, but not including, the Expiration Date, in an aggregate principal amount up
to but not in excess of Ten Million and 00/100 Dollars ($10,000,000.00) (the
"Swing Loan Commitment"), provided that the aggregate principal amount of PNC
Bank's Swing Loans and the Revolving Credit Loans of all the Banks and the
Letters of Credit Outstanding at any one time outstanding shall not exceed the
Revolving Credit Commitments of all the Banks. Within such limits of time and
amount and subject to the other provisions of this Agreement, the Borrower may
borrow, repay and reborrow pursuant to this Section 2.1.2.
2.2 Nature of Banks' Obligations with Respect to Revolving Credit Loans.
Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.5.1 [Revolving Credit Loan
Requests] in accordance with its Ratable Share. The aggregate of each Bank's
Revolving Credit Loans outstanding hereunder to the Borrower at any time shall
never exceed its Revolving Credit Commitment minus its Ratable Share of the
Letters of Credit Outstanding. The obligations of each Bank hereunder are
several. The failure of any Bank to perform its obligations hereunder shall not
affect the Obligations of the Borrower to any other party nor shall any other
party be liable for the failure of such Bank to
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perform its obligations hereunder. The Banks shall have no obligation to make
Revolving Credit Loans hereunder on or after the Expiration Date.
2.3 Commitment Fees.
Accruing from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Agent for the account of each Bank, as consideration for
such Bank's Revolving Credit Commitment hereunder, a nonrefundable commitment
fee (the "Commitment Fee") equal to the Applicable Commitment Fee Percentage
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) on the average daily difference between the amount of (i)
such Bank's Revolving Credit Commitment as the same may be constituted from time
to time (for purposes of this computation, PNC Bank's Swing Loans shall be
deemed to be borrowed amounts under its Revolving Credit Commitment) and the
(ii) the sum of such Bank's Revolving Credit Loans outstanding plus its Ratable
Share of Letters of Credit Outstanding. All Commitment Fees shall be payable in
arrears on the last Business Day of each October, January, April and July after
the date hereof and on the Expiration Date or upon acceleration of the Notes.
2.4 Closing Fee.
The Borrower agrees to pay to the Agent for the account of each Bank,
as consideration for such Bank's Revolving Credit Commitment, a nonrefundable
closing fee as set forth in the Agent's letter.
2.5 Revolving Credit Loan Requests; Swing Loan Requests.
2.5.1. Revolving Credit Loan Requests.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request the Banks to make Revolving
Credit Loans, or renew or convert the Interest Rate Option applicable to
existing Revolving Credit Loans pursuant to Section 3.2 [Interest Periods], by
delivering to the Agent, not later than 10:00 a.m., Pittsburgh time, (i) three
(3) Business Days prior to the proposed Borrowing Date with respect to the
making of Revolving Credit Loans to which the Euro-Rate Option applies or the
conversion to or the renewal of the Euro-Rate Option for any Loans; and (ii) one
(1) Business Day prior to either the proposed Borrowing Date with respect to the
making of a Revolving Credit Loan to which the Base Rate Option applies or the
last day of the preceding Interest Period with respect to the conversion to the
Base Rate Option for any Loan, of a duly completed request therefor
substantially in the form of Exhibit 2.5.1 or a request by telephone immediately
confirmed in writing by letter, facsimile or telex in such form (each, a "Loan
Request"), it being understood that the Agent may rely on the authority of any
individual making such a telephonic request without the necessity of receipt of
such written confirmation. Each Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the
proposed Loans comprising each Borrowing Tranche, which shall be in integral
multiples of One Million and 00/100 Dollars ($1,000,000.00) and not less than
Two Million and 00/100 Dollars ($2,000,000.00) for each Borrowing Tranche to
which the Euro-Rate Option applies and integral multiples of One Hundred
Thousand and 00/100 Dollars ($100,000.00) and not less than the
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lesser of Five Hundred Thousand and 00/100 Dollars ($500,000.00) or the maximum
amount available for Borrowing Tranches to which the Base Rate Option applies;
(iii) whether the Euro-Rate Option or Base Rate Option shall apply to the
proposed Loans comprising the applicable Borrowing Tranche; and (iv) in the case
of a Borrowing Tranche to which the Euro-Rate Option applies, an appropriate
Interest Period for the Loans comprising such Borrowing Tranche.
2.5.2. Swing Loan Requests.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request PNC Bank to make Swing Loans
by delivery to PNC Bank not later than 10:00 a.m., Pittsburgh time on the
proposed Borrowing Date of a duly completed request therefor substantially in
the form of Exhibit 2.5.2 hereto or a request by telephone immediately confirmed
in writing by letter, facsimile or telex (each, a "Swing Loan Request"), it
being understood that the Agent may rely on the authority of any individual
making such a telephonic request without the necessity of receipt of such
written confirmation. Each Swing Loan Request shall be irrevocable and shall
specify the proposed Borrowing Date and the principal amount of such Swing Loan,
which shall be in integral multiples of One Hundred Thousand and 00/100 Dollars
($100,000.00) and not less than Five Hundred Thousand and 00/100 Dollars
($500,000.00).
2.6 Making Revolving Credit Loans and Swing Loans; Revolving Credit Notes
and Swing Notes.
2.6.1. Making Revolving Credit Loans.
The Agent shall, promptly after receipt by it of a Loan
Request pursuant to Section 2.5.1 [Revolving Credit Loan Requests], notify the
Banks of its receipt of such Loan Request specifying: (i) the proposed Borrowing
Date and the time and method of disbursement of the Revolving Credit Loans
requested thereby; (ii) the amount and type of each such Revolving Credit Loan
and the applicable Interest Period (if any); and (iii) the apportionment among
the Banks of such Revolving Credit Loans as determined by the Agent in
accordance with Section 2.2 [Nature of Banks' Obligations]. Each Bank shall
remit the principal amount of each Revolving Credit Loan to the Agent such that
the Agent is able to, and the Agent shall, to the extent the Banks have made
funds available to it for such purpose and subject to Section 6.2 [Each
Additional Loan], fund such Revolving Credit Loans to the Borrower in U.S.
Dollars and immediately available funds at the Principal Office prior to 2:00
p.m., Pittsburgh time, on the applicable Borrowing Date, provided that if any
Bank fails to remit such funds to the Agent in a timely manner, the Agent may
elect in its sole discretion to fund with its own funds the Revolving Credit
Loans of such Bank on such Borrowing Date, and such Bank shall be subject to the
repayment obligation in Section 9.16 [Availability of Funds].
2.6.2. Making Swing Loans.
So long as PNC Bank elects to make Swing Loans, PNC Bank
shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5.2,
fund such Swing Loan to the
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Borrower in U.S. Dollars and immediately available funds at the Principal Office
prior to 2:00 p.m., Pittsburgh time on the Borrowing Date.
2.6.3. Revolving Credit Notes.
The obligation of the Borrower to repay the aggregate unpaid
principal amount of the Revolving Credit Loans made to it by each Bank, together
with interest thereon, shall be evidenced by a Revolving Credit Note dated the
Closing Date payable to the order of such Bank in a face amount equal to the
Revolving Credit Commitment of such Bank.
2.6.4. Swing Note.
The obligation of the Borrower to repay the aggregate unpaid
principal amount of the Swing Loans made to it by PNC Bank, together with
interest thereon, shall be evidenced by a Swing Note dated the Closing Date
payable to the order of PNC Bank in a face amount equal to the Swing Loan
Commitment.
2.7 Borrowings to Repay Swing Loans.
PNC Bank may, at its option, exercisable at any time for any reason
whatsoever, request repayment of the Swing Loans, and each Bank shall make a
Revolving Credit Loan in an amount equal to such Bank's Ratable Share of the
aggregate principal amount of the outstanding Swing Loans, plus, if PNC Bank so
requests, accrued interest thereon, provided that no Bank shall be obligated in
any event to make Revolving Credit Loans in excess of its Revolving Credit
Commitment. Revolving Credit Loans made pursuant to the preceding sentence shall
bear interest at the Base Rate Option and shall be deemed to have been properly
requested in accordance with Section 2.5.1 without regard to any of the
requirements of that provision. PNC Bank shall provide notice to the Banks
(which may be telephonic or written notice by letter, facsimile or telex) that
such Revolving Credit Loans are to be made under this Section 2.7 and of the
apportionment among the Banks, and the Banks shall be unconditionally obligated
to fund such Revolving Credit Loans (whether or not the conditions specified in
Section 2.5.1 are then satisfied) by the time PNC Bank so requests, which shall
not be earlier than 3:00 p.m. Pittsburgh time on the Business Day next after the
date the Banks receive such notice from PNC Bank.
2.8 Use of Proceeds.
The proceeds of the Revolving Credit Loans shall be used for working
capital, general corporate purposes, including capital expenditures, Permitted
Acquisitions and to repay certain existing Indebtedness, including amounts due
under the Prior Loan Agreement.
2.9 Letter of Credit Subfacility.
2.9.1. Issuance of Letters of Credit.
Borrower may request the issuance of a letter of credit (each
a "Letter of Credit") on behalf of itself or another Loan Party by delivering or
having such other Loan Party deliver to the Issuer a completed application and
agreement for letters of credit in such form as
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the Issuer may specify from time to time by no later than 10:00 a.m., Pittsburgh
time, at least three (3) Business Days, or such shorter period as may be agreed
to by the Issuer, in advance of the proposed date of issuance. Each Letter of
Credit shall be a Standby Letter of Credit or a Commercial Letter of Credit.
Subject to the terms and conditions hereof and in reliance on the agreements of
the other Banks set forth in this Section 2.9.1, the Issuer will issue a Letter
of Credit provided that each Letter of Credit shall (A) have a maximum maturity
of twelve (12) months from the date of issuance, and (B) in no event expire
later than ten (10) Business Days prior to the Expiration Date and provided
further that in no event shall (i) the Letters of Credit Outstanding exceed, at
any one time, Thirty Million and 00/100 Dollars ($30,000,000.00) or (ii) the
Revolving Facility Usage exceed, at any one time, the Revolving Credit
Commitments. As of the date hereof, those letters of credit set forth on
Schedule 2.9.1 attached hereto and made a part hereof, which were issued under
the Prior Loan Agreement and are outstanding on the date hereof, are hereby
deemed to be Letters of Credit issued and outstanding hereunder and are included
in the calculation of Letters of Credit Outstanding. The parties hereto
acknowledge and agree that the letter of credit issued by PNC Bank in connection
with the Borrower's PEDFA Indebtedness described on Schedule 7.2.1 is not deemed
a Letter of Credit hereunder and is not included in the calculation of Letters
of Credit Outstanding.
2.9.2. Letter of Credit Fees.
The Borrower shall pay (i) to the Agent for the ratable
account of the Banks a fee (the "Letter of Credit Fee") equal to the Applicable
Letter of Credit Fee Percentage (computed on the basis of a year of three
hundred sixty (360) days and actual days elapsed), and (ii) to the Issuer for
its own account a fronting fee equal to one-eighth of one percent (.125%) per
annum (computed on the basis of a year of 360 days and actual days elapsed),
which fees shall be computed on the daily average Letters of Credit Outstanding
and shall be payable quarterly in arrears commencing with the last Business Day
of each October, January, April and July following issuance of each Letter of
Credit and on the Expiration Date. The Borrower shall also pay to the Issuer for
the Issuer's sole account the Issuer's then in effect customary fees and
administrative expenses payable with respect to the Letters of Credit as the
Issuer may generally charge or incur from time to time in connection with the
issuance, maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
2.9.3. Disbursements, Reimbursement.
2.9.3.1 Immediately upon the issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuer a participation in such Letter of Credit and
each drawing thereunder in an amount equal to such Bank's Ratable Share of the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
2.9.3.2 In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuer will
promptly notify the Borrower. Provided that it shall have received such notice,
the Borrower shall reimburse (such obligation to reimburse the Issuer shall
sometimes be referred to as a "Reimbursement Obligation") the Issuer prior to
12:00 noon, Pittsburgh time on each date that an amount is paid by the Issuer
under any
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Letter of Credit (each such date, a "Drawing Date") in an amount equal to the
amount so paid by the Issuer. In the event the Borrower fails to reimburse the
Issuer for the full amount of any drawing under any Letter of Credit by 12:00
noon, Pittsburgh time, on the Drawing Date, the Issuer will promptly notify the
Agent (if the Agent is not the Issuer) and the Agent will promptly notify each
Bank thereof, and the Borrower shall be deemed to have requested that Revolving
Credit Loans be made by the Banks under the Base Rate Option to be disbursed on
the Drawing Date under such Letter of Credit, subject to the amount of the
unutilized portion of the Revolving Credit Commitment and subject to the
conditions set forth in Section 6.2 [Each Additional Loan] other than any notice
requirements. Any notice given by the Agent pursuant to this Section 2.9.3.2 may
be oral 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.
2.9.3.3 Each Bank shall upon any notice pursuant to Section
2.9.3.2 make available to the Agent, for the account of the Issuer, an amount in
immediately available funds equal to its Ratable Share of the amount of the
drawing, whereupon the participating Banks shall (subject to Section 2.9.3.4)
each be deemed to have made a Revolving Credit Loan under the Base Rate Option
to the Borrower in that amount. If any Bank so notified fails to make available
to the Agent for the account of the Issuer the amount of such Bank's Ratable
Share of such amount by no later than 2:00 p.m., Pittsburgh time on the Drawing
Date, then interest shall accrue on such Bank's obligation to make such payment,
from the Drawing Date to the date on which such Bank makes such payment (i) at a
rate per annum equal to the Federal Funds Rate during the first three days
following the Drawing Date and (ii) at a rate per annum equal to the rate
applicable to Loans under the Revolving Credit Base Rate Option on and after the
fourth day following the Drawing Date. The Agent will promptly give notice of
the occurrence of the Drawing Date, but failure of the Agent to give any such
notice on the Drawing Date or in sufficient time to enable any Bank to effect
such payment on such date shall not relieve such Bank from its obligation under
this Section 2.9.3.3.
2.9.3.4 With respect to any unreimbursed drawing that is
not converted into Revolving Credit Loans under the Base Rate Option to the
Borrower in whole or in part as contemplated by Section 2.9.3.2, because of the
Borrower's failure to satisfy the conditions set forth in Section 6.2 [Each
Additional Loan] other than any notice requirements or for any other reason, the
Borrower shall be deemed to have incurred from the Agent a borrowing (each a
"Letter of Credit Borrowing") in the amount of such drawing. Such Letter of
Credit Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the rate per annum applicable to the Revolving Credit
Loans under the Base Rate Option. Each Bank's payment to the Agent, for the
account of the Issuer, pursuant to Section 2.9.3.3 shall be deemed to be a
payment in respect of its participation in such Letter of Credit Borrowing and
shall constitute a "Participation Advance" from such Bank in satisfaction of its
participation obligation under this Section 2.9.3.4.
2.9.4. Repayment of Participation Advances.
2.9.4.1 Upon (and only upon) receipt by the Agent for the
account of the Issuer of immediately available funds from the Borrower (i) in
reimbursement of any payment made by the Agent Issuer under the Letter of Credit
with respect to which any Bank has made a
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Participation Advance to the Agent, or (ii) in payment of interest on such a
payment made by the Agent under such a Letter of Credit, the Agent, on behalf of
the Issuer, will pay to each Bank, in the same funds as those received by the
Agent, for the account of the Issuer, the amount of such Bank's Ratable Share of
such funds, except the Agent shall retain the amount of the Ratable Share of
such funds of any Bank that did not make a participation Advance in respect of
such payment by Agent.
2.9.4.2 If the Agent, on behalf of the Issuer, is required
at any time to return to any Loan Party, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by any Loan Party to the Agent, for the account of the Issuer,
pursuant to Section 2.9.4.1 in reimbursement of a payment made under the Letter
of Credit or interest or fee thereon, each Bank shall, on demand of the Agent,
on behalf of the Issuer, forthwith return to the Agent, for the account of the
Issuer, the amount of its Ratable Share of any amounts so returned by the Agent,
on behalf of the Issuer, plus interest thereon from the date such demand is made
to the date such amounts are returned by such Bank to the Agent, for the account
of the Issuer, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
2.9.5. Documentation.
Each Loan Party agrees to be bound by the terms of the
Issuer's application and agreement for letters of credit and the Issuer's
written regulations and customary practices relating to letters of credit,
though such interpretation may be different from such Loan Party's own. In the
event of a conflict between such application or agreement and this Agreement,
this Agreement shall govern. It is understood and agreed that, except in the
case of gross negligence or willful misconduct, the Issuer shall not be liable
for any error, negligence and/or mistakes, whether of omission or commission, in
following any Loan Party's instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.
2.9.6. Determinations to Honor Drawing Requests.
In determining whether to honor any request for drawing
under any Letter of Credit by the beneficiary thereof, the Issuer shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
2.9.7. Nature of Participation and Reimbursement Obligations.
Each Bank's obligation in accordance with this Agreement to
make the Revolving Credit Loans or Participation Advances, as contemplated by
Section 2.9.3, as a result of a drawing under a Letter of Credit, and the
Obligations of the Borrower to reimburse the Agent, for the account of the
Issuer, upon a draw under a Letter of Credit, shall be absolute, unconditional
and irrevocable (other than in the event of the gross negligence or willful
misconduct of the Issuer as determined by a final judgment of a court of
competent jurisdiction), and shall be performed strictly in accordance with the
terms of this Section 2.9.7 under all circumstances, including the following
circumstances:
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(i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Issuer, the Borrower or any
other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to
comply, in connection with a Letter of Credit Borrowing, with the conditions set
forth in Section 2.1 [Revolving Credit Commitments], 2.5.1 [Revolving Credit
Loan Requests], 2.6 [Making Revolving Credit Loans] or 6.2 [Each Additional
Loan] or as otherwise set forth in this Agreement for the making of a Revolving
Credit Loan, it being acknowledged that such conditions are not required for the
making of a Letter of Credit Borrowing and the obligation of the Banks to make
Participation Advances under Section 2.9.3;
(iii) any lack of validity or enforceability of any Letter
of Credit;
(iv) any claim of breach of warranty that might be made by
any Loan Party or any Bank against any beneficiary of a Letter of Credit, or the
existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense
or other right which any Loan Party or any Bank may have at any time against a
beneficiary, successor beneficiary, any transferee or assignee of any Letter of
Credit or the proceeds thereof (or any Persons for whom any such transferee may
be acting), the Issuer or any Bank or any other Person or, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any Loan Party or
Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit
was procured);
(v) the lack of power or authority of any signer of (or
any defect in or forgery of any signature or endorsement on) or the form of or
lack of validity, sufficiency, accuracy, enforceability or genuineness of any
draft, demand, instrument, certificate or other document presented under or in
connection with any Letter of Credit, or any fraud or alleged fraud in
connection with any Letter of Credit, or the transport of any property or
provisions of services relating to a Letter of Credit, in each case even if the
Issuer has been notified thereof;
(vi) payment by the Issuer under any Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit (unless such
presentation of a demand, draft or certificate or other document does not appear
on its face to substantially comply with the terms of the Letter of Credit);
(vii) the solvency of, or any acts of omissions by, any
beneficiary of any Letter of Credit, or any other Person having a role in any
transaction or obligation relating to a Letter of Credit, or the existence,
nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;
(viii) any failure by the Issuer to issue any Letter of
Credit in the form requested by any Loan Party, unless the Issuer has received
written notice from such Loan Party of such failure within three (3) Business
Days after the Issuer shall have furnished such Loan
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Party a copy of such Letter of Credit and such error is material and no drawing
has been made thereon prior to receipt of such notice;
(ix) any Material Adverse Change shall have occurred;
(x) any breach of this Agreement or any other Loan
Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing;
(xiii) the fact that the Expiration Date shall have passed
or this Agreement or the Commitments hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
2.9.8. Indemnity.
In addition to amounts payable as provided in Section 9.5
[Reimbursement of Agent by Borrower, Etc.], the Borrower hereby agrees to
protect, indemnify, pay and save harmless the Issuer from and against any and
all claims, demands, liabilities, damages, taxes, penalties, interest,
judgments, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel) which the Issuer may incur or be subject
to as a consequence, direct or indirect, of the issuance of any Letter of
Credit, other than as a result of (A) the gross negligence or willful misconduct
of the Issuer as determined by a final judgment of a court of competent
jurisdiction or (B) the wrongful dishonor by the Issuer of a proper demand for
payment made under any Letter of Credit, except if such dishonor resulted from
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such acts or
omissions herein called "Governmental Acts").
2.9.9. Liability for Acts and Omissions.
As between any Loan Party, on the one hand, and the Issuer,
on the other hand, such Loan Party assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing, the
Issuer shall not be responsible for any of the following including any losses or
damages to any Loan Party or other Person or property relating therefrom: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Issuer shall have been notified thereof (unless the documents
presented do not appear on their face to substantially comply with the terms of
the Letter of Credit)); (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or
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assign any such Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) the failure of the beneficiary of any such
Letter of Credit, or any other party to which such Letter of Credit may be
transferred, to comply fully with any conditions required in order to draw upon
such Letter of Credit or any other claim of any Loan Party against any
beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among any Loan Party and any beneficiary of any Letter of Credit or
any such transferee (unless the documents presented do not appear on their face
to substantially comply with the terms of the Letter of Credit); (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuer, including any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting of, any of
the Issuer's rights or powers hereunder. Nothing in the preceding sentence shall
relieve the Issuer from liability for the Issuer's gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction in connection with actions or omissions described in such clauses
(i) through (viii) of such sentence. In no event shall the Issuer be liable to
any Loan Party for any indirect, consequential, incidental, punitive, exemplary
or special damages or expenses (including without limitation attorneys' fees),
or for any damages resulting from any change in the value of any property
relating to a Letter of Credit.
Without limiting the generality of the foregoing, the Issuer
(i) may rely on any oral or other communication believed in good faith by the
Issuer to have been authorized or given by or on behalf of the applicant for a
Letter of Credit, (ii) may honor any presentation if the documents presented
appear on their face substantially to comply with the terms and conditions of
the relevant Letter of Credit; (iii) may honor a previously dishonored
presentation under a Letter of Credit, whether such dishonor was pursuant to a
court order, to settle or compromise any claim of wrongful dishonor, or
otherwise, and shall be entitled to reimbursement to the same extent as if such
presentation had initially been honored, together with any interest paid by the
Issuer; (iv) may honor any drawing that is payable upon presentation of a
statement advising negotiation or payment, upon receipt of such statement (even
if such statement indicates that a draft or other document is being delivered
separately), and shall not be liable for any failure of any such draft or other
document to arrive, or to conform in any way with the relevant Letter of Credit;
(v) may pay any paying or negotiating bank claiming that it rightfully honored
under the laws or practices of the place where such bank is located; and (vi)
may settle or adjust any claim or demand made on the Issuer in any way related
to any order issued at the applicant's request to an air carrier, a letter of
guarantee or of indemnity issued to a carrier or any similar document (each an
"Order") and honor any drawing in connection with any Letter of Credit that is
the subject of such Order, notwithstanding that any drafts or other documents
presented in connection with such Letter of Credit fail to conform in any way
with such Letter of Credit.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by the Agent or
the Agent's Affiliates under or in connection with the Letters of Credit issued
by it or any documents and certificates
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delivered thereunder, if taken or omitted in good faith (and without gross
negligence or willful misconduct with respect thereto), shall not put the Agent
or the Agent's Affiliates under any resulting liability to the Borrower or any
Bank.
2.10 Increase of Revolving Credit Commitments.
If at any time after the Closing Date, and so long as no Event of
Default or Potential Default has occurred and is continuing, the Borrower
desires to increase the Revolving Credit Commitments, the Borrower shall notify
the Agent, who will promptly notify each Bank thereof, provided that any such
increase shall be in a minimum of Ten Million and 00/100 Dollars
($10,000,000.00) and the aggregate of all such increases shall not exceed Fifty
Million and 00/100 Dollars ($50,000,000.00). The existing Banks shall have the
right at any time within thirty (30) days following such notice to increase
their respective Revolving Credit Commitments so as to provide such additional
Revolving Credit Commitment pro-rata in accordance with the Ratable Share of
each, and any portion of such requested increase which is not provided by any
such existing Bank shall be available to the other existing Banks; provided,
that if more than one existing Bank desires to increase its Revolving Credit
Commitment in respect of the portion not provided by an existing Bank, such
participating Banks shall provide such portion of the additional Revolving
Credit Commitments on a pro rata basis in accordance with the proportion that
their respective Ratable Share bears to each other, and thereafter, to the
extent not provided by existing Banks, to any additional lending institution or
institutions proposed by the Borrower and which is approved by the Agent (which
approval will not be unreasonably withheld) and which becomes a party to this
Agreement pursuant to documentation reasonably acceptable to the Agent and
prepared at the Borrower's expense, which documentation may be executed by the
Borrower and the Agent (as agent for the Banks) without further consent or
action of the Banks, such consent hereby deemed to be irrevocably given to the
Agent by the Banks; provided, however, that the Borrower shall have the right to
have all of such increase provided by such approved additional lending
institution or institutions if all the existing Banks decline to increase their
Revolving Credit Commitments to accommodate any such requested increase. In the
event of any such increase in the aggregate Revolving Credit Commitments and in
the Revolving Credit Commitment of any Bank effected pursuant to the terms of
this Section 2.10, new Notes shall, to the extent deemed reasonably necessary or
appropriate by the Agent, be executed and delivered by the Borrower and, to the
extent deemed appropriate by the Agent, the surrender and cancellation of
existing Note(s); and the Borrower shall execute and deliver such additional
documentation setting forth the new Revolving Credit Commitments and Ratable
Shares as the Agent shall reasonably request (which documentation may be
executed by the Borrower and the Agent (as agent for the Banks) without further
consent or action of the Banks, such consent herein is deemed to be irrevocably
given to the Agent by the Banks).
2.11 Estoppel.
As further consideration for the entry of the Agent and the Banks
into this Agreement, the Borrower hereby represents and warrants that it does
not presently have any claims or actions of any kind at law or in equity against
PNC Bank arising out of or in any way relating to the Prior Loan Agreement or
any related documents with respect thereto, the transactions referenced in or
contemplated by this Agreement or any acts, transactions, or events
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that are or were the subject matter of any other prior loans, agreements or
guaranties involving the Borrower and PNC Bank.
3. INTEREST RATES
3.1 Interest Rate Options.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Loans as selected by it from the Base Rate Option or
Euro-Rate Option set forth below applicable to the Loans, it being understood
that, subject to the provisions of this Agreement, the Borrower may select
different Interest Rate Options and different Interest Periods to apply
simultaneously to the Loans comprising different Borrowing Tranches and may
convert to or renew one or more Interest Rate Options with respect to all or any
portion of the Loans comprising any Borrowing Tranche, provided that there shall
not be at any one time outstanding more than six (6) Borrowing Tranches in the
aggregate among all of the Loans (including a Borrowing Tranche to which the
Base Rate Option applies) and provided further that only the Base Rate Option
shall apply to the Swing Loans. If at any time the designated rate applicable to
any Loan made by any Bank exceeds such Bank's highest lawful rate, the rate of
interest on such Bank's Loan shall be limited to such Bank's highest lawful
rate. Notwithstanding any provisions to the contrary contained in this Agreement
or any other Loan Document, the Borrower shall not be required to pay, and the
Banks shall not be permitted to collect, any amount of interest in excess of the
maximum amount of interest permitted by applicable Law ("Excess Interest"). If
any Excess Interest is provided for or determined by a court of competent
jurisdiction to have been provided for in this Agreement or in any other Loan
Document, then, in such event: (1) the provisions of this subsection shall
govern and control; (2) the Borrower shall not be obligated to pay any Excess
Interest; (3) any Excess Interest that the Banks may have received hereunder
shall be, at the option of the Required Banks, (a) applied as a credit against
the outstanding principal balance of the Obligations or accrued and unpaid
interest (not to exceed the maximum amount permitted by Law), (b) refunded to
the payor thereof, or (c) any combination of the foregoing; (4) the interest
rates provided for herein shall be automatically reduced to the maximum lawful
rate allowed from time to time under applicable Law, and this Agreement and the
other Loan Documents shall be deemed to have been and shall be reformed and
modified to reflect such reduction; and (5) the Borrower shall have no action
against the Agent or any Bank for any damages arising out of the payment or
collection of any Excess Interest (other than to enforce this Section 3.1).
3.1.1. Revolving Credit Interest Rate Options.
The Borrower shall have the right to select from the
following Interest Rate Options applicable to the Revolving Credit Loans
(subject to the provisions above regarding Swing Loans):
(i) Revolving Credit Base Rate Option: A fluctuating rate
per annum (computed on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed)
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equal to the Base Rate plus the Applicable Margin, such interest rate to change
automatically from time to time effective as of the effective date of each
change in the Base Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate per annum
(computed on the basis of a year of 360 days and actual days elapsed) equal to
the Euro-Rate plus the Applicable Margin.
3.1.2. Rate Quotations.
The Borrower may call the Agent on or before the date on
which a Loan Request is to be delivered to receive an indication of the rates
then in effect, but it is acknowledged that such projection shall not be binding
on the Agent or the Banks nor affect the rate of interest which thereafter is
actually in effect when the election is made.
3.1.3. Change in Fees or Interest Rates.
If the Applicable Margin, Applicable Letter of Credit Fee
Percentage or Applicable Commitment Fee Percentage is increased or reduced with
respect to any period for which the Borrower has already paid interest, Letter
of Credit Fees or Commitment Fees, the Agent shall recalculate the additional
interest, Letter of Credit Fees or Commitment Fees due from or to the Borrower
and shall, within fifteen (15) Business Days after the Borrower notifies the
Agent of such increase or decrease, give the Borrower and the Banks notice of
such recalculation.
3.1.3.1 Any additional interest, Letter of Credit Fee or
Commitment Fee due from the Borrower shall be paid to the Agent for the account
of the Banks on the next date on which an interest, Letter of Credit Fee or
Commitment Fee payment is due; provided, however, that if there are no Loans
outstanding or if the Loans are due and payable, such additional interest,
Letter of Credit Fee or Commitment Fee shall be paid promptly after receipt of
written request for payment from the Agent.
3.1.3.2 Any interest, Letter of Credit Fee or Commitment
Fee refund due to the Borrower shall be credited against payments otherwise due
from the Borrower on the next interest, Letter of Credit Fee or Commitment Fee
payment due date or, if the Loans have been repaid and the Banks are no longer
committed to lend under this Agreement, the Banks shall pay to the Agent for the
account of the Borrower such interest, Letter of Credit Fee or Commitment Fee
refund not later than five (5) Business Days after written notice from the Agent
to the Banks.
3.2 Interest Periods.
At any time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Agent thereof at least three (3)
Business Days prior to the effective date of such Euro-Rate Option by delivering
a Loan Request. The notice shall specify an Interest Period during which such
Interest Rate Option shall apply. Notwithstanding the preceding sentence, in the
case of the renewal of a Euro-Rate Option at the end of an Interest Period, the
first (1st) day of the new Interest Period shall be the last day of the
preceding Interest Period, without duplication and payment of interest for such
day.
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3.3 Interest After Default.
To the extent permitted by Law, upon the occurrence of an Event of
Default and until such time such Event of Default shall have been cured or
waived:
3.3.1. Letter of Credit Fees, Interest Rate.
the Letter of Credit Fees and the rate of interest for each
Loan otherwise applicable pursuant to Section 2.9.2 [Letter of Credit Fees] or
Section 3.1 [Interest Rate Options], respectively, shall be increased by two
percent (2.0%) per annum, each Borrowing Tranche to which the Euro-Rate Option
applies shall automatically convert to the Base Rate Option at the end of the
applicable Interest Period and no Loans may be made as, renewed or converted
into a Borrowing Tranche to which the Euro-Rate Option applies;
3.3.2. Other Obligations.
each other Obligation hereunder if not paid when due shall
bear interest at a rate per annum equal to the sum of the rate of interest
applicable under the Revolving Credit Base Rate Option plus an additional two
percent (2%) per annum from the time such Obligation becomes due and payable and
until it is paid in full; and
3.3.3. Acknowledgment.
the Borrower acknowledges that the increase in rates
referred to in this Section 3.3 reflects, among other things, the fact that such
Loans or other amounts have become a substantially greater risk given their
default status and that the Banks are entitled to additional compensation for
such risk; and all such interest shall be payable by Borrower upon demand by
Agent.
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available.
3.4.1. Unascertainable.
If on any date on which a Euro-Rate would otherwise be
determined, the Agent shall have determined that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the London interbank eurodollar market relating to the
Euro-Rate, the Agent shall have the rights specified in Section 3.4.3.
3.4.2. Illegality; Increased Costs; Deposits Not Available.
If at any time any Bank shall have determined that:
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(i) the making, maintenance or funding of any Loan to
which a Euro-Rate Option applies has been made impracticable or unlawful by
compliance by such Bank in good faith with any Law or any interpretation or
application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly
reflect the cost to such Bank of the establishment or maintenance of any such
Loan, or
(iii) after making all reasonable efforts, deposits of the
relevant amount in Dollars for the relevant Interest Period for a Loan, or to
banks generally, to which a Euro-Rate Option applies, respectively, are not
available to such Bank with respect to such Loan, or to banks generally, in the
interbank eurodollar market,
then the Agent shall have the rights specified in Section 3.4.3.
3.4.3. Agent's and Bank's Rights.
In the case of any event specified in Section 3.4.1 above,
the Agent shall promptly so notify the Banks and the Borrower thereof, and in
the case of an event specified in Section 3.4.2 above, such Bank shall promptly
so notify the Agent and endorse a certificate to such notice as to the specific
circumstances of such notice, and the Agent shall promptly send copies of such
notice and certificate to the other Banks and the Borrower. Upon such date as
shall be specified in such notice (which shall not be earlier than the date such
notice is given), the obligation of (A) the Banks, in the case of such notice
given by the Agent, or (B) such Bank, in the case of such notice given by such
Bank, to allow the Borrower to select, convert to or renew a Euro-Rate Option
shall be suspended until the Agent shall have later notified the Borrower, or
such Bank shall have later notified the Agent, of the Agent's or such Bank's, as
the case may be, determination that the circumstances giving rise to such
previous determination no longer exist. If at any time the Agent makes a
determination under Section 3.4.1 and the Borrower has previously notified the
Agent of its selection of, conversion to or renewal of a Euro-Rate Option and
such Interest Rate Option has not yet gone into effect, such notification shall
be deemed to provide for selection of, conversion to or renewal of the Base Rate
Option otherwise available with respect to such Loans. If any Bank notifies the
Agent of a determination under Section 3.4.3, the Borrower shall, subject to the
Borrower's indemnification Obligations under Section 4.5.2 [Indemnity], as to
any Loan of the Bank to which a Euro-Rate Option applies, on the date specified
in such notice either convert such Loan to the Base Rate Option otherwise
available with respect to such Loan or prepay such Loan in accordance with
Section 4.4 [Voluntary Prepayments]. Absent due notice from the Borrower of
conversion or prepayment, such Loan shall automatically be converted to the Base
Rate Option otherwise available with respect to such Loan upon such specified
date.
3.5 Selection of Interest Rate Options.
If the Borrower fails to select a new Interest Period to apply to
any Borrowing Tranche of Loans under the Euro-Rate Option at the expiration of
an existing Interest Period applicable to such Borrowing Tranche in accordance
with the provisions of Section 3.2 [Interest
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Periods], the Borrower shall be deemed to have converted such Borrowing Tranche
to the Revolving Credit Base Rate Option commencing upon the last day of the
existing Interest Period.
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal,
interest, Commitment Fees, Closing Fees, Letter of Credit Fees, Agent's Fee or
other fees or amounts due from the Borrower hereunder shall be payable prior to
11:00 a.m., Pittsburgh time, on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower, and without set-off, counterclaim or other deduction of any nature,
and an action therefor shall immediately accrue. Such payments shall be made to
the Agent at the Principal Office for the account of PNC Bank with respect to
the Swing Loans and for the ratable accounts of the Banks with respect to the
Revolving Credit Loans in U.S. Dollars and in immediately available funds, and
the Agent shall promptly distribute such amounts to the Banks in immediately
available funds, provided that in the event payments are received by 11:00 a.m.,
Pittsburgh time, by the Agent with respect to the Revolving Credit Loans and
such payments are not distributed to the Banks on the same day received by the
Agent, the Agent shall pay the Banks the Federal Funds Rate with respect to the
amount of such payments for each day held by the Agent and not distributed to
the Banks. The Agent's statement of account, ledger or other relevant record
shall, in the absence of manifest error, be conclusive as the statement of the
amount of principal of and interest on the Loans and other amounts owing under
this Agreement and shall be deemed an "account stated."
4.2 Pro Rata Treatment of Banks.
Each borrowing shall be allocated to each Bank according to its
Ratable Share, and each selection of, conversion to or renewal of any Interest
Rate Option and each payment or prepayment by the Borrower with respect to
principal, interest, Commitment Fees, Closing Fees, Letter of Credit Fees, or
other fees (except for the Agent's Fee) or amounts due from the Borrower
hereunder to the Banks with respect to the Loans, shall (except as provided in
Section 3.4.3 [Agent's and Bank's Rights] in the case of an event specified in
Section 3.4 [Euro-Rate Unascertainable; Etc.], 4.4.2 [Replacement of a Bank] or
4.5 [Additional Compensation in Certain Circumstances]) be made in proportion to
the applicable Revolving Credit Loans outstanding from each Bank and, if no such
Revolving Credit Loans are then outstanding, in proportion to the Ratable Share
of each Bank. Notwithstanding any of the foregoing, each borrowing or payment or
pre-payment by the Borrower of principal, interest, fees or other amounts from
the Borrower with respect to Swing Loans shall be made by or to PNC Bank
according to Section 2.
4.3 Interest Payment Dates.
Interest on Loans to which the Base Rate Option applies shall be due
and payable in arrears on the last Business Day of each October, January, April
and July after the date hereof
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and on the Expiration Date or upon acceleration of the Notes. Interest on Loans
to which the Euro-Rate Option applies shall be due and payable on the last day
of each Interest Period for those Loans and, if such Interest Period is longer
than three (3) Months, also on the 90/th/, 180/th/ and 270/th/ (if applicable)
day of such Interest Period.
4.4 Voluntary Prepayments.
4.4.1. Right to Prepay.
The Borrower shall have the right at its option from time to
time to prepay the Loans in whole or part without premium or penalty (except as
provided in Section 4.4.2 below or in Section 4.5 [Additional Compensation in
Certain Circumstances]):
(i) at any time with respect to any Loan to which the
Base Rate Option applies,
(ii) on the last day of the applicable Interest Period
with respect to Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Bank
pursuant to Section 3.4 [Euro-Rate Unascertainable, Etc.] with respect to any
Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the
Loans, it shall provide a prepayment notice to the Agent by 1:00 p.m. at least
one (1) Business Day prior to the date of prepayment of the Revolving Credit
Loans or no later than 1:00 p.m. Pittsburgh time, on the date of prepayment of
Swing Loans, setting forth the following information:
(x) the date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(y) a statement indicating the application of the
prepayment between the Revolving Credit Loans and Swing Loans; and
(z) the total principal amount of such prepayment, which
(a) with respect to Revolving Credit Loans shall be in integral
multiples of One Million and 00/100 Dollars ($1,000,000.00) and not
less than Two Million and 00/100 Dollars ($2,000,000.00) for each
Borrowing Tranche to which the Euro Rate Option applies and in
integral multiples of One Hundred Thousand and 00/100 Dollars
($100,000.00) and not less than the lesser of Five Hundred Thousand
and 00/100 Dollars ($500,000.00) or the outstanding principal amount
of Revolving Credit Loans to which the Base Rate Option applies and
(ii) with respect to Swing Loans, in integral multiples of One
Hundred Thousand and 00/100 Dollars ($100,000.00) and not less than
the lesser of Five Hundred Thousand and 00/100 Dollars ($500,000.00)
or the outstanding principal amount of the Swing Loans.
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All prepayment notices shall be irrevocable. The principal
amount of the Loans for which a prepayment notice is given, together with
interest on such principal amount except with respect to Loans to which the Base
Rate Option applies, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made.
Except as provided in Section 3.4.3 [Agent's and Bank's rights], if the Borrower
prepays a Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is prepaying, the prepayment shall be applied first to Loans to which
the Base Rate Option applies, then to Loans to which the Euro-Rate Option
applies. Any prepayment hereunder shall be subject to the Borrower's Obligation
to indemnify the Banks under Section 4.5.2 [Indemnity].
4.4.2. Replacement of a Bank.
In the event any Bank (i) gives notice under Section 3.4
[Euro-Rate Unascertainable, Etc.] or Section 4.5.1 [Increased Costs, Etc.], (ii)
does not fund Revolving Credit Loans because the making of such Loans would
violate any Law applicable to such Bank, or (iii) becomes subject to the control
of an Official Body (other than normal and customary supervision), then the
Borrower shall have the right at its option, with the consent of the Agent,
which shall not be unreasonably withheld, to prepay the Loans of such Bank in
whole, together with all interest accrued thereon, and terminate such Bank's
Commitment within ninety (90) days after (x) receipt of such Bank's notice under
Section 3.4 [Euro-Rate Unascertainable, Etc.] or 4.6.1 [Increased Costs, Etc.],
(y) the date such Bank has failed to fund Revolving Credit Loans because the
making of such Loans would violate Law applicable to such Bank, or (z) the date
such Bank became subject to the control of an Official Body, as applicable;
provided that the Borrower shall also pay to such Bank at the time of such
prepayment any amounts required under Section 4.5 [Additional Compensation in
Certain Circumstances] and any accrued interest due on such amount and any
related fees; provided, however, that the Commitment of such Bank shall be
provided by one or more of the remaining Banks or a replacement bank acceptable
to the Agent; provided, further, the remaining Banks shall have no obligation
hereunder to increase their Commitments. Notwithstanding the foregoing, the
Agent may only be replaced subject to the requirements of Section 9.14
[Successor Agent] and provided that (a) all Letters of Credit issued by the
Agent or its Affiliate have expired or been terminated or replaced by Letters of
Credit issued by the successor Agent or other Issuer and (b) such successor
Agent or other Issuer is obligated to issue Letters of Credit pursuant to the
terms and subject to the conditions of this Agreement.
4.4.3. Change of Lending Office.
Each Bank agrees that upon the occurrence of any event
giving rise to increased costs or other special payments under Section 3.4.2
[Illegality, Etc.] or 4.5.1 [Increased Costs, Etc.] with respect to such Bank,
it will if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for any
Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 4.4.3 shall affect or postpone any of the Obligations of the
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Borrower or any other Loan Party or the rights of the Agent or any Bank provided
in this Agreement.
4.5 Additional Compensation in Certain Circumstances.
4.5.1. Increased Costs or Reduced Return Resulting from Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc.
If any Law, guideline or interpretation or any change in any
Law, guideline or interpretation or application thereof by any Official Body
charged with the interpretation or administration thereof or compliance with any
request or directive (whether or not having the force of Law) of any central
bank or other Official Body:
(i) subjects any Bank to any tax or changes the basis of
taxation with respect to this Agreement, the Notes, the Loans or payments by the
Borrower of principal, interest, Commitment Fees, or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall net
income of such Bank),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments to extend
credit extended by, or assets (funded or contingent) of, deposits with or for
the account of, or other acquisitions of funds by, any Bank, or
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent) of, or
letters of credit, other credits or commitments to extend credit extended by,
any Bank, or (B) otherwise applicable to the obligations of any Bank under this
Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Bank with respect to this Agreement, the Notes or the making, maintenance or
funding of any part of the Loans (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on any
Bank's capital, taking into consideration such Bank's customary policies with
respect to capital adequacy) by an amount which such Bank in its sole discretion
deems to be material, such Bank shall from time to time notify the Borrower and
the Agent of the amount determined in good faith (using any averaging and
attribution methods employed in good faith) by such Bank to be necessary to
compensate such Bank for such increase in cost, reduction of income, additional
expense or reduced rate of return. Such notice shall set forth in reasonable
detail the basis for such determination. Such amount shall be due and payable by
the Borrower to such Bank ten (10) Business Days after such notice is given.
4.5.2. Indemnity.
In addition to the compensation required by Section 4.5.1
[Increased Costs, Etc.], the Borrower shall indemnify each Bank against all
liabilities, losses or expenses (including loss of margin, any loss or expense
incurred in liquidating or employing deposits from third parties and any loss or
expense incurred in connection with funds acquired by a Bank to
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fund or maintain Loans subject to a Euro-Rate Option) which such Bank sustains
or incurs as a consequence of any
(i) payment, prepayment, conversion or renewal of any
Loan to which a Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due), or
(ii) attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any Loan Requests
under Section 2.5 [Revolving Credit Loan Requests] or Section 3.2 [Interest
Periods] or notice relating to prepayments under Section 4.4 [Voluntary
Prepayments].
If any Bank sustains or incurs any such loss or expense, it shall
from time to time notify the Borrower of the amount determined in good faith by
such Bank (which determination may include such assumptions, allocations of
costs and expenses and averaging or attribution methods as such Bank shall deem
reasonable) to be necessary to indemnify such Bank for such loss or expense.
Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such Bank
ten (10) Business Days after such notice is given.
4.6 Settlement Date Procedures.
In order to minimize the transfer of funds between the Banks and the
Agent, the Borrower may borrow, repay and reborrow Swing Loans and PNC Bank may
make Swing Loans as provided in Section 2.1.2 hereof during the period between
Settlement Dates. Not later than 10:00 a.m., Pittsburgh time, on each Settlement
Date, the Agent shall notify each Bank of its Ratable Share of the total of the
Revolving Credit Loans (each a "Required Share"). Prior to 2:00 p.m., Pittsburgh
time, on such Settlement Date, each Bank shall pay to the Agent the amount equal
to the difference between its Required Share and its Revolving Credit Loans, and
the Agent shall pay to each Bank its Ratable Share of all payments made by the
Borrower to the Agent with respect to the Revolving Credit Loans. The Agent
shall also effect settlement in accordance with the foregoing sentence on the
proposed Borrowing Dates for Revolving Credit Loans and may at its option effect
settlement on any other Business Day. These settlement procedures are
established solely as a matter of administrative convenience, and nothing
contained in this Section 4.6 shall relieve the Banks of their obligations to
fund Revolving Credit Loans on dates other than a Settlement Date pursuant to
Section 2.1.1. The Agent may at any time at its option for any reason whatsoever
require each Bank to pay immediately to the Agent such Bank's Ratable Share of
the outstanding Revolving Credit Loans and each Bank may at any time require the
Agent to pay immediately to such Bank its Ratable Share of all payments made by
the Borrower to the Agent with respect to the Revolving Credit Loans.
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5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties.
The Borrower hereby represents and warrants as to itself and each of
its Subsidiaries and each Loan Party (other than the Borrower) hereby represents
and warrants as to itself and each of its Subsidiaries, to the Agent and each of
the Banks as follows:
5.1.1. Organization and Qualification.
Each Loan Party and each Subsidiary of each Loan Party is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Loan Party and each Subsidiary of each Loan Party has the
lawful power to own or lease its properties and to engage in the business it
presently conducts. Each Loan Party and each Subsidiary of each Loan Party is
duly licensed or qualified and in good standing in each jurisdiction listed on
Schedule 5.1.1 and in all other jurisdictions where the property owned or leased
by it or the nature of the business transacted by it or both makes such
licensing or qualification necessary except to the extent that the failure to be
so qualified would not cause a Material Adverse Change.
5.1.2. Subsidiaries.
Schedule 5.1.2 states the name of each of the Borrower's
Subsidiaries, its jurisdiction of incorporation, and the owners of its issued
and outstanding capital stock (the "Subsidiary Shares"), the owners of its
outstanding partnership interests (the "Partnership Interests") or the owners of
its limited liability company interests (the "LLC Interests"), as applicable.
The Borrower and each Subsidiary of the Borrower has good and marketable title
to all of the Subsidiary Shares, Partnership Interests and LLC Interests it
purports to own, free and clear in each case of any Lien. All Subsidiary Shares,
Partnership Interests and LLC Interests have been validly issued, and all
Subsidiary Shares are fully paid and nonassessable. All capital contributions
and other consideration required to be made or paid in connection with the
issuance of the Partnership Interests and LLC Interests have been made or paid,
as the case may be. There are no options, warrants or other rights outstanding
to purchase any such Subsidiary Shares, Partnership Interests or LLC Interests
except as indicated on Schedule 5.1.2.
5.1.3. Power and Authority.
Each Loan Party has full power to enter into, execute,
deliver and carry out this Agreement and the other Loan Documents to which it is
a party, to incur the Indebtedness contemplated by the Loan Documents and to
perform its Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings on its part.
5.1.4. Validity and Binding Effect.
This Agreement has been duly and validly executed and
delivered by each Loan Party, and each other Loan Document which any Loan Party
is required to execute and
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deliver on or after the date hereof will have been duly executed and delivered
by such Loan Party on the required date of delivery of such Loan Document. This
Agreement and each other Loan Document constitutes, or will constitute, legal,
valid and binding obligations of each Loan Party which is or will be a party
thereto on and after its date of delivery thereof, enforceable against such Loan
Party in accordance with its terms, except to the extent that enforceability of
any of such Loan Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforceability of
creditors' rights generally or limiting the right of specific performance.
5.1.5. No Conflict.
Neither the execution and delivery of this Agreement or the
other Loan Documents by any Loan Party nor the consummation of the transactions
herein or therein contemplated or compliance with the terms and provisions
hereof or thereof by any of them will conflict with, constitute a default under
or result in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents of any Loan Party or (ii) any Law or any material
agreement, instrument, order, writ, judgment, injunction or decree to which any
Loan Party or any of its Subsidiaries is a party or by which it or any of its
Subsidiaries is bound or to which it is subject, or result in the creation or
enforcement of any Lien, charge or encumbrance whatsoever upon any property (now
or hereafter acquired) of any Loan Party or any of its Subsidiaries (other than
Liens granted under the Loan Documents, if any).
5.1.6. Litigation.
Except as set forth on Schedule 5.1.6 attached hereto and made
a part hereof, there are no actions, suits, proceedings or investigations
pending or, to the knowledge of any Executive Officer of any Loan Party,
threatened against such Loan Party or any Subsidiary of such Loan Party at law
or equity before any Official Body which individually or in the aggregate may
reasonably be expected to result in any Material Adverse Change. None of the
Loan Parties or any Subsidiaries of any Loan Party is in violation of any order,
writ, injunction or any decree of any Official Body which may reasonably be
expected to result in any Material Adverse Change.
5.1.7. Title to Properties.
Each Loan Party and each Subsidiary of each Loan Party has good
and marketable title to or valid leasehold interest in all properties, assets
and other rights which it purports to own or lease or which are reflected as
owned or leased on its books and records, free and clear of all Liens and
encumbrances except Permitted Liens and defects in title which are not material,
and subject to the terms and conditions of the applicable leases. All leases of
property are in full force and effect and do not require the consent of any
party thereto which has not previously been obtained with respect to the
consummation of the transactions contemplated hereby.
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5.1.8. Financial Statements.
(i) Historical Statements. The Borrower has delivered to the
Agent copies of its audited consolidated year-end financial statements for and
as of the end of the three (3) fiscal years ended June 30, 1999, 2000 and 2001
(the "Annual Statements"). In addition, the Borrower has delivered to the Agent
copies of its unaudited consolidated interim financial statements for the fiscal
quarters ended September 30, 2001, December 31, 2001 and March 31, 2002 (the
"Interim Statements") (the Annual and Interim Statements being collectively
referred to as the "Historical Statements"). The Historical Statements were
compiled from the books and records maintained by the Borrower, are correct and
complete in all material respects and fairly represent the consolidated
financial condition of the Borrower and its Subsidiaries as of their dates and
the results of operations for the fiscal periods then ended and have been
prepared in accordance with GAAP consistently applied, subject (in the case of
the Interim Statements) to normal year-end audit adjustments (except that the
Interim Statements do not contain all of the footnotes required by GAAP).
(ii) Accuracy of Financial Statements. Neither the Borrower
nor any Subsidiary of the Borrower has any material liabilities, contingent or
otherwise, or forward or long-term commitments that are not disclosed in the
Historical Statements or in the notes thereto, and except as disclosed therein
there are no unrealized or anticipated losses from any commitments of the
Borrower or any Subsidiary of the Borrower which may reasonably be expected to
cause a Material Adverse Change. Since March 31, 2002, no Material Adverse
Change has occurred.
5.1.9. Use of Proceeds; Margin Stock.
5.1.9.1 General.
The Loan Parties intend to use the proceeds of the
Loans in accordance with Sections 2.8 and 7.1.10.
5.1.9.2 Margin Stock.
No Loan Party nor any Subsidiary of any Loan Party
engages or intends to engage principally, or as one of its important activities,
in the business of extending credit for the purpose, immediately, incidentally
or ultimately, of purchasing or carrying margin stock (within the meaning of
Regulation U). No part of the proceeds of any Loan has been or will be used,
immediately, incidentally or ultimately, to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock or to refund Indebtedness originally incurred for such purpose, or
for any purpose which entails a violation of or which is inconsistent with the
provisions of the regulations of the Board of Governors of the Federal Reserve
System.
5.1.10. Full Disclosure.
Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement or other documents furnished to the Agent or
any Bank in connection
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herewith or therewith, contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein and therein, in light of the circumstances under which they were made,
not misleading. There is no fact known to any Loan Party which materially
adversely affects the business, property, assets, financial condition, results
of operations or prospects of the Loan Parties taken as a whole which has not
been set forth in this Agreement or in the certificates, statements, agreements
or other documents furnished in writing to the Agent and the Banks prior to or
at the date hereof in connection with the transactions contemplated hereby.
5.1.11. Taxes.
Except as set forth on Schedule 5.1.10 attached hereto and
made a part hereof, all federal, state, local and other tax returns required to
have been filed with respect to each Loan Party and each Subsidiary of each Loan
Party have been filed, and payment or adequate provision has been made for the
payment of all taxes, fees, assessments and other governmental charges which
have or may become due pursuant to said returns or to assessments received,
except (i) to the extent that such taxes, fees, assessments and other charges
are being contested in good faith by appropriate proceedings diligently
conducted, (ii) such taxes, fees, assessments and other charges which, if not
paid, would not cause a Material Adverse Change, and (iii) such taxes, fees,
assessments and other charges as are not yet due and payable without interest or
penalty. With respect to items (i) (ii) and (iii) of the immediately preceding
sentence, the Loan Parties have set aside on their books adequate reserves or
other appropriate provisions, if any, as shall be required by GAAP. There are no
agreements or waivers extending the statutory period of limitations applicable
to any federal income tax return of any Loan Party or Subsidiary of any Loan
Party for any period.
5.1.12. Consents and Approvals.
No consent, approval, exemption, order or authorization of, or
a registration or filing with, any Official Body or any other Person is required
by any Law or any agreement in connection with the execution, delivery and
carrying out of this Agreement and the other Loan Documents by any Loan Party,
except as listed on Schedule 5.1.12, all of which shall have been obtained or
made on or prior to the Closing Date except as otherwise indicated on Schedule
5.1.12.
5.1.13. No Event of Default; Compliance with Instruments.
No event has occurred and is continuing and no condition
exists or will exist after giving effect to the borrowings or other extensions
of credit to be made on the Closing Date under or pursuant to the Loan Documents
which constitutes an Event of Default or Potential Default. None of the Loan
Parties or any Subsidiaries of any Loan Party is in violation of (i) any term of
its certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, limited liability company
agreement or other organizational documents or (ii) any material agreement or
instrument to which it is a party or by which it or any of its properties may be
subject or bound where such violation would constitute a Material Adverse
Change.
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5.1.14. Patents, Trademarks, Copyrights, Licenses, Etc.
Except as set forth on Schedule 5.1.14 attached hereto and
made a part hereof, each Loan Party and each Subsidiary of each Loan Party owns
or possesses all the material patents, trademarks, service marks, trade names,
copyrights, licenses, registrations, franchises, permits and rights necessary to
own and operate its properties and to carry on its business as presently
conducted, without known alleged or actual conflict with the valid and
enforceable rights of others which would result in a Material Adverse Change.
5.1.15. Insurance.
Attached hereto and made a part hereof as Schedule 5.1.15 is a
certificate of insurance showing the insurance coverages and bonds currently
carried by the Borrower and its Subsidiaries. No notice has been given or claim
made to cancel or avoid any of such policies or bonds or to reduce the coverage
provided thereby. Such policies and bonds provide adequate coverage from
reputable and financially sound insurers in amounts sufficient to insure the
assets and risks of each Loan Party and each Subsidiary of each Loan Party in
accordance with prudent business practice in the industry of the Loan Parties
and their Subsidiaries.
5.1.16. Compliance with Laws.
The Loan Parties and their Subsidiaries are in compliance in
all material respects with all applicable Laws (other than Environmental Laws
which are specifically addressed in Section 5.1.21 [Environmental Matters]) in
all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is
presently doing business except where the failure to do so would not constitute
a Material Adverse Change.
5.1.17. Material Contracts.
All material contracts relating to the business operations of
each Loan Party and each Subsidiary of any Loan Party, including all employee
benefit plans and Labor Contracts are valid, binding and enforceable upon such
Loan Party or Subsidiary and each of the other parties thereto in accordance
with their respective terms, and there is no default thereunder, to the
knowledge of any Executive Officer of any Loan Party, with respect to parties
other than such Loan Party or Subsidiary.
5.1.18. Investment Companies; Regulated Entities.
None of the Loan Parties or any Subsidiaries of any Loan Party
is an "investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control." None of the Loan
Parties or any Subsidiaries of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
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5.1.19. Plans and Benefit Arrangements.
Except as set forth on Schedule 5.1.19:
(i) The Borrower and each other member of the ERISA Group
are in compliance in all respects with any applicable provisions of ERISA with
respect to all Benefit Arrangements, Plans and Multiemployer Plans except to the
extent failure to be in such compliance would not result in a Material Adverse
Change. There has been no Prohibited Transaction with respect to any Benefit
Arrangement or any Plan or, to the best knowledge of any Executive Officer of
the Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan,
which could result in a Material Adverse Change. The Borrower and all other
members of the ERISA Group have made when due any and all payments required to
be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. With respect to each Plan and
Multiemployer Plan, the Borrower and each other member of the ERISA Group (a)
have fulfilled in all material respects their obligations under the minimum
funding standards of ERISA, (b) have not incurred any liability to the PBGC, and
(c) have not had asserted against them any penalty for failure to fulfill the
minimum funding requirements of ERISA.
(ii) Neither the Borrower nor any other member of the ERISA
Group has instituted or intends to institute proceedings to terminate any Plan.
(iii) No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan, and no amendment with respect to which security is required
under Section 307 of ERISA has been made or is reasonably expected to be made to
any Plan.
(iv) Neither the Borrower nor any other member of the ERISA
Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of any Executive Officer of the Borrower, no
Multiemployer Plan or Multiple Employer Plan is reasonably expected to be
reorganized or terminated, within the meaning of Title IV of ERISA.
(v) All Plans, Benefit Arrangements and Multiemployer Plans
have been administered in all material respects in accordance with their terms
and applicable Law.
5.1.20. Employment Matters.
Each of the Loan Parties and each of their Subsidiaries is in
compliance with the Labor Contracts and all applicable federal, state and local
labor and employment Laws including those related to equal employment
opportunity and affirmative action, labor relations, minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment compensation, where
the
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failure to comply would constitute a Material Adverse Change. There are no
outstanding grievances, arbitration awards or appeals therefrom arising out of
the Labor Contracts or current or threatened strikes, picketing, handbilling or
other work stoppages or slowdowns at facilities of any of the Loan Parties or
any of their Subsidiaries which in any case would constitute a Material Adverse
Change.
5.1.21. Environmental Matters.
Except as disclosed on Schedule 5.1.21:
(i) None of the Loan Parties has received any Environmental
Complaint, whether directed or issued to any Loan Party or relating or
pertaining to any prior owner, operator or occupant of the Property which has
caused or may cause a Material Adverse Change, and no Executive Officer of any
Loan Party has knowledge that it might receive an Environmental Complaint which
has caused or may cause a Material Adverse Change.
(ii) No activity of any Loan Party at the Property is being
or has been conducted in violation of any Environmental Law or Required
Environmental Permit which has caused or may cause a Material Adverse Change
and, to the knowledge of any Executive Officer of any Loan Party, no activity of
any prior owner, operator or occupant of the Property was conducted in violation
of any Environmental Law which has caused or may cause a Material Adverse
Change.
(iii) There are no Regulated Substances present on, in, under,
or emanating from, or to the knowledge of any Executive Officer of any Loan
Party emanating to, the Property or any portion thereof which result in
Contamination and which may cause a Material Adverse Change.
(iv) Each Loan Party has all Required Environmental Permits
and all such Required Environmental Permits are in full force and effect except
for those Required Environmental Permits which the failure to have may cause a
Material Adverse Change.
(v) Each Loan Party has submitted to an Official Body and/or
maintains, as appropriate, all Required Environmental Notices except for those
Required Environmental Notices the failure to submit or maintain may cause a
Material Adverse Change.
(vi) No portion of the Property is identified or to the
knowledge of any Executive Officer of any Loan Party proposed to be identified
on any list of contaminated properties or other properties which pursuant to
Environmental Laws are the subject of an investigation or remediation action by
an Official Body.
(vii) To the knowledge of any Executive Officer of any of the
Loan Parties, no Lien or other encumbrance authorized by Environmental Laws
exists against the Property.
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5.1.22. Senior Debt Status.
The Obligations of each Loan Party under this Agreement, the
Notes, the Guaranty Agreement and each of the other Loan Documents to which it
is a party do rank and will rank at least pari passu in priority of payment with
all other Indebtedness of such Loan Party except Indebtedness of such Loan Party
to the extent secured by Permitted Liens. There is no Lien upon or with respect
to any of the properties or income of any Loan Party or Subsidiary of any Loan
Party which secures indebtedness or other obligations of any Person except for
Permitted Liens.
5.2 Updates to Schedules.
Should any of the information or disclosures provided on any of the
Schedules attached hereto become outdated or incorrect in any material respect,
the Borrower shall, concurrently with the delivery by the Borrower of the
Compliance Certificate pursuant to Section 7.3.3 [Certificate of the Borrower],
provide the Agent in writing with such revisions or updates to such Schedule as
may be necessary or appropriate to update or correct same; provided, however,
that no Schedule shall be deemed to have been amended, modified or superseded by
any such correction or update, nor shall any breach of warranty or
representation resulting from the inaccuracy or incompleteness of any such
Schedule be deemed to have been cured thereby, unless and until the Required
Banks, in their sole and absolute discretion, shall have accepted in writing
such revisions or updates to such Schedule.
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Bank to make Loans and of the Issuer to issue
Letters of Credit hereunder is subject to the performance by each of the Loan
Parties of its Obligations to be performed hereunder at or prior to the making
of any such Loans or issuance of such Letters of Credit and to the satisfaction
of the following further conditions:
6.1 First Loans and Letters of Credit.
On the Closing Date:
6.1.1. Officer's Certificate.
The representations and warranties of each of the Loan Parties
contained in Section 5 and in each of the other Loan Documents to which they are
a party shall be true and accurate in all material respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of such date (except representations and warranties
which relate solely to an earlier date or time, which representations and
warranties shall be true and correct in all material respects on and as of the
specific dates or times referred to therein), and each of the Loan Parties shall
have performed and complied in all material respects with all covenants and
conditions hereof and thereof, and no Event of Default or Potential Default
shall have occurred and be continuing or shall exist; and there shall be
delivered to the Agent for the benefit of each Bank a certificate of each of the
Loan
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Parties, dated the Closing Date and signed by an Authorized Officer of each of
the Loan Parties, to each such effect.
6.1.2. Secretary's Certificate.
There shall be delivered to the Agent for the benefit of each
Bank a certificate dated the Closing Date and signed by the Secretary or an
Assistant Secretary of each of the Loan Parties, certifying as appropriate as
to:
(i) board resolutions or comparable action taken by each
Loan Party in connection with the authorization, execution and delivery of this
Agreement and the other Loan Documents to which such Loan Party is a party;
(ii) the names of the officer or officers authorized to sign
this Agreement and the other Loan Documents and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of each Loan Party for purposes of this Agreement and the true signatures
of such officers, on which the Agent and each Bank may conclusively rely; and
(iii) copies of its organizational documents, including its
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, and limited liability company
agreement as in effect on the Closing Date certified by the appropriate state
official where such documents are filed in a state office together with recently
dated certificates from the appropriate state officials as to the continued
existence, good standing and corporate tax lien status of each Loan Party in
each state where such Loan Party is organized or physically conducts business.
6.1.3. Delivery of Loan Documents.
The Guaranty Agreements and the Notes shall have been duly
executed and delivered to the Agent for the benefit of the Banks, as the case
may be.
6.1.4. Opinion of Counsel.
There shall be delivered to the Agent for the benefit of each
Bank a written opinion of Xxxx Xxxxx LLP, counsel for the Loan Parties (who may
rely on the opinions of such other counsel as may be acceptable to the Agent),
dated the Closing Date and in form and substance satisfactory to the Agent and
its counsel.
6.1.5. Legal Details.
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be in form and substance satisfactory to the Agent and counsel for the Agent,
and the Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent and said
counsel, as the Agent or said counsel may reasonably request.
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6.1.6. Payment of Fees.
The Borrower shall have paid or caused to be paid to the Agent
for itself and for the account of the Banks (to the extent not previously paid)
the Closing Fees, all other commitment and other fees accrued through the
Closing Date and the costs and expenses for which the Agent and the Banks are
entitled to be reimbursed pursuant to this Agreement and the Agent's Letter.
6.1.7. Consents.
All material consents required to effectuate the transactions
contemplated hereby as set forth on Schedule 6.1.7 shall have been obtained.
6.1.8. Officer's Certificate Regarding MACs.
Since March 31, 2002, no Material Adverse Change shall have
occurred; since March 31, 2002, there shall have been no material change in the
management of the Borrower; and there shall have been delivered to the Agent for
the benefit of each Bank a certificate dated the Closing Date and signed by an
Authorized Officer of each Loan Party to each such effect.
6.1.9. No Violation of Laws.
The making of the Loans and the issuance of the Letters of
Credit shall not violate any Law applicable to any Loan Party or any of the
Banks.
6.1.10. No Actions or Proceedings.
No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or which, in the
Agent's sole reasonable discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.
6.1.11. Insurance Policies; Certificates of Insurance; Endorsements.
The Loan Parties shall have delivered a certificate of
insurance acceptable to the Agent that adequate insurance in compliance with
Section 7.1.3 [Maintenance of Insurance] is in full force and effect and that
all premiums then due thereon have been paid and that the Agent on behalf of the
Banks is entitled to thirty (30) days prior notice of cancellation or material
reduction in coverage on all such policies.
6.1.12. Lien Searches.
The Agent shall have obtained copies of record searches
(including UCC searches and judgments, suits, taxes and other lien searches), at
the state level for each location
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of each domestic Loan Party evidencing that no Liens exist against any Loan
Party except Permitted Liens or those Liens that are or will be released or
terminated in connection herewith.
6.1.13. Termination Statements: Release Statements and Other Releases.
Evidence satisfactory to the Agent that all necessary
termination statements, release statements and other releases in connection with
all Liens (other than Permitted Liens) have been filed or satisfactory
arrangements have been made for such filing (including payoff letters, if
applicable, in form and substance satisfactory to the Agent).
6.1.14. Repayment of Prohibited Indebtedness.
All Indebtedness not permitted under Section 7.2.1 including,
but not limited to, amounts due under the Prior Loan Agreement shall have been
paid in full and the Prior Loan Agreement shall have been terminated.
6.1.15. Other Documents and Conditions.
The Loan Parties shall have delivered such other documents and
satisfied such other conditions as may reasonably be requested to be submitted
to the Agent or any Bank by the terms of this Agreement or of any Loan Document
or set forth on the Closing Checklist (as has been mutually agreed upon by the
Agent and the Borrower) with respect to the transactions contemplated by this
Agreement.
6.2 Each Additional Loan or Letter of Credit.
At the time of making any Loans or issuing any Letters of Credit other
than Loans made or Letters of Credit issued on the Closing Date and after giving
effect to the proposed extensions of credit: the representations and warranties
of the Loan Parties contained in Section 5 and in the other Loan Documents shall
be true in all material respects on and as of the date of such additional Loan
or Letter of Credit with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time, which
representations and warranties shall be true and correct in all material
respects on and as of the specific dates or times referred to therein) and the
Loan Parties shall have performed and complied in all material respects with all
covenants and conditions hereof; no Event of Default or Potential Default shall
have occurred and be continuing or shall exist; the making of the Loans or
issuance of such Letter of Credit shall not violate any Law applicable to any
Loan Party or any of the Banks; and the Borrower shall have delivered to the
Agent a duly executed and completed Loan Request, Swing Loan Request or
application for a Letter of Credit, as the case may be.
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7. COVENANTS
7.1 Affirmative Covenants.
The Borrower hereby covenants and agrees on behalf of itself and each
of the other Loan Parties, and each Loan Party (other than the Borrower) hereby
covenants and agrees on behalf of itself to the extent that the following
provisions apply to such Loan Party that until payment in full of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings, and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the
Loan Parties' other Obligations under the Loan Documents and termination of the
Commitments, the Loan Parties shall comply at all times with the following
affirmative covenants:
7.1.1. Preservation of Existence, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, maintain its legal existence as a corporation, limited partnership or
limited liability company and its license or qualification and good standing in
each jurisdiction in which its ownership or lease of property or the nature of
its business makes such license or qualification necessary, except to the extent
that the failure to be so qualified or licensed would not cause a Material
Adverse Change and as otherwise expressly permitted in Section 7.2.6
[Liquidations, Mergers, Etc.].
7.1.2. Payment of Liabilities, Including Taxes, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, duly pay and discharge all valid liabilities to which it is subject or which
are validly asserted against it, promptly as and when the same shall become due
and payable, including all taxes, assessments and governmental charges upon it
or any of its properties, assets, income or profits, prior to the date on which
penalties attach thereto, except to the extent that such liabilities, including
taxes, assessments or charges, are being contested in good faith and by
appropriate and lawful proceedings diligently conducted and for which such
reserve or other appropriate provisions, if any, as shall be required by GAAP
shall have been made, but only to the extent that failure to discharge any such
liabilities would not result in a Material Adverse Change, provided that the
Loan Parties and their Subsidiaries will pay all such liabilities forthwith upon
the commencement of proceedings to foreclose any Lien which may have attached as
security therefor.
7.1.3. Maintenance of Insurance.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, insure its properties and assets against loss or damage by fire and such
other insurable hazards as such assets are commonly insured (including fire,
extended coverage, property damage, workers' compensation, public liability and
business interruption insurance) and against other risks (including errors and
omissions) in such amounts as similar properties and assets are insured by
prudent companies in similar circumstances carrying on similar businesses, and
with reputable and financially sound insurers which are rated no less than the
lower of (i) the rating of such Loan Party's and Subsidiary's insurer on the
date of this Agreement by Standard & Poor's, Xxxxx'x Investors Service, Inc. or
A.M. Best's rating guide or (ii) A by Standard & Poor's, P by
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Xxxxx'x Investors Service, Inc. or A by A.M. Best's rating guide, including
self-insurance to the extent customary, all as reasonably determined by the
Agent. At the request of the Agent, the Loan Parties shall deliver to the Agent
and each of the Banks on the Closing Date and annually thereafter an original
certificate of insurance signed by the Loan Parties' independent insurance
broker describing and certifying as to the existence of the insurance required
to be maintained by this Agreement and the other Loan Documents. Such policies
of insurance shall provide that no cancellation of such policies for any reason
(including non-payment of premium) nor any material reduction therein shall be
effective until at least thirty (30) days after receipt by the Agent of written
notice of such cancellation or change.
7.1.4. Maintenance of Properties and Leases.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, maintain in good repair, working order and condition (ordinary wear and tear
excepted) in accordance with the general practice of other businesses of similar
character and size, all of those properties necessary to its business, and from
time to time, such Loan Party will make or cause to be made all appropriate
repairs, renewals or replacements thereof to the extent that a failure to make
such repairs, renewals or replacements would constitute a Material Adverse
Change.
7.1.5. Maintenance of Patents, Trademarks, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, maintain in full force and effect all patents, trademarks, service marks,
trade names, copyrights, licenses, franchises, permits and other authorizations
necessary for the ownership and operation of its properties and business if the
failure so to maintain the same would constitute a Material Adverse Change.
7.1.6. Visitation Rights.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, permit any of the officers or authorized employees or representatives of the
Agent or any of the Banks to visit and inspect any of its properties and to
examine and make excerpts from its books and records and discuss its business
affairs, finances and accounts with its officers, all in such detail and at such
times and as often as any of the Banks may reasonably request, provided that
each Bank shall provide the Borrower and the Agent with reasonable notice prior
to any visit or inspection; provided, that such visit or inspection shall be
conducted during normal business hours and shall not unreasonably interfere with
the business or operations of the applicable Loan Party or Subsidiary and all
information obtained or observed during such visit or inspection shall be
subject to the confidentiality obligations in Section 10.12. In the event any
Bank desires to visit and inspect any Loan Party, such Bank shall make a
reasonable effort to conduct such visit and inspection contemporaneously with
any visit and inspection to be performed by the Agent.
7.1.7. Keeping of Records and Books of Account.
The Borrower shall, and shall cause each Subsidiary of the
Borrower to, maintain and keep proper books of record and account which enable
the Borrower and its
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Subsidiaries to issue financial statements in accordance with GAAP and as
otherwise required by applicable Laws of any Official Body having jurisdiction
over the Borrower or any Subsidiary of the Borrower, and in which full, true and
correct entries shall be made in all material respects of all its financial
affairs.
7.1.8. Plans and Benefit Arrangements.
The Borrower shall, and shall cause each other member of the
ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Plans and Benefit Arrangements except where such
failure, alone or in conjunction with any other failure, would not result in a
Material Adverse Change. Without limiting the generality of the foregoing, the
Borrower shall cause all of its Plans and all Plans maintained by any member of
the ERISA Group to be funded in accordance with the minimum funding requirements
of ERISA and shall make, and cause each member of the ERISA Group to make, in a
timely manner, all contributions due to Plans, Benefit Arrangements and
Multiemployer Plans except to the extent that such failure, alone or in
conjunction with any other failure, would not result in a Material Adverse
Change.
7.1.9. Compliance with Laws.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply with all applicable Laws, including all Environmental
Laws, in all respects, provided that it shall not be deemed to be a violation of
this Section 7.1.9 if any failure to comply with any Law would not result in
fines, penalties, remediation costs, other similar liabilities or injunctive
relief which in the aggregate would constitute a Material Adverse Change.
7.1.10. Use of Proceeds.
The Loan Parties will use the Letters of Credit and the
proceeds of the Loans only for (i) working capital and general corporate
purposes, including capital expenditures, (ii) to finance Permitted
Acquisitions, or (iii) to repay certain existing Indebtedness including amounts
due under the Prior Loan Agreement. The Loan Parties shall not use the Letters
of Credit or the proceeds of the Loans for any purposes which violate any
applicable Law or any provision hereof.
7.1.11. Subordination of Intercompany Loans.
Each Loan Party shall cause any intercompany Indebtedness,
loans or advances owed by any Loan Party to any other Loan Party to be
subordinated pursuant to the terms of the Intercompany Subordination Agreement.
7.2 Negative Covenants.
The Borrower hereby covenants and agrees on behalf of itself and each
of the other Loan Parties, and each Loan Party (other than the Borrower) hereby
covenants and agrees on behalf of itself to the extent that the following
provisions apply to such Loan Party, that until payment in full of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings and
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interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Loan Parties' other Obligations hereunder and
termination of the Commitments, the Loan Parties shall comply with the following
negative covenants:
7.2.1. Indebtedness.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on Schedule 7.2.1
(including any extensions, renewals or refinancings thereof) provided there is
no increase in the principal amount thereof;
(iii) Indebtedness arising after the date of this Agreement
which does not exceed Fifty Million and 00/100 Dollars ($50,000,000.00) in the
aggregate at any time outstanding (a) in the form of capitalized leases, (b)
secured by Purchase Money Security Interests, (c) which is unsecured and
evidenced by promissory notes, (d) of Persons acquired pursuant to Permitted
Acquisitions, and (e) in the form of reimbursement obligations under letters of
credit;
(iv) Indebtedness of a Loan Party to another Loan Party
which, if required pursuant to the terms of Section 7.1.11 [Subordination of
Intercompany Loans] is subordinated in accordance with the provisions of such
Section;
(v) Indebtedness arising in connection with Recourse
Purchase Agreements which is either (a) outstanding as of March 31, 2002 and
described on Schedule 1.1(R) (including any extensions, renewals or refinancings
thereof provided there is no increase in the amount thereof) or (b) arising
after March 31, 2002 in an aggregate amount which shall not exceed Twenty
Million and 00/100 Dollars ($20,000,000.00) at any time outstanding;
(vi) Any Bank-Provided Interest Rate Hedge or other Interest
Rate Hedge approved by the Agent;
(vii) Indebtedness incurred in connection with a Receivables
Financing provided that such transaction is approved by the Required Banks
pursuant to this Agreement;
(viii) Guaranties of Indebtedness that is permitted pursuant to
this Section 7.2.1; and
(ix) Indebtedness permitted pursuant to Section 7.2.4 hereof.
7.2.2. Liens; Negative Pledge.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Lien on any of its property
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or assets, tangible or intangible, now owned or hereafter acquired, or agree or
become liable to do so, except Permitted Liens. No Loan Party shall make or
enter into any agreement (other than agreements with the Agent for the benefit
of the Banks) for the benefit of any Person not to grant Liens, except for such
agreements existing on the date hereof and related to the Permitted Liens set
forth in Schedule 1.1(P)(2) and the Indebtedness set forth on Schedule 7.2.1.
7.2.3. Guaranties.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, at any time, directly or indirectly, become or be liable in
respect of any Guaranty, or assume, guarantee, become surety for, endorse or
otherwise agree, become or remain directly or contingently liable upon or with
respect to any obligation or liability of any other Person, except for
Guaranties of Indebtedness permitted pursuant to Section 7.2.1.
7.2.4. Loans and Investments.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, at any time make or suffer to remain outstanding any loan
or advance to, or purchase, acquire or own any stock, bonds, notes or securities
of, or any partnership interest (whether general or limited) or limited
liability company interest in, or any other investment or interest in, or make
any capital contribution to, any other Person, or agree, become or remain liable
to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in the
ordinary course of business;
(ii) advances to employees to meet expenses reasonably
incurred by such employees in the ordinary course of business;
(iii) Permitted Investments;
(iv) loans, advances and investments by a Loan Party or a
Subsidiary (provided that such Subsidiary joins the Intercompany Subordination
Agreement as a party thereto) to, or in, a Loan Party;
(v) loan, advances and investments (whether in cash or in
kind) in or to (a) corporations, general or limited partnerships, limited
liability companies, joint ventures and similar Persons (excluding natural
Persons) that are not Subsidiaries and (b) Subsidiaries that are not Loan
Parties, provided, however, that the aggregate amount of all such loans,
advances and investments shall not exceed (i) Fifteen Million and 00/100 Dollars
($15,000,000.00) per such Person or Subsidiary and (ii) Fifty Million and 00/100
Dollars ($50,000,000.00) at any time for all such Persons and Subsidiaries; and
(vi) Permitted Acquisitions.
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7.2.5. Dividends and Related Distributions.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, make or pay, or agree to become or remain liable to make or
pay, any dividend or other distribution of any nature (whether in cash,
property, securities or otherwise) on account of or in respect of its shares of
capital stock, partnership interests or limited liability company interests or
on account of the purchase, redemption, retirement or acquisition of its shares
of capital stock (or warrants, options or rights therefor), partnership
interests or limited liability company interests; provided, however, so long as
no Event of Default or Potential Default shall exist immediately prior to or
after giving effect to any such dividend or distribution, the Loan Parties and
their Subsidiaries may make or pay any such dividend or distribution. In
addition, the Borrower shall not permit its Subsidiaries to enter into or
otherwise be bound by any agreement prohibiting or restricting the payment of
dividends or distributions to the Borrower.
7.2.6. Liquidations, Mergers, Consolidations, Acquisitions.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
provided that
(1) any Subsidiary which is not a Loan Party may consolidate or
merge into another Subsidiary which is not a Loan Party,
(2) any Subsidiary may consolidate or merge into the Borrower
or another Loan Party which is directly or indirectly wholly-owned by the
Borrower so long as the Borrower or such Loan Party survives such consolidation
or merger,
(3) the Borrower may dissolve or wind-up (i) any of its
Subsidiaries that are not Loan Parties and (ii) upon obtaining the prior written
consent of the Agent, any of its Subsidiaries that are Loan Parties, and
(4) any Loan Party or Subsidiary which is not a Loan Party may
acquire, whether by purchase or by merger, (A) all of the ownership interests of
another Person or (B) all or substantially all of the assets of another Person
or of a business or division of another Person, provided that each of the
following requirements is met:
(i) if such Loan Party or such Subsidiary is acquiring all
of the ownership interests in such Person, such Person shall, unless not
required by Section 7.2.9, execute a Guarantor Joinder and join this Agreement
as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors] in addition to
a Guaranty Agreement and such other documents required by Section 10.18 on or
before the date required by Section 10.18;
(ii) the board of directors or other equivalent governing
body of such Person shall have approved such Permitted Acquisition, or, if no
such approval is required, shall not have objected thereto and, if such Loan
Party or such Subsidiary shall use any portion of the Loans to fund such
Permitted Acquisition, such Loan Party or such Subsidiary also shall have
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delivered to the Banks written evidence of the approval of the board of
directors (or equivalent body) of such Person for such Permitted Acquisition,
or, if no such approval is required, shall not have objected thereto;
(iii) the business acquired, or the business conducted by
the Person whose ownership interests are being acquired, as applicable, shall
involve the design, manufacture, sale or distribution of medical devices and
equipment or other businesses reasonably related thereto;
(iv) no Potential Default or Event of Default shall exist
immediately prior to and after giving effect to such Permitted Acquisition;
(v) the Borrower shall demonstrate that it shall be in
compliance with the covenants contained in Sections 7.2.13 and 7.2.14 after
giving effect to such Permitted Acquisition (including in such computation
Indebtedness or other liabilities assumed or incurred in connection with such
Permitted Acquisition but excluding income earned or expenses incurred by the
Person, business or assets to be acquired prior to the date of such Permitted
Acquisition) by delivering at least five (5) Business Days prior to such
Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such
compliance;
(vi) the proforma Leverage Ratio after giving effect to
such Permitted Acquisition shall not exceed 2.0 to 1.0; and
(vii) immediately after the completion of such Permitted
Acquisition, the sum of (a) the difference between (i) the Revolving Credit
Commitments minus (ii) the Revolving Facility Usage plus (b) the difference
between (i) the cash and Cash Equivalents of the Borrower and its Subsidiaries
on a Consolidated basis minus (ii) Fifteen Million and 00/100 Dollars
($15,000,000.00) shall be greater than or equal to Fifteen Million and 00/100
Dollars ($15,000,000.00).
7.2.7. Dispositions of Assets or Subsidiaries.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer
or dispose of, voluntarily or involuntarily, any of its properties or assets,
tangible or intangible (including sale, assignment, discount or other
disposition of accounts, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares of beneficial
interest, partnership interests or limited liability company interests of a
Subsidiary of such Loan Party), except:
(i) transactions involving the sale, lease or transfer of
inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets (a) in the ordinary
course of business which are no longer necessary or required in the conduct of
such Loan Party's or such Subsidiary's business or (b) which are obsolete, of
immaterial value or no longer utilized in the business of such Loan Party or
such Subsidiary;
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(iii) any sale, transfer or lease of assets by any Loan Party
to another Loan Party;
(iv) any sale, transfer or lease of assets by a Loan Party to
a Subsidiary which is not a Loan Party if such sale, transfer or lease is
permitted by Section 7.2.4 of this Agreement;
(v) any sale, transfer or lease of assets in the ordinary
course of business which are replaced by substitute assets acquired or leased
within the terms of this Agreement;
(vi) the sale of accounts receivable in connection with a
Receivables Financing provided that such transaction is approved by the Required
Banks pursuant to this Agreement; or
(vii) any sale, transfer or lease of assets, other than those
specifically excepted pursuant to clauses (i) through (vi) above, provided that
(a) immediately prior to and after giving effect to any such disposition, no
Event of Default or Potential Default shall exist or shall occur and (b) the
aggregate value of all assets so sold by the Loan Parties and their Subsidiaries
shall not exceed, in any fiscal year, ten percent (10%) of the consolidated
total assets of the Borrower and its Subsidiaries as of the end of the
immediately preceding fiscal year.
7.2.8. Affiliate Transactions.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, enter into or carry out any transaction (including
purchasing property or services from or selling property or services to any
Affiliate of any Loan Party or other Person) unless such transaction is not
otherwise prohibited by this Agreement, is entered into in the ordinary course
of business upon fair and reasonable arm's-length terms and conditions and is in
accordance with all applicable Law.
7.2.9. Subsidiaries.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, own or create directly or indirectly any wholly owned
Subsidiaries other than any wholly owned Subsidiary formed or acquired after the
Closing Date which joins this Agreement as a Guarantor pursuant to Section 10.18
[Joinder of Guarantors]; provided, however, if such wholly owned Subsidiary (a)
is acquired by a Loan Party or Subsidiary of a Loan Party and is organized
outside of the United States or (b) is formed or organized outside of the United
States by a Loan Party or Subsidiary of a Loan Party after the date of this
Agreement, such wholly owned foreign Subsidiary shall not be required to join
this Agreement as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors]
so long as (i) the total assets of such wholly owned foreign Subsidiary are less
than Ten Million and 00/100 Dollars ($10,000,000.00), and (ii) the aggregate of
the total assets of all such wholly owned foreign Subsidiaries (formed or
acquired after the date of this Agreement which are not Guarantors) are less
than Thirty Million and 00/100 Dollars ($30,000,000.00).
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7.2.10. Continuation of or Change in Business.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, engage in any business other than that which involves
the design, manufacture, sale or distribution of medical devices and equipment
or other businesses reasonably related thereto.
7.2.11. Plans and Benefit Arrangements.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to:
(i) engage in a Prohibited Transaction with any Plan,
Benefit Arrangement or Multiemployer Plan or otherwise violate ERISA which,
alone or in conjunction with any other circumstances or set of circumstances
resulting in liability under ERISA, would constitute a Material Adverse Change;
(ii) fail to make when due any contribution to any
Multiemployer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan, or any
Law pertaining thereto;
(iii) withdraw (completely or partially) from any
Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA to
withdraw) from any Multiple Employer Plan, where any such withdrawal is likely
to result in a Material Adverse Change;
(iv) terminate, or institute proceedings to terminate, any
Plan, where such termination is likely to result in a Material Adverse Change;
(v) make any amendment to any Plan with respect to which
security is required under Section 307 of ERISA except to the extent that such
amendment would not result in a Material Adverse Change; or
(vi) fail to give any and all notices and make all
disclosures and governmental filings required under ERISA or the Internal
Revenue Code, where such failure is likely to result in a Material Adverse
Change.
7.2.12. Maximum Leverage Ratio.
As of September 30, 2002, and as of the last day of each
fiscal quarter thereafter, for the period equal to the four (4) consecutive
fiscal quarters then ending, the Borrower shall not permit the Leverage Ratio to
exceed 2.50 to 1.0.
7.2.13. Minimum Interest Coverage Ratio.
As of September 30, 2002, and as of the last day of each
fiscal quarter thereafter, for the period equal to the four (4) consecutive
fiscal quarters then ending, the Borrower shall not permit the Interest Coverage
Ratio to be less than 4.0 to 1.0.
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7.2.14. Minimum Net Worth.
As of September 30, 2002, and as of the last day of each
fiscal quarter thereafter, the Borrower shall not at any time permit Net Worth
to be less than the Base Net Worth.
7.3 Reporting Requirements.
The Borrower hereby covenants and agrees on behalf of itself and each
of the other Loan Parties, and each Loan Party (other than the Borrower) hereby
covenants and agrees on behalf of itself to the extent that the following
provisions apply to such Loan Party, that until payment in full of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the
Loan Parties' other Obligations hereunder and under the other Loan Documents and
termination of the Commitments, the Loan Parties will furnish or cause to be
furnished to the Agent:
7.3.1. Quarterly Financial Statements.
As soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three (3) fiscal quarters in
each fiscal year, financial statements of the Borrower, consisting of a
consolidated balance sheet as of the end of such fiscal quarter and related
consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments)
by an Authorized Officer of the Borrower as having been prepared in accordance
with GAAP, consistently applied, and setting forth in comparative form the
respective financial statements for the corresponding date and period in the
previous fiscal year. The Loan Parties will be deemed to have complied with the
delivery requirements of this Section 7.3.1 if, within forty-five (45) days
after the end of each of the first (1st) three (3) fiscal quarters in each
fiscal year, the Borrower delivers to the Agent as an attachment to electronic
mail (and not a link to any Website or other Internet site) a copy of its Form
10-Q as filed with the Securities and Exchange Commission and the financial
statements contained therein meet the requirements described in this Section.
7.3.2. Annual Financial Statements.
As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, financial statements of the
Borrower consisting of a consolidated balance sheet as of the end of such fiscal
year, and related consolidated statements of income, stockholders' equity and
cash flows for the fiscal year then ended, all in reasonable detail and setting
forth in comparative form the financial statements as of the end of and for the
preceding fiscal year, and certified by independent certified public accountants
of nationally recognized standing reasonably satisfactory to the Agent. The
certificate or report of accountants shall be free of qualifications (other than
any consistency qualification that may result from a change in the method used
to prepare the financial statements as to which such accountants concur) and
shall not indicate the occurrence or existence of any event, condition or
contingency which would materially impair the prospect of payment or performance
of any covenant,
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agreement or duty of any Loan Party under any of the Loan Documents. The Loan
Parties will be deemed to have complied with the delivery requirements of this
Section 7.3.2 if, within ninety (90) days after the end of each fiscal year of
the Borrower, the Borrower delivers to the Agent as an attachment to electronic
mail (and not a link to any Website or other Internet site) a copy of its Form
10-K as filed with the Securities and Exchange Commission and the financial
statements and certification of public accountants contained therein meets the
requirements described in this Section.
7.3.3. Certificate of the Borrower.
Concurrently with the financial statements of the Borrower
furnished to the Agent and to the Banks pursuant to Sections 7.3.1 [Quarterly
Financial Statements] and 7.3.2 [Annual Financial Statements], a certificate
(each a "Compliance Certificate") of the Borrower signed by an Authorized
Officer or the Director of Tax and Treasury of the Borrower, in the form of
Exhibit 7.3.3, to the effect that, except as described pursuant to Section 7.3.4
[Notice of Default], (i) the representations and warranties of the Borrower
contained in Section 5 and in the other Loan Documents are true in all material
respects on and as of the date of such certificate with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which expressly relate solely to an
earlier date or time) and the Loan Parties have performed and complied in all
material respects with all covenants and conditions hereof, (ii) no Event of
Default or Potential Default exists and is continuing on the date of such
certificate and (iii) containing calculations in sufficient detail to
demonstrate compliance as of the date of such financial statements with all
financial covenants contained in Section 7.2 [Negative Covenants].
7.3.4. Notice of Default.
Promptly after any Executive Officer of any Loan Party has
learned of the occurrence of an Event of Default or Potential Default, a
certificate signed by an Authorized Officer of such Loan Party setting forth the
details of such Event of Default or Potential Default and the action which such
Loan Party proposes to take with respect thereto.
7.3.5. Notice of Litigation.
Promptly after the commencement thereof, notice of all actions,
suits, proceedings or investigations before or by any Official Body or any other
Person against any Loan Party or Subsidiary of any Loan Party which, if
adversely determined, would reasonably be expected to constitute a Material
Adverse Change; provided, however, that no such notice shall be required to be
provided to the extent that the Executive Officers of such Loan Party or
Subsidiary have reasonably determined that such action, suit, proceeding or
investigation is not likely to be successful against such Loan Party or
Subsidiary.
7.3.6. Budgets, Forecasts, Other Reports and Information.
Promptly upon their becoming available to the Borrower:
(i) the annual budget of the Borrower,
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(ii) any reports including management letters submitted to the
Borrower by independent accountants in connection with any annual, interim or
special audit,
(iii) any reports, notices or proxy statements generally
distributed by the Borrower to its stockholders on a date no later than the date
supplied to such stockholders (which can be delivered as an attachment to
electronic mail (and not a link to any Website or other Internet site)),
(iv) regular or periodic reports, including Forms 10-K, 10-Q
and 8-K, registration statements and prospectuses, filed by the Borrower with
the Securities and Exchange Commission (which can be delivered as an attachment
to electronic mail (and not a link to any Website or other Internet site)), and
(v) such other reports and information as any of the Banks
may from time to time reasonably request.
7.3.7. Notices Regarding Plans and Benefit Arrangements.
7.3.7.1 Certain Events.
Promptly upon becoming aware of the occurrence
thereof, notice (including the nature of the event and, when known, any action
taken or threatened by the Internal Revenue Service or the PBGC with respect
thereto) of:
(i) any failure to satisfy the minimum funding requirements
of ERISA and the Internal Revenue Code with respect to any Plan;
(ii) any request to obtain a minimum funding waiver from the
Internal Revenue Service with respect to any Plan;
(iii) the aggregate actuarial present value of all benefit
liabilities (whether or not vested) under each Plan, determined on a plan
termination basis, as disclosed in the most recent actuarial report completed
with respect to such Plan, exceeding, as of any actuarial valuation date, the
fair market value of the assets of such Plan;
(iv) any Reportable Event with respect to the Borrower or any
other member of the ERISA Group (regardless of whether the obligation to report
said Reportable Event to the PBGC has been waived),
(v) any Prohibited Transaction which could subject the
Borrower or any other member of the ERISA Group to a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Internal Revenue Code in connection with any Plan, any Benefit Arrangement or
any trust created thereunder,
(vi) any assertion of material withdrawal liability with
respect to any Multiemployer Plan,
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(vii) any partial or complete withdrawal from a Multiemployer
Plan by the Borrower or any other member of the ERISA Group under Title IV of
ERISA (or assertion thereof), where such withdrawal is likely to result in
material withdrawal liability,
(viii) any cessation of operations (by the Borrower or any
other member of the ERISA Group) at a facility in the circumstances described in
Section 4062(e) of ERISA,
(ix) withdrawal by the Borrower or any other member of the
ERISA Group from a Multiple Employer Plan,
(x) a failure by the Borrower or any other member of the
ERISA Group to make a payment to a Plan required to avoid imposition of a Lien
under Section 302(f) of ERISA,
(xi) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA, or
(xii) any change in the actuarial assumptions or funding
methods used for any Plan, where the effect of such change is to materially
increase or materially reduce the unfunded benefit liability or obligation to
make periodic contributions.
7.3.7.2 Notices of Involuntary Termination and Annual Reports.
Promptly after receipt thereof, copies of (a) all
notices received by the Borrower or any other member of the ERISA Group of the
PBGC's intent to terminate any Plan administered or maintained by the Borrower
or any member of the ERISA Group, or to have a trustee appointed to administer
any such Plan; and (b) at the request of the Agent or any Bank each annual
report (IRS Form 5500 series) and all accompanying schedules, the most recent
actuarial reports, the most recent financial information concerning the
financial status of each Plan administered or maintained by the Borrower or any
other member of the ERISA Group, and schedules showing the amounts contributed
to each such Plan by or on behalf of the Borrower or any other member of the
ERISA Group in which any of their personnel participate or from which such
personnel may derive a benefit, and each Schedule B (Actuarial Information) to
the annual report filed by the Borrower or any other member of the ERISA Group
with the Internal Revenue Service with respect to each such Plan.
7.3.7.3 Notice of Voluntary Termination.
Promptly upon the filing thereof, copies of any Form
5310, or any successor or equivalent form to Form 5310, filed with the PBGC in
connection with the termination of any Plan.
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8. DEFAULT
8.1 Events of Default.
An Event of Default shall mean the occurrence or existence of any one
or more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
8.1.1. Payments Under Loan Documents.
The Borrower shall fail to pay (i) any principal of any Loan
(including the payment due at maturity), Reimbursement Obligation or Letter of
Credit Borrowing when such principal is due hereunder or (ii) any interest on
any Loan, Reimbursement Obligation or Letter of Credit Borrowing or any other
amount owing hereunder or under the other Loan Documents within five (5) days
after such interest or other amount becomes due in accordance with the terms
hereof or thereof;
8.1.2. Breach of Warranty.
Any representation or warranty made at any time by any of the
Loan Parties herein or by any of the Loan Parties in any other Loan Document, or
in any certificate furnished pursuant to the provisions hereof or thereof, shall
prove to have been false or misleading in any material respect as of the time it
was made or furnished;
8.1.3. Breach of Negative Covenants.
Any of the Loan Parties shall default in the observance or
performance of any covenant contained in Section 7.2 [Negative Covenants];
8.1.4. Breach of Other Covenants.
Any of the Loan Parties shall default in the observance or
performance of any other covenant, condition or provision hereof or of any other
Loan Document and such default shall continue unremedied for a period of thirty
(30) days after any Executive Officer of any Loan Party becomes aware of the
occurrence thereof;
8.1.5. Defaults in Other Agreements or Indebtedness.
A default or event of default shall occur at any time under the
terms of any other agreement involving borrowed money or the extension of credit
or any other Indebtedness under which any Loan Party or Subsidiary of any Loan
Party may be obligated as a borrower or guarantor in excess of Five Million and
00/100 Dollars ($5,000,000.00) in the aggregate, and such breach, default or
event of default consists of the failure to pay (beyond any period of grace
permitted with respect thereto, whether waived or not) any indebtedness when due
(whether at stated maturity, by acceleration or otherwise) or if such breach or
default permits or causes the acceleration of any indebtedness (whether or not
such right shall have been waived) or the termination of any commitment to lend;
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8.1.6. Final Judgments or Orders.
Any final judgments or orders for the payment of money shall
be entered against any Loan Party by a court having jurisdiction in the premises
which exceeds the insurance proceeds available to pay such judgments by at least
Five Million and 00/100 Dollars ($5,000,000.00) and which judgments are not
discharged, vacated, bonded or stayed pending appeal within a period of sixty
(60) days from the date of entry;
8.1.7. Loan Document Unenforceable.
Any of the Loan Documents shall cease to be legal, valid and
binding agreements enforceable against the party executing the same or such
party's successors and assigns (as permitted under the Loan Documents) in
accordance with the respective terms thereof or shall in any way be terminated
(except in accordance with its terms) or become or be declared ineffective or
inoperative or shall in any way be challenged or contested or cease to give or
provide the respective rights, remedies, powers or privileges intended to be
created thereby;
8.1.8. Proceedings Against Assets.
Any of the Loan Parties' or any of their Subsidiaries'
assets are attached, seized, levied upon or subjected to a writ or distress
warrant involving an aggregate amount of money in excess of Five Million and
00/100 Dollars ($5,000,000.00); or such assets come within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors and the
same is not cured within sixty (60) days thereafter;
8.1.9. Notice of Lien or Assessment.
A notice of Lien or assessment in excess of Five Million and
00/100 Dollars ($5,000,000.00) which is not a Permitted Lien is filed of record
with respect to all or any part of any of the Loan Parties' or any of their
Subsidiaries' assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency, including the PBGC, or any taxes or debts owing at any time
or times hereafter to any one of these becomes payable and the same is not paid
within thirty (30) days after the same becomes payable;
8.1.10. Insolvency.
Any Loan Party admits in writing its inability to pay its
debts as they mature or, after giving effect to the Borrower's centrally
maintained cash balances, trade accounts receivable and its ability to receive
Revolving Credit Loans pursuant to this Agreement, any Loan Party ceases to be
solvent;
8.1.11. Events Relating to Plans and Benefit Arrangements.
Any of the following occurs: (i) any Reportable Event, which
constitutes grounds for the termination of any Plan by the PBGC or the
appointment of a trustee to administer or liquidate any Plan, shall have
occurred and be continuing; (ii) proceedings shall
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have been instituted or other action taken to terminate any Plan, or a
termination notice shall have been filed with respect to any Plan; (iii) a
trustee shall be appointed to administer or liquidate any Plan; (iv) the PBGC
shall give notice of its intent to institute proceedings to terminate any Plan
or Plans or to appoint a trustee to administer or liquidate any Plan; or (v) any
applicable Law is adopted, changed or interpreted by any Official Body with
respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events specified in (i),
(ii), (iii), (iv) or (v), any such occurrence would be reasonably likely to
constitute a Material Adverse Change.
8.1.12. Cessation of Business.
Any Loan Party permanently ceases to conduct its business,
except as expressly permitted under Section 7.2.6 [Liquidations, Mergers, Etc.]
or 7.2.7, or any Loan Party is enjoined, restrained or in any way prevented by
court order from conducting all or any material part of its business and such
injunction, restraint or other preventive order is not dismissed within sixty
(60) days after the entry thereof;
8.1.13. Change of Control.
(i) Any Person or group of Persons acting in concert (within
the meaning of Sections 13(d) or 14(a) of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership of (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act)
twenty-five percent (25%) or more of the issued and outstanding voting capital
stock of the Borrower; or (ii) within a period of twelve (12) consecutive
calendar months, individuals who were directors of the Borrower on the first day
of such period shall cease to constitute a majority of the board of directors of
the Borrower;
8.1.14. Involuntary Proceedings.
A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
any Loan Party in an involuntary case under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect, or
for the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party for any
substantial part of its property, or for the winding-up or liquidation of its
affairs, and such proceeding shall remain undismissed or unstayed and in effect
for a period of sixty (60) consecutive days or such court shall enter a decree
or order granting any of the relief sought in such proceeding; or
8.1.15. Voluntary Proceedings.
Any Loan Party shall commence a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official) of itself or for any
substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally
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to pay its debts as they become due, or shall take any action in furtherance of
any of the foregoing.
8.2 Consequences of Event of Default.
8.2.1. Events of Default Other Than Bankruptcy,
Insolvency or Reorganization Proceedings.
If an Event of Default specified under Sections 8.1.1
through 8.1.13 shall occur and be continuing, the Banks and the Agent shall be
under no further obligation to make Loans or issue Letters of Credit, as the
case may be, and the Agent may, and upon the request of the Required Banks,
shall (i) by written notice to the Borrower, declare the unpaid principal amount
of the Notes then outstanding and all interest accrued thereon, any unpaid fees
and all other Indebtedness of the Borrower to the Banks hereunder to be
forthwith due and payable, and the same shall thereupon become and be
immediately due and payable to the Agent for the benefit of each Bank without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, and (ii) require the Borrower to, and the Borrower
shall thereupon, deposit in a non-interest-bearing account with the Agent, as
cash collateral for its Obligations under the Loan Documents, an amount equal to
the maximum amount currently or at any time thereafter available to be drawn on
all outstanding Letters of Credit, and the Borrower hereby pledges to the Agent
and the Banks, and grants to the Agent and the Banks a security interest in, all
such cash as security for such Obligations. Upon the curing of all existing
Events of Default to the satisfaction of the Required Banks, the Agent shall
return such cash collateral to the Borrower; and
8.2.2. Bankruptcy, Insolvency or Reorganization Proceedings.
If an Event of Default specified under Section 8.1.14
[Involuntary Proceedings] or 8.1.15 [Voluntary Proceedings] shall occur, the
Banks shall be under no further obligations to make Loans hereunder and the
unpaid principal amount of the Loans then outstanding and all interest accrued
thereon, any unpaid fees and all other Indebtedness of the Borrower to the Banks
hereunder and thereunder shall be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived; and
8.2.3. Set-off.
If an Event of Default shall occur and be continuing, any
Bank to whom any Obligation is owed by any Loan Party hereunder or under any
other Loan Document or any participant of such Bank which has agreed in writing
to be bound by the provisions of Section 9.13 [Equalization of Banks] and any
branch, Subsidiary or Affiliate of such Bank or participant anywhere in the
world shall have the right, in addition to all other rights and remedies
available to it, without notice to such Loan Party, to set-off against and apply
to the then unpaid balance of all the Loans and all other Obligations of the
Borrower and the other Loan Parties hereunder or under any other Loan Document
any debt owing to, and any other funds held in any manner for the account of,
the Borrower or such other Loan Party by such Bank or participant or
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by such branch, Subsidiary or Affiliate, including all funds in all deposit
accounts (whether time or demand, general or special, provisionally credited or
finally credited, or otherwise) now or hereafter maintained by the Borrower or
such other Loan Party for its own account (but not including funds held in
custodian or trust accounts) with such Bank or participant or such branch,
Subsidiary or Affiliate. Such right shall exist whether or not any Bank or the
Agent shall have made any demand under this Agreement or any other Loan
Document, whether or not such debt owing to or funds held for the account of the
Borrower or such other Loan Party is or are matured or unmatured and regardless
of the existence or adequacy of any Guaranty or any other security, right or
remedy available to any Bank or the Agent; and
8.2.4. Suits, Actions, Proceedings.
If an Event of Default shall occur and be continuing, and
whether or not the Agent shall have accelerated the maturity of Loans pursuant
to any of the foregoing provisions of this Section 8.2, the Agent or any Bank,
if owed any amount with respect to the Loans, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other appropriate proceeding
(to which the Agent or any Bank may be entitled pursuant to this Agreement, by
applicable Law or in equity), whether for the specific performance of any
covenant or agreement contained in this Agreement or the other Loan Documents,
including as permitted by applicable Law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of the Agent or such Bank; and
8.2.5. Application of Proceeds.
8.2.5.1 Application of Proceeds.
From and after the date on which the Agent has taken any
action pursuant to this Section 8.2 and until all Obligations of the Loan
Parties have been paid in full, any and all proceeds received by the Agent from
the exercise of any remedy by the Agent, shall be applied as follows:
(i) first, to reimburse the Agent and the Banks for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the Agent or the Banks in
connection with the collection of any Obligations of any of the Loan Parties
under any of the Loan Documents;
(ii) second, to the repayment of all Obligations then due
and unpaid of the Loan Parties to the Banks incurred under this Agreement or any
of the other Loan Documents or a Bank-Provided Interest Rate Hedge, whether of
principal, interest, fees, expenses or otherwise, in such manner as the Agent
may determine in its reasonable discretion; and
(iii) the balance, if any, as required by Law.
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8.2.6. Other Rights and Remedies.
In addition to all of the rights and remedies contained in
this Agreement or in any of the other Loan Documents, the Agent shall have all
of the rights and remedies under applicable Law, all of which rights and
remedies shall be cumulative and non-exclusive, to the extent permitted by Law.
The Agent may, and upon the request of the Required Banks shall, exercise all
post-default rights granted to the Agent and the Banks under the Loan Documents
or applicable Law.
9. THE AGENT
9.1 Appointment.
Each Bank hereby irrevocably designates, appoints and authorizes PNC
Bank to act as Agent for such Bank under this Agreement and to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and any other instruments and agreements referred to herein, and
to exercise such powers and to perform such duties hereunder as are specifically
delegated to or required of the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. PNC Bank agrees to act as the Agent
on behalf of the Banks to the extent provided in this Agreement.
9.2 Delegation of Duties.
The Agent may perform any of its duties hereunder by or through
agents or employees (provided such delegation does not constitute a
relinquishment of its duties as Agent) and, subject to Sections 9.5
[Reimbursement of Agent by Borrower, Etc.] and 9.6 [Exculpatory Provisions;
Limitation of Liability], shall be entitled to engage and pay for the advice or
services of any attorneys, accountants or other experts concerning all matters
pertaining to its duties hereunder and to rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation.
The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to the 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. Each
Bank expressly acknowledges (i) that the Agent has not made any
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representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of any of the Loan Parties, shall be
deemed to constitute any representation or warranty by the Agent to any Bank;
(ii) that it has made and will continue to make, without reliance upon the
Agent, its own independent investigation of the financial condition and affairs
and its own appraisal of the creditworthiness of each of the Loan Parties in
connection with this Agreement and the making and continuance of the Loans
hereunder; and (iii) except as expressly provided herein, that the Agent shall
have no duty or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect thereto,
whether coming into its possession before the making of any Loan or at any time
or times thereafter.
9.4 Actions in Discretion of Agent; Instructions From the Banks.
The Agent agrees, upon the written request of the Required Banks, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, provided that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Banks, the Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section 9.6
[Exculpatory Provisions, Etc.]. Subject to the provisions of Section 9.6, no
Bank shall have any right of action whatsoever against the Agent as a result of
the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Banks, or in the absence of such instructions, in
the absolute discretion of the Agent.
9.5 Reimbursement and Indemnification of Agent by the Borrower.
The Borrower agrees to pay or reimburse the Agent and hold the Agent
harmless against (a) liability for the payment of all reasonable out-of-pocket
costs, expenses and disbursements, including reasonable fees and expenses of
counsel, incurred by the Agent (i) in connection with the development,
negotiation, preparation, printing, execution, administration, syndication,
interpretation and performance of this Agreement and the other Loan Documents,
(ii) relating to any requested amendments, waivers or consents pursuant to the
provisions hereof, (iii) in connection with the enforcement of this Agreement or
any other Loan Document or collection of amounts due hereunder or thereunder or
the proof and allowability of any claim arising under this Agreement or any
other Loan Document, whether in bankruptcy or receivership proceedings or
otherwise, and (iv) in any workout or restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings, and (b) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, provided that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
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costs, expenses or disbursements if the same results from the Agent's gross
negligence or willful misconduct, or if the Borrower was not given notice of the
subject claim and the opportunity to participate in the defense thereof, at its
expense (except that the Borrower shall remain liable to the extent such failure
to give notice does not result in a loss to the Borrower), or if the same
results from a compromise or settlement agreement entered into without the
consent of the Borrower, which shall not be unreasonably withheld. In addition,
the Borrower agrees to reimburse and pay all reasonable out-of-pocket expenses
of the Agent's regular employees and agents engaged periodically to perform
audits of the Loan Parties' books, records and business properties.
9.6 Exculpatory Provisions; Limitation of Liability.
Neither the Agent nor any of its directors, officers, employees,
agents, attorneys or Affiliates shall (a) be liable to any Bank for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith
including pursuant to any Loan Document, unless caused by its or their own gross
negligence or willful misconduct, (b) be responsible in any manner to any of the
Banks for the effectiveness, enforceability, genuineness, validity or the due
execution of this Agreement or any other Loan Documents or for any recital,
representation, warranty, document, certificate, report or statement herein or
made or furnished under or in connection with this Agreement or any other Loan
Documents, or (c) be under any obligation to any of the Banks to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions hereof or thereof on the part of the Loan Parties, or the financial
condition of the Loan Parties, or the existence or possible existence of any
Event of Default or Potential Default. No claim may be made by any of the Loan
Parties, any Bank, the Agent or any of their respective Subsidiaries against the
Agent, any Bank or any of their respective directors, officers, employees,
agents, attorneys or Affiliates, or any of them, for any special, indirect or
consequential damages or, to the fullest extent permitted by Law, for any
punitive damages in respect of any claim or cause of action (whether based on
contract, tort, statutory liability, or any other ground) based on, arising out
of or related to any Loan Document or the transactions contemplated hereby or
any act, omission or event occurring in connection therewith, including the
negotiation, documentation, administration or collection of the Loans, and each
of the Loan Parties (for itself and on behalf of each of its Subsidiaries), the
Agent and each Bank hereby waives, releases and agrees never to xxx upon any
claim for any such damages, whether such claim now exists or hereafter arises
and whether or not it is now known or suspected to exist in its favor. Each Bank
agrees that, except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder or given to the Agent for
the account of or with copies for the Banks, the Agent and each of its
directors, officers, employees, agents, attorneys or Affiliates shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its directors, officers, employees,
agents, attorneys or Affiliates.
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9.7 Reimbursement and Indemnification of Agent by Banks.
Each Bank agrees to reimburse and indemnify the Agent (to the extent
not reimbursed by the Borrower and without limiting the Obligation of the
Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements, including reasonable attorneys' fees and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent, in its capacity as such, in any way relating
to or arising out of this Agreement or any other Loan Documents or any action
taken or omitted by the Agent hereunder or thereunder, provided that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(a) if the same results from the Agent's gross negligence or willful misconduct,
or (b) if such Bank was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that
such Bank shall remain liable to the extent such failure to give notice does not
result in a loss to the Bank), or (c) if the same results from a compromise and
settlement agreement entered into without the consent of such Bank, which shall
not be unreasonably withheld. In addition, each Bank agrees promptly upon demand
to reimburse the Agent (to the extent not reimbursed by the Borrower and without
limiting the Obligation of the Borrower to do so) in proportion to its Ratable
Share for all reasonable fees and out of pocket costs and expenses due and
payable by the Borrower to the Agent in connection with the Agent's periodic
audit of the Loan Parties' books, records and business properties.
9.8 Reliance by Agent.
The Agent shall be entitled to rely upon any writing, telegram,
telex or teletype message, resolution, notice, consent, certificate, letter,
cablegram, statement, order or other document or conversation by telephone or
otherwise believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon the advice and opinions of
counsel and other professional advisers selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action hereunder unless it
shall first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
9.9 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default unless the Agent has
received written notice from a Bank or the Borrower referring to this Agreement,
describing such Potential Default or Event of Default and stating that such
notice is a "notice of default."
9.10 Notices.
The Agent shall promptly send to each Bank a copy of all notices
received from the Borrower pursuant to the provisions of this Agreement or the
other Loan Documents promptly upon receipt thereof. The Agent shall promptly
notify the Borrower and the other Banks of each change in the Base Rate and the
effective date thereof.
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9.11 Banks in Their Individual Capacities; Agent in its Individual
Capacity.
With respect to its Revolving Credit Commitment and the Revolving
Credit Loans made by it and any other rights and powers given to it as a Bank
hereunder or under any of the other Loan Documents, the Agent shall have the
same rights and powers hereunder as any other Bank and may exercise the same as
though it were not the Agent, and the term "Bank" and "Banks" shall, unless the
context otherwise indicates, include the Agent in its individual capacity. PNC
Bank and its Affiliates and each of the Banks and their respective Affiliates
may, without liability to account, except as prohibited herein, make loans to,
issue letters of credit for the account of, acquire equity interests in, accept
deposits from, discount drafts for, act as trustee under indentures of, and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with, the Loan Parties and their Affiliates, in the case of
the Agent, as though it were not acting as Agent hereunder and in the case of
each Bank, as though such Bank were not a Bank hereunder, in each case without
notice to or consent of the other Banks. The Banks acknowledge that, pursuant to
such activities, the Agent or its Affiliates may (i) receive information
regarding the Loan Parties or any of their Subsidiaries or Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Loan Parties or such Subsidiary or Affiliate) and acknowledge that the Agent
shall be under no obligation to provide such information to them, and (ii)
accept fees and other consideration from the Loan Parties for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.
9.12 Holders of Notes.
The Agent may deem and treat any payee of any Note as the owner
thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
9.13 Equalization of Banks.
The Banks and the holders of any participations in any Notes agree
among themselves that, with respect to all amounts received by any Bank or any
such holder for application on any Obligation hereunder or under any Note or
under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker's
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will be made in the manner stated in the following sentence so that, in effect,
all such excess amounts will be shared ratably among the Banks and such holders
in proportion to their interests in payments under the Notes, except as
otherwise provided in Section 3.4.3 [Agent's and Bank's Rights], 4.4.2
[Replacement of a Bank] or 4.5 [Additional Compensation in Certain
Circumstances]. The Banks or any such holder receiving any such amount shall
purchase for cash from each of the other Banks an interest in such Bank's Loans
in such amount as shall result in a ratable participation by the Banks and each
such holder in the aggregate unpaid amount under the Notes, provided that if all
or any portion of such excess amount is thereafter recovered
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from the Bank or the holder making such purchase, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery,
together with interest or other amounts, if any, required by law (including
court order) to be paid by the Bank or the holder making such purchase.
9.14 Successor Agent.
The Agent (i) may resign as Agent or (ii) shall resign if such
resignation is requested by the Required Banks (if the Agent is a Bank, the
Agent's Loans and its Commitment shall be considered in determining whether the
Required Banks have requested such resignation) or required by Section 4.4.2
[Replacement of a Bank], in either case of (i) or (ii) by giving not less than
thirty (30) days' prior written notice to the Borrower. If the Agent shall
resign under this Agreement, then either (a) the Required Banks shall appoint
from among the Banks a successor agent for the Banks, subject to the consent of
the Borrower, such consent not to be unreasonably withheld, or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following the Agent's notice to the Banks of its resignation, then
the Agent shall appoint, with the consent of the Borrower, such consent not to
be unreasonably withheld, a successor agent who shall serve as Agent until such
time as the Required Banks appoint and the Borrower consents to the appointment
of a successor agent. Upon its appointment pursuant to either clause (a) or (b)
above, such successor agent shall succeed to the rights, powers and duties of
the Agent, and the term "Agent" shall mean such successor agent, effective upon
its appointment, and the former Agent's rights, powers and duties as Agent shall
be terminated without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement. After the resignation of
any Agent hereunder, the provisions of this Section 9 shall inure to the benefit
of such former Agent and such former Agent shall not by reason of such
resignation be deemed to be released from liability for any actions taken or not
taken by it while it was an Agent under this Agreement.
9.15 Agent's Fee.
The Borrower shall pay to the Agent a nonrefundable fee (the "Agent's
Fee") under the terms of a letter (the "Agent's Letter") between the Borrower
and Agent, as amended from time to time.
9.16 Availability of Funds.
The Agent may assume that each Bank has made or will make the
proceeds of a Loan available to the Agent unless the Agent shall have been
notified by such Bank on or before the later of (1) the close of Business on the
Business Day preceding the Borrowing Date with respect to such Loan or two (2)
hours before the time on which the Agent actually funds the proceeds of such
Loan to the Borrower (whether using its own funds pursuant to this Section 9.16
or using proceeds deposited with the Agent by the Banks and whether such funding
occurs before or after the time on which Banks are required to deposit the
proceeds of such Loan with the Agent). The Agent may, in reliance upon such
assumption (but shall not be required to), make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent by such Bank, the Agent shall be entitled to recover such
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amount on demand from such Bank (or, if such Bank fails to pay such amount
forthwith upon such demand from the Borrower) together with interest thereon, in
respect of each day during the period commencing on the date such amount was
made available to the Borrower and ending on the date the Agent recovers such
amount, at a rate per annum equal to (i) the Federal Funds Rate during the first
three (3) days after such interest shall begin to accrue and (ii) the applicable
interest rate in respect of such Loan after the end of such three-day period.
9.17 Calculations.
In the absence of gross negligence or willful misconduct, the Agent
shall not be liable for any error in computing the amount payable to any Bank
whether in respect of the Loans, fees or any other amounts due to the Banks
under this Agreement. In the event an error in computing any amount payable to
any Bank is made, the Agent, the Borrower and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Rate.
9.18 Beneficiaries.
Except as expressly provided herein, the provisions of this Section 9
are solely for the benefit of the Agent and the Banks, and the Loan Parties
shall not have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for any
of the Loan Parties.
9.19 Documentation Agents.
The parties hereto acknowledge and agree that no Person shall have,
solely by reason of its designation as documentation agent, any power, duty,
responsibility or liability whatsoever under this Agreement or any other Loan
Document.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.
With the written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and the Borrower, on behalf of the Loan Parties, may
from time to time enter into written agreements amending or changing any
provision of this Agreement or any other Loan Document or the rights of the
Banks or the Loan Parties hereunder or thereunder, or may grant written waivers
or consents to a departure from the due performance of the Obligations of the
Loan Parties hereunder or thereunder. Any such agreement, waiver or consent made
with such written consent shall be effective to bind all the Banks and the Loan
Parties; provided, that, without the written consent of all the Banks, no such
agreement, waiver or consent may be made which will:
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10.1.1. Increase of Commitment; Extension of Expiration Date.
Increase the amount of the Revolving Credit Commitment of any
Bank hereunder (other than pursuant to Section 2.10 hereof) or extend the
Expiration Date;
10.1.2. Extension of Payment; Reduction of Principal Interest or
Fees; Modification of Terms of Payment.
Whether or not any Loans are outstanding, extend the time for payment
of principal or interest of any Loan, the Commitment Fee or any other fee
payable to any Bank under this Agreement, or reduce the principal amount of or
the rate of interest borne by any Loan or reduce the Commitment Fee or any other
fee payable to any Bank under this Agreement, or otherwise affect the terms of
payment of the principal of or interest of any Loan, the Commitment Fee or any
other fee payable to any Bank;
10.1.3. Release of Guarantor.
Release any Guarantor from its Obligations under its Guaranty
Agreement or any other security for any of the Loan Parties' Obligations,
provided that no such consent shall be required if a Guarantor is liquidated,
dissolved or merged in compliance with Section 7.2.6 of this Agreement; or
10.1.4. Miscellaneous.
Amend Section 4.2 [Pro Rata Treatment of Banks],
9.6[Exculpatory Provisions, Etc.] or 9.13 [Equalization of Banks] or this
Section 10.1, alter any provision regarding the pro rata treatment of the Banks,
change the definition of Required Banks, or change any requirement providing for
the Banks or the Required Banks to authorize the taking of any action hereunder;
provided, further, that no agreement, waiver or consent which would modify the
interests, rights or obligations of the Agent in its capacity as Agent or as the
issuer of Letters of Credit shall be effective without the written consent of
the Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.
No course of dealing and no delay or failure of the Agent or any Bank
in exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy or
privilege preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
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10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes.
The Borrower agrees unconditionally upon demand to pay or reimburse to
each Bank (other than the Agent, as to which the Borrower's Obligations are set
forth in Section 9.5 [Reimbursement of Agent By Borrower, Etc.]) and to save
such Bank harmless against (i) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements (including reasonable fees and
expenses of counsel for each Bank except with respect to (b) and (c) below),
incurred by such Bank (a) in connection with a default by the Borrower in the
performance or observance of any covenant or condition in this Agreement or any
other Loan Document, including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal, interest, Commitment Fee or any other
amount due hereunder, (b) in connection with the administration and
interpretation of this Agreement, and other instruments and documents to be
delivered hereunder, (c) relating to any amendments, waivers or consents
pursuant to the provisions hereof, (d) in connection with the enforcement of
this Agreement or any other Loan Document, or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and (e) in any workout or restructuring or in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of any rights hereunder or under any other Loan Document or
in connection with any foreclosure, collection or bankruptcy proceedings, or
(ii) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Bank,
in its capacity as such, in any way relating to or arising out of this Agreement
or any other Loan Documents or any action taken or omitted by such Bank
hereunder or thereunder, provided that the Borrower shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (A) if the same results from
such Bank's gross negligence or willful misconduct, or (B) if the Borrower was
not given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that the Borrower shall remain liable to
the extent such failure to give notice does not result in a loss to the
Borrower), or (C) if the same results from a compromise or settlement agreement
entered into without the consent of the Borrower, which consent shall not be
unreasonably withheld. The Banks will attempt to minimize the fees and expenses
of legal counsel for the Banks which are subject to reimbursement by the
Borrower hereunder by considering the usage of one law firm to represent the
Banks and the Agent if appropriate under the circumstances. The Borrower agrees
to pay all stamp, document, transfer, recording or filing taxes or fees and
similar impositions now or hereafter determined by the Agent or any Bank to be
payable in connection with this Agreement or any other Loan Document, and the
Borrower agrees to save the Agent and the Banks harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions.
10.4 Holidays.
Whenever payment of a Loan to be made or taken hereunder shall be due
on a day which is not a Business Day such payment shall be due on the next
Business Day (except as provided in Section 3.2 [Interest Periods] with respect
to Interest Periods under the Euro-Rate
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Option) and such extension of time shall be included in computing interest and
fees, except that the Loans shall be due on the Business Day preceding the
Expiration Date if the Expiration Date is not a Business Day. Whenever any
payment or action to be made or taken hereunder (other than payment of the
Loans) shall be stated to be due on a day which is not a Business Day, such
payment or action shall be made or taken on the next following Business Day, and
such extension of time shall not be included in computing interest or fees, if
any, in connection with such payment or action.
10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1. Notional Funding.
Each Bank shall have the right from time to time, without
notice to the Borrower, to deem any branch, Subsidiary or Affiliate (which for
the purposes of this Section 10.5 shall mean any corporation or association
which is directly or indirectly controlled by or is under direct or indirect
common control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies at any time, provided that immediately
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial obligation pursuant to Section 4.5 [Additional
Compensation in Certain Circumstances] than it would have been in the absence of
such change. Notional funding offices may be selected by each Bank without
regard to such Bank's actual methods of making, maintaining or funding the Loans
or any sources of funding actually used by or available to such Bank.
10.5.2. Actual Funding.
Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this Section
10.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or maintain
any part of the Loans hereunder, all terms and conditions of this Agreement
shall, except where the context clearly requires otherwise, be applicable to
such part of the Loans to the same extent as if such Loans were made or
maintained by such Bank, but in no event shall any Bank's use of such a branch,
Subsidiary or Affiliate to make or maintain any part of the Loans hereunder
cause such Bank or such branch, Subsidiary or Affiliate to incur any cost or
expenses payable by the Borrower hereunder or require the Borrower to pay any
other compensation to any Bank (including any expenses incurred or payable
pursuant to Section 4.5 [Additional Compensation in Certain Circumstances])
which would otherwise not be incurred.
10.6 Notices.
Any notice, request, demand, direction or other communication (for
purposes of this Section 10.6 only, a "Notice") to be given to or made upon any
party hereto under any provision of this Agreement shall be given or made by
telephone or in writing (which includes means of electronic transmission (i.e.,
"e-mail") or facsimile transmission or by setting forth such Notice on a site on
the World Wide Web (a "Website Posting") if Notice of such Website
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Posting (including the information necessary to access such site) has previously
been delivered to the applicable parties hereto by another means set forth in
this Section 10.6) in accordance with this Section 10.6; provided, that any
notice of or relating to an Event of Default or Potential Default or termination
of this Agreement or the Commitments shall be given or made only by methods (i),
(ii) or (iii) below. Any such Notice must be delivered to the applicable parties
hereto at the addresses and numbers set forth under their respective names on
Schedule 1.1(B) hereof or in accordance with any subsequent unrevoked Notice
from any such party that is given in accordance with this Section 10.6. Any
Notice shall be effective:
(i) In the case of hand-delivery, when delivered;
(ii) If given by certified or registered mail, five (5) days
after such Notice is deposited with the United States Postal Service, with
postage prepaid, return receipt requested;
(iii) If given by mail, four (4) days after such Notice is
deposited with the United States Postal Service, with first-class postage
prepaid, return receipt requested, or if given by overnight delivery service,
one (1) day after such Notice is delivered to such delivery service, charges
prepaid, delivery receipt requested;
(iv) In the case of a telephonic Notice, when a party is
contacted by telephone, if delivery of such telephonic Notice is confirmed no
later than the next Business Day by hand delivery, a facsimile or electronic
transmission, a Website Posting or overnight courier delivery of a confirmatory
notice (received at or before noon on such next Business Day);
(v) In the case of a facsimile transmission, when sent to the
applicable party's facsimile machine's telephone number if the party sending
such Notice receives confirmation of the delivery thereof from its own facsimile
machine;
(vi) In the case of electronic transmission, when actually
received;
(vii) In the case of a Website Posting, upon delivery of a
Notice of such posting (including the information necessary to access such web
site) by another means set forth in this Section 10.6; and
(viii) If given by any other means, when actually received.
Any Bank giving a Notice to a Loan Party shall concurrently send a copy thereof
to the Agent, and the Agent shall promptly notify the other Banks of its receipt
of such Notice.
10.7 Severability.
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
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10.8 Governing Law.
Each Letter of Credit and Section 2.9 [Letter of Credit Subfacility]
shall be subject to the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500, as the
same may be revised or amended from time to time, and to the extent not
inconsistent therewith, the internal laws of the Commonwealth of Pennsylvania
without regard to its conflict of laws principles, and the balance of this
Agreement shall be deemed to be a contract under the Laws of the Commonwealth of
Pennsylvania and for all purposes shall be governed by and construed and
enforced in accordance with the internal laws of the Commonwealth of
Pennsylvania without regard to its conflict of laws principles.
10.9 Prior Understanding.
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior commitments.
10.10 Duration; Survival.
All representations and warranties of the Loan Parties contained
herein or made in connection herewith shall survive the making of Loans and
issuance of Letters of Credit and shall not be waived by the execution and
delivery of this Agreement, any investigation by the Agent or the Banks, the
making of Loans, issuance of Letters of Credit, or payment in full of the Loans.
All covenants and agreements of the Loan Parties contained in Sections 7.1
[Affirmative Covenants], 7.2 [Negative Covenants] and 7.3 [Reporting
Requirements] herein shall continue in full force and effect from and after the
date hereof so long as the Borrower may borrow or request Letters of Credit
hereunder and until termination of the Commitments and payment in full of the
Loans and expiration or termination of all Letters of Credit. All covenants and
agreements of the Borrower contained herein relating to the payment of
principal, interest, premiums, additional compensation or expenses and
indemnification, including those set forth in the Notes, Section 4 [Payments]
and Sections 9.5 [Reimbursement of Agent by Borrower, Etc.], 9.7 [Reimbursement
of Agent by Banks, Etc.] and 10.3 [Reimbursement of Banks by Borrower; Etc.],
shall survive payment in full of the Loans, expiration or termination of the
Letters of Credit and termination of the Commitments.
10.11 Successors and Assigns.
(i) This Agreement shall be binding upon and shall inure to the
benefit of the Banks, the Agent, the Loan Parties and their respective
successors and assigns, except that none of the Loan Parties may assign or
transfer any of its rights and Obligations hereunder or any interest herein
except pursuant to any merger permitted by Section 7.2.6 of this Agreement. Each
Bank may, at its own cost, make assignments of or sell participations in all or
any part of its Commitments and the Loans made by it to one or more banks or
other entities, subject to the consent of the Borrower and the Agent with
respect to any assignee, such consent not to be unreasonably withheld, provided
that (1) no consent of the Borrower shall be required (A) if an
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Event of Default exists and is continuing, or (B) in the case of an assignment
by a Bank to an Affiliate of such Bank, and (2) any assignment by a Bank to a
Person other than an Affiliate of such Bank may not be made in amounts less than
the lesser of Five Million and 00/100 Dollars ($5,000,000.00) or the amount of
the assigning Bank's Commitment. In the case of an assignment, upon receipt by
the Agent of the Assignment and Assumption Agreement, the assignee shall have,
to the extent of such assignment (unless otherwise provided therein), the same
rights, benefits and obligations as it would have if it had been a signatory
Bank hereunder, the Commitments shall be adjusted accordingly, and upon
surrender of any Note subject to such assignment, the Borrower shall execute and
deliver a new Note to the assignee in an amount equal to the amount of the
Revolving Credit Commitment assumed by it and a new Revolving Credit Note or
Term Note to the assigning Bank in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Any Bank which assigns any or all of its
Commitment or Loans to a Person other than an Affiliate of such Bank shall pay
to the Agent a service fee in the amount of Three Thousand Five Hundred and
00/100 Dollars ($3,500.00) for each assignment. In the case of a participation,
the participant shall only have the rights specified in Section 8.2.3 [Set-off]
(the participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto and not to include any voting rights except with
respect to changes of the type referenced in Sections 10.1.1 [Increase of
Commitment, Etc.], 10.1.2 [Extension of Payment, Etc.], or 10.1.3 [Release of
Collateral or Guarantor]), all of such Bank's obligations under this Agreement
or any other Loan Document shall remain unchanged, and all amounts payable by
any Loan Party hereunder or thereunder shall be determined as if such Bank had
not sold such participation.
(ii) Any assignee or participant which is not incorporated under
the Laws of the United States of America or a state thereof shall deliver to the
Borrower and the Agent the form of certificate described in Section 10.17 [Tax
Withholding Clause] relating to federal income tax withholding. Each Bank may
furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Bank from time to time to assignees and
participants (including prospective assignees or participants), provided that
such assignees and participants agree to be bound by the provisions of Section
10.12 [Confidentiality].
(iii) Notwithstanding any other provision in this Agreement, any
Bank may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement, its Note and the other Loan Documents to any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR Section 203.14 without notice to or consent of the Borrower or
the Agent. No such pledge or grant of a security interest shall release the
transferor Bank of its obligations hereunder or under any other Loan Document.
10.12 Confidentiality.
10.12.1. General.
The Agent and the Banks each agree to keep confidential
all information obtained or learned from any Loan Party or its Subsidiaries
which is nonpublic or confidential or proprietary in nature (including any
information the Borrower specifically designates as
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confidential), except as provided below, and to use such information only in
connection with their respective capacities under this Agreement and for the
purposes contemplated hereby. The Agent and the Banks shall be permitted to
disclose such information (i) to outside legal counsel, accountants and other
professional advisors who need to know such information in connection with the
administration and enforcement of this Agreement, subject to agreement of such
Persons to maintain the confidentiality of such information, (ii) to assignees
and participants and prospective assignees and participants as contemplated by
Section 10.11, subject to the agreement of such persons to maintain the
confidentiality thereof, (iii) to the extent requested by any bank regulatory
authority or, with notice to the Borrower, as otherwise required by applicable
Law or by any subpoena or similar legal process, or in connection with any
governmental investigation or proceeding arising out of the transactions
contemplated by this Agreement, (iv) if it becomes publicly available other than
as a result of a breach of this Agreement or becomes available from a source not
known to be subject to confidentiality restrictions, or (v) if the Borrower
shall have consented in writing to such disclosure.
10.12.2. Sharing Information With Affiliates of the Banks.
Each Loan Party acknowledges that from time to time
financial advisory, investment banking and other services may be offered or
provided to the Borrower or one or more of its Affiliates (in connection with
this Agreement or otherwise) by any Bank or by one or more Subsidiaries or
Affiliates of such Bank and each of the Loan Parties hereby authorizes each Bank
to share any information delivered to such Bank by such Loan Party and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Bank to enter into this Agreement, to any such Subsidiary or Affiliate of
such Bank in connection with offering or providing such services, it being
understood that any such Subsidiary or Affiliate of any Bank receiving such
information shall be bound by the provisions of Section 10.12.1 as if it were a
Bank hereunder. Such Authorization shall survive the repayment of the Loans and
other Obligations and the termination of the Commitments.
10.13 Counterparts.
This Agreement may be executed by different parties hereto on any
number of separate counterparts, each of which, when so executed and delivered,
shall be an original, and all such counterparts shall together constitute one
and the same instrument.
10.14 Agent's or Bank's Consent.
Whenever the Agent's or any Bank's consent is required to be obtained
under this Agreement or any of the other Loan Documents as a condition to any
action, inaction, condition or event, the Agent and each Bank shall be
authorized to give or withhold such consent in its sole and absolute discretion
exercised in good faith.
10.15 Exceptions.
The representations, warranties and covenants contained herein shall
be independent of each other, and no exception to any representation, warranty
or covenant shall be
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deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided or clearly obvious, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
10.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH LOAN
PARTY AT THE ADDRESSES PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH LOAN PARTY WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE. EACH LOAN PARTY, THE AGENT AND THE BANKS HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE
FULL EXTENT PERMITTED BY LAW.
10.17 Tax Withholding Clause.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
(and, upon the written request of the Agent, each other Bank or assignee or
participant of a Bank) agrees that it will deliver to each of the Borrower and
the Agent two (2) duly completed appropriate valid Withholding Certificates (as
defined under (S) 1.1441-1(c)(16) of the Income Tax Regulations (the
"Regulations")) certifying its status (i.e. U.S. or foreign person) and, if
appropriate, making a claim of reduced, or exemption from, U.S. withholding tax
on the basis of an income tax treaty or an exemption provided by the Internal
Revenue Code. The term "Withholding Certificate" means a Form W-9; a Form
W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and
certifications as required under (S) 1.1441-1(e)(2) and/or (3) of the
Regulations; a statement described in (S) 1.871-14(c)(2)(v) of the Regulations;
or any other certificates under the Internal Revenue Code or Regulations that
certify or establish the status of a payee or beneficial owner as a U.S. or
foreign person. Each Bank, assignee or participant required to deliver to the
Borrower and the Agent a Withholding Certificate pursuant to the preceding
sentence shall deliver such valid Withholding Certificate as follows: (A) each
Bank which is a party hereto on the Closing Date shall deliver such valid
Withholding Certificate at least five (5) Business Days prior to the first date
on which any interest or fees are payable by the Borrower hereunder for the
account of such Bank; (B) each assignee or participant shall deliver such valid
Withholding Certificate at least five (5) Business Days before the effective
date of such assignment or participation (unless the Agent in its sole
discretion shall permit such assignee or participant to deliver such valid
Withholding Certificate less than five (5) Business Days before such date in
which case it shall
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be due on the date specified by the Agent). Each Bank, assignee or participant
which so delivers a valid Withholding Certificate further undertakes to deliver
to each of the Borrower and the Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the date that such
Withholding Certificate expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent Withholding Certificate so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Borrower or the Agent. Notwithstanding the
submission of a Withholding Certificate claiming a reduced rate of or exemption
from U.S. withholding tax, the Agent shall be entitled to withhold United States
federal income taxes at the full 30% withholding rate if in its reasonable
judgment it is required to do so under the due diligence requirements imposed
upon a withholding agent under (S) 1.1441-7(b) of the Regulations. Further, the
Agent is indemnified by the applicable Bank under (S) 1.1461-1(e) of the
Regulations against any claims and demands of any Bank or assignee or
participant of a Bank for the amount of any tax it deducts and withholds in
accordance with regulations under (S) 1441 of the Internal Revenue Code.
10.18 Joinder of Guarantors.
Any Subsidiary of the Borrower which is required to join this
Agreement as a Guarantor pursuant to the terms hereof shall execute and deliver
to the Agent (i) a Guarantor Joinder in substantially the form attached hereto
as Exhibit 1.1(G)(1) pursuant to which it shall join as a Guarantor each of the
documents to which the Guarantors are parties; (ii) a Guaranty Agreement in
substantially the form attached hereto as Exhibit 1.1(G)(2); and (iii) documents
in the forms described in Section 6.1 [First Loans] modified as appropriate to
relate to such Subsidiary. Any Subsidiary which is required to join this
Agreement as a Guarantor pursuant to the terms hereof shall deliver such
Guarantor Joinder, Guaranty Agreement and related documents to the Agent within
fifteen (15) Business Days after, as the case may be, (i) the date of the
Permitted Acquisition pursuant to which it was acquired or (ii) the date of the
filing of such Subsidiary's articles of incorporation if the Subsidiary is a
corporation, the date of the filing of its certificate of limited partnership if
it is a limited partnership or the date of its organization if it is an entity
other than a limited partnership or corporation.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: Respironics, Inc., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics Novametrix, Inc., a
Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: RIC Investments, Inc., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics International, Inc.,
a Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Swiftmed Corp., a Georgia corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics Georgia, Inc., a Georgia
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics Colorado, Inc., a
Colorado corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Childrens Medical Ventures, Inc., a
Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: NTC Technology, Inc., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics International Global
Enterprises, Inc., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics California, Inc., a
California corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics HealthScan, Inc., a New
Jersey corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics Deutschland GmbH and Co.
KG, a Federal Republic of Germany
limited partnership
By: Respironics
Verwaltungsgesellschaft mbH, a
Federal Republic of Germany
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics (HK) Ltd., a Hong Kong
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Respironics France S.A.R.L., a French
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: NTC Management, Inc., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Novametrix International Limited, a
Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Novametrix Acquisition Corp., a
Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Fiberoptic Medical Products, Inc., a
Delaware corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
ATTEST: Wallingford Sales Corp., a Delaware
corporation
By:_______________________________ By:__________________________________
Title:____________________________ Title:_______________________________
PNC Bank, National Association,
individually as a Bank and as Agent
By:__________________________________
Title:_______________________________
Citizens Bank of Pennsylvania,
individually as a Bank and as
Documentation Agent
By:__________________________________
Title:_______________________________
Fleet National Bank, individually as
a Bank and as Documentation Agent
By:__________________________________
Title:_______________________________
Fifth Third Bank
By:__________________________________
Title:_______________________________
National City Bank of Pennsylvania
By:__________________________________
Title:_______________________________
Provident Bank
By:__________________________________
Title:_______________________________
