FIVE-YEAR REVOLVING CREDIT AGREEMENT dated as of November 20, 2001 among CARPENTER TECHNOLOGY CORPORATION, as a Borrower and as Guarantor, and CERTECH INTERNATIONAL LIMITED, CARPENTER TECHNOLOGY (EUROPE) S.A., CARPENTER POWDER PRODUCTS AB, and...
FIVE-YEAR
REVOLVING
CREDIT AGREEMENT
dated as of November 20, 2001
among
XXXXXXXXX TECHNOLOGY CORPORATION,
as a Borrower and as Guarantor,
and
CERTECH INTERNATIONAL LIMITED,
XXXXXXXXX TECHNOLOGY (EUROPE) S.A.,
CARPENTER POWDER PRODUCTS AB,
and
XXXXXXXXX TECHNOLOGY (UK) LIMITED,
as Borrowers,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
FIRST UNION NATIONAL BANK,
as Administrative Agent, Issuing Lender and Swingline Lender,
and
JPMORGAN CHASE BANK,
as Syndication Agent
TABLE OF CONTENTS |
FIVE-YEAR REVOLVING
CREDIT AGREEMENT
This Five-Year Revolving Credit Agreement is dated as of November 20, 2001 and is among XXXXXXXXX TECHNOLOGY CORPORATION, a Delaware corporation ("Xxxxxxxxx"), XXXXXXXXX TECHNOLOGY (UK) LIMITED, a company organized and existing under the laws of England and Wales ("Carpenter UK"), CERTECH INTERNATIONAL LIMITED, a company organized and existing under the laws of England and Wales ("Certech"), XXXXXXXXX POWDER PRODUCTS AB, a company organized and existing under the laws of Sweden ("Xxxxxxxxx Powder"), and XXXXXXXXX TECHNOLOGY (EUROPE) S.A., a company organized and existing under the laws of Belgium ("Xxxxxxxxx Belgium"), the banks and other financial institutions from time to time party hereto (the "Lenders"), and FIRST UNION NATIONAL BANK, as Administrative Agent, Issuing Lender and Swingline Lender.
The Borrowers have requested the Lenders to provide a revolving credit facility to the Borrowers in the aggregate principal amount of $125,000,000 for the purposes hereinafter set forth. The Lenders are willing to make the requested credit facility available to the Borrowers on the terms and conditions set forth herein. Accordingly, in consideration of the mutual agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
- the rate per annum equal to the rate determined by the Administrative Agent to be the
offered rate that appears on the page of the Telerate screen (or any successor thereto)
that displays the average British Bankers Association Interest Settlement Rate for
deposits in the relevant currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period; or
- if the rate referenced in clause (i) above does not appear on such page or
service or such page or service shall cease to be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the offered rate that appears on
such other page or service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period; or
- if the rates referenced in the preceding clauses (i) and (ii) are not
available, the rate per annum determined by the Administrative Agent as the rate of
interest (rounded upwards to the next 1/16th of 1%) at which deposits in the relevant
currency for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurocurrency Loan being made, continued or converted by First
Union National Bank and with a term equivalent to such Interest Period would be offered by
First Union National Bank's London branch to major banks in the offshore market for the
relevant currency at their request at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period.
- when used in Section 2.06 with respect to any action taken by or with
respect to any Issuing Lender, or to the issuance of, drawing under, or reimbursement
obligation arising in respect of, a Letter of Credit denominated in Dollars or a notice by
Xxxxxxxxx with respect to any such issuance, drawing or reimbursement obligation, the term
"Business Day" shall not include any day on which commercial banks are
authorized or required to close, under the laws of, or in fact closed in, the jurisdiction
where such Issuing Lender's Applicable Lending Office is located;
- if such day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or the Interest Period for, a Eurodollar Loan, or a notice by Xxxxxxxxx with
respect to any such borrowing, payment, prepayment or Interest Period, such day shall also
be a day on which commercial banks are open for international business (including dealings
in Dollar deposits) in London;
- if such day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or the Interest Period for, an Alternative Currency Loan, or to the issuance
of, drawing under, or reimbursement of obligations in respect of a Letter of Credit,
denominated in an Available Alternative Currency other than the Euro, or a notice by
Xxxxxxxxx with respect to any such borrowing, payment, prepayment or Interest Period or
issuance, drawing under or reimbursement obligation, such day shall also be a day on which
commercial banks are open for international business (including dealings in deposits on
such Alternative Currency) in both London and in the Principal Financial Center for such
Available Foreign Currency; and
- if such day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or the Interest Period for, an Alternative Currency Loan, or to the issuance
of, drawing under, or reimbursement of obligations in respect of a Letter of Credit,
denominated in the Euro, or a notice by Xxxxxxxxx with respect to any such borrowing,
payment, prepayment or Interest Period or issuance, drawing under or reimbursement
obligation, such day shall also be a day on which the Trans-European Automated Real-Time
Gross Settlement Expense Transfer payment system is operating.
- in respect of any Eurocurrency Borrowing or Group of outstanding Eurocurrency
Loans, (A) the date falling two Business Days prior to the date of such Borrowing,
(B) the date falling two Business Days prior to the last day of the current Interest
Period for such Group of Loans, (C) any date on which such Group of Loans is
automatically converted to Loans in Dollars pursuant to the terms of this Agreement and
(D) any other day specified by the Administrative Agent from time to time; and
- in respect of any Letter of Credit denominated in a currency other than Dollars,
(A) the date of issuance of such Letter of Credit, (B) the first Business Day of
each calendar month during any period that such Letter of Credit remains outstanding,
(C) any date in which Xxxxxxxxx'x obligation to repay LC Disbursements in respect of
such Letter of Credit is automatically converted into Dollars pursuant to the terms of
this Agreement and (D) any other day specified by the Administrative Agent from time
to time.
- securities issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the full
faith and credit of the United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition;
- Dollar-denominated certificates of deposit of (A) any Lender, (B) any United States
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (C) any bank whose (or whose parent company's) short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is at least
P-1 or the equivalent thereof (any such bank being an "Approved Lender"),
in each case with maturities of not more than 270 days from the date of acquisition;
- commercial paper and variable or fixed rate notes issued by any Approved Lender (or by
the parent company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation not an Affiliate of Xxxxxxxxx rated A-1 (or the equivalent thereof)
or better by S&P or P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition;
- repurchase agreements with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of America in which
Xxxxxxxxx or one or more of its Subsidiaries shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of purchase thereof,
a fair market value of at least 100% of the amount of the repurchase obligations; and
- Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing clauses (i) through (iv).
- any "person" or "group" (within the meaning of Section
13(d) and 14(d) of the Exchange Act) has become the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that any such Person has
the right to acquire, whether such right is exercisable immediately or only after the
passage of time), by way of merger, consolidation or otherwise, of 25% or more of the
Equity Interests of such Person on a fully-diluted basis after giving effect to the
conversion and exercise of all outstanding Equity Equivalents (whether or not such Equity
Equivalents are then currently convertible or exercisable); or
- during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease to be composed of
individuals (A) who were members of that board or equivalent governing body on the
first day of such period, (B) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (ii)(A)
above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body or (C) whose election or nomination to that board
or other equivalent governing body was approved by individuals referred to in clauses (ii)(A)
and (B) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
- with respect to Dollar-Denominated Loans, the aggregate outstanding principal
amount thereof after giving effect to any Borrowings, conversions, continuations and
prepayments or repayments of such Loans occurring on such date;
- with respect to Alternative Currency Loans, the Dollar Equivalent of the aggregate
outstanding principal amount thereof after giving effect to any Borrowings, continuations
and prepayments or repayments of such Loans occurring on such date;
- with respect to LC Obligations in respect of Letters of Credit denominated in Dollars,
the aggregate amount of such LC Obligations after giving effect to any changes in the
aggregate amount of such LC Obligations as of such date; and
- with respect to LC Obligations in respect of Letters of Credit denominated in an Alterative Currency on any date, the Dollar Equivalent of the aggregate amount of such LC Obligations after giving effect to any changes in the aggregate amount of such LC Obligations on such date.
- with respect to each Eurocurrency Loan, a period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date specified in the
applicable Notice of Extension/Conversion and ending one, two, three or six months and, if
available, one week, thereafter, as the Borrower may elect in the applicable notice; provided
that:
- any Interest Period (except an Interest Period determined pursuant to clause (i)(C)
below) which would otherwise end on a day which is not a Business Day for the relevant
currency shall be extended to the next succeeding Business Day for such currency unless such
Business Day falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day for such currency;
- any Interest Period which begins on the last Business Day for the relevant currency in a
calendar month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (C)
below, end on the last Business Day for the relevant currency of a calendar month;
- any Interest Period which would otherwise end after the Maturity Date shall end on the
Maturity Date;
- with respect to each Swingline Loan, the period commencing on the date of borrowing
specified in the applicable Swingline Loan Request and ending such number of days
thereafter (but no more than seven days) as the Borrower may elect in the applicable
Swingline Loan Request; provided that
- any Interest Period (except an Interest Period determined pursuant to clause (ii)(B)
below) which would otherwise end on a day which is not a Business Day for Eurodollar Loans
shall be extended to the next such Business Day; and
- any Interest Period which would otherwise end after the Maturity Date shall end on the
Maturity Date; and
- with respect to each Competitive Bid Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing and ending such number of days
thereafter (but not less than seven or greater than 90) as Xxxxxxxxx may elect in
accordance with Section 2.03; provided that:
- any Interest Period (except an Interest Period determined pursuant to clause (iv)(B)
below) which would otherwise end on a day which is not a Business Day for the relevant
currency shall be extended to the next succeeding Business Day for such currency; and
- any Interest Period which would otherwise end after the Maturity Date for the relevant currency shall end on such Maturity Date.
- all principal of and interest (including, without limitation, any interest
which accrues after the commencement of any Bankruptcy Event, whether or not allowed or
allowable as a claim under any applicable Debtor Relief Law) on any Loan or LC Obligation
under, or any Note issued pursuant to, this Agreement or any other Loan Document;
- all fees, expenses, indemnification obligations, foreign currency exchange obligations
and other amounts of whatever nature now or hereafter payable by the Borrowers (including,
without limitation, any amounts which accrue after the commencement of any Bankruptcy
Event, whether or not allowed or allowable as a claim under any applicable Debtor Relief
Law) pursuant to this Agreement or any other Loan Document;
- all expenses of the Agents as to which one or more of the Agents have a right to
reimbursement under Section 11.04 of this Agreement;
- all Indemnified Liabilities and other amounts paid by any Indemnitee as to which such
Indemnitee has the right to payment or reimbursement under Section 11.05 of this
Agreement or under any other similar provision of any other Loan Document; and
- in the case of Xxxxxxxxx pursuant to the provisions of Article X, all amounts now or hereafter payable by Xxxxxxxxx and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event with respect to any Borrower, whether or not allowed or allowable as a claim under any applicable Debtor Relief Law) on the part of Xxxxxxxxx pursuant to the provisions of Article X;
"Absolute Rate Auction" means a solicitation of Competitive Bids setting forth Competitive Bid Absolute Rates pursuant to Section 2.03 for Competitive Bid Loans in Dollars.
"Additional Letter of Credit" means any letter of credit issued hereunder by an Issuing Lender on or after the Closing Date.
"Administrative Agent" means First Union National Bank, in its capacity as administrative agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.
"Administrative Agent's Office" means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 10.02, or such other address and account as the Administrative Agent may from time to time notify to Xxxxxxxxx and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power (i) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners or (ii) to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
"Agent" means the Administrative Agent or the Syndication Agent and any successors and assigns in such capacity, and "Agents" means each of them together.
"Agent-Related Persons" means any Agent, together with its Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Person and its Affiliates.
"Agreed Alternative Currency" means at any time any of the respective lawful currencies of the United Kingdom, Canada, Mexico, Sweden and the European Economic Union, and such other currencies as Xxxxxxxxx and the Administrative Agent may mutually agree from time to time, so long as at such time (i) such currency is dealt in the London interbank deposit market or, in the case of Euros, the European interbank deposit market, (ii) such currency is fully transferable and convertible into Dollars in the London foreign exchange market or, in the case of Euros, the European foreign exchange market and (iii) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making or maintaining any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.
"Agreement" means this Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning set forth in Section 2.16.
"Alternative Currency Loan" means a Syndicated Loan or a Swingline Loan, as the case may be, that is made in an Available Alternative Currency in accordance with the applicable Notice of Borrowing.
"Applicable Interbank Offered Rate" for any Eurocurrency Loan for the Interest Period applicable thereto means:
"Applicable Lending Office" means (i) with respect to any Lender and for each Class and Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender) designated for such Class and Type of Loan on Schedule 10.02 or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Class and Type are to be made and maintained; provided, that any Lender may from time to time by notice to the Borrower and the Administrative Agent designate separate Eurocurrency Lending Offices for loans in different currencies, in which case all references herein to the Applicable Lending Office of such Lender shall, with respect to its Eurocurrency Loans, be deemed to refer to any or all of such offices, as the context may require, and (ii) with respect to any Issuing Lender and for each Letter of Credit, the "Lending Office" of such Issuing Lender (or of an Affiliate of such Issuing Lender) designated on Schedule 10.02 or such other office of such Issuing Lender (or of an Affiliate of such Issuing Lender) as such Lender may from time to time specify to the Administrative Agent and Xxxxxxxxx as the office by which its Letters of Credit are to be issued and maintained.
"Applicable Margin" means, for purposes of calculating (i) the applicable interest rate for any day for any Base Rate Loans or Eurocurrency Loans, (ii) the applicable rate for the Facility Fee for any day for purposes of Section 2.12(a) or (iii) the applicable rate for the Letter of Credit Fee for any day for purposes of Section 2.12(b), the appropriate applicable percentage set forth below corresponding to then current Xxxxxxxxx'x Ratings:
Xxxxxxxxx'x Ratings (S&P/Moody's) |
Applicable Percentage for Facility Fees |
Applicable
|
Applicable |
|
| Category A: | A-/A3 or higher | .125% |
0% |
.375% |
| Category B: | BBB+/Baa1 | .150% |
0% |
.475% |
| Category C: | BBB/Baa2 | .175% |
0% |
.575% |
| Category D: | BBB-/Baa3 | .200% |
0% |
.675% |
| Category E: | lower than BBB-/Baa3 |
.250% |
0% |
.875% |
Initially, the Applicable Margins for Base Rate Loans and Eurocurrency Loans and the applicable rate for Facility Fees and Letter of Credit Fees shall be based upon Xxxxxxxxx'x Ratings specified in the certificate delivered pursuant to Section 4.01(d)(ii) of this Agreement. Thereafter, each change in the Applicable Margins for Base Rate Loans and Eurocurrency Loans and the applicable rate for Facility Fees and Letter of Credit Fees shall be effective, in the case of an upgrade in ratings, during the period commencing on the date of delivery by Xxxxxxxxx to the Administrative Agent of notice thereof pursuant to Section 6.01(e)(ii)(G) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade in ratings, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change. In the event a rating differential of one level exists, Xxxxxxxxx'x Ratings shall be deemed to be the higher of the two ratings. In the event a rating of more than one level exists, Xxxxxxxxx'x Ratings shall be deemed to be one level above the lower of the two ratings.
"Approved Fund" means (i) with respect to any Lender, an entity (whether a corporation, partnership, limited liability company, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is managed by such Lender or an Affiliate of such Lender, (ii) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor and (iii) any special purpose funding vehicle described in Section 11.06(h).
"Assignment and Acceptance" means an Assignment and Acceptance, substantially in the form of Exhibit C hereto, under which an interest of a Lender hereunder is transferred to an Eligible Assignee pursuant to Section 11.06(b).
"Attorney Costs" means all reasonable fees and disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, at any date (i) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (ii) in respect of any Synthetic Lease Obligation of any Person, the capitalized or principal amount of the remaining payments under the relevant lease or other agreement that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement were accounted for as a Capital Lease and (iii) in respect of any Sale/Leaseback Transaction, the lesser of (A) the present value, discounted in accordance with GAAP at the debt rate implicit in the related lease, of the obligations of the lessee for rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended) and (B) the fair market value of the assets subject to such transaction.
"Available Alternative Currency" means at any time (i) in the case of Committed Loans, any Agreed Alternative Currency and any other currency (other than Dollars) that Xxxxxxxxx requests, by notice to the Lenders through the Administrative Agent, be included as an additional Alternative Currency for purposes of this Agreement, in each case so long as at such time (A) such currency is dealt in the London interbank deposit market or the European interbank deposit market, (B) such currency is freely transferable and convertible into Dollars in the London foreign exchange market or the European foreign exchange market, as applicable, (C) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay interest thereon, unless such authorization has been obtained and (D) no Lender shall have objected to the inclusion of such currency as an Available Alternative Currency by notice to Xxxxxxxxx and the Administrative Agent given within five Business Days of such Lender's receipt of the notice referred to above and (ii) in the case of Letters of Credit issued or to be issued by any Issuing Lender in any currency other than Dollars, any Agreed Alternative Currency or other currency approved by the Administrative Agent and such Issuing Lender.
"Bankruptcy Event" means, with respect to any Person, (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any Debtor Relief Law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or for any substantial part of its property or ordering the winding up or liquidation of its affairs, (ii) an involuntary case under any applicable Debtor Relief Law now or hereafter in effect is commenced against such Person and such petition remains unstayed and in effect for a period of 60 consecutive days, (iii) such Person shall commence a voluntary case under any applicable Debtor Relief Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or any substantial part of its property or make any general assignment for the benefit of creditors or (iv) such Person shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means a Committed Loan (Syndicated or Swingline) which bears interest at the Base Rate pursuant to the applicable Notice of Committed Borrowing, Swingline Loan Request, Notice of Extension/Conversion or the provisions of Article III.
"Board" means the Board of Governors of the Federal Reserve System of the United States of America.
"Borrower" means, as applicable, (i) Carpenter, (ii) Certech, (iii) Xxxxxxxxx Belgium, (iv) Carpenter UK, (v) Xxxxxxxxx Powder and (vi) each other material Subsidiary of Carpenter that is acceptable to the Administrative Agent and that becomes a party to this Agreement as a Borrower, together with their respective successors, and "Borrowers" shall mean each such Borrower collectively.
"Borrowing" has the meaning set forth in Section 1.04.
"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks are authorized or required to close, under the laws of, or are in fact closed in, the state where the Administrative Agent's Office is located, except that:
"Calculation Date" means:
"Capital Lease" of any Person means any lease of property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.
"Capital Lease Obligations" means, with respect to any Person, all obligations of such Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.
"Carpenter" is defined in the preamble.
"Xxxxxxxxx Powder" is defined in the preamble.
"Carpenter UK" is defined in the preamble.
"Xxxxxxxxx Sweden" is defined in the preamble.
"Xxxxxxxxx'x 2001 Form 10-K" means the Xxxxxxxxx'x annual report on Form 10-K for the fiscal year ended June 30, 2001, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.
"Xxxxxxxxx'x Latest Form 10-Q" means the Xxxxxxxxx'x quarterly report on Form 10-Q for the quarter ended September 30, 2001, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.
"Xxxxxxxxx'x Ratings" means the ratings from Moody's and S&P with respect to the senior, unsecured, long-term indebtedness for borrowed money of Xxxxxxxxx that is not guaranteed by any other Person or subject to any other credit enhancement.
"Cash Collateralize" means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lenders and the Lenders, as collateral for the LC Obligations, cash or deposit balances in the applicable currency pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lenders (which documents are hereby consented to by the Lenders). Derivates of such term have a corresponding meaning.
"Cash Equivalents" means:
"Certech" is defined in the preamble.
"Change of Control" means, with respect to any Person, an event or series of events by which:
"Class" has the meaning set forth in Section 1.04.
"Closing Date" means the date on or after the Effective Date when the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.
"Commitment" means (i) with respect to each Lender, its Revolving Commitment, (ii) with respect to each Issuing Lender, its LC Commitment and (iii) with respect to the Swingline Lender, the Swingline Commitment, in each case in the respective amount set forth on Schedule 1.01A or in the applicable Assignment and Acceptance as its Commitment of the applicable Class, as any such amount may be increased or decreased from time to time pursuant to this Agreement.
"Committed Loan" means a Syndicated Loan or a Swingline Loan.
"Competitive Bid" has the meaning set forth in Section 2.03(d).
"Competitive Bid Absolute Rate" has the meaning set forth in Section 2.03(d)(i)(C).
"Competitive Bid Loan" means a Competitive Bid Loan made by a Lender pursuant to an Absolute Rate Auction.
"Competitive Bid Note" means a promissory note, substantially in the form of Exhibit B-2 hereto, evidencing the obligation of Xxxxxxxxx to repay outstanding Competitive Bid Loans, as such note may be amended, modified, supplemented, extended, renewed or replaced from time to time.
"Competitive Bid Loan Sublimit" means an amount equal to the lesser of the aggregate Revolving Commitments and $75,000,000. The Competitive Bid Loan Sublimit is a part of, and not in addition to, the aggregate Revolving Commitments.
"Competitive Bid Quote Request" has the meaning set forth in Section 2.03(b).
"Consolidated Capitalization" means the sum of, without duplication, (i) Consolidated Indebtedness and (ii) the consolidated shareowner's equity (determined in accordance with GAAP) of the common and preferred stockholders of Xxxxxxxxx recorded on Xxxxxxxxx'x consolidated financial statements.
"Consolidated EBITDA" means for any period the sum of (i) Consolidated Net Income for such period plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) provisions for Federal, state, local and foreign income, value added and similar taxes, and (C) depreciation, amortization (including, without limitation, amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expense excluding any such non-cash expense to the extent that it represents amortization of a prepaid cash expense that was paid in a prior period or an accrual of, or a reserve for, cash charges or expenses in any future period.
"Consolidated Indebtedness" means at any date the Indebtedness of Xxxxxxxxx and its Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Interest Expense" means, for any period, the total interest expense, including the interest component of all payments under Capital Lease Obligations and the implied interest component of Synthetic Lease Obligations (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptances that are typically treated as interest expense in accordance with GAAP, of Xxxxxxxxx and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP and as determined on a consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income (or net loss) after taxes of Xxxxxxxxx and its Consolidated Subsidiaries for such period, as determined in accordance with GAAP; provided that there shall be excluded from the calculation of Consolidated Net Income non-operating, non-recurring gains and losses and extraordinary gains and losses of Xxxxxxxxx and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means with respect to any Person at any date any Subsidiary of such Person or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated stockholders' equity of Xxxxxxxxx and its Consolidated Subsidiaries, less intangible assets and goodwill of Xxxxxxxxx and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any instrument, including a security, issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Credit Exposure" has the meaning set forth in the definition of "Required Lenders" in this Section 1.01.
"Credit Extension" means a Borrowing, a Competitive Bid Loan or the issuance, renewal or extension of a Letter of Credit or the purchase by a Lender of a Participation Interest.
"Creditor" means each Lender, each Issuing Lender, each Agent and each Indemnitee and their respective successors and assigns, and "Creditors" means any two or more of such Creditors.
"Debt to Capital Ratio" means the ratio of Consolidated Indebtedness to Consolidated Capitalization.
"Debtor Relief Laws" means the Bankruptcy Reform Act of 1978, as amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States of America or other applicable jurisdiction from time to time affecting the rights of creditors generally.
"Default" means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
"Defaulting Lender" means at any time any Lender that, within one Business Day of when due, (i) has failed to make a Loan or purchase a Participation Interest in a Swingline Loan or LC Obligation required pursuant to the terms of this Agreement, (ii) other than as set forth in clause (i) above, has failed to pay to any Agent or any Lender an amount owed by such Lender pursuant to the terms of this Agreement or any other Loan Document unless such amount is subject to a good faith dispute or (iii) has been deemed insolvent or has become subject to a Bankruptcy Event.
"Derivatives Agreement" means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement.
"Derivatives Obligations" of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event with respect to such Person, whether or not allowed or allowable as a claim under any applicable Debtor Relief Laws) of such Person in respect of any Derivatives Agreement, excluding any amounts which such Person is entitled to set-off against its obligations under applicable law.
"Disposition" or "Dispose" means the sale, transfer, license or other disposition (including any Sale/Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes, accounts receivable or payment intangible or any rights or claims associated therewith.
"Disqualified Stock" of any Person means (i) any
Equity Interest of such Person which by its terms (or by the terms of any security for
which it is convertible or for which it is exchangeable or exercisable), or upon the
happening of any event or otherwise (including an event which would constitute a Change of
Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase
requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or
exchangeable for Indebtedness or Disqualified Stock or (C) is redeemable or subject to any
repurchase requirement arising at the option of the holder thereof, in whole or in part,
on or prior to the first anniversary of the Maturity Date and (ii) if such Person is a
Subsidiary of Xxxxxxxxx, any Preferred Stock of such Person.
"Dollar Amount" means at any time:
"Dollar-Denominated Loan" means any Loan that is made in Dollars in
accordance with the applicable Notice of Borrowing.
"Dollar Equivalent" means, on any date of determination, the equivalent in Dollars of an amount denominated in a currency other than Dollars determined by the Administrative Agent pursuant to Section 1.05 using the applicable Exchange Rate.
"Dollars" and the sign "$" means lawful money of the United States of America.
"EEMU Legislation" means the legislative measures of the European Economic and Monetary Union for the introduction of, changeover to, or operation of, the Euro in one or more member states.
"Effective Date" means the date this Agreement becomes effective in accordance with Section 11.18.
"Eligible Assignee" means (i) any Lender, (ii) any Affiliate of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) in the case of any assignment of a Revolving Commitment, the Issuing Lenders and the Swingline Lender and (C) unless (x) such Person is taking delivery of an assignment in connection with physical settlement of a credit derivatives transaction or (y) an Event of Default has occurred and is continuing at the time any assignment is effected pursuant to Section 11.06(b), Xxxxxxxxx (each such approval not to be unreasonably withheld or delayed and any such approval required of Xxxxxxxxx to be deemed given by Xxxxxxxxx if no objection from Xxxxxxxxx is received by the assigning Lender and the Administrative Agent within two Business Days after notice of such proposed assignment has been provided by the assigning Lender to Xxxxxxxxx); provided, however, that Xxxxxxxxx and its Affiliates shall not qualify as Eligible Assignees.
"Environmental Laws" means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing or successor law, and any amendment, rule, regulation, order or directive issued thereunder.
"Equity Equivalents" means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
"Equity Interests" means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with Xxxxxxxxx within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by Xxxxxxxxx or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by Xxxxxxxxx or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (iv) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Xxxxxxxxx or any ERISA Affiliate.
"Euro" means the lawful currency of the European Economic and Monetary Union as constituted by the Treaty on European and Monetary Union and as referred to in the EEMU Legislation.
"Eurocurrency Loan" means a Syndicated Loan which is either a Eurodollar Loan or an Alternative Currency Loan.
"Eurocurrency Rate" means, for each Interest Period for each Eurocurrency Loan comprising the same Group, (i) with respect to any Eurocurrency Loans not denominated in Dollars or Euros, the Applicable Interbank Offered Rate for the applicable currency for such Interest Period, (ii) with respect to any Eurocurrency Loans denominated in Dollars, the quotient obtained (rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing (A) the Applicable Interbank Offered Rate for Dollars for such Interest Period by (B) 1.00 minus the Eurocurrency Reserve Percentage and (iii) with respect to Eurocurrency Loans denominated in Euros, the Applicable Interbank Offered Rate for Euros for such Interest Period.
"Eurocurrency Reserve Percentage" means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion Dollars in respect of "Eurocurrency liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to United States residents), whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurocurrency Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for prorations, exceptions or offsets that may be available from time to time to a Lender. The Eurocurrency Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Percentage.
"Eurodollar Loan" means a Syndicated Loan denominated in Dollars which bears interest at a Eurocurrency Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Extension/Conversion.
"Event of Default" has the meaning set forth in Section 8.01.
"Evergreen Letter of Credit" has the meaning set forth in Section 2.06(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.
"Exchange Rate" means on any day, with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars (or for purposes of any provision of this Agreement requiring or permitting the conversion of Loans denominated in a currency other than Dollars to Dollar-Denominated Loans or LC Obligations denominated in a currency other than Dollars to Dollars, the rate at which Dollars may be exchanged into such currency), which shall be the quoted spot rate of exchange of the Administrative Agent in the market where the Administrative Agent's foreign currency exchange operations in respect of such currency are then being conducted, prior to 4:00 P.M. local time in such market, on such date for the purchase of Dollars (or such other currency, as the case may be) for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any method it deems reasonably appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
"Existing Debt" has the meaning set forth in Section 7.01(a)(i).
"Existing Letters of Credit" means the letters of credit issued before the Closing Date and described by date of issuance, letter of credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 2.06 hereto, and "Existing Letter of Credit" means any one of them.
"Facility Fee" has the meaning set forth in Section 2.12(a).
"Failed Loan" has the meaning set forth in Section 2.04(e).
"Federal Funds Rate" means for any day the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to First Union National Bank on such day on such transactions as determined by the Administrative Agent.
"Foreign Subsidiary" means with respect to any Person any Subsidiary of such Person that is organized outside the United States and conducts substantially all of its business outside the United States.
"GAAP" means at any time generally accepted accounting principles as then in effect in the United States, applied on a basis consistent (except for changes with which Xxxxxxxxx'x independent public accountants have concurred) with the most recent audited consolidated financial statements of Xxxxxxxxx and its Consolidated Subsidiaries previously delivered to the Lenders.
"Governmental Authority" means any federal, state, local, provincial or foreign government, authority, agency, central bank, quasi-governmental or regulatory authority, court or other body or entity, and any arbitrator with authority to bind a party at law.
"Granting Lender" has the meaning set forth in Section 11.06(h).
"Group of Loans" means at any time a group of Loans consisting of (i) all Loans which are Base Rate Loans at such time or (ii) all Loans which are Eurocurrency Loans denominated in the same currency and having the same Interest Period at such time; provided that, if a Committed Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article III, such Loan shall be included in the same Group or Group of Loans from time to time as it would have been had it not been so converted or made.
"Guaranteed Obligations" has the meaning set forth in Section 10.01.
"Guaranty Obligation" means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guarantying, intended to guaranty, or having the economic effect of guarantying, any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or other obligation or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or purchase of such indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or (iv) to otherwise assure or hold harmless the owner of such Indebtedness or obligation against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.
"Indebtedness" of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, including, without limitation, obligations for borrowed money incurred by any Person in respect of any asset securitization transaction, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations, other than intercompany items, of such Person to pay the deferred purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (v) the Attributable Debt of such Person in respect of Capital Lease Obligations and Synthetic Lease Obligations (regardless of whether accounted for as indebtedness under GAAP), (vi) all obligations of such Person to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property, (vii) all non-contingent obligations (and, for purposes of Section 7.01 and Section 8.01(f), all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers' acceptance or similar instrument, (viii) all Guaranty Obligations of such Person, (ix) all Disqualified Stock of such Person and (x) the Indebtedness of any other Person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under applicable law or any agreement or instrument by virtue of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such person shall not be liable therefor.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitee" has the meaning set forth in Section 11.05.
"Interest Coverage Ratio" means for any period the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense for such period.
"Interest Payment Date" means (i) as to Base Rate Loans, the last day of each fiscal quarter of Xxxxxxxxx and the Maturity Date and (ii) as to Eurocurrency Loans, the last day of each applicable Interest Period and the Maturity Date, and, where the applicable Interest Period for a Eurocurrency Loan is greater than three months, also the date three months from the beginning of the Interest Period and each three months thereafter.
"Interest Period" means:
"Investment" in any Person means (i) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock, bonds, notes, debentures, time deposits or other securities of such other Person, (ii) any deposit with, or advance, loan or other extension of credit to or for the benefit of such Person (other than deposits made in connection with the purchase of equipment or inventory in the ordinary course of business) or (iii) any other capital contribution to or investment in such Person, including by way of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit of such Person or in the case of any Subsidiary of Xxxxxxxxx, any release, cancellation, compromise or forgiveness in whole or in part of any Indebtedness owing by such Subsidiary.
"Issuing Lender" means (i) First Union National Bank, in its capacity as issuer of Letters of Credit under Section 2.06(b), and its successor or successors in such capacity, (ii) each Lender listed in Schedule 2.06 hereto as the issuer of an Existing Letter of Credit and (iii) any other Lender which Xxxxxxxxx shall have designated as an "Issuing Lender" by notice to the Administrative Agent.
"Issuing Lender Fees" has the meaning set forth in Section 2.12(b)(iii).
"Judgment Currency" has the meaning set forth in Section 2.16(b).
"Law" means any international, foreign, Federal, state or local statute, treaty, rule, guideline, regulation, ordinance, code, or administrative or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
"LC Commitment" means the commitment of an Issuing Lender to issue Letters of Credit in an aggregate face amount at any one time outstanding (together with the amounts of any unreimbursed drawings thereon and all LC Commitments of other Issuing Lenders) of up to the LC Committed Amount.
"LC Committed Amount" has the meaning set forth in Section 2.06(b).
"LC Disbursement" means a payment or disbursement made by an Issuing Lender pursuant to a Letter of Credit.
"LC Documents" means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.
"LC Obligations" means at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all LC Disbursements not yet reimbursed by Xxxxxxxxx as provided in Section 2.06(h) to the applicable Issuing Lenders in respect of drawings under Letters of Credit, including any portion of any such obligation to which a Lender has become subrogated pursuant to Section 2.06(i).
"Lender" means each bank or other lending institution listed on Schedule 1.01A, each Eligible Assignee that becomes a Lender pursuant to Section 11.06(b) and their respective successors and shall include, as the context may require, each Issuing Lender and/or the Swingline Lender, in each case in such capacity.
"Letter of Credit" means an Existing Letter of Credit or an Additional Letter of Credit, and "Letters of Credit" means any combination of the foregoing.
"Letter of Credit Fee" has the meaning set forth in Section 2.12(b)(i).
"Letter of Credit Request" has the meaning set forth in Section 2.06(c).
"Lien" means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction), including the interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory notes; provided, however, such term does not mean the grant of a security interest created in connection with merchandise delivered to Xxxxxxxxx or any of its Subsidiaries on consignment until such time as any such merchandise is taken out of consignment and sold to, used and consumed by Xxxxxxxxx or any of its Subsidiaries in their manufacturing processes.
"Loan" means a Committed Loan or a Competitive Bid Loan, and "Loans" means Committed Loans or Competitive Bid Loans or both.
"Loan Documents" means this Agreement and the Notes, in each case as the same may be amended, restated, modified or supplemented from time to time.
"Material Adverse Effect" means (i) any material adverse effect upon the business, operations, business, properties, condition (financial or otherwise) or prospects of Xxxxxxxxx and its Consolidated Subsidiaries taken as a whole, (ii) a material impairment of the ability of Xxxxxxxxx to perform any of its obligations under any Loan Document to which it is a party or (iii) a material impairment of the rights and benefits of the Lenders under any Loan Document, which materially impairs the rights or benefits of the Lenders under the Loan Documents, taken as a whole.
"Maturity Date" means November 20, 2006 or, if any such day is not a Business Day for the relevant currency, the next preceding Business Day for such currency. Unless the context otherwise requires, references to the Maturity Date are to the Maturity Date determined by reference to Loans denominated in Dollars.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as Xxxxxxxxx and the Administrative Agent may select.
"Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Xxxxxxxxx or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding three calendar years, has made or been obligated to make contributions.
"Note" means a Revolving Note, a Competitive Bid Note or a Swingline Note and "Notes" means all of them, collectively.
"Notice of Borrowing" means a Notice of Syndicated Borrowing or a Notice of Competitive Bid Borrowing.
"Notice of Competitive Bid Borrowing" has the meaning set forth in Section 2.03(f).
"Notice of Extension/Conversion" has the meaning set forth in Section 2.08.
"Notice of Syndicated Borrowing" has the meaning set forth in Section 2.02(a).
"Obligations" means, without duplication:
together in each case with all renewals, modifications, consolidations or extensions thereof.
"Operating Lease" means, as applied to any Person, a lease (including a lease which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.
"Organization Documents" means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (ii) with respect to any limited liability company, the articles of formation and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time.
"Other Taxes" has the meaning set forth in Section 3.01.
"Participation Interest" means a Credit Extension by a Lender by way of a purchase of a participation interest in Letters of Credit or LC Obligations as provided in Section 2.06(a) or (e), in Swingline Loans as provided in Section 2.01(b)(vi) or in any Loans as provided in Section 2.14.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means an "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Xxxxxxxxx or any ERISA Affiliate or to which Xxxxxxxxx or any ERISA Affiliate contributes or has an obligation to contribute, in which in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.
"Permit" means any license, permit, franchise, right or privilege, certificate of authority or order, or any waiver of the foregoing, issued or issuable by any Governmental Authority.
"Permitted Lien" has the meaning set forth in Section 7.02.
"Person" means an individual, a corporation, a partnership, an association, a limited liability company, a trust or an unincorporated association or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means, as applied to the Equity Interests of a Person, Equity Interests of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Equity Interests of any other class of such Person.
"Prime Rate" means for any day the rate of interest publicly announced by First Union National Bank in Charlotte, North Carolina (or such other principal office of the Administrative Agent as communicated in writing to Xxxxxxxxx and the Lenders) from time to time as its Prime Rate for Dollars loaned in the United States. It is a rate set by First Union National Bank based upon a variety of factors, including First Union National Bank's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in the interest rate resulting from a change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.
"Principal Financial Center" means (i) in the case of each currency identified in Section 1.4(a)(i)(A) of the 1991 ISDA Definitions (as amended and supplemented by the 1998 Supplement to the 1991 ISDA Definitions and the 1998 ISDA Euro Definitions) published by the International Swaps and Derivates Association, Inc., the financial center identified in said Section opposite such currency and (ii) in the case of any other currency, the principal financial center of the country that issues such currency, as determined by the Administrative Agent.
"Purchase Money Indebtedness" means Indebtedness of Xxxxxxxxx or any Subsidiary incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of Xxxxxxxxx or such Subsidiary; provided that such Indebtedness is incurred within 90 days after such property is acquired or, in the case of improvements, constructed.
"Refunded Swingline Loan" has the meaning set forth in Section 2.01(b)(iii).
"Register" has the meaning set forth in Section 11.06(d).
"Regulation D, O, T, U or X" means Regulation D, O, T, U or X, respectively, of the Board as amended, or any successor regulation, in each case together with all interpretations of staff opinions issued in connection therewith.
"Replacement Date" has the meaning set forth in Section 2.11(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
"Required Lenders" means Revolving Lenders whose aggregate Credit Exposure (as hereinafter defined) constitutes more than 50% of the Credit Exposure of all Revolving Lenders at such time; provided, however, that if any Lender shall be a Defaulting Lender at such time then there shall be excluded from the determination of Required Lenders such Lender and the aggregate principal Dollar Amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term "Credit Exposure" as applied to each Lender shall mean (i) at any time prior to the termination of the Commitments, the Revolving Commitment Percentage of such Lender multiplied by the Revolving Committed Amount, and (ii) at any time after the termination of the Commitments, the sum of (A) the Dollar Amount of the outstanding Revolving Loans of such Lender plus (B) the Dollar Amount such Lender's Participation Interests in all LC Obligations and Swingline Loans.
"Reset Date" has the meaning set forth in Section 1.05.
"Responsible Officer" means the president, chief financial officer, treasurer or assistant treasurer of Xxxxxxxxx. Any document delivered hereunder that is signed by a Responsible Officer of Xxxxxxxxx shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of Xxxxxxxxx and such Responsible Officer shall be conclusively presumed to have acted on behalf of Xxxxxxxxx.
"Restricted Payment" means (i) any dividend or other distribution, direct or indirect, on account of any class of Equity Interests or Equity Equivalents of Xxxxxxxxx or any Subsidiary, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or Equity Equivalents of Xxxxxxxxx or any Subsidiary, now or hereafter outstanding or (iii) any payment made to retire, or to obtain the surrender of, any Equity Interests or Equity Equivalents of or now or hereafter outstanding.
"Revolving Borrowing" means a Syndicated Borrowing comprised of Revolving Loans and identified as such in the Notice of Borrowing with respect thereto.
"Revolving Commitment" means, with respect to any Lender, the commitment of such Lender, in an aggregate principal amount at any time outstanding of up to such Lender's Revolving Commitment Percentage of the Revolving Committed Amount, (i) to make Revolving Loans in accordance with the provisions of Section 2.01(a), (ii) to purchase Participation Interests in Swingline Loans in accordance with the provisions of Section 2.01(b) and (iii) to purchase Participation Interests in Letters of Credit in accordance with the provisions of Section 2.06(d).
"Revolving Committed Amount" means $125,000,000 or such lesser amount to which the Revolving Committed Amount may be reduced pursuant to Section 2.11.
"Revolving Commitment Percentage" means, for each Lender, the percentage identified as its Revolving Commitment Percentage on Schedule 1.01A hereto, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.06(b).
"Revolving Lender" means each Lender identified in the Schedule 1.01A as having a Revolving Commitment and each Eligible Assignee which acquires a Revolving Commitment or Revolving Loan pursuant to Section 11.06(b) and their respective successors.
"Revolving Loan" means a Committed Loan made under Section 2.01(a).
"Revolving Note" means a promissory note, substantially in the form of Exhibit B-1 hereto, evidencing the obligation of the Borrower to repay outstanding Revolving Loans, as such Note may be amended, modified, supplemented, extended, renewed or replaced from time to time.
"Revolving Outstandings" means at any date the Dollar Amount of the aggregate outstanding principal amount of all Revolving Loans and Swingline Loans plus the aggregate outstanding Dollar Amount of all LC Obligations.
"Sale/Leaseback Transaction" means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to Xxxxxxxxx or any of its Subsidiaries of any property, whether owned by Xxxxxxxxx or any of its Subsidiaries as of the Closing Date or later acquired, which has been or is to be sold or transferred by Xxxxxxxxx or any of its Subsidiaries to such Person or to any other Person from whom funds have been, or are to be, advanced by such Person on the security of such property.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., a New York corporation, and its successor or, absent any such successor, such nationally recognized statistical rating organization as Xxxxxxxxx and the Administrative Agent may select.
"Securities Act" means the Securities Act of 1933, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.
"SPC" has the meaning set forth in Section 11.06(h).
"Standby Letter of Credit" has the meaning set forth in Section 2.06(b).
"Subsidiary" means with respect to any Person any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, more than 50% of the total voting power of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or business entity other than a corporation, more than 50% of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have more than 50% ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated more than 50% of partnership, association or other business entity gains or losses or shall be or control the managing director, manager or a general partner of such partnership, association or other business entity.
"Swingline Commitment" means the agreement of the Swingline Lender to make Loans pursuant to Section 2.01(b).
"Swingline Committed Amount" means $25,000,000.
"Swingline Lender" means First Union National Bank, in its capacity as the Swingline Lender under Section 2.01(b), and its successor or successors in such capacity.
"Swingline Loan" means a Base Rate Loan made by the Swingline Lender in Dollars or any Available Alternative Currency pursuant to Section 2.01(b), and "Swingline Loans" means any two or more of such Base Rate Loans.
"Swingline Loan Request" has the meaning set forth in Section 2.02(b).
"Swingline Note" means a promissory note, substantially in the form of Exhibit B-3 hereto, evidencing the obligation of the Borrower to repay outstanding Swingline Loans, as such Note may be amended, modified, supplemented, extended, renewed or replaced from time to time.
"Swingline Termination Date" means the earlier of (i) November 20, 2006 (or, if such day is not a Business Day, the next preceding Business Day) or such earlier date upon which the Revolving Commitments shall have been terminated in their entirety in accordance with this Agreement and (ii) the date on which the Swingline Commitment is terminated in its entirety in accordance with the Agreement.
"Syndicated Loan" means a Committed Loan made by a Lender pursuant to Section 2.01(a); provided that if any such Loan or Loans (or portions thereof) are combined or subdivided pursuant to a Notice of Extension/Conversion, the term "Syndicated Loan" shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.
"Synthetic Lease Obligation" means the monetary obligation of a Person under (i) a so-called synthetic, off-balance sheet or tax retention lease or (ii) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such person (without regard to accounting treatment).
"Taxes" has the meaning set forth in Section 3.01.
"364-Day Facility" means the 364-Day Revolving Credit Agreement dated as of November 20, 2001 among the Borrowers, the lending institutions party thereto from time to time and First Union National Bank, as Administrative Agent, as amended, restated, supplemented or otherwise modified.
"Trade Letter of Credit" has the meaning set forth in Section 2.06(b).
"Type" has the meaning set forth in Section 1.04.
"UCP" has the meaning set forth in Section 2.06(n).
"Unfunded Pension Liability" means at any date the excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" means the United States of America, including the states and the District of Columbia, but excluding its territories and possessions.
"Wholly-Owned Subsidiary" means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors' qualifying shares) are at the time directly or indirectly owned by such Person.
Section 1.02 Computation of Time Periods and Other Definitional Provisions. For purposes of computation of periods of time hereunder, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding". All references to time herein shall be references to Eastern Standard time or Eastern Daylight time, as the case may be, unless specified otherwise. References in this Agreement to Articles, Sections, Schedules, Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or Exhibits of or to this Agreement unless otherwise specifically provided. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.
Section 1.04 Classes and Types of Borrowings. The term "Borrowing" denotes the aggregation of Loans of one or more Lenders to be made to the Borrower pursuant to Article II on the same date, all of which Loans are of the same Class and Type (subject to Article III) and, except in the case of Base Rate Loans, have the same initial Interest Period. Loans hereunder are distinguished by "Class" and "Type". The "Class" of a Loan (or of a Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers to whether such Loan is a Committed Loan (Syndicated or Swingline) or a Competitive Bid Loan. The "Type" of a Loan refers in the case of Committed Loans, to whether such Loan is a Base Rate Loan or a Eurocurrency Loan (Eurodollar or Alternative Currency). Identification of a Loan (or a Borrowing) by both Class and Type (e.g., a "Committed Eurocurrency Loan") indicates that such Loan is a Loan of both such Class and such Type (e.g., both a Committed Loan and a Eurocurrency Loan) or that such Borrowing is comprised of such Loans. In addition, Borrowings are classified by reference to the provisions of Article II under which participation therein is determined (i.e., a "Committed Borrowing" is a Syndicated Borrowing under Section 2.01(a) in which all Lenders participate in proportion to their Commitments or a Swingline Borrowing under Section 2.01(b) funded by the Swingline Lender, while a "Competitive Bid Borrowing" is a Borrowing under Section 2.03 in which the Lender participants are determined on the basis of their respective bids in accordance therewith).
Section 1.05 Exchange Rates. On each Calculation Date, the Administrative Agent shall determine the applicable Exchange Rates as of such Calculation Date used for calculating relevant Dollar Amounts. The Exchange Rates so determined shall become effective on the relevant Calculation Date (a "Reset Date"), shall remain effective until the next succeeding Reset Date and shall for all purposes of this Agreement (other than provisions expressly requiring the use of a current Exchange Rate) be the Exchange Rates employed in converting any amounts between Dollars and currencies other than Dollars. Whenever in this Agreement in connection with a Borrowing, conversion or continuation of a Loan or the issuance or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in a currency other than Dollars, such amount shall be the relevant equivalent in such currency of such Dollar amount (rounded to the nearest 1,000th unit of such currency), as determined by the Administrative Agent.
Section 1.06 Redenomination of Certain Foreign Currencies.
- Each obligation of the Borrower to make a payment denominated in the national currency
unit of any member state of the European Economic and Monetary Union that adopts the Euro
as its lawful currency after the date hereof shall be redenominated into Euros at the time
of such adoption (in accordance with the EEMU Legislation). If, in relation to the
currency of any such member state, the basis of accrual of interest expressed in this
Agreement in respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of interest in respect of
the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency; provided
that if any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such Borrowing, at
the end of the then current Interest Period.
- Without prejudice and in addition to any method of conversion or rounding prescribed by
any EEMU Legislation and without limiting the liability of the Borrower for any amount due
under this Agreement or any other Loan Document, all references in this Agreement to
minimum amounts (or integral multiples thereof) denominated in the national currency unit
of any member state of the European Economic and Monetary Union that adopts the Euro as
its lawful currency after the date hereof shall, immediately upon such adoption, be
replaced by references to such reasonably comparable and convenient amounts (or integral
multiples hereof) in the Euro as the Administrative Agent may specify.
- Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Economic and Monetary Union and any relevant market conventions or practices relating to the Euro.
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend.
- Syndicated Loans. Each Revolving Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Revolving Loans denominated in Dollars or
Available Alternative Currencies to the Borrower pursuant to this subsection 2.01(a)
from time to time prior to the Maturity Date in amounts such that the aggregate Dollar
Amount of its Revolving Outstandings shall not exceed (after giving effect to all
Revolving Loans repaid, all reimbursements of LC Disbursements made, and all Refunded
Swingline Loans paid, concurrently with the making of any Revolving Loans) its Revolving
Commitment; provided that, immediately after giving effect to each such Revolving
Loan, the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the
aggregate amount of the Revolving Commitments. Each Revolving Borrowing (other than a
Borrowing to be used to repay Refunded Swingline Loans which shall be in an aggregate
amount equal to such Refunded Swingline Loans) shall be in an aggregate principal Dollar
Amount of $2,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount of the unused Revolving Commitments) and shall be made from
the several Revolving Lenders ratably in proportion to their respective Revolving
Commitments. Within the foregoing limits, the Borrower may borrow under this subsection
2.01(a), repay, or, to the extent permitted by Section 2.10, prepay, Revolving
Loans and reborrow under this subsection 2.01(a).
- Swingline Loans.
- The Swingline Lender agrees, on the terms and subject to the conditions set forth
herein, to make a portion of the Revolving Commitments available to the Borrower from time
to time prior to the Swingline Termination Date by making Swingline Loans to the Borrower
in Dollars or Available Alternative Currencies (each such loan, a "Swingline Loan"
and collectively, the "Swingline Loans"); provided that (i) the
aggregate Dollar Amount of the Swingline Loans outstanding at any one time shall not
exceed the Swingline Committed Amount, (ii) with regard to each Lender individually (other
than the Swingline Lender in its capacity as such), the Dollar Amount of such Lender's
outstanding Revolving Loans plus its Participation Interests in outstanding Swingline
Loans plus its Participation Interests in outstanding LC Obligations shall not at any time
exceed such Lender's Revolving Commitment Percentage of the Revolving Committed Amount,
(iii) with regard to the Revolving Lenders collectively, the aggregate Dollar Amount of
the Revolving Outstandings shall not exceed the Revolving Committed Amount and (iv) the
Swingline Committed Amount shall not exceed the aggregate of the Revolving Commitments
then in effect. Swingline Loans may be repaid and reborrowed in accordance with the
provisions hereof prior to the Swingline Termination Date. Swingline Loans may be made
notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline
Lender's other Revolving Outstandings, exceeds its Revolving Commitment. The proceeds of a
Swingline Borrowing may be used, in whole or in part, to refund any prior Swingline
Borrowing.
- The Dollar Amount of all Swingline Loans shall be due and payable on the earliest of (A)
the maturity date agreed to by the Swingline Lender and the Borrower with respect to such
Swingline Loan (which maturity date shall not be a date more than seven Business Days from
the date of advance thereof), (B) the Swingline Termination Date, (C) the occurrence of a
Bankruptcy Event with respect to any Borrower or (D) the acceleration of any Loan or the
termination of the Revolving Commitments pursuant to Section 8.02.
- With respect to any Swingline Loans that have not been voluntarily prepaid by the
Borrower or paid by the Borrower when due under clause (ii) above, the Swingline
Lender (by request to the Administrative Agent) or Administrative Agent at any time may,
and shall at any time Swingline Loans in an amount of $1,000,000 or more shall have been
outstanding for more than seven days, on one Business Day's notice, require each Revolving
Lender, including the Swingline Lender, and each such Lender hereby agrees, subject to the
provisions of this Section 2.01(b), to make a Revolving Loan to the Borrower (which
shall be initially funded as a Base Rate Loan) in an amount equal to such Lender's
Revolving Commitment Percentage of the Dollar Amount of the Swingline Loans ("Refunded
Swingline Loans") outstanding on the date notice is given; provided that
on the date on which any Refunded Swingline Loans that are Alternative Currency Loans are
repaid with the proceeds of Revolving Loans made or deemed to be made by the Lenders
(other than the Swingline Lender), any such Refunded Swingline Loans shall automatically
be converted into Loans made in Dollars.
- In the case of Revolving Loans made by Lenders other than the Swingline Lender under clause
(iii) above, each such Revolving Lender shall make the Dollar Amount of its Revolving
Loan available to the Administrative Agent, in Dollars in same day funds, at the
Administrative Agent's Office, not later than 1:00 P.M. on the Business Day next
succeeding the date such notice is given. The proceeds of such Revolving Loans shall be
immediately delivered to the Swingline Lender (and not to any Borrower) and applied to
repay the Refunded Swingline Loans. On the day such Revolving Loans are made, the
Swingline Lender's Revolving Commitment Percentage of the Refunded Swingline Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by the Swingline Lender
and such portion of the Swingline Loans deemed to be so paid shall no longer be
outstanding as Swingline Loans and shall instead be outstanding as Revolving Loans. Upon
receipt by Xxxxxxxxx of prior written notice from the Administrative Agent, Xxxxxxxxx
authorizes the Administrative Agent and the Swingline Lender to charge any Borrower's
account with the Administrative Agent (up to the amount available in such account) in
order to pay immediately to the Swingline Lender the amount of such Refunded Swingline
Loans to the extent amounts received from the Revolving Lenders, including amounts deemed
to be received from the Swingline Lender, are not sufficient to repay in full such
Refunded Swingline Loans. If any portion of any such amount paid (or deemed to be paid) to
the Swingline Lender should be recovered by or on behalf of any Borrower from the
Swingline Lender in bankruptcy, by assignment for the benefit of creditors or otherwise,
the loss of the amount so recovered shall be ratably shared among all Revolving Lenders in
the manner contemplated by Section 2.14.
- A copy of each notice given by the Swingline Lender pursuant to this Section 2.01(b)
shall be promptly delivered by the Swingline Lender to the Administrative Agent and the
Borrower. Upon the making of a Revolving Loan by a Revolving Lender pursuant to this Section
2.01(b), the amount so funded shall no longer be owed in respect of its Participation
Interest in the related Refunded Swingline Loans.
- If as a result of any Bankruptcy Event, Revolving Loans are not made pursuant to this Section
2.01(b) sufficient to repay any amounts owed to the Swingline Lender as a result of a
nonpayment of outstanding Swingline Loans, each Revolving Lender agrees to purchase, and
shall be deemed to have purchased, a participation in such outstanding Swingline Loans in
an amount equal to its Revolving Commitment Percentage of the unpaid Dollar Amount
together with accrued interest thereon. Upon one Business Day's notice from the Swingline
Lender, each Revolving Lender shall deliver to the Swingline Lender an amount in Dollars
equal to its respective Participation Interest in such Swingline Loans in same day funds
at the office of the Swingline Lender specified on Schedule 10.02. In order to
evidence such Participation Interest each Revolving Lender agrees to enter into a
participation agreement at the request of the Swingline Lender in form and substance
reasonably satisfactory to all parties. In the event any Revolving Lender fails to make
available to the Swingline Lender the amount of such Revolving Lender's Participation
Interest as provided in this Section 2.01(b)(vi), the Swingline Lender shall be
entitled to recover such amount on demand from such Revolving Lender together with
interest at the customary rate set by the Swingline Lender for correction of errors among
banks in New York City for one Business Day and thereafter at the Base Rate plus the then
Applicable Margin for Base Rate Loans.
- Each Revolving Lender's obligation to make Revolving Loans pursuant to clause (iv)
above and to purchase Participation Interests in outstanding Swingline Loans pursuant to clause
(vi) above shall be absolute and unconditional and shall not be affected by any
circumstance, including (without limitation) (i) any set-off, counterclaim, recoupment,
defense or other right which such Revolving Lender or any other Person may have against
the Swingline Lender or any Borrower, (ii) the occurrence or continuance of a Default or
an Event of Default or the termination or reduction in the amount of the Revolving
Commitments after any such Swingline Loans were made, (iii) any adverse change in the
condition (financial or otherwise) of any Borrower or any other Person, (iv) any breach of
this Agreement or any other Loan Document by any Borrower or any other Lender, (v) whether
any condition specified in Article IV is then satisfied or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of the
forgoing. If such Lender does not pay such amount forthwith upon the Swingline Lender's
demand therefor, and until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the
amount of such unpaid Participation Interest for all purposes of the Loan Documents other
than those provisions requiring the other Lenders to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, and any other amounts due to it hereunder to the
Swingline Lender to fund Swingline Loans in the amount of the Participation Interest in
Swingline Loans that such Lender failed to purchase pursuant to this Section
2.01(b)(vi) until such amount has been purchased (as a result of such assignment or
otherwise).
Section 2.02 Notice of Committed Borrowings.
- Syndicated Borrowings. The Borrower shall give the Administrative Agent notice
of each Syndicated Borrowing substantially in the form of Exhibit A-1 hereto (a "Notice
of Syndicated Borrowing") not later than 11:30 A.M. on (i) the date of each
Syndicated Base Rate Borrowing, (ii) the third Business Day before each Syndicated
Eurodollar Borrowing and (iii) the fourth Business Day before each Syndicated Eurocurrency
Borrowing in an Alternative Currency. Each such notice shall be irrevocable and shall
specify:
- the name of the applicable Borrower;
- the date of such Borrowing, which shall be a Business Day for the relevant currency;
- the currency, the aggregate amount (in the applicable currency) and the Dollar Amount,
if applicable, of such Borrowing;
- whether the Loans comprising such Borrowing are to bear interest initially at the Base
Rate or the Eurocurrency Rate; and
- in the case of a Eurocurrency Borrowing, the duration of the initial Interest Period
applicable thereto, subject to the provisions of the definition of Interest Period and to Section
2.07(a).
- Swingline Borrowings. The Borrower shall request a Swingline Loan by written
notice (or telephone notice promptly confirmed in writing) substantially in the form of Exhibit
A-5 hereto (a "Swingline Loan Request") to the Swingline Lender and
the Administrative Agent (i) not later than 2:00 P.M. on the Business Day of the requested
Swingline Loan to be made in Dollars and (ii) not later than 11:30 A.M. on the Business
Day of the requested Swingline Loan to be made in any Available Alternative Currency. Each
such notice shall be irrevocable and shall specify (i) that a Swingline Loan is requested,
(ii) the date of the requested Swingline Loan (which shall be a Business Day) and (iii)
the principal amount of the Swingline Loan requested. Each Swingline Loan shall be made in
Dollars as a Base Rate Loan and, subject to Section 2.01(b)(ii), shall have such
maturity date as agreed to by the Swingline Lender and Xxxxxxxxx upon receipt by the
Swingline Lender of the Swingline Loan Request from Xxxxxxxxx.
Section 2.03 Competitive Bid Borrowings.
- Competitive Bid Option. In addition to Committed Borrowings pursuant to Section
2.01, Xxxxxxxxx may, as set forth in this Section 2.03, request the Lenders to
make offers to make Competitive Bid Loans in Dollars or Available Alternative Currencies
to Xxxxxxxxx from time to time prior to the Maturity Date. The Lenders may, but shall have
no obligation to, make such offers and Xxxxxxxxx may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section. After giving effect to any
borrowing of Competitive Bid Loans, (i)(A) the aggregate Revolving Outstandings plus the
aggregate Dollar Amount of all Competitive Bid Loans shall not exceed the aggregate amount
of the Revolving Commitments and (B) the aggregate Dollar Amount of all Competitive Bid
Loans shall not exceed the Competitive Bid Loan Sublimit and (ii) there shall not be more
than six different Interest Periods in effect with respect to Competitive Bid Loans at any
time.
- Competitive Bid Quote Request. When Xxxxxxxxx wishes to request offers to make
Competitive Bid Loans under this Section, it shall transmit to the Administrative Agent by
telephone call followed promptly by facsimile transmission a request substantially in the
form of Exhibit A-2 hereto (a "Competitive Bid Quote Request") so
as to be received by the Administrative Agent at the Administrative Agent's Office not
later than 12:00 Noon on the Business Day next preceding the date of Borrowing proposed
therein or such other time or date as Xxxxxxxxx and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date of the
Competitive Bid Quote Request for the first Absolute Rate Auction for which such change is
to be effective. Each such Competitive Bid Quote Request shall specify:
- the proposed date of Borrowing, which shall be a Business Day;
- the proposed currency, the aggregate amount (in such currency) and the Dollar Amount, if
applicable, of such Borrowing, which shall be $2,000,000 in aggregate Dollar Amount (or
any larger multiple of $1,000,000); and
- the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.
- Delivery of Competitive Bids Quote Requests. The Administrative Agent shall
promptly notify each Revolving Lender of each Competitive Bid Quote Request received by it
from Xxxxxxxxx and the contents of such Competitive Bid Quote Requests, which notice shall
constitute an invitation by Xxxxxxxxx to each Revolving Lender to submit Competitive Bids
offering to make the Competitive Bid Loans to which such Competitive Bid Quote Request
relates in accordance with this Section 2.03.
- Submission and Contents of Competitive Bids. Each Lender may submit a
competitive bid (a "Competitive Bid") containing an offer or offers to
make Competitive Bid Loans in response to any invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this subsection 2.03(d) and
must be submitted to the Administrative Agent by facsimile at the Administrative Agent's
office not later than 10:30 A.M. on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, or such other time or date as Xxxxxxxxx and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders not later than the
date of the Competitive Bid Quote Request for the first Absolute Rate Auction for which
such change is to be effective; provided that Competitive Bids submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the capacity of a
Lender may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies Xxxxxxxxx of the terms of the offer or offers contained therein not
later than 15 minutes before the deadline for the other Lenders for an Absolute Rate
Auction. Subject to Articles III and IV, any Competitive Bid so made shall
not be revocable except with the written consent of the Administrative Agent given on the
instructions of Xxxxxxxxx.
- Each Competitive Bid shall be substantially in the form of Exhibit A-3 hereto and
shall in any case specify:
- the proposed date of Borrowing;
- the principal amount (in the relevant currency) of the Competitive Bid Loan for which
each such offer is being made, which principal amount (w) may be greater than or less than
the Commitment of the quoting Lender, (x) must be in the Dollar Amount of $2,000,000 (or
any larger multiple of $1,000,000), (y) may not exceed the principal amount of Competitive
Bid Loans for which offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Competitive Bid Loans for which offers being made
by such quoting Lender may be accepted;
- the rate of interest per annum (specified to the nearest 1/1,000th of 1%)
(the "Competitive Bid Absolute Rate") offered for each such Competitive
Bid Loan; and
- the identity of the quoting Lender.
- Any Competitive Bid shall be disregarded if it:
- is not substantially in conformity with Exhibit A-3 hereto or does not specify
all of the information required by subsection 2.03(d)(ii) above;
- contains qualifying, conditional or similar language;
- proposes terms other than or in addition to those set forth in the applicable invitation
for Competitive Bids; or
- arrives after the time set forth in subsection 2.03(d)(i).
- Notice to Xxxxxxxxx. The Administrative Agent shall promptly notify Xxxxxxxxx of
the terms of (i) any Competitive Bid submitted by a Lender that is in accordance with subsection
2.03(d) and (ii) any Competitive Bid that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid submitted by such Lender with respect to the
same Competitive Bid Quote Request. Any such subsequent Competitive Bid shall be
disregarded by the Administrative Agent unless such subsequent Competitive Bid is
submitted solely to correct a manifest error in such former Competitive Bid. The
Administrative Agent's notice to Xxxxxxxxx shall specify (A) the aggregate principal
amount of Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request, (B) the principal amounts
and Competitive Bid Absolute Rates so offered and (C) if applicable, limitations on the
aggregate principal amount of Competitive Bid Loans for which offers in any single
Competitive Bid may be accepted.
- Acceptance and Notice by Xxxxxxxxx. Xxxxxxxxx shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers notified to it pursuant to subsection
2.03(e) at the Administrative Agent's Office not later than 12:00 Noon on the proposed
date of Borrowing for an Absolute Rate Auction, or such other time or date as Xxxxxxxxx
and the Administrative Agent shall have mutually agreed and shall have notified to the
Lenders not later than the date of the Competitive Bid Quote Request for the first
Absolute Rate Auction for which such change is to be effective. In the case of acceptance,
such notice (a "Notice of Competitive Bid Borrowing") shall specify the
aggregate principal amount of offers for each Interest Period that are accepted. Xxxxxxxxx
may accept any Competitive Bid in whole or in part; provided, that:
- the aggregate principal amount of each Competitive Bid Borrowing may not exceed the
applicable amount set forth in the related Competitive Bid Quote Request;
- the aggregate Dollar Amount of each Competitive Bid Borrowing must be in the amount of
$2,000,000 (or any larger multiple of $1,000,000);
- acceptance of offers may only be made on the basis of ascending Competitive Bid Absolute
Rates; and
- Xxxxxxxxx may not accept any offer that is described in subsection 2.03(d)(iii)
or that otherwise fails to comply with the requirements of this Agreement.
- Allocation by Administrative Agent. If offers are made by two or more Lenders
with the same Competitive Bid Absolute Rates for a greater aggregate principal amount than
the amount in respect of which such offers are accepted for the related Interest Period,
the principal amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Lenders as nearly as possible in
proportion to the aggregate principal amounts of such offers. Determinations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error. After each Absolute Rate Auction pursuant to this Section 2.03,
the Administrative Agent shall notify each Lender that submitted a Competitive Bid in such
auction of the range of bids submitted (without the bidder's name) and accepted for each
Competitive Bid Loan and the aggregate Dollar Amount of each Competitive Bid Borrowing
resulting from such auction.
Xxxxxxxxx may request offers to make Competitive Bid Loans for more than one Interest Period in a single Competitive Bid Quote Request. No more than two Competitive Bid Quote Requests shall be given within five Business Days for the applicable currency (or such other number of days as Xxxxxxxxx and the Administrative Agent may agree) of any other Competitive Bid Quote Request for a Borrowing in the same currency.
A Competitive Bid may set forth up to three separate offers by the quoting Lender with respect to each Interest Period specified in the related invitation for Competitive Bids.
Section 2.04 Notice to Lenders; Funding of Loans.
- Notice to Lenders. Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of such Lender's ratable share (if any) of the
Borrowing referred to therein, and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
- Funding of Loans.
- On the date of each Borrowing, each Lender participating therein shall: (i) if such
Borrowing is to be made in Dollars, make available its share of such Borrowing in Dollars
not later than 2:00 P.M., in Federal or other funds immediately available, to the
Administrative Agent at the Administrative Agent's Office; or (ii) if such Borrowing is to
be made in an Alternative Currency, make available its share of such Borrowing in such
Alternative Currency (in such funds as may then be customary for the settlement of
international transactions in such Alternative Currency) to the account of the
Administrative Agent at such time and place as shall have been notified by the
Administrative Agent to the Lenders by at least two Business Days' notice. Unless the
Administrative Agent determines that any applicable condition specified in Article IV has
not been satisfied, the Administrative Agent will make the funds so received from the
Lenders available to the Borrower at the Administrative Agent's Office; provided, however,
that if on the date of any Syndicated Borrowing denominated in Dollars there are
outstanding Swingline Loans or LC Disbursements, then the funds so received shall be
applied, first, to the payment of such LC Disbursements, second, to the
repayment of such Swingline Loans and third, to Xxxxxxxxx as provided above.
- Not later than 3:00 P.M. on the date of each Swingline Borrowing, the Swingline Lender
shall, unless the Administrative Agent shall have notified the Swingline Lender that any
applicable condition specified in Article IV has not been satisfied, make available
the amount of such Swingline Borrowing, in Federal or other immediately available funds,
to the Borrower at the Swingline Lender's address referred to in Section 11.02.
- Funding by the Administrative Agent in Anticipation of Amounts Due from the Lenders.
Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing (except in the case of a Base Rate Borrowing, in which case prior to the
time of such Borrowing) that such Lender will not make available to the Administrative
Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available to the Administrative Agent on the date of such
Borrowing in accordance with Section 2.04(b) above, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so made such
share available to the Administrative Agent, such Lender and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such corresponding amount,
together with interest thereon for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent at (i) a
rate per annum equal to the higher of the Federal Funds Rate (if such Borrowing is in
Dollars) or the rate then applicable to such Loan in accordance with Section 2.07,
in the case of the Borrower, and (ii) the Federal Funds Rate (if such Borrowing is in
Dollars) or the Applicable Interbank Offered Rate (if such Borrowing is in an Alternative
Currency), in the case of such Lender. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such Lender's Loan
included in such Borrowing for purposes of this Agreement.
- Obligations of Lenders Several. The failure of any Lender to make a Loan
required to be made by it as part of any Borrowing hereunder shall not relieve any other
Lender of its obligation, if any, hereunder to make any Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other Lender to make
the Loan to be made by such other Lender on such date of Borrowing.
- Failed Loans. If any Lender shall fail to make any Loan (a "Failed Loan")
which such Lender is otherwise obligated hereunder to make to the Borrower on the date of
Borrowing thereof, and the Administrative Agent shall not have received notice from the
Borrower or such Lender that any condition precedent to the making of the Failed Loan has
not been satisfied, then, until such Lender shall have made or be deemed to have made
(pursuant to the last sentence of this subsection (e)) the Failed Loan in full or
the Administrative Agent shall have received notice from the Borrower or such Lender that
any condition precedent to the making of the Failed Loan was not satisfied at the time the
Failed Loan was to have been made, whenever the Administrative Agent shall receive any
amount from the Borrower for the account of such Lender, (i) the amount so received (up to
the amount of such Failed Loan) will, upon receipt by the Administrative Agent, be deemed
to have been paid to the Lender in satisfaction of the obligation for which paid, without
actual disbursement of such amount to the Lender, (ii) the Lender will be deemed to have
made the same amount available to the Administrative Agent for disbursement as a Loan to
the Borrower (up to the amount of such Failed Loan) and (iii) the Administrative Agent
will disburse such amount (up to the amount of the Failed Loan) to the Borrower or, if the
Administrative Agent has previously made such amount available to the Borrower on behalf
of such Lender pursuant to the provisions hereof, reimburse itself (up to the amount of
the amount made available to the Borrower); provided, however, that the
Administrative Agent shall have no obligation to disburse any such amount to the Borrower
or otherwise apply it or deem it applied as provided herein unless the Administrative
Agent shall have determined in its sole discretion that to so disburse such amount will
not violate any law, rule, regulation or requirement applicable to the Administrative
Agent. Upon any such disbursement by the Administrative Agent, such Lender shall be deemed
to have made a Base Rate Loan of the same Class as the Failed Loan to the Borrower in
satisfaction, to the extent thereof, of such Lender's obligation to make the Failed Loan.
Section 2.05 Evidence of Loans.
- Lender Accounts. Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
- Administrative Agent Records. The Administrative Agent shall maintain accounts
in which it will record (i) the amount of each Loan made hereunder, the Class and Type of
each Loan made and the Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
- Evidence of Debt. The entries made in the accounts maintained pursuant to subsections
(a) and (b) of this Section 2.05 shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
- Notes. Notwithstanding any other provision of this Agreement, if any Lender
shall request and receive a Note or Notes as provided in Section 11.06 or
otherwise, then the Loans of such Lender shall be evidenced by Notes of the applicable
Class, in each case, substantially in the form of Exhibit B-1 or B-2, as
applicable, and payable to the order of such Lender for the account of its Applicable
Lending Office in an amount equal to the aggregate unpaid principal amount of such
Lender's Revolving Loans or Competitive Bid Loans, as applicable. If requested by the
Swingline Lender, the Swingline Loans shall be evidenced by a single Swingline Note,
substantially in the form of Exhibit B-3, and payable to the order of the Swingline
Lender in an amount equal to the aggregate unpaid principal amount of the Swingline Loans.
- Notes for Loans of Different Types. Each Lender may, by notice to the Borrower
and the Administrative Agent, request that its Loans of a particular Type be evidenced by
separate Notes in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit B-1 or B-2
hereto with appropriate modifications to reflect the fact that it evidences solely Loans
of the relevant Type. Each reference in this Agreement to such Lender's "Note"
of a particular Class shall be deemed to refer to and include any or all of such Notes, as
the context may require.
- Note Endorsements. Each Lender having one or more Notes shall record the date,
amount, Class and Type of each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Lender so elects in
connection with any transfer or enforcement of any Note, endorse on the reverse side or on
the schedule, if any, forming a part thereof appropriate notations to evidence the
foregoing information with respect to each outstanding Loan evidenced thereby; provided
that the failure of any Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse each of its Notes and to
attach to and make a part of each of its Notes a continuation of any such schedule as and
when required.
Section 2.06 Letters of Credit.
- Existing Letters of Credit. On the Closing Date, each Issuing Lender that has
issued an Existing Letter of Credit shall be deemed, without further action by any party
hereto, to have sold to each Revolving Lender, and each such Revolving Lender shall be
deemed, without further action by any party hereto, to have purchased from each such
Issuing Lender, without recourse or warranty, an undivided participation interest in such
Existing Letter of Credit and the related LC Obligations in the proportion its Revolving
Commitment Percentage bears to the aggregate Revolving Committed Amount (although any
fronting fee payable under Section 2.12(b)(ii) shall be payable directly to the
Administrative Agent for the account of each applicable Issuing Lender, and the Lenders
(other than such Issuing Lender) shall have no right to receive any portion of such
fronting fee) and any security therefor or guaranty pertaining thereto. On and after the
Closing Date, each Existing Letter of Credit shall constitute a Letter of Credit for all
purposes hereof.
- Additional Letters of Credit. Each Issuing Lender agrees, on the terms and
conditions set forth in this Agreement, to issue Letters of Credit denominated in Dollars
or an Available Alternative Currency, each such Letter of Credit being in a Dollar Amount
of at least $500,000, from time to time before the 30th day prior to the Maturity Date for
the account, and upon the request, of Xxxxxxxxx and in support of (i) trade obligations of
Xxxxxxxxx and/or its Subsidiaries, which shall be payable at sight (each such letter of
credit, a "Trade Letter of Credit" and, collectively, the "Trade
Letters of Credit") and (ii) such other obligations of Xxxxxxxxx that are
acceptable to the Lenders (each such letter of credit, a "Standby Letter of Credit"
and, collectively, the "Standby Letters of Credit"); provided
that, immediately after each Letter of Credit is issued, (i) the aggregate amount of the
LC Obligations shall not exceed $40,000,000 (the "LC Committed Amount"),
(ii) the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the
aggregate amount of the Revolving Commitments and (iii) with respect to each individual
Revolving Lender, the aggregate outstanding principal Dollar Amount of the Revolving
Lender's Revolving Loans plus its Participation Interest in outstanding LC Obligations
plus its (other than the Swingline Lender's in its capacity as such) Participation
Interests in outstanding Swingline Loans shall not exceed such Revolving Lender's
Revolving Commitment Percentage of the Revolving Committed Amount.
- Method of Issuance of Letters of Credit. Xxxxxxxxx shall give the applicable
Issuing Lender notice (with a copy to the Administrative Agent) substantially in the form
of Exhibit A-6 hereto (a "Letter of Credit Request") of the
requested issuance or amendment of a Letter of Credit prior to 1:00 P.M. on the proposed
date of the issuance or amendment of Trade Letters of Credit (which shall be a Business
Day) and at least three Business Days before the proposed date of issuance or extension of
Standby Letters of Credit (which shall be a Business Day) (or such shorter period as may
be agreed by the applicable Issuing Lender in any particular instance). In the case of a
request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall
specify in form and detail satisfactory to the Issuing Lender: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the amount,
currency (which may only be Dollars or an Available Alternative Currency) and, if
applicable, Dollar Amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the Issuing
Lender may require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the
Issuing Lender: (A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the Issuing Lender may require. The extension or renewal of any
Letter of Credit shall be deemed to be an issuance of such Letter of Credit. Subject to
the provisions of the following paragraph with respect to Evergreen Letters of Credit, no
Letter of Credit shall have a term of more than one year or shall have a term extending or
be extendible beyond the fifth Business Day before the Maturity Date.
- Conditions to Issuance of Additional Letters of Credit. The issuance by an
Issuing Lender of each Additional Letter of Credit shall, in addition to the conditions
precedent set forth in Section 4.02, be subject to the conditions precedent that
(i) such Letter of Credit shall be satisfactory in form and substance to the applicable
Issuing Lender, (ii) Xxxxxxxxx shall have executed and delivered such other instruments
and agreements relating to such Letter of Credit as the Issuing Lender shall have
reasonably requested, (iii) the Issuing Lender shall have confirmed with the
Administrative Agent on the date of (and after giving effect to) such issuance that (A)
the Dollar Amount of the aggregate amount of all LC Obligations will not exceed the LC
Committed Amount and (B) the Dollar Amount of the aggregate Revolving Outstandings will
not exceed the aggregate amount of the Revolving Commitments and (iv) the Issuing Lender
shall not have been notified by the Administrative Agent that any condition specified in Section
4.02(b) or (c) is not satisfied on the date such Letter of Credit is to be
issued. Notwithstanding any other provision of this Section 2.06, no Issuing Lender
shall be under any obligation to issue any Additional Letter of Credit if: (i) any order,
judgment or decree of any Governmental Authority shall by its terms purport to enjoin or
restrain the Issuing Lender from issuing such Additional Letter of Credit, or any
requirement of Law applicable to such Issuing Lender or any request or directive (whether
or not having a force of Law) from any Governmental Authority with jurisdiction over such
Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the
issuance of letters of credit generally or such Additional Letter of Credit in particular
or shall impose upon such Issuing Lender with respect to such Additional Letter of Credit
any restriction, reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such Issuing Lender in good xxxxx xxxxx material to it; or (ii) the
issuance of such Additional Letter of Credit shall violate any applicable general policies
of such Issuing Lender.
- Purchase and Sale of Letter of Credit Participations. Upon the issuance by an
Issuing Lender of an Additional Letter of Credit, such Issuing Lender shall be deemed,
without further action by any party hereto, to have sold to each Revolving Lender, and
each Revolving Lender shall be deemed, without further action by any party hereto, to have
purchased from such Issuing Lender, without recourse or warranty, an undivided
participation interest in such Letter of Credit and the related LC Obligations in the
proportion its Revolving Commitment Percentage bears to the Revolving Committed Amount
(although any fronting fee payable under Section 2.12(b)(ii) shall be payable
directly to the Administrative Agent for the account of the applicable Issuing Lender, and
the Lenders (other than such Issuing Lender) shall have no right to receive any portion of
any such fronting fee) and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Commitments pursuant to Section 11.06, there shall be
an automatic adjustment to the Participation Interests in all outstanding Letters of
Credit (including all Existing Letters of Credit, if any) and all LC Obligations to
reflect the adjusted Revolving Commitments of the assigning and assignee Lenders or of all
Lenders having Revolving Commitments, as the case may be.
- Drawings under Letters of Credit. Upon receipt from the beneficiary of any
Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable
Issuing Lender shall determine in accordance with the terms of such Letter of Credit
whether such drawing should be honored. If the Issuing Lender determines that any such
drawing shall be honored, such Issuing Lender shall make available to such beneficiary in
accordance with the terms of such Letter of Credit the amount of the drawing and shall
notify Xxxxxxxxx and the Administrative Agent as to the amount to be paid as a result of
such drawing and the payment date.
- Duties of Issuing Lenders to Revolving Lenders; Reliance. In determining whether
to pay under any Letter of Credit, the relevant Issuing Lender shall not have any
obligation relative to the Revolving Lenders participating in such Letter of Credit or the
related LC Obligations other than to determine that any document or documents required to
be delivered under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit
shall not create for the Issuing Lender any resulting liability if taken or omitted in the
absence of gross negligence or willful misconduct. Each Issuing Lender shall be entitled
(but not obligated) to rely, and shall be fully protected in relying, on the
representation and warranty by Xxxxxxxxx set forth in the last sentence of Section 4.02
to establish whether the conditions specified in paragraphs (b) and (c) of Section
4.02 are met in connection with any issuance or extension of a Letter of Credit. Each
Issuing Lender shall be entitled to rely, and shall be fully protected in relying, upon
advice and statements of legal counsel, independent accountants and other experts selected
by such Issuing Lender and upon any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopier, statement, order
or other document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary unless the beneficiary and Xxxxxxxxx shall
have notified such Issuing Lender that such documents do not comply with the terms and
conditions of the Letter of Credit. Each Issuing Lender shall be fully justified in
refusing to take any action requested of it under this Section in respect of any Letter of
Credit unless it shall first have received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Revolving Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take, or omitting or
continuing to omit, any such action. Notwithstanding any other provision of this Section,
each Issuing Lender shall in all cases be fully protected in acting, or in refraining from
acting, under this Section in respect of any Letter of Credit in accordance with a request
of the Required Lenders, and such request and any action taken or failure to act pursuant
hereto shall be binding upon all Revolving Lenders and all future holders of
participations in such Letter of Credit.
- Reimbursement Obligations. Xxxxxxxxx shall be irrevocably and unconditionally
obligated forthwith to reimburse each Issuing Lender in the applicable currency for any
amounts paid by such Issuing Lender upon any drawing under any Letter of Credit, together
with any and all reasonable charges and expenses which the Issuing Lender may pay or incur
relative to such drawing and interest on the amount drawn at the rate applicable to
Revolving Base Rate Loans for each day from and including the date such amount is drawn to
but excluding the date such reimbursement payment is due and payable. Such reimbursement
payment shall be due and payable (i) at or before 1:00 P.M. on the date the Issuing Lender
notifies Xxxxxxxxx of such drawing, if such notice is given at or before 10:00 A.M. on
such date or (ii) at or before 10:00 A.M. on the next succeeding Business Day; provided
that no payment otherwise required by this sentence to be made by Xxxxxxxxx at or before
1:00 P.M. on any day shall be overdue hereunder if arrangements for such payment
satisfactory to the Issuing Lender, in its reasonable discretion, shall have been made by
Xxxxxxxxx at or before 1:00 P.M. on such day and such payment is actually made at or
before 3:00 P.M. on such day. In addition, Xxxxxxxxx agrees to pay to the Issuing Lender
interest, payable on demand, on any and all amounts not paid by Xxxxxxxxx to the Issuing
Lender when due under this subsection (h), for each day from and including the date
when such amount becomes due to but excluding the date such amount is paid in full,
whether before or after judgment, at a rate per annum equal to the sum of 2% plus the rate
applicable to Revolving Base Rate Loans for such day. Subject to the satisfaction of all
applicable conditions set forth in Article IV, Xxxxxxxxx may, at its option,
utilize the Swingline Commitment or the Revolving Commitments, or make other arrangements
for payment satisfactory to the Issuing Lender, for the reimbursement of all LC
Disbursements as required by this subsection (h). Each reimbursement payment to be
made by Xxxxxxxxx pursuant to this subsection (h) shall be made to the Issuing
Lender in Federal or other funds immediately available to it at its address referred to Section 11.02.
- Obligations of Revolving Lenders to Reimburse Issuing Lender for Unpaid LC Disbursements.
If Xxxxxxxxx shall not have reimbursed an Issuing Lender in full for any LC Disbursement
as required pursuant to subsection (h) of this Section 2.06, the Issuing
Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall
promptly notify each Revolving Lender (other than the relevant Issuing Lender) of
(x) the date of drawing under the related Letter of Credit, (y) the Dollar
Amount of the unreimbursed LC Disbursement and (z) such Revolving Lender's pro-rata
share of the LC Disbursement). On the date of any such notice from the Administrative
Agent in respect of an unreimbursed LC Disbursement in respect of a Letter of Credit
denominated in an Alternative Currency, Xxxxxxxxx'x reimbursement obligation to the
Issuing Lender in respect of such drawing shall be automatically redenominated into
Dollars. Upon receipt of notice from the Administrative Agent pursuant to this clause
(i), each such Revolving Lender shall promptly and unconditionally pay to the
Administrative Agent, for the account of such Issuing Lender, such Revolving Lender's
pro-rata share of the Dollar Amount of each LC Disbursement which is the subject of such
notice (determined by the proportion its Revolving Commitment Percentage bears to the
aggregate Revolving Committed Amount) in Dollars in Federal or other immediately available
funds. Such payment from the Revolving Lender shall be due (i) at or before 1:00 P.M. on
the date the Administrative Agent so notifies a Revolving Lender, if such notice is given
at or before 10:00 A.M. on such date or (ii) at or before 10:00 A.M. on the next
succeeding Business Day, together with interest on such amount for each day from and
including the date of such drawing to but excluding the day such payment is due from such
LC Participant at the Federal Funds Rate for such day (which funds the Administrative
Agent shall promptly remit to the applicable Issuing Lender). The failure of any LC
Participant to make available to the Administrative Agent for the account of an Issuing
Lender its pro-rata share of any unreimbursed LC Disbursement shall not relieve any other
Revolving Lender of its obligation hereunder to make available to the Administrative Agent
for the account of such Issuing Lender its pro-rata share of any payment made under any
Letter of Credit on the date required, as specified above, but no such Lender shall be
responsible for the failure of any other Lender to make available to the Administrative
Agent for the account of the Issuing Lender such other Lender's pro-rata share of any such
payment. Upon payment in full of all amounts payable by a Lender under this subsection
(i), such Lender shall be subrogated to the rights of the Issuing Lender against
Xxxxxxxxx to the extent of such Lender's pro-rata share of the related LC Obligation so
paid (including interest accrued thereon). If any Revolving Lender fails to pay any amount
required to be paid by it pursuant to this subsection (i) on the date on which such
payment is due, interest shall accrue on such Lender's obligation to make such payment,
for each day from and including the date such payment became due to but excluding the date
such Lender makes such payment, whether before or after judgment, at a rate per annum
equal to (i) for each day from the date such payment is due to the third succeeding
Business Day, inclusive, the Federal Funds Rate for such day as determined by the relevant
Issuing Lender and (ii) for each day thereafter, the sum of 2% plus the rate applicable to
its Revolving Base Rate Loans for such day. Any payment made by any Lender after 3:00 P.M.
on any Business Day shall be deemed for purposes of the preceding sentence to have been
made on the next succeeding Business Day. On the date of any notice from the
Administrative Agent to the Revolving Lenders pursuant to this subsection (i)
in respect of an LC Disbursement in respect of a Letter of Credit denominated in an
Alternative Currency, Xxxxxxxxx'x reimbursement obligation in respect thereof shall be
automatically redenominated in Dollars in an amount equal to the then Dollar Amount
thereof.
- Funds Received from Xxxxxxxxx in Respect of Drawn Letters of Credit. Whenever an
Issuing Lender receives a payment of an LC Obligation as to which the Administrative Agent
has received for the account of such Issuing Lender any payments from the Lenders pursuant
to subsection (i) above, such Issuing Lender shall pay the amount of such payment
to the Administrative Agent, and the Administrative Agent shall promptly pay to each
Lender which has paid its pro-rata share thereof, in Dollars in Federal or other
immediately available funds, an amount equal to such Lender's pro-rata share of the
principal amount thereof and interest thereon for each day after relevant date of payment
at the Federal Funds Rate.
- Obligations in Respect of Letters of Credit Unconditional. The obligations of
Xxxxxxxxx under Section 2.06(h) above shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including, without limitation, the
following circumstances:
- any lack of validity or enforceability of this Agreement or any Letter of Credit or any
document related hereto or thereto;
- any amendment or waiver of or any consent to departure from all or any of the provisions
of this Agreement or any Letter of Credit or any document related hereto or thereto;
- the use which may be made of the Letter of Credit by, or any acts or omission of, a
beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be acting);
- the existence of any claim, set-off, defense or other rights that Xxxxxxxxx may have at
any time against a beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), any Issuing Lender or any other Person, whether in connection
with this Agreement or any Letter of Credit or any document related hereto or thereto or
any unrelated transaction;
- any statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
- payment under a Letter of Credit against presentation to an Issuing Lender of a draft or
certificate that does not comply with the terms of such Letter of Credit; provided
that the relevant Issuing Lender's determination that documents presented under such
Letter of Credit comply with the terms thereof shall not have constituted gross negligence
or willful misconduct of such Issuing Lender; or
- any other act or omission to act or delay of any kind by any Issuing Lender or any other
Person or any other event or circumstance whatsoever that might, but for the provisions of
this subsection (vii), constitute a legal or equitable discharge of Xxxxxxxxx'x
obligations hereunder.
- Designation of Subsidiaries as Account Parties. Notwithstanding anything to the
contrary set forth in this Agreement, a Letter of Credit issued hereunder may contain a
statement to the effect that such Letter of Credit is issued for the account of a
Subsidiary of Xxxxxxxxx; provided, that notwithstanding such statement, Xxxxxxxxx
shall be the actual account party for all purposes of this Agreement for such Letter of
Credit and such statement shall not affect Xxxxxxxxx'x reimbursement obligations hereunder
with respect to such Letter of Credit.
- Modification and Extension. The issuance of any supplement, modification,
amendment, renewal, or extensions to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as a Credit Extension hereunder.
- Uniform Customs and Practices. Unless otherwise expressly agreed by the Issuing
Lender and Xxxxxxxxx when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the "International
Standby Practices 1998" published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of issuance) shall
apply to each Standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits (collectively, the "UCP"), as most
recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each Trade Letter of Credit.
- Responsibility of Issuing Lenders. It is expressly understood and agreed that
the obligations of the Issuing Lenders hereunder to the Revolving Lenders are only those
expressly set forth in this Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 4.02 have been satisfied
unless it shall have acquired actual knowledge that any such condition precedent has not
been satisfied; provided, however, that nothing set forth in this Section
2.06 shall be deemed to prejudice the right of any Revolving Lender to recover from
the Issuing Lender any amounts made available by such Revolving Lender to the Issuing
Lender pursuant to this Section 2.06 in the event that it is determined by a court
of competent jurisdiction that the payment with respect to a Letter of Credit constituted
gross negligence or willful misconduct on the part of the Issuing Lender.
- Conflict with LC Documents. In the event of any conflict between this Agreement
and any LC Document, this Agreement shall govern.
- Indemnification of Issuing Lenders.
- In addition to its other obligations under this Agreement, Xxxxxxxxx hereby agrees to
protect, indemnify, pay and save each Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that such Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of such Issuing Lender to honor a drawing under a Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or omissions, herein called
"Government Acts").
- As between Xxxxxxxxx and each Issuing Lender, Xxxxxxxxx shall assume all risks of the
acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Issuing
Lender shall not be responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph or
otherwise, whether or not they be in cipher; (E) errors in interpretation of technical
terms; (F) any loss or delay in the transmission or otherwise of any documents required in
order to make a drawing under a Letter of Credit or of the proceeds thereof; and (G) any
consequences arising from causes beyond the control of the Issuing Lender, including,
without limitation, any Government Acts. None of the above shall affect, impair, or
prevent the vesting of the Issuing Lender's rights or powers hereunder.
- In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by an Issuing Lender, under or in
connection with any Letter of Credit or the related certificates, if taken or omitted in
good faith, shall not put the Issuing Lender under any resulting liability to Xxxxxxxxx.
It is the intention of the parties that this Agreement shall be construed and applied to
protect and indemnify the Issuing Lenders against any and all risks involved in the
issuance of any Letter of Credit, all of which risks are hereby assumed by Xxxxxxxxx,
including, without limitation, any and all risks of the acts or omissions, whether
rightful or wrongful, of any present or future Government Acts. The Issuing Lenders shall
not, in any way, be liable for any failure by the Issuing Lenders or anyone else to pay
any drawing under any Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the Issuing Lenders.
- Nothing in this subsection (q) is intended to limit the reimbursement obligation
of Xxxxxxxxx contained in this Section 2.06. The obligations of Xxxxxxxxx under
this subsection (q) shall survive the termination of this Agreement. No act or
omission of any current or prior beneficiary of a Letter of Credit shall in any way affect
or impair the rights of any Issuing Lender to enforce any right, power or benefit under
this Agreement.
- Notwithstanding anything to the contrary contained in this subsection (q),
Xxxxxxxxx shall have no obligation to indemnify any Issuing Lender in respect of any
liability incurred by the Issuing Lender arising solely out of the gross negligence or
willful misconduct of the Issuing Lender, as determined by a court of competent
jurisdiction. Nothing in this Agreement shall relieve any Issuing Lender of any liability
to Xxxxxxxxx in respect of any action taken by the Issuing Lender which action constitutes
gross negligence or willful misconduct of the Issuing Lender or a violation of the UCP or
Uniform Commercial Code, as applicable, as determined by a court of competent
jurisdiction.
- Cash Collateral. If Xxxxxxxxx is required pursuant to the terms of this
Agreement to Cash Collateralize any LC Obligations, Xxxxxxxxx shall deposit in an account
with the Administrative Agent an amount in cash equal to 100% of the Dollar Amount such LC
Obligations. Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the LC Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such
account. The Administrative Agent will, at the request of Xxxxxxxxx, invest amounts
deposited in such account in Cash Equivalents; provided, however, that (i)
the Administrative Agent shall not be required to make any investment that, in its sole
judgment, would require or cause the Administrative Agent to be in, or would result in
any, violation of any Law, (ii) such Cash Equivalents shall be subjected to a first
priority perfected security interest in favor of the Administrative Agent and (iii) if an
Event of Default shall have occurred and be continuing, the selection of such Cash
Equivalents shall be in the sole discretion of the Administrative Agent. Xxxxxxxxx shall
indemnify the Administrative Agent for any losses relating to such investments in Cash
Equivalents. Other than any interest or profits earned on such investments, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Lender immediately for drawings under Letters of Credit and, if the
maturity of the Loans has been accelerated, to satisfy the LC Obligations. If Xxxxxxxxx is
required to provide an amount of cash collateral hereunder as a result of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to
Xxxxxxxxx within three Business Days after all Events of Default have been cured or
waived. Xxxxxxxxx hereby pledges and assigns to the Administrative Agent, for its benefit
and the benefit of the Creditors, the cash collateral account established hereunder (and
all monies and investments held therein) to secure the Obligations.
- Resignation or Removal of an Issuing Lender. (a) An Issuing Lender may resign at
any time by giving 30 days' notice to the Administrative Agent, the Lenders and Xxxxxxxxx,
and may be removed at any time by Xxxxxxxxx by notice to the Issuing Lender, the
Administrative Agent and the Lenders. Upon any such resignation or removal, Xxxxxxxxx
shall (within 30 days after such notice of resignation or removal) either appoint a
successor, or terminate the unutilized LC Commitment of such Issuing Lender; provided,
however, that, if Xxxxxxxxx elects to terminate such unutilized LC Commitment,
Xxxxxxxxx may at any time thereafter that the Revolving Credit Commitments are in effect
reinstate such LC Commitment in connection with the appointment of another Issuing Lender.
Subject to subsection (t) below, upon the acceptance of any appointment as an
Issuing Lender hereunder by a successor Issuing Lender, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring Issuing
Lender, and the retiring Issuing Lender shall be discharged from its obligations to issue
Additional Letters of Credit hereunder. The acceptance of any appointment as Issuing
Lender hereunder by a successor Issuing Lender shall be evidenced by an agreement entered
into by such successor, in a form reasonably satisfactory to Xxxxxxxxx and the
Administrative Agent, and, from and after the effective date of such agreement, (i) such
successor shall be a party hereto and have all the rights and obligations of an Issuing
Lender under this Agreement and the other Loan Documents and (ii) references herein and in
the other Loan Documents to the "Issuing Lender" shall be deemed to refer to
such successor or to any previous Issuing Lender, or to such successor and all previous
Issuing Lenders, as the context shall require.
- Rights with Respect to Outstanding Letter of Credit. After the resignation or
removal of an Issuing Lender hereunder the retiring Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Lender
under this Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue Additional
Letters of Credit.
If Xxxxxxxxx so requests in any applicable Letter of Credit Request, the Issuing Lender may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an "Evergreen Letter of Credit"); provided that any such Evergreen Letter of Credit must permit the Issuing Lender to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Lender, Xxxxxxxxx shall not be required to make a specific request to the Issuing Lender for any such renewal. Once an Evergreen Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to permit the renewal of such Letter of Credit at any time to a date not later than the fifth Business Day before the Maturity Date; provided, however, that the Issuing Lender shall not permit any such renewal if (i) the Issuing Lender would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof or (ii) it has received notice (which may be by telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal Notice Date (A) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (B) from the Administrative Agent, any Revolving Lender or Xxxxxxxxx that one or more of the applicable conditions specified in Section 4.02 is not then satisfied. Notwithstanding anything to the contrary contained herein, the Issuing Lender shall have no obligation to permit the renewal of any Evergreen Letter of Credit at any time.
Promptly after receipt of any Letter of Credit Request, the Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Request from Xxxxxxxxx and, if not, the Issuing Lender will provide the Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions thereof, the Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of Xxxxxxxxx or enter into the applicable amendment, as the case may be, in each case in accordance with the Issuing Lender's usual and customary business practices.
Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Lender will also deliver to Xxxxxxxxx and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
- Rate Options Applicable to Loans. Each Committed Borrowing shall be comprised of
Base Rate Loans or (except in the case of Swingline Loans which shall be made and
maintained as Base Rate Loans or Alternative Currency Loans) Eurocurrency Loans, as the
Borrower may request pursuant to Section 2.02. Each Competitive Bid Borrowing shall
be comprised of Competitive Bid Loans pursuant to Section 2.03. Borrowings of more
than one Type may be outstanding at the same time; provided, however, that
the Borrowers may not request any Borrowing that, if made, would result in an aggregate
for any Class of more than 10 separate Groups of Eurocurrency Loans being outstanding
hereunder at any one time. For this purpose, Loans having different Interest Periods,
regardless of whether commencing on the same date, shall be considered separate Groups.
- Base Rate Loans. Each Loan of a Class which is made as, or converted into, a
Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each
day from the date such Loan is made as, or converted into, a Base Rate Loan until it
becomes due or is converted into a Loan of any other Type, at a rate per annum equal to
the Applicable Margin for Base Rate Loans of such Class for such day plus the Base Rate
for such day. Such interest shall be payable quarterly in arrears on each Interest Payment
Date and, with respect to the principal amount of any Base Rate Loan converted to a
Eurocurrency Loan, on the date such Base Rate Loan is so converted. Any overdue principal
of or interest on any Base Rate Loan of any Class shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans of the same Class for such day.
- Eurocurrency Loans. Each Eurocurrency Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for Eurocurrency
Loans for such day plus the Eurocurrency Rate applicable to Eurocurrency Loans denominated
in the relevant currency for such Interest Period; provided that if any
Eurocurrency Loan or any portion thereof shall, as a result of the definition of Interest
Period, have an Interest Period of less than one month (other than any Eurocurrency Loan
with an Interest Period of one week), such portion shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during such period. Such
interest shall be payable for each Interest Period on each Interest Payment Date. Any
overdue principal of or interest on any Eurocurrency Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the higher of (i) the sum of
2% plus the Applicable Margin for Eurocurrency Loans for such day plus the Eurocurrency
Rate applicable to such Loan at the date such payment was due and (ii) (A) in the
case of Eurocurrency Loans not denominated in Dollars, the sum of 2% plus the Applicable
Margin for Eurocurrency Loans for such day plus the Applicable Interbank Offered Rate for
one day (or, if such amount due remains unpaid more than three Business Days, then for
such other period of time not longer than six months as the Administrative Agent may
select) deposits in the relevant currency in an amount approximately equal to such overdue
payment or (B) in the case of Eurocurrency Loans denominated in Dollars, the sum of 2%
plus the Applicable Margin for Eurocurrency Loans for such day plus the quotient obtained
(rounded upward, if necessary, to the nearest 1/100th of 1%) by dividing (x)
the Applicable Interbank Offered Rate for one day (or if such amount due remains unpaid
more than three Business Days, then for such other period of time not longer than six
months as the Administrative Agent may select) deposits in the relevant currency in an
amount approximately equal to such overdue payment by (y) 1.00 minus the Eurocurrency
Reserve Percentage (or, if the circumstances described in Section 3.02 shall exist,
at a rate per annum equal to the sum of 2% plus the rate applicable to Revolving Base Rate
Loans for such day).
- Competitive Bid Loans. The unpaid principal amount of each Competitive Bid Loan
shall bear interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Competitive Bid Absolute Rate quoted
by the Lender making such Loan. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue principal of or
interest on any Competitive Bid Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the Base Rate for such day.
- Determination and Notice of Interest Rates. The Administrative Agent shall
determine each interest rate applicable to the Loans hereunder. The Administrative Agent
shall give prompt notice to Xxxxxxxxx and the participating Lenders of each rate of
interest so determined, and its determination thereof shall be conclusive in the absence
of manifest error. Any notice with respect to Eurocurrency Loans shall, without the
necessity of the Administrative Agent so stating in such notice, be subject to adjustments
in the Applicable Margin applicable to such Loans after the beginning of the Interest
Period applicable thereto. When during an Interest Period any event occurs that causes an
adjustment in the Applicable Margin applicable to Loans to which such Interest Period is
applicable, the Administrative Agent shall give prompt notice to Xxxxxxxxx and the Lenders
of such event and the adjusted rate of interest so determined for such Loans, and its
determination thereof shall be conclusive in the absence of manifest error.
- Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing herein or under the other Loan Documents shall bear interest,
payable on demand, at a per annum rate equal to (i) in the case of principal of any Loan,
the rate otherwise applicable to such Loan during such period pursuant to this Section
2.07 plus 2.00% (without duplication of any amount owing in respect of Base Rate Loans
under the third sentence of Section 2.07(b), in respect of Eurocurrency Loans under
the third sentence of Section 2.07(c)) or in respect of any Competitive Bid Loan
under the third sentence of Section 2.07(d), (ii) in the case of interest on
any Loan the Base Rate plus the Applicable Margin for Loans of such Class on such day plus
2.00% and (iii) in the case of any other amount, the Base Rate plus the Applicable Margin
for Revolving Base Rate Loans plus 2.00%.
Section 2.08 Extension and Conversion.
- Continuation Conversion Options. The Dollar-Denominated Loans included in each
Syndicated Borrowing shall bear interest initially at the type of rate specified by the
Borrower in the applicable Notice of Syndicated Borrowing. Thereafter, the Borrower shall
have the option, on any Business Day, to elect to change or continue the type of interest
rate borne by each Group of Syndicated Dollar-Denominated Loans (subject in each case to
the provisions of Article III and subsection 2.08(d)), as follows:
- if such Loans are Base Rate Loans, the Borrower may elect to convert such Loans to
Eurodollar Loans as of any Business Day; and
- if such Loans are Eurodollar Loans, the Borrower may elect to convert such Loans to Base
Rate Loans or elect to continue such Loans as Eurodollar Loans for an additional Interest
Period, subject to Section 3.05 in the case of any such conversion or
continuation effective on any day other than the last day of the then current Interest
Period applicable to such Loans.
- Contents of Notice of Extension/Conversion. Each Notice of Extension/Conversion
shall specify:
- the Group of Loans (or portion thereof) to which such notice applies;
- the date on which the conversion or continuation selected in such notice is to be
effective, which shall comply with the applicable clause of subsection 2.08(a)
above;
- if the Loans comprising such Group are to be converted, the new type of Loans and, if
the Loans being converted are to be Eurodollar Loans, the duration of the next succeeding
Interest Period applicable thereto; and
- if such Loans are to be continued as Eurodollar Loans for an additional Interest Period, the duration of such additional Interest Period.
- Notification to Lenders. Upon receipt of a Notice of Extension/Conversion from
the Borrower pursuant to subsection 2.08(a) above, the Administrative Agent shall
promptly notify each Lender of the contents thereof and such notice shall not thereafter
be revocable by the Borrower. If no Notice of Extension/Conversion is timely received
prior to the end of an Interest Period for any Group of Eurodollar Loans, the Borrower
shall be deemed to have elected that such Group be converted to Base Rate Loans as of the
last day of such Interest Period.
- Limitation on Conversion/Continuation Options. The Borrowers shall not be
entitled to elect to convert any Syndicated Loans to, or continue any Syndicated Loans for
an additional Interest Period as, Eurodollar Loans if (i) the aggregate principal
amount of any Group of Eurodollar Loans created or continued as a result of such election
would be less than $2,000,000 or (ii) a Default shall have occurred and be continuing
when the Borrower delivers notice of such election to the Administrative Agent.
- Alternative Currency Loans. The initial Interest Period for each Group of
Syndicated Alternative Currency Loans shall be specified by the Borrower in the applicable
Notice of Borrowing. The Borrower may specify the duration of each subsequent Interest
Period applicable to such Group of Syndicated Alternative Currency Loans by delivering to
the Administrative Agent, not later than 12:00 Noon (New York City time) on the fourth
Business Day before the end of the immediately preceding Interest Period, a notice
specifying the Group of Loans to which such notice applies and the duration of such
subsequent Interest Period (which shall comply with the provisions of the definition of
Interest Period). Such notice may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that
(i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the Dollar Amounts of the portion to which such notice applies, and the
remaining portion to which it does not apply, are each at least $2,000,000. If no such
Notice of Extension/Conversion is timely received by the Administrative Agent before the
end of any applicable Interest Period, the Borrower shall be deemed to have elected that
the subsequent Interest Period for such Group of Loans shall have a duration of one month
(subject to the provisions of the definition of Interest Period).
- Certain Mandatory Conversions and Prepayments of Eurocurrency Loans. On the date
in which the aggregate unpaid Dollar Amount of Eurocurrency Loans comprising any Group of
Loans shall be reduced, by payment or prepayment or otherwise, to less than $2,000,000,
such Loans shall, on the last day of the then current Interest Period therefor,
(i) if such Eurocurrency Loans are denominated in Dollars, automatically be converted
into Base Rate Syndicated Loans and (ii) if such Eurocurrency Loans are denominated
in an Alternative Currency, be repaid by the Borrower. Upon the occurrence and during the
continuance of any Event of Default, (i) each Eurocurrency Loan shall automatically,
on the last day of the then current Interest Period therefor, (A) if such
Eurocurrency Loan is denominated in Dollars, be converted into a Syndicated Base Rate Loan
and (B) if such Eurocurrency Loan is denominated in an Alternative Currency, be
redenominated into Dollars in an amount equal to the then Dollar Equivalent thereof as of
the date of determination and converted into Base Rate Syndicated Loans and (ii) the
obligation of the Lenders to make, or to continue or convert Syndicated Loans into,
Eurocurrency Loans shall be suspended. The Administrative Agent shall promptly notify each
Lender of the aggregate Dollar Amount if any such Eurocurrency Loan which is redenominated
into Dollars and such Lender's pro-rata share of such Loan.
- Accrued Interest. Accrued interest on a Loan (or portion thereof) being extended
or converted shall be paid by the Borrower (i) with respect to any Base Rate Loan being
converted to a Eurodollar Loan, on the last day of the first fiscal quarter of Xxxxxxxxx
ending on or after the date of conversion and (ii) otherwise, on the date of extension or
conversion.
Each such election shall be made by delivering a notice, substantially in the form of Exhibit A-4 hereto (a "Notice of Extension/Conversion") to the Administrative Agent not later than 12:00 Noon on the third Business Day before the conversion or continuation selected in such notice is to be effective. A Notice of Extension/Conversion may, if it so specifies, apply to only a portion of the aggregate principal amount of the relevant Group of Loans, provided that (i) such portion is allocated ratably among the Loans comprising such Group and (ii) the portion to which such Notice applies, and the remaining portion to which it does not apply, are each $2,000,000 or any larger multiple of $500,000.
Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of the term "Interest Period".
Section 2.10 Optional Prepayments.
- Subject in the case of any Eurocurrency Loan to Section 3.05, the Borrower
may (i) with notice by 12:00 Noon on the date of such prepayment, prepay any Group of
Base Rate Loans, any Swingline Borrowing or any Competitive Bid Borrowing bearing interest
at the Base Rate pursuant to Section 3.02, in each case in whole at any time,
or from time to time in part in an aggregate Dollar Amount of $5,000,000 ($100,000 in the
case of a Swingline Borrowing) or any larger multiple of $1,000,000 ($100,000 in the case
of a Swingline Borrowing), or (ii) upon at least three Business Days' notice to the
Administrative Agent, prepay any Group of Eurocurrency Loans in whole at any time, or from
time to time in part in an aggregate Dollar Amount of $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Lenders included in such Group or Borrowing.
- Except as provided in subsection 2.10(a) above, Xxxxxxxxx may not prepay all
or any portion of the principal amount of any Competitive Bid Loan prior to the maturity
thereof.
- Upon receipt of a notice of prepayment pursuant to this Section, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such Lender's
ratable share (if any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
Section 2.11 Adjustment of Commitments.
- Optional Termination or Reduction of Revolving Committed Amount. Xxxxxxxxx may
from time to time terminate in full or permanently reduce the Revolving Committed Amount
upon five Business Days' prior written or telecopied notice to the Administrative Agent; provided,
however, that (i) no such termination or reduction shall be made which would
cause the Dollar Amount of the Revolving Outstandings (after giving effect to any
concurrent repayment of Revolving Loans or Swingline Loans or Cash Collateralization of LC
Obligations) to exceed the Revolving Committed Amount as so reduced, and (ii) any
such partial reduction shall be in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof (or, if less, the full remaining amount
of the then applicable Revolving Committed Amount). The Administrative Agent shall
promptly notify each affected Lender of the receipt by the Administrative Agent of any
notice from Xxxxxxxxx pursuant to this Section 2.11(a). Any partial reduction of
the Revolving Committed Amount pursuant to this Section 2.11(a) shall be
applied to the Revolving Commitments of the Lenders pro-rata based upon their respective
Revolving Commitment Percentages. Xxxxxxxxx shall pay to the Administrative Agent for the
account of the Lenders in accordance with the terms of Section 2.12, on the date of
each termination or reduction of the Revolving Committed Amount, any fees accrued through
the date of such termination or reduction on the amount of the Revolving Committed Amount
so terminated or reduced.
- Automatic Termination at Maturity. The Revolving Commitments of the Lenders and
the LC Commitments of the Issuing Lenders shall terminate automatically on the Maturity
Date. The Swingline Commitment of the Swingline Lender shall terminate automatically on
the Swingline Termination Date.
- Optional Replacement of Lenders, Non-Pro-Rata Termination of Commitments. If (i)
any Lender has demanded compensation or indemnification pursuant to Section 3.01
or Section 3.04, (ii) the obligation of any Lender to make Eurocurrency Loans
has been suspended pursuant to Section 3.02, (iii) any Lender is a Defaulting
Lender or (iv) any Lender has failed to consent to a proposed amendment, waiver, discharge
or termination which pursuant to the terms of Section 11.01 or any other provision
of any Loan Document requires the consent of all of the Lenders and with respect to which
the Required Lenders shall have granted their consent, Xxxxxxxxx shall have the right, if
no Default or Event of Default then exists, to (i) remove such Lender by terminating
such Lender's Commitment in full or (ii) replace such Lender by causing such Lender
to assign its Commitment to one or more existing Lenders or Eligible Assignees pursuant to
Section 11.06. The replacement of a Lender pursuant to this Section 2.11(c)
shall be effective on the tenth Business Day (the "Replacement Date")
following the date of notice of such replacement to the Lenders through the Administrative
Agent, subject to the satisfaction of the following conditions:
- each replacement Lender and/or Eligible Assignee, and each Lender subject to
replacement, shall have satisfied the conditions to an Assignment and Acceptance set forth
in Section 11.06(b) and, in connection therewith, the replacement Lender(s) and/or
Eligible Assignee(s) shall pay:
- to each Lender subject to replacement an amount equal in the aggregate to the sum of (x)
the principal of, and all accrued but unpaid interest on, its outstanding Loans, (y) all
LC Disbursements that have been funded by (and not reimbursed to) it under Section 2.06,
together with all accrued but unpaid interest with respect thereto, and (z) all accrued
but unpaid fees owing to it pursuant to Section 2.12; and
- to the Issuing Lenders an amount equal to the aggregate amount owing by the replaced
Lenders to the Issuing Lenders as reimbursement pursuant to Section 2.06, to the
extent such amount was not theretofore funded by such replaced Lenders; and
- the Borrower shall have paid to the Administrative Agent for the account of each replaced Lender an amount equal to all obligations owing to such replaced Lenders by the Borrower pursuant to this Agreement and the other Loan Documents (other than those obligations of the Borrower referred to in clause (i)(A) above).
In the case of the removal of a Lender pursuant to this Section 2.11(c), upon (i) payment by the Borrower to the Administrative Agent for the account of the Lender subject to such removal of an amount equal to the sum of (A) the aggregate principal amount of all Loans and LC Obligations held by such Lender and (B) all accrued interest, fees and other amounts owing to such Lender hereunder, including, without limitation, all amounts payable by the Borrower to such Lender under Article III or Sections 10.04 and 10.05, and (ii) provision by Xxxxxxxxx to the Swingline Lender and each Issuing Lender of appropriate assurances and indemnities (which may include letters of credit) as each may reasonably require with respect to any continuing obligation of such removed Lender to purchase participation Interests in any LC Obligations or Swingline Loans then outstanding, such Lender shall cease to constitute a Lender hereunder; provided that the provisions of this Agreement (including, without limitation, the provisions of Article III and Sections 10.04 and 10.05) shall continue to govern the rights and obligations of a removed Lender with respect to any Loans made, any Letters of Credit issued or any other actions taken by such removed Lender while it was a Lender.
- Facility Fee. Xxxxxxxxx shall pay to the Administrative Agent for the account of
each Revolving Lender a fee (the "Facility Fee") on such Lender's
Revolving Commitment Percentage of the daily Dollar Amount of Revolving Committed Amount,
computed at a per annum rate for each day at a rate equal to the Applicable Margin in
effect from time to time. The Facility Fee shall commence to accrue on the Closing Date
and shall be due and payable in arrears on each March 31, June 30, September 30 and
December 31 (and any date that the Revolving Committed Amount is reduced as provided in Section
2.10(a) or (b) and the Maturity Date) for the calendar quarter or portion
thereof ending on each such date, beginning with the first of such dates to occur after
the Closing Date.
- Letter of Credit Fees.
- Letter of Credit Fees. Xxxxxxxxx shall pay to the Administrative Agent for the
account of each Lender a fee (the "Letter of Credit Fee") on such
Lender's Revolving Commitment Percentage of the Dollar Amount of the average daily maximum
amount available to be drawn under each such Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration equal to the Applicable
Margin in respect of Eurocurrency Revolving Loans in effect from time to time. The Letter
of Credit Fee will be payable quarterly in arrears on the last Business Day of each March,
June, September and December for the immediately preceding quarter (or portion thereof),
beginning with the first of such dates to occur after the date of issuance of such Letter
of Credit and on the Maturity Date. If there is a change in the Applicable Margins during
any period, the actual Dollar Amount of each Letter of Credit shall be computed and
multiplied by the Applicable Margins separately for each period during which such
Applicable Margins are in effect.
- Fronting Fees. Xxxxxxxxx shall pay directly to each Issuing Lender for its own
account a fronting fee in the amount (A) with respect to each Trade Letter of Credit,
equal to .125% of the amount of such Trade Letter of Credit, due and payable upon the
issuance thereof and (B) with respect to each Standby Letter of Credit; equal to .125% per
annum on the daily maximum amount available to be drawn thereunder, due and payable
quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date after the issuance of such letter of credit and on the
Maturity Date.
- Issuing Lender Fees. In addition to the Letter of Credit Fee payable pursuant to
clause (i) above and any fronting fees payable pursuant to clause (ii)
above, Xxxxxxxxx promises to pay to the Issuing Lender for its own account without sharing
by the other Lenders the letter of credit fronting and negotiation fees agreed to by
Xxxxxxxxx and the Issuing Lender from time to time and the customary charges from time to
time of the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
- Utilization Fee. Xxxxxxxxx shall pay to the Administrative Agent for the account
of each Revolving Lender a fee (the "Utilization Fee") on the actual
daily aggregate Dollar Amount of such Lender's Revolving Loans then outstanding hereunder
with respect to each day on which the principal amount of all Revolving Loans (including
Swingline Loans) then outstanding exceeds 50% of the aggregate Revolving Commitments (each
such day a "Utilization Fee Day"). Such fee shall be computed with
respect to each Utilization Fee Day at a rate equal to .125% per annum, and shall accrue
with respect to each Utilization Fee Day occurring on and after the Closing Date to the
later to occur of (i) the Maturity Date and (ii) the date on which all Loans and LC
Obligations and interest thereon are paid in full and the commitments hereunder are
terminated and, to the extent accrued during such period, shall be due and payable,
quarterly in arrears, on the last Business Day of each March, June, September and
December, beginning on the first of such dates to occur after the Closing Date.
- Agency Fees. Xxxxxxxxx shall pay an agency fee to the Administrative Agent's own
account, in amounts and at times specified in the letter agreement dated October 18, 2001,
among Xxxxxxxxx, First Union Securities, Inc. and the Administrative Agent. In addition to
such fees payable to the Administrative Agent, Xxxxxxxxx shall pay a fee of $1,500 for
each Absolute Rate Auction run by the Administrative Agent, whether or not Xxxxxxxxx
receives or accepts any Competitive Bid with respect to any such Absolute Rate Auction.
All such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
Section 2.13 Pro-rata Treatment.
Except to the extent otherwise provided herein:
- Loans. Each Syndicated Borrowing, each payment or prepayment of principal of or
interest on any Syndicated Loan, each payment of fees (other than the Issuing Lender Fees
retained by the Issuing Lender for its own account and the fees retained by the Agents for
their own account), each reduction of the Revolving Committed Amount and each conversion
or continuation of any Syndicated Loan, shall be allocated pro-rata among the relevant
Lenders in accordance with the respective Revolving Commitment Percentages, of such
Lenders (or, if the Commitments of such Lenders have expired or been terminated, in
accordance with the respective principal amounts of the outstanding Loans of the
applicable Class and Participation Interests of such Lenders); provided that, in
the event any amount paid to any Lender pursuant to this subsection (a) is
rescinded or must otherwise be returned by the Administrative Agent, each Lender shall,
upon the request of the Administrative Agent, repay to the Administrative Agent the amount
so paid to such Lender, with interest for the period commencing on the date such payment
is returned by the Administrative Agent until the date the Administrative Agent receives
such repayment at a rate per annum equal to, during the period to but excluding the date
two Business Days after such request, the Federal Funds Rate, and thereafter, the Base
Rate plus two percent (2%) per annum.
- Letters of Credit. Each payment of LC Obligations shall be allocated to each
Revolving Lender pro-rata in accordance with its Revolving Commitment Percentage; provided
that, if any Revolving Lender shall have failed to pay its applicable pro-rata share of
any LC Disbursement, then any amount to which such Revolving Lender would otherwise be
entitled pursuant to this subsection (b) shall instead be payable to the Issuing
Lender; provided, further, that in the event any amount paid to any
Revolving Lender pursuant to this subsection (b) is rescinded or must otherwise be
returned by the Issuing Lender, each Revolving Lender shall, upon the request of the
Issuing Lender, repay to the Administrative Agent for the account of the Issuing Lender
the amount so paid to such Revolving Lender, with interest for the period commencing on
the date such payment is returned by the Issuing Lender until the date the Issuing Lender
receives such repayment at a rate per annum equal to, during the period to but excluding
the date two Business Days after such request, the Federal Funds Rate, and thereafter, the
Base Rate plus two percent (2%) per annum.
Section 2.15 Payments; Computations.
- Payments by the Borrower. Each payment of principal of and interest on Loans, LC
Obligations and fees hereunder (other than fees payable directly to the Issuing Lenders or
the Agents) shall be paid not later than 2:00 P.M. on the date when due, in the applicable
currency and in funds immediately available to the Administrative Agent at the
Administrative Agent's Office. Each such payment shall be made irrespective of any
set-off, counterclaim or defense to payment which might in the absence of this provision
be asserted by the Borrower or any Affiliate against any Agent or any Lender. Except as
otherwise provided herein, payments received after 2:00 P.M. shall be deemed to have been
received on the next Business Day. The Borrower shall, at the time it makes any payments
under this Agreement, specify to the Administrative Agent the Loan, Letters of Credit,
fees or other amounts payable by the Borrower hereunder to which such payment is to be
applied (and if it fails so to specify or if such application would be inconsistent with
the terms hereof, the Administrative Agent shall, subject to Section 2.13,
distribute such payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute such payments in like funds to the
applicable Lenders on the date of receipt thereof, if such payment is received prior to
2:00 P.M.; otherwise the Administrative Agent will distribute such payment to the
applicable Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be due on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day unless (in the case of Eurocurrency Loans)
such Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Business Day for such currency. If the date for any
payment of principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time. The Borrower hereby authorizes and directs the
Administrative Agent to debit any account maintained by the Borrower with the
Administrative Agent to pay when due any amounts required to be paid from time to time
under this Agreement. Unless converted to Dollars pursuant to the express terms of this
Agreement, all payments in respect of the principal of or interest on Loans denominated in
any Available Alternative Currency, and all reimbursement of amounts drawn under Letters
of Credit denominated in an Available Alternative Currency, shall be made by the Borrower
in such Alternative Currency.
- Distributions by the Administrative Agent. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment is due to
the Lenders hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date, and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at (i) the Federal Funds Rate (if such amount was
distributed in Dollars) or (ii) the rate per annum at which one day deposits in the
relevant currency are offered to the Administrative Agent in the appropriate interbank
market for such day (if such amount was distributed in an Alternative Currency).
- Computations. Except for Base Rate Loans, in which case interest shall be
computed on the basis of a 365 or 366 day year as the case may be (unless the Base Rate is
determined by reference to the Federal Funds Rate), all computations of interest and fees
hereunder shall be made on the basis of the actual number of days elapsed over a year of
360 days. Interest shall accrue from and include the date of borrowing (or continuation or
conversion) but excluding the date of payment.
Section 2.16 Judgment Currency.
- Exchange Ratio. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum owing hereunder or under any other Loan Document in one
currency into another currency, each party hereto agrees, to the fullest extent that it
may effectively do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures in the relevant jurisdiction the first currency could be
purchased with such other currency on the Business Day immediately preceding the day on
which final judgment is given.
- Satisfaction of Obligations in Agreement Currency. The obligations of each Borrower hereunder and under each other Loan Document in respect of any sum due to any other party hereto or thereto or to any holder of the obligations owing hereunder or thereunder (an "Applicable Creditor") shall, notwithstanding any judgment in a currency (the "Judgment Currency") other than the currency in which such sum is stated to be due hereunder (the "Agreement Currency"), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may, in accordance with normal banking procedures in the relevant jurisdiction, purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrowers agree, jointly and severally, as a separate obligation and notwithstanding such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrowers contained in this Section 2.16 shall survive the termination of this Agreement and the payment of all other amounts owing
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.
- Payments Net of Certain Taxes. Any and all payments by the Borrower to or for
the account of any Lender or any Agent hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and each Agent, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender (or its Applicable Lending Office) or such Agent (as the case may be) is
organized or any political subdivision thereof (all such non-excluded taxes, duties,
levies, imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable under this Agreement or
any other Loan Document to any Lender or any Agent, (i) the sum payable shall be increased
as necessary so that after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under this Section
3.01) such Lender or such Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions
and withholdings, (ii) the Borrower shall pay the full amount deducted or withheld to the
relevant taxation authority or other authority in accordance with applicable law and (iv)
the Borrower shall furnish to the Administrative Agent, at the office of the
Administrative Agent specified in Section 11.02, the original or a certified copy
of a receipt evidencing payment thereof.
- Other Taxes. In addition, the Borrower agrees to pay any and all present or
future stamp or documentary, excise or property taxes or similar levies (including
mortgage recording taxes) which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
- Additional Taxes. The Borrowers agree, jointly and severally, to indemnify each
Lender and each Agent for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section
3.01) paid by such Lender or such Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto.
- Tax Forms and Certificates. Each Lender organized under the laws of a
jurisdiction outside the United States (a "Non-U.S. Lender"), on or prior
to the date of its execution and delivery of this Agreement in the case of each Lender
listed on the signature pages hereof and on or prior to the date on which it becomes a
Lender in the case of each other Lender, and from time to time thereafter as required by
law, shall provide Xxxxxxxxx and the Administrative Agent with (i) Internal Revenue
Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces to zero the rate of
withholding tax on payments of interest or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade or business in the
United States, (ii) Interval Revenue Service Form W-8 or W-9, as appropriate, or any
successor form prescribed by the Internal Revenue Service and (iii) any other form or
certificate required by any taxing authority (including any certificate required by
Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from tax on payments pursuant to this Agreement or any of the
other Loan Documents.
- Failure to Provide Tax Forms and Certificates. For any period with respect to
which a Lender has failed to provide Xxxxxxxxx and the Administrative Agent with the
appropriate form pursuant to Section 3.01(d) (unless such failure is due to a
change in treaty, law or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled to
indemnification under Section 3.01(a) or 3.01(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become subject
to Taxes because of its failure to deliver a form required to be delivered hereunder, the
Borrower shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
- Obligations in Respect of Non-U.S. Lenders. The Borrower shall not be required
to indemnify any Non-U.S. Lender or to pay any additional amounts to any Non-U.S. Lender,
in respect of United States Federal withholding tax pursuant to subsections (a) or (b)
above to the extent that the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a participant, on the date such participant acquired its
participation interest) or, with respect to payments to a new Applicable Lending Office,
the date such Non-U.S. Lender designated such new Applicable Lending Office with respect
to a Loan; provided, however, that this subsection (f) shall not
apply (i) to any participant or new Applicable Lending Office that becomes a participant
or new Applicable Lending Office as a result of an assignment, participation, transfer or
designation made at the request of the Borrower and (ii) to the extent the indemnity
payment or additional amounts any participant, or any Lender acting through a new
Applicable Lending Office, would be entitled to receive (without regard to this subsection
(f)) do not exceed the indemnity payment or additional amounts that the Person making
the assignment, participation or transfer to such participant, or Lender (or participant)
making the designation of such new Applicable Lending Office, would have been entitled to
receive in the absence of such assignment, participation, transfer or designation.
- Mitigation. If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.01, then such Lender will agree to
use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as
to eliminate or reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise disadvantageous to such Lender.
- Tax Receipts. Within thirty days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a receipt
evidencing such payment (to the extent one is so provided).
- the Administrative Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the applicable Eurocurrency Rate for the applicable currency
for such Interest Period; or
- in the case of Eurocurrency Loans, Lenders having 50% or more of the aggregate amount of
the Commitments advise the Administrative Agent that the Applicable Interbank Offered Rate
as determined by the Administrative Agent will not adequately and fairly reflect the cost
to such Lenders of funding their Eurocurrency Loans in the applicable currency for such
Interest Period;
the Administrative Agent shall forthwith give notice thereof to
Xxxxxxxxx and the Lenders, whereupon until the Administrative Agent notifies Xxxxxxxxx
that the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Eurocurrency Loans, or to continue or convert
outstanding Loans as or into Eurocurrency Loans, in the affected currency shall be
suspended and (ii) each outstanding Eurocurrency Loan in the affected currency shall
be converted (in the case of an Alternative Currency Loan, at the then Dollar Equivalent)
into a Base Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the Borrower notifies the Administrative Agent at least two Business Days
before the date of any Eurocurrency Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, if such Eurocurrency
Borrowing is a Syndicated Borrowing, such Borrowing shall instead be made in Dollars as a
Base Rate Borrowing in the same aggregate Dollar Amount as the requested Borrowing.
- shall subject such Lender (or its Applicable Lending Office) to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurocurrency Loans made by it or any
of its Notes or its obligation to make Eurocurrency Loans or to participate in Letters of
Credit, or change the basis of taxation of payments to such Lender (or its Applicable
Lending Office) in respect thereof (except for (A) Taxes and Other Taxes covered by Section
3.01 (including Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 3.01(d)) and (B) changes in taxes measured by or
imposed upon the overall net income, or franchise tax (imposed in lieu of such net income
tax), of such Lender or its Applicable Lending Office, branch or any affiliate thereof));
- shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or
similar requirement against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender (or its Applicable Lending Office) which is not
otherwise included in the determination of the Eurocurrency Rate hereunder; or
- shall impose on such Lender (or its Applicable Lending Office) any other condition
(excluding any tax of any kind whatsoever);
- If any Lender shall have determined that the adoption or the becoming effective of, or
any change in, or any change by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof in the interpretation or
administration of, any applicable Law, regarding capital adequacy, or compliance by such
Lender, or its parent corporation, with any request or directive regarding capital
adequacy (whether or not having the force of Law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return on such
Lender's (or parent corporation's) capital or assets as a consequence of its commitments
or obligations hereunder to a level below that which such Lender, or its parent
corporation, could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's) policies
with respect to capital adequacy), then, upon notice from such Lender to Xxxxxxxxx, the
Borrower shall be obligated to pay to such Lender such additional amount or amounts as
will compensate such Lender on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such reduction. Each
determination by any such Lender of amounts owing under this Section shall, absent
manifest error, be conclusive and binding on the parties hereto; provided, that if
any Lender receives a rebate of any amount for which it had received compensation from the
Borrower pursuant to subsection (a) or subsection (b) of this Section 3.04,
any such Lender shall promptly remit any such rebated amount to the Borrower.
- A certificate of each Lender setting forth such amount or amounts as shall be necessary
to compensate such Lender or its holding company as specified in subsection (a) or (b)
above, as the case may be, shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay each Lender or the Issuing Lender the amount
shown as due on any such certificate delivered by it within 10 Business Days after receipt
of the same.
- Promptly after any Lender becomes aware of any circumstance that will, in its sole
judgment, result in a request for increased compensation pursuant to this Section, such
Lender shall notify Xxxxxxxxx thereof. Failure on the part of any Lender so to notify
Xxxxxxxxx or to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Lender's right to demand compensation with respect to such
period or any other period. The protection of this Section shall be available to each
Lender regardless of any possible contention of the invalidity or inapplicability of the
law, rule, regulation, guideline or other change or condition which shall have occurred or
been imposed.
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into, continuing or
maintaining any Eurocurrency Loans or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof, then, in any such case, upon
notice to Xxxxxxxxx from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender on an after-tax basis (after
taking into account applicable deductions and credits in respect of the amount
indemnified) for such increased cost or reduced amount receivable.
ARTICLE IV
CONDITIONS
- Executed Loan Documents. Receipt by the Administrative Agent of duly executed
copies of: (i) this Agreement; and (ii) the Notes, if any, each in form and substance
satisfactory to the Lenders in their sole discretion.
- Legal Matters. All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Administrative Agent and to Xxxxx, Xxxxx &
Xxxxx, counsel for the Administrative Agent.
- Organization Documents. The Administrative Agent shall have received: (i) a copy
of the Organization Documents of each Borrower, certified (if available) as of a recent
date by the Secretary of State or similar official of its respective state or similar
jurisdiction of organization, and a certificate as to the good standing of each Borrower,
from such Secretary of State or similar official, as of a recent date; (ii) a certificate
of the Secretary or Assistant Secretary of each Borrower dated the Closing Date and
certifying (A) that the Organization Documents of such Borrower have not been amended
since the date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above; (B) that attached thereto is a true and
complete copy of by-laws or similar constitutive documents of such Borrower as in effect
on the Closing Date and at all times since a date prior to the date of the resolutions
described in clause (C) below, (C) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors or similar governing body of
each Borrower authorizing the execution, delivery and performance of the Loan Documents
and the borrowings hereunder, and that such resolutions have not been modified, rescinded
or amended and are in full force and effect; and (D) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document delivered in
connection herewith on behalf of such Borrower; (iii) a certificate of another officer of
each Borrower as to the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (ii) above; and (iv) such
other documents as the Administrative Agent or Xxxxx, Xxxxx & Xxxxx, counsel for the
Administrative Agent, may reasonably request.
- Officer's Certificate. The Agent shall have received a certificate, dated the
Closing Date and signed by a Responsible Officer of Xxxxxxxxx, (i) confirming compliance
with the conditions precedent set forth in paragraphs (b) and (c) of Section
4.02 and (ii) certifying the current Xxxxxxxxx'x Ratings.
- Opinions of Counsel. On the Closing Date, the Administrative Agent shall have
received a favorable written opinions of Xxxxxx & Xxxxxxx, L.L.P., special North
Carolina counsel to the Borrowers, and in-house counsel of Xxxxxxxxx, in each case
addressed to the Administrative Agent and each Lender, dated the Closing Date,
substantially in the form of Exhibit D hereto and covering such additional matters
incident to the transactions contemplated hereby as the Administrative Agent or the
Required Lenders may reasonably request.
- Payment of Fees. All costs, fees and expenses due to the Administrative Agent,
the Collateral Agent and the Lenders on or before the Closing Date shall have been paid.
- Counsel Fees. The Administrative Agent shall have received full payment from the
Borrower of the fees and expenses of Xxxxx, Xxxxx & Xxxxx described in Section
11.04 which are billed through the Closing Date.
- Repayment of Indebtedness. The Administrative shall have received satisfactory
evidence of the repayment in full of all amounts owing and termination of all commitments
to lend under (i) the Credit Agreement dated as of January 18, 1994, as amended,
among Xxxxxxxxx, the lenders party thereto and JPMorgan Chase Bank (as successor by merger
to Xxxxxx Guaranty Trust Company of New York), as agent, (ii) the Amended and Restated
Revolving Credit Agreement dated as of March 20, 2000, as amended, among Xxxxxxxxx,
Xxxxxxxxx UK, Certech and First Union National Bank and (iii) the Line of Credit Agreement
dated as of March 3, 2000, as amended, between Xxxxxxxxx and Mellon Bank, N.A.
- Financial Statements. The Administrative Agent and the Lenders shall have
received and be satisfied with (a) the consolidated balance sheet and income statement of
Xxxxxxxxx and its Consolidated Subsidiaries, as of June 30, 2001, and the related
consolidated statements of operations and retained earnings and cash flows for such fiscal
year, audited by independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and accompanied by an opinion of such
accountants (which shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any qualifications or exceptions not reasonably acceptable to
the Required Lenders) to the effect that such consolidated financial statements have been
prepared in accordance with GAAP and present fairly the consolidated financial position
and consolidated results of operations and cash flows of Xxxxxxxxx and its Consolidated
Subsidiaries in accordance with GAAP consistently applied (except for changes with which
such accountants concur) and (b) unaudited, interim financial statements of Xxxxxxxxx and
its Consolidated Subsidiaries for the fiscal quarter ended September 30, 2001.
All corporate and legal proceedings and instruments and agreements relating to the transactions contemplated by this Agreement or in any other document delivered in connection herewith or therewith shall be satisfactory in form and substance to the Administrative Agent and its counsel, and the Administrative Agent shall have received all information and copies of all documents and papers, including records of corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or Governmental Authorities. The documents referred to in this Section shall be delivered to the Administrative Agent no later than the Closing Date. The certificates and opinions referred to in this Section shall be dated the Closing Date.
The requirement that any document, agreement, certificate or other
writing be satisfactory to the Required Lenders shall be deemed to be satisfied if (i)
such document, agreement, certificate or other writing was delivered to the Lenders not
less than two Business Days prior to the Closing Date, (ii) such document, agreement,
certificate or other writing is satisfactory to the Administrative Agent and (iii) Lenders
holding at least 50% of the Commitments have not objected in writing to such document,
agreement, certificate or other writing to the Administrative Agent prior to the Closing
Date.
- Notice. The Borrower shall have delivered (i) in the case of any Revolving Loan,
to the Administrative Agent, an appropriate Notice of Borrowing, duly executed and
completed, by the time specified in Section 2.02 or 2.03, (ii) in the case
of any Letter of Credit, to the Issuing Lender, an appropriate Letter of Credit Request
duly executed and completed in accordance with the provisions of Section 2.06, and
(iii) in the case of any Swingline Loan, to the Swingline Lender, a Swingline Loan
Request, duly executed and completed, by the time specified in Section 2.02.
- Representations and Warranties. The representations and warranties made by the
Borrowers in any Loan Document are true and correct in all material respects at and as if
made as of such date except to the extent they expressly relate to an earlier date.
- No Default. No Default or Event of Default shall exist or be continuing either
prior to or after giving effect thereto.
- Availability. Immediately after giving effect to the making of a Loan (and the
application of the proceeds thereof) or to the issuance of a Letter of Credit, as the case
may be, (i) the Dollar Amount of the Revolving Outstandings shall not exceed the Revolving
Committed Amount, (ii) the Dollar Amount of the sum of LC Obligations outstanding shall
not exceed the LC Committed Amount, (iii) the sum of Swingline Loans outstanding shall not
exceed the Swingline Committed Amount and (iv) the Dollar Amount of all Competitive Bid
Loans shall not exceed the Competitive Bid Loan Sublimit.
- Currency Availability. In the case of any Eurocurrency Borrowing in a currency
other than Dollars or an Agreed Alternative Currency, the fact that no Lender shall have
notified the Administrative Agent (which shall promptly notify the Borrower and the other
Lenders) within two Business Days of such Lender's receipt of the Notice of Syndicated
Borrowing for such Eurocurrency Borrowing that deposits in the relevant currency are not
available to such Lender in the applicable interbank market for the relevant Interest
Period.
The delivery of each Notice of Borrowing, Swingline Loan Request and
each request for a Letter of Credit shall constitute a representation and warranty by the
Borrowers of the correctness of the matters specified in subsections (b) and (c)
above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Agents and the Lenders that:
Section 5.05 Financial Condition.
- Audited Financial Statements. The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of June 30, 2001 and the related consolidated statements
of income and cash flows for the fiscal year then ended, reported on by
PricewaterhouseCoopers and set forth in Xxxxxxxxx'x 2001 Form 10-K, a copy of which has
been delivered to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of Xxxxxxxxx and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal year.
- Interim Financial Statements. The unaudited consolidated balance sheet of
Xxxxxxxxx and its Consolidated Subsidiaries as of September 30, 2001 and the related
unaudited consolidated statements of income and cash flows for the three months then
ended, set forth in Xxxxxxxxx'x Latest Form 10-Q, a copy of which has been delivered to
each of the Lenders, fairly present, in conformity with GAAP applied on a basis consistent
with the financial statements referred to in subsection (a) of this Section, the
consolidated financial position of Xxxxxxxxx and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such three-month
period (subject to normal year-end audit adjustments).
- Material Adverse Effect. Since June 30, 2001, there has been no Material Adverse
Effect, and no event or development has occurred which could reasonably be expected to
result in a Material Adverse Effect.
- Post-Closing Financial Statements. The financial statements delivered to the
Lenders pursuant to Section 6.01(a) and (b), if any, (i) have been prepared
in accordance with GAAP (except as may otherwise be permitted under Section 6.01(a)
and (b)) and (ii) present fairly (on the basis disclosed in the footnotes to such
financial statements, if any) the consolidated financial condition, results of operations
and cash flows of Xxxxxxxxx and its Consolidated Subsidiaries as of the respective dates
thereof and for the respective periods covered thereby.
Section 5.12 ERISA Compliance.
- Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of Xxxxxxxxx, nothing has occurred which would
prevent, or cause the loss of such qualification. Xxxxxxxxx and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
- There are no pending or, to the best knowledge of Xxxxxxxxx, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
be reasonably be expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could be reasonably expected to result in a Material Adverse Effect.
- (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither Xxxxxxxxx nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither Xxxxxxxxx nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan;
and (v) neither Xxxxxxxxx nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA.
- None of Xxxxxxxxx and its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act or the Investment Company Act of 1940,
each as amended. In addition, none of Xxxxxxxxx and its Subsidiaries is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, (ii) controlled by such a company, or (iii) a
"holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1934, as amended.
- No director, executive officer or principal holder of any Equity Interest of Xxxxxxxxx
or any of its Subsidiaries is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof, the terms "director", "executive
officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrowers agree that so long as any Lender has any Commitment
hereunder, any Obligation or other amount payable hereunder or under any Note or other
Loan Document or any LC Obligation remains unpaid or any Letter of Credit remains
unexpired:
- Annual Financial Statements. As soon as available, and in any event within 105
days after the end of each fiscal year of Xxxxxxxxx, a consolidated balance sheet and
income statement of Xxxxxxxxx and its Consolidated Subsidiaries, as of the end of such
fiscal year, and the related consolidated statements of operations and retained earnings
and cash flows for such fiscal year, setting forth in comparative form consolidated
figures for the preceding fiscal year, all such financial statements to be in reasonable
form and detail and audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and accompanied by an
opinion of such accountants (which shall not be subject to any qualifications or
exceptions as to the scope of the audit nor to any qualifications or exceptions not
reasonably acceptable to the Required Lenders) to the effect that such consolidated
financial statements have been prepared in accordance with GAAP and present fairly the
consolidated financial position and consolidated results of operations and cash flows of
Xxxxxxxxx and its Consolidated Subsidiaries in accordance with GAAP consistently applied
(except for changes with which such accountants concur).
- Quarterly Financial Statements. As soon as available, and in any event within 60
days after the end of each of the first three fiscal quarters in each fiscal year of
Xxxxxxxxx, a consolidated balance sheet of Xxxxxxxxx and its Consolidated Subsidiaries as
of the end of such fiscal quarter, together with related consolidated statements of
operations and retained earnings and cash flows for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in comparative form consolidated
figures for the corresponding periods of the preceding fiscal year, all such financial
statements to be in form and detail and reasonably acceptable to the Administrative Agent,
and accompanied by a certificate of the chief financial officer of Xxxxxxxxx to the effect
that such quarterly financial statements have been prepared in accordance with GAAP and
present fairly in all material respects the consolidated financial position and
consolidated results of operations and cash flows of Xxxxxxxxx and its Consolidated
Subsidiaries in accordance with GAAP consistently applied, subject to changes resulting
from normal year-end audit adjustments and the absence of footnotes required by GAAP.
- Officer's Certificate. At the time of delivery of the financial statements
provided for in Sections 6.01(a) and 6.01(b) above, a certificate of the
chief financial officer of Xxxxxxxxx (i) demonstrating compliance with the financial
covenants contained in Section 7.12 by calculation thereof as of the end of the
fiscal period covered by such financial statements, (ii) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist, specifying the nature
and extent thereof and what action Xxxxxxxxx proposes to take with respect thereto, (iii)
stating whether, since the date of the most recent financial statements delivered
hereunder, there has been any material change in the GAAP applied in the preparation of
the financial statements of Xxxxxxxxx and its Consolidated Subsidiaries, and, if so,
describing such change.
- Reports. Promptly after the same are filed or made available, copies, which may
be in electronic format, of each annual report, proxy or financial statement or other
report or communication sent to the stockholders of Xxxxxxxxx, and copies of all annual,
regular, periodic and special reports and registration statements which Xxxxxxxxx may file
or be required to file with the Securities and Exchange Commission under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered
to the Administrative Agent pursuant hereto.
- Notices. Prompt notice of: (i) the occurrence of any Default or Event of
Default; (ii) any matter that has resulted or may result in a Material Adverse
Effect, including (A) breach or non-performance of, or any default under, a Contractual
Obligation of Xxxxxxxxx or any Subsidiary; (B) any dispute, litigation, investigation,
proceeding or suspension between Xxxxxxxxx or any Subsidiary and of Governmental
Authority; (C) the commencement of, or any material development in, any litigation or
proceeding affecting Xxxxxxxxx or any Subsidiary, including pursuant to any applicable
Environmental Law; (D) any litigation, investigation or proceeding affecting any Borrower
in which the amount involved exceeds $5,000,000, or in which injunctive relief or similar
relief is sought, which relief, if granted, could be reasonably expected to have a
Material Adverse Effect; (E) the occurrence of any ERISA Event; (F) any material change in
accounting policies or financial reporting practice by Xxxxxxxxx or any Subsidiary; and
(G) of any announcement by Xxxxx'x or S&P of any change or possible change in the
ratios assigned to Xxxxxxxxx'x Ratings. Each notice pursuant to this Section 6.01(e)
shall (i) be accompanied by a statement of a Responsible Officer of Xxxxxxxxx setting
forth details of the occurrence referred to therein and stating what action Xxxxxxxxx has
taken and proposes to take with respect thereto and (ii) describe with particularity any
and all provisions of this Agreement or other Loan Document that have been breached.
- Annual Business Plan and Budget. Prior to the 30th day after the beginning of
each fiscal year of Xxxxxxxxx, an annual business plan and budget of Xxxxxxxxx and its
Consolidated Subsidiaries.
- Other Information. With reasonable promptness upon request therefor, such other
information regarding the business, properties or financial condition of Xxxxxxxxx or any
Subsidiary as the Administrative Agent or the Required Lenders may reasonably request.
ARTICLE VII
NEGATIVE COVENANTS
Each Borrower agrees that so long as any Lender has any Commitment
hereunder, any Obligation or other amount payable hereunder or under any Note or other
Loan Document or any LC Obligation remains unpaid or any Letter of Credit remains
unexpired:
- Debt of Xxxxxxxxx and its Subsidiaries outstanding on the Closing Date and disclosed on Schedule
7.01, without giving effect to any subsequent extension, renewal or refinancing
thereof (collectively, the "Existing Indebtedness");
- Indebtedness of the Borrowers under this Agreement and the other Loan Documents;
- Indebtedness of Xxxxxxxxx and its Subsidiaries not otherwise permitted by this Section
7.01 incurred after the Closing Date in an aggregate principal amount not to exceed
$200,000,000 at any time outstanding; provided that (A) up to $20,000,000 aggregate
principal amount of such Indebtedness may be secured, (B) no Default or Event of Default
shall have occurred and be continuing immediately before and immediately after giving
effect to such incurrence and (C) upon giving effect on a pro-forma basis to the
incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness
of Xxxxxxxxx or any subsidiary, Xxxxxxxxx shall be in compliance with the financial
covenants set forth in Section 7.12;
- Purchase Money Indebtedness of Xxxxxxxxx and its Subsidiaries incurred after the Closing
Date; provided that (A) such Indebtedness is issued and any Liens securing such
Indebtedness are created concurrently with, or within 90 days after, the acquisition of
the asset financed and (B) no Lien securing such Indebtedness shall extend to or cover any
property or asset of Xxxxxxxxx or any Subsidiary other than the asset so financed;
- an asset securitization transaction of Xxxxxxxxx or its Subsidiaries, on terms
reasonably acceptable to the Administrative Agent and not in excess of $75,000,000 in the
aggregate; and
- Indebtedness of Xxxxxxxxx and its Subsidiaries under the 364-Day Facility.
- Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided
that such Liens shall secure only those obligations which they secure on the date hereof
(and permitted extensions, renewals and refinancings of such obligations) and shall not
subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries
(other than accessions to and the proceeds of the property or assets subject to such Liens
to the extent provided by the terms thereof on the date hereof);
- existing and future Liens (other than any Liens imposed by ERISA or pursuant to any
Environmental Law) for taxes, assessments or governmental charges or levies not yet due or
being contested in good faith and by appropriate proceedings diligently pursued for which
adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been
established in accordance with GAAP (and as to which the property or assets subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof);
- existing and future Liens imposed by law securing the charges, claims, demands or levies
of landlords, carriers, warehousemen, mechanics, carriers and other like persons which
were incurred in the ordinary course of business and which (A) do not, individually or in
the aggregate, materially detract from the value of the property or assets which are the
subject of such Lien or materially impair the use thereof in the operation of the business
of Xxxxxxxxx or any of its Subsidiaries or (B) which are being contested in good faith by
appropriate proceedings diligently pursued, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to such Lien;
- Liens arising from judgments, decrees or attachments (or securing of appeal bonds with
respect thereto) in circumstances not constituting an Event of Default under Section
8.01;
- existing and future Liens (other than any Liens imposed by ERISA or pursuant to any
Environmental Law) not securing Indebtedness incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment insurance and
other types of social security or to secure the performance of tenders, statutory
obligations, surety bonds (other than appeal bonds), bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in the
ordinary course of business;
- existing and future zoning restrictions, easements, rights of way, licenses,
reservations, covenants, conditions, waivers, restrictions on the use of property or other
minor encumbrances or irregularities of title not securing Indebtedness or Derivatives
Obligations which do not, individually or in the aggregate, materially impair the use of
any property in the operation or business of Xxxxxxxxx or any of its Subsidiaries or the
value of such property for the purpose of such business;
- Liens securing (A) the secured Indebtedness permitted to be incurred under Section
7.01(iii)(A) and (B) Purchase Money Indebtedness permitted to be incurred under Section
7.01(iv);
- any Lien existing on any asset of any Person at the time such Person becomes a
Subsidiary of Xxxxxxxxx and not created in contemplation of such event;
- any Lien on any asset of any Person existing at the time such Person is merged or
consolidated with or into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not created in
contemplation of such event;
- any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a
Subsidiary of Xxxxxxxxx and not created in contemplation of such acquisition;
- existing and future Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights, in each case
incurred in the ordinary course of business;
- Liens on the property or assets of Xxxxxxxxx or its Subsidiaries arising in connection
with an asset securitization transaction permitted pursuant to Section 7.01(v); and
- Liens other than those permitted by clause (i) through clause (xii) of
this Section 7.02 on property or assets of Xxxxxxxxx and its Subsidiaries now owned
or hereafter acquired by it, or on any income or rights in respect thereof, not in excess
of 15% of Consolidated Tangible Net Worth.
- Investments other than those permitted by subsections (i) through (vii)
existing on the date hereof and listed on Schedule 7.03;
- Investments held by Xxxxxxxxx or such Subsidiary in the form of Cash Equivalents;
- advances to officers, directors and employees of Xxxxxxxxx and Subsidiaries in an
aggregate amount not to exceed $2,000,000 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes;
- Investments of any Subsidiary in Xxxxxxxxx or another Subsidiary;
- Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the ordinary
course of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably necessary in
order to prevent or limit loss;
- Investments permitted by Section 7.05;
- Investments consisting of the acquisition by Xxxxxxxxx or any of is Subsidiaries of
assets or shares of Capital Stock of any other Person; provided, that (A) no
Default or Event of Default shall have occurred and be continuing, (B) the Person whose
assets or shares of Capital Stock are acquired pursuant to this clause (vii) shall
be engaged in substantially the same line of business as Xxxxxxxxx and its Subsidiaries
are engaged in as of the Closing Date and (C) after to giving effect to any such
acquisition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section
7.13 of this Agreement; and
- other Investments made in the ordinary course of business of Xxxxxxxxx and its
Subsidiaries.
- any Subsidiary may merge with (A) Xxxxxxxxx, provided that Xxxxxxxxx shall
be the continuing or surviving Person, or (B) any one or more Subsidiaries, provided
that when any Wholly-Owned Subsidiary is merging with another Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving Person; and
- any Subsidiary may sell all or substantially all of its assets (upon voluntary
liquidation or otherwise), to Xxxxxxxxx or to another Subsidiary; provided that if
the seller in such a transaction is a Wholly-Owned Subsidiary, then the purchaser must
also be a Wholly-Owned Subsidiary.
- Dispositions of obsolete or worn out property, whether now owned or hereafter acquired,
in the ordinary course of business;
- Dispositions of inventory and other property in the ordinary course of business;
- Dispositions of equipment or real property to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property, (B) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property or (C) the Board of Directors or senior management of Xxxxxxxxx or
such Subsidiary has determined in good faith that the failure to replace such property
will not be detrimental to the business of Xxxxxxxxx or such Subsidiary;
- Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx to Xxxxxxxxx or to
a Wholly-Owned Subsidiary of Xxxxxxxxx;
- Dispositions permitted by Section 7.04;
- Dispositions of assets of Xxxxxxxxx or its Subsidiaries in connection with an asset
securitization transaction on terms reasonably acceptable to the Administrative Agent and
not in excess of $75,000,000 in the aggregate; and
- in addition to the Dispositions permitted by clause (i) through clause (vi)
of this Section 7.05, Dispositions of all or substantially all of the property or
all of the shares of Capital Stock of any Subsidiary of Xxxxxxxxx not in excess of 15% of
the total assets of Xxxxxxxxx and its Subsidiaries.
provided, however, that any Disposition pursuant to clauses
(i) through (vi) of property having a book value in excess of $25,000,000 shall
be for fair market value.
- each Subsidiary may make Restricted Payments to Xxxxxxxxx and to Wholly-Owned
Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned Subsidiary,
to Xxxxxxxxx and any Subsidiary and to each other owner of Equity Interests of such
Subsidiary on a pro-rata basis based on their relative ownership interests);
- Xxxxxxxxx and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the Equity Interests (exclusive of Disqualified Stock) of
such Person;
- Xxxxxxxxx and each Subsidiary may purchase, redeem or otherwise acquire shares of its
common stock; provided that, (A) any such purchase, redemption or other acquisition
for value shall not have a Material Adverse Effect and (B) immediately prior to and after
giving effect to any such proposed action, no Default or Event of Default shall have
occurred and be continuing; and
- Xxxxxxxxx may declare or pay cash dividends to its stockholders; provided that,
(A) any such declaration or payment shall not have a Material Adverse Effect and (B)
immediately after giving effect to any such proposed action, no Default or Event of
Default shall have occurred and be continuing.
Section 7.12 Financial Covenants.
- Interest Coverage Ratio. The Interest Coverage Ratio for any period of four
consecutive fiscal quarters of Xxxxxxxxx, in each case taken as a single accounting
period, will not be less than (i) 2.50:1.00 on the last day of any fiscal quarter from
December 31, 2001 to June 30, 2003 and (ii) 3.00:1.00 on the last day of any fiscal
quarter thereafter.
- Debt to Capital Ratio. The Debt to Capital Ratio shall not exceed 55% at any
time.
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default. An
Event of Default shall exist upon the occurrence of any of the following specified events
or conditions (each an "Event of Default"):
- Payment. Any Borrower shall fail to pay: (i) as and when due (whether by
scheduled maturity, mandatory prepayment, acceleration or otherwise) any amount of
principal of any Loan, any amount of interest on any Competitive Bid Loan or any LC
Obligation; (ii) within three days of when due (whether by scheduled maturity, mandatory
prepayment, acceleration or otherwise) any interest on any Committed Loan or LC
Obligation, any commitment facility, utilization or other fee due hereunder; or (iii)
within five days after the same become due, any other amount payable hereunder or under
any other Loan Document.
- Representation and Warranties. Any representation, warranty or statement made or
deemed to be made by any Borrower herein, in any of the other Loan Documents or in any
statement or certificate delivered or required to be delivered pursuant hereto or thereto
shall prove untrue in any material respect on the date as of which it was made or deemed
to have been made.
- Covenants. Any Borrower shall:
- default in the due performance or observance of any term, covenant or agreement
contained in Sections 6.01, 6.02, 6.03, 6.05 or 6.10,
or in Article VII or Article X;
- default in the due performance or observance by it of any term, covenant or agreement
contained in Article VI (other than those referred to in subsections (a), (b)
or (c)(i) of this Section 8.01) and such default shall continue unremedied
for a period of ten Business Days after the earlier of an executive officer of such
Borrower becoming aware of such default or notice thereof given by the Administrative
Agent; or
- default in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b) or (c)(i) or (ii)
of this Section 8.01) contained in this Agreement and such default shall continue
unremedied for a period of at least 30 days after the earlier of an executive officer of
such Borrower becoming aware of such default or notice thereof given by the Administrative
Agent.
- Other Loan Documents. Any Borrower shall default in the due performance or
observance of any term, covenant or agreement in any of the other Loan Documents and such
default shall continue unremedied for a period of at least 30 days after the earlier of an
executive officer of such Borrower becoming aware of such default or notice thereof given
by the Administrative Agent.
- Bankruptcy, etc. A Bankruptcy Event shall occur with respect to Xxxxxxxxx or any
of its Subsidiaries.
- Cross-Default. Xxxxxxxxx or any Subsidiary (A) fails to make payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise),
regardless of amount, in respect of any Indebtedness or Guaranty Obligation (other than in
respect of Indebtedness outstanding under the Loan Documents) having an aggregate
principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than
$15,000,000, (B) fails to perform or observe any other condition or covenant, or any other
event shall occur or condition shall exist, under any agreement or instrument relating to
any such Indebtedness or Guaranty Obligation, if the effect of such failure, event or
condition is to cause such Indebtedness to be declared to be due and payable prior to its
stated maturity, or such Guaranty Obligation to become payable, or cash collateral in
respect thereof to be demanded or (C) shall be required by the terms of such Indebtedness
or Guaranty Obligation to offer to prepay or repurchase such Indebtedness or the primary
Indebtedness underlying such Guaranty Obligation (or any portion thereof) prior to the
stated maturity thereof.
- Judgments. One or more judgments, orders, decrees or arbitration awards is
entered against Xxxxxxxxx or any Subsidiary involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the insurer does not
dispute coverage), as to any single or related series of transactions, incidents or
conditions, of $15,000,000 or more, and the same shall remain undischarged, unvacated and
unstayed pending appeal for a period of 60 days after the entry thereof, or any
Consolidated Party shall enter into any agreement to settle or compromise any pending or
threatened litigation, as to any single or related series of claims, involving payment by
any Consolidated Party of $15,000,000 or more, or any non-monetary judgment, order or
decree is entered against any Consolidated Party which has or would reasonably be expected
to have a Material Adverse Effect, and there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
- ERISA. (i) An ERISA Event occurs when respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of
Xxxxxxxxx under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of $15,000,000, or (ii) Xxxxxxxxx or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of $15,000,000.
- Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement of all the Lenders or
satisfaction in full of all the Obligations, ceases to be in full force and effect, or is
declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect; any Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or any provision of Article X of this Agreement shall for any reason
cease to be valid and binding on or enforceable against Xxxxxxxxx or Xxxxxxxxx shall so
state in writing.
- Ownership. There shall occur a Change of Control.
- Termination of Commitments. Declare the Commitments terminated whereupon the
Commitments shall be immediately terminated.
- Acceleration of Loans. Declare the unpaid principal of and any accrued interest
in respect of all Loans, any reimbursement obligations arising from drawings under Letters
of Credit and any and all other indebtedness or obligations of any and every kind owing by
the Borrower to any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by any Borrower.
- Cash Collateral. Direct Xxxxxxxxx to pay (and Xxxxxxxxx agrees that upon receipt
of such notice, or upon the occurrence of an Event of Default under Section 8.01(e),
it will immediately pay) to the Administrative Agent additional cash, to be held by the
Collateral Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LC Obligations in respect of subsequent drawings under all
then outstanding Letters of Credit in an amount equal to the maximum aggregate Dollar
Amount which may be drawn under all Letters of Credits then outstanding.
- Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Loan Documents, including, without limitation, all rights of set-off,
or applicable Law.
Notwithstanding the foregoing, if an Event of Default specified in Section 8.01(e) shall occur, then the Commitments shall automatically terminate and all Loans, all reimbursement obligations under Letters of Credit, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to the Lenders hereunder and under the other Loan Documents shall immediately become due and payable without the giving of any notice or other action by the Administrative Agent or the Lenders, which notice or other action is expressly waived by any Borrower.
Notwithstanding the fact that enforcement powers reside primarily with the Administrative Agent, each Lender has, to the extent permitted by law, a separate right of payment and shall be considered a separate "creditor" holding a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code or any other insolvency statute.
In case any one or more of the covenants and/or agreements set forth in this Agreement or any other Loan Document shall have been breached by any Borrower, then the Administrative Agent may proceed to protect and enforce the Lenders' rights either by suit in equity and/or by action at law, including an action for damages as a result of any such breach and/or an action for specific performance of any such covenant or agreement contained in this Agreement or such other Loan Document. Without limitation of the foregoing, the Borrowers agree that failure to comply with any of the covenants contained herein will cause irreparable harm and that specific performance shall be available in the event of any breach thereof.
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment; Authorization.
- Appointment. Each Lender hereby designates and appoints First Union National
Bank as Administrative Agent and JPMorgan Chase Bank as Syndication Agent of such Lender
to act as specified herein and in the other Loan Documents, and each such Lender hereby
authorizes the Agents, as the agents for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated by the terms hereof and of the
other Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other
Loan Documents, the Agents shall not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any of the other Loan Documents, or shall otherwise
exist against the Agents. In performing its functions and duties under this Agreement and
the other Loan Documents, each Agent shall act solely as an agent of the Lenders and does
not assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Borrower. Without limiting the generality of the foregoing
two sentences, the use of the term "agent" herein and in the other Loan
Documents with reference to any 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.
The provisions of this Article IX (other than Section 9.09) are solely for
the benefit of the Agents and the Lenders and no Borrower shall have any rights as a third
party beneficiary of the provisions hereof (other than Section 9.09).
- Certain Other Agents. JPMorgan Chase Bank, in its capacity as Syndication Agent,
shall have no duties or obligations whatsoever under this Agreement or any of the other
Loan Documents.
Section 9.10 Certain Other Agents.
None of the Lenders identified on the facing page or signature pages of this Agreement as
a "syndication agent", "co-agent", "book runner" or
"lead manager" shall have any right, power, obligation, liability,
responsibility or duty under the Agreement other than those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or any such Person so identified
shall have or be deemed to have any fiduciary relationship to any Lender or any Borrower.
Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE X
Guarantee
Section 10.01 Unconditional Guarantee. For
valuable consideration, receipt whereof is hereby acknowledged, and to induce each Lender
to make Loans and the Issuing Lender to issue Letters of Credit to the Borrowers and to
induce the Agents to act hereunder, Xxxxxxxxx hereby unconditionally and irrevocably
guarantees to each Lender and the Agents the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all of the Obligations with respect to
Borrowers (other than Xxxxxxxxx) (the "Guaranteed Obligations"). Without
limiting the generality of the foregoing, Xxxxxxxxx'x liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by the
Borrowers (other than Xxxxxxxxx) to the Agents or any Lender under this Agreement but for
the fact that they are enforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Borrower (other than Xxxxxxxxx).
Section 10.01 Guarantee Absolute. Xxxxxxxxx
guarantees that the Guaranteed Obligations will be paid strictly in accordance with the
terms of this Agreement, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any Lender or any
Agent with respect thereto. The obligations of Xxxxxxxxx under this Article X are
independent of the Obligations and the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Xxxxxxxxx to enforce this Article X,
irrespective of whether any action is brought against any other Borrower or whether any
other Borrower is joined in any such action or actions. The liability of Xxxxxxxxx under
this guarantee shall be irrevocable, absolute and unconditional irrespective of, and
Xxxxxxxxx hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
- any lack of validity or enforceability of this Agreement or any other agreement or
instrument relating thereto;
- any change in the time, manner or place of payment of, or in any other term of, all or
any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to
departure from this Agreement;
- any taking, exchange, release or non-perfection of any collateral or any taking, release
or amendment or waiver of or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;
- any change, restructuring or termination of the corporate structure or existence of any
Borrower; or
- any other circumstance, (including, without limitation, any statute of limitations to
the fullest extent permitted by applicable law) which might otherwise constitute a defense
available to, or a discharge of, Xxxxxxxxx, the other Borrowers or any other guarantor.
This guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment or any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any of the Lenders or the Agents upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had
not been made.
- Xxxxxxxxx hereby waives any right to revoke this guaranty, and acknowledges that this
guaranty is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
- Xxxxxxxxx acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated it is this Agreement and that the waivers set
forth in this Article X are knowingly made in contemplation of such benefits.
- Xxxxxxxxx agrees that payments made by it pursuant to this Article X will be
subject to the provisions of Section 3.01 as if such payments were made by the other
Borrowers.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Amendments, Waivers and Consents.
Neither this Agreement nor any other Loan Document nor any of the terms hereof or
thereof may be amended, changed, waived, discharged or terminated except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrowers, the Administrative Agent, and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into by the
Borrowers and the Agents party thereto; provided that the foregoing shall not restrict the
ability of the Required Lenders to waive any Event of Default prior to the time the
Administrative Agent shall have declared, or the Required Lenders shall have requested the
Administrative Agent to declare, the Loans immediately due and payable pursuant to Article
VIII; provided, however, that:
- no such amendment, change, waiver, discharge or termination shall, without the consent
of each Lender affected thereby:
- extend the final maturity of any Loan or the time of payment of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters of Credit, provided
that this clause (A) shall not restrict the ability of the Required Lenders to
waive any Event of Default (other than an Event of Default the waiver of which would
effectively result in any such extension or waiver), prior to the time the Administrative
Agent shall have declared, or the Required Lenders shall have requested the Administrative
Agent to declare, the Loans immediately due and payable pursuant to Article VIII;
- reduce the rate, or extend the time of payment, of interest or change the manner of
computation of any financial covenant used in determining the Applicable Margin that could
result in the reduction of the rate of interest on any Loan (other than as a result of
waiving the applicability of any post-default increase in interest rates) thereon or fees
hereunder;
- reduce or waive the principal amount of any Loan or any LC Disbursement;
- increase the Commitment of a Lender over the amount thereof in effect (it being
understood and agreed that a waiver of any Default or Event of Default or a mandatory
reduction in the Commitments shall not constitute a change in the terms of any Commitment
of any Lender);
- release any Borrower from its respective obligations under the Loan Documents,
including, without limitation, Xxxxxxxxx with respect to its obligations under Article
X of this Agreement;
- amend, modify or waive any provision of this Section 11.01 or reduce any
percentage specified in, or otherwise modify, the definition of Required Lenders; or
- consent to the assignment or transfer by any Borrower of any of its respective rights
and obligations under (or in respect of) the Loan Documents, except as permitted thereby;
- no provision of Article IX may be amended without the consent of the
Administrative Agent, no provision of Section 2.06 may be amended without the
consent of each Issuing Lender and no provision of Section 2.02(d) may be amended
without the consent of the Swingline Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (i) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans or
the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c)
of the Bankruptcy Code supersede the unanimous consent provisions set forth herein and
(ii) the Required Lenders may consent to allow any Borrower to use cash collateral in the
context of a bankruptcy or insolvency proceeding.
Section 11.02 Notices and Other
Communications; Facsimile Copies.
- General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile
transmission) and mailed, faxed or delivered, to the address, facsimile number or (subject
to subsection (c) below) electronic mail address specified for notices on Schedule 10.02;
or, in the case of the Borrowers, the Administrative Agent, any Issuing Lender or the
Swingline Lender, to such other address as shall be designated by such party in a notice
to the other parties, and in the case of any other party, to such other address as shall
be designated by such party in a notice to the Borrowers, the Administrative Agent, any
Issuing Lender and the Swingline Lender. All such notices and other communications shall
be deemed to be given or made upon the earlier to occur of (i) actual receipt by the
intended recipient and (ii) (A) if delivered by hand or by courier, when signed
for by the intended recipient; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and
receipt has been confirmed by telephone; and (D) if delivered by electronic mail
(which form of delivery is subject to the provisions of subsection (c) below),
when delivered; provided, however, that notices and other communications to
the Administrative Agent, any Issuing Lender and the Swingline Lender pursuant to Article II
shall not be effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder shall be
given, made or confirmed by means of a telephone call to the intended recipient at the
number specified on Schedule 10.02, it being understood and agreed that a
voicemail message shall in no event be effective as a notice, communication or
confirmation hereunder.
- Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to requirements of Law, have the same force and effect as
manually-signed originals and shall be binding on the Borrowers, the Agents and the
Lenders. The Administrative Agent may also require that any such documents and signatures
be confirmed by a manually-signed original thereof; provided, however, that
the failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
- Limited Use of Electronic Mail. Electronic mail and internet and intranet
websites may be used only to distribute routine communications, such as financial
statements and other information, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose.
- Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices purportedly given by or on
behalf of the Borrowers even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice
specified herein or (ii) the terms thereof, as understood by the recipient, varied
from any confirmation thereof. The Borrowers shall indemnify, jointly and severally, each
Agent-Related Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on
behalf of any Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.
Section 11.05 Indemnification. Whether
or not the transactions contemplated hereby are consummated, the Borrowers agree to
indemnify, save and hold harmless each Agent-Related Person, on a joint and several basis,
each Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the "Indemnitees") from and
against: (i) any and all claims, demands, actions or causes of action that are asserted
against any Indemnitee by any Person (other than the Administrative Agent or any Lender)
relating directly or indirectly to a claim, demand, action or cause of action that such
Person asserts or may assert against any Borrower, any Affiliate of any Borrower or any of
their respective officers or directors; (ii) any and all claims, demands, actions or
causes of action that may at any time (including at any time following repayment of the
Obligations and the resignation or removal of any Agent or the replacement of any Lender)
be asserted or imposed against any Indemnitee, arising out of or relating to, the Loan
Documents, any predecessor loan documents, the Commitments, the use of or contemplated use
of the proceeds of any Credit Extension, or the relationship of any Borrower, any Agent
and the Lenders under this Agreement or any other Loan Document; (ii) any administrative
or investigative proceeding by any Governmental Authority arising out of or related to a
claim, demand, action or cause of action described in clause (i) or (ii)
above; and (iv) any and all liabilities (including liabilities under indemnities), losses,
costs or expenses (including Attorney Costs) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action or
proceeding, or as a result of the preparation of any defense in connection with any
foregoing claim, demand, action, cause of action or proceeding, in all cases, and whether
or not an Indemnitee is a party to such claim, demand, action, cause of action, or
Proceeding (all the foregoing, collectively; the "Indemnified Liabilities");
provided that no Indemnitee shall be entitled to indemnification for any claim
caused by its own gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 11.05
applies, such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by any Borrower, their respective directors, shareholders or
creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated. The
Borrowers agree not to assert any claim against any Agent, any Lender, any other Creditor,
any of their Affiliates or any of their respective directors, officers, employees,
attorneys, agents and advisers, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the Loan
Documents, any of the transactions contemplated herein or therein or the actual or
proposed use of the proceeds of the Loans or of the Letters of Credit. Without prejudice
to the survival of any other agreement of any Borrower hereunder and under the other Loan
Documents, the agreements and obligations of the Borrowers contained in this Section
11.05 shall survive the repayment of the Loans, LC Obligations and other obligations
under the Loan Documents and the termination of the Commitments hereunder.
Section 11.06 Successors and Assigns.
- Generally. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto; provided
that no Borrower may assign or transfer any of its respective interests and obligations
without the prior written consent of either the Required Lenders or the Lenders, as the
terms set forth in Section 11.01 may require;
- Assignments. Any Lender may assign all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a portion of its
Loans, its Notes, its Commitments and any Participation Interest in Letters of Credit and
Swingline Loans held by it); provided, however, that:
- each such assignment shall be to an Eligible Assignee;
- except in the case of an assignment to another Lender, an Affiliate of an existing
Lender or any Approved Fund (A) the aggregate amount of the Revolving Commitment of the
assigning Lender subject to such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall
not, without the consent of Xxxxxxxxx and the Administrative Agent, be less than
$5,000,000 and an integral multiple of $1,000,000 (or such lesser amount as shall equal
the assigning Lender's entire Revolving Commitment) and (B) after giving effect to such
assignment, unless otherwise consented to by Xxxxxxxxx, the aggregate amount of the
Revolving Commitment to the assigning Lender shall not be less than $2,500,000 (unless the
assigning Lender shall have assigned its entire Revolving Commitment pursuant to such
assignment or assignments otherwise complying with this Section executed substantially
simultaneously with such assignment);
- each such assignment by a Lender shall be of a constant, and not varying, percentage of
all rights and obligations in respect of a particular Class of Commitments under this
Agreement and the other Loan Documents;
- the parties to such assignment shall execute and deliver to the Administrative Agent
and, only with respect to any assignment of all or a portion of the Revolving Committed
Amount, the Issuing Lenders for their acceptance an Assignment and Acceptance in the form
of Exhibit C, together with any Note subject to such assignment and a processing
fee of $3,500, payable or agreed between the assigning Lender and the assignee.
- Assignment and Acceptance. By executing and delivering an Assignment and
Acceptance in accordance with this Section 11.06, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and the assignee warrants that it is an Eligible Assignee; (ii) except as
set forth in clause (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of any Borrower or the performance
or observance by any Borrower of any of its obligations under this Agreement, any of the
other Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally authorized to
enter into such assignment agreement; (iv) such assignee confirms that it has received a
copy of this Agreement, the other Loan Documents, together with copies of the most recent
financial statements delivered pursuant to Section 6.01 and such other
documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, any Issuing Lender, the
Swingline Lender, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other Loan
Documents; (vi) such assignee appoints and authorizes the Administrative Agent to take
such action on its behalf and to exercise such powers under this Agreement or any other
Loan Document as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement and the other Loan Documents are required to be performed by
it as a Lender. Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and the
assigning Lender shall, to the extent of such assignment, relinquish its rights and be
released from its obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section 11.06, the assignor, the Administrative
Agent and the Borrowers shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not a United States
person under Section 7701(a)(30) of the Code, it shall deliver to Xxxxxxxxx and the
Administrative Agent certification as to exemption from deduction or withholding of Taxes
in accordance with Section 3.01.
- Register. The Borrowers hereby designate the Administrative Agent to serve as
the Borrowers' agent, solely for purposes of this subsection 11.06(d), to (i)
maintain a register (the "Register") on which the Administrative Agent
will record the Commitments from time to time of each Lender, the Loans made by each
Lender and each repayment in respect of the principal amount of the Loans of each Lender
and to (ii) retain a copy of each Assignment and Acceptance delivered to the
Administrative Agent pursuant to this Section. Failure to make any such recordation, or
any error in such recordation, shall not affect the Borrowers' obligation in respect of
such Loans. The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Administrative Agent, the Issuing Lenders and the Lenders
shall treat each Person in whose name a Loan and the Note evidencing the same is
registered as the owner thereof for all purposes of this Agreement, notwithstanding notice
or any provision herein to the contrary. With respect to any Lender, the assignment or
other transfer of the Commitments of such Lender and the rights to the principal of, and
interest on, any Loan made and any Note issued pursuant to this Agreement shall not be
effective until such assignment or other transfer is recorded on the Register and, except
to the extent provided in this subsection 11.06(d), otherwise complies with Section
11.06, and prior to such recordation all amounts owing to the transferring Lender with
respect to such Commitments, Loans and Notes shall remain owing to the transferring
Lender. The registration of assignment or other transfer of all or part of any
Commitments, Loans and Notes for a Lender shall be recorded by the Administrative Agent on
the Register only upon the acceptance by the Administrative Agent of a properly executed
and delivered Assignment and Acceptance and payment of the administrative fee referred to
in Section 11.06(b)(iv). The Register shall be available at the offices where kept
by the Administrative Agent for inspection by Xxxxxxxxx and any Lender at any reasonable
time upon reasonable prior notice to the Administrative Agent.
- Participations. Each Lender may, without the consent of Xxxxxxxxx, the Issuing
Lenders, the Swingline Lender or any Agent, sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations under this Agreement
(including all or a portion of its Commitment or the Loans owing to it and any
participations in Letters of Credit and Swingline Loans held by it); provided, however,
that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the benefit of the right of
Setoff contained in Section 11.08 and the yield protection provisions contained in Sections
3.01, 3.04 and 3.05 and to the same extent that the Lender from which
such participant acquired its participation would be entitled to the benefits of such
yield protections; provided that no Borrower shall be required to reimburse any
participant pursuant to Sections 3.01, 3.04 or 3.05 in an amount
which exceeds the amount that would have been payable thereunder to such Lender had such
Lender not sold such participation and (iv) the Borrowers, the Agents, the Issuing
Lenders, the Swingline Lenders and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and obligations under
this Agreement, and such Lender shall retain the sole right to enforce the obligations of
the Borrowers relating to the Obligations owing to such Lender and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing the amount of principal of or the rate at
which interest is payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or Notes or extending
its Commitment).
- Other Assignments. Any Lender may at any time (i) assign all or any portion of
its rights under this Agreement and any Notes to a Federal Reserve Bank, (ii) pledge or
assign a security interest in all or any portion of its interest and rights under this
Agreement (including all or any portion of its Notes, if any) to secure obligations of
such Lender and (iii) grant to an SPC referred to in subsection (h) below
identified as such in writing from time to time by such Lender to the Administrative Agent
and Xxxxxxxxx the option to provide to the Borrowers all or any part of any Loans that
such Lender would otherwise be obligated to make to the Borrowers pursuant to the
Agreement; provided that no such assignment, option, pledge or security interest
shall release a Lender from any of its obligations hereunder or substitute any such
Federal Reserve Bank or other person to which such option, pledge or assignment has been
made for such Lender as a party hereto.
- Information. Any Lender may furnish any information concerning any Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants), subject, however, to
the provisions of Section 11.07.
- Other Funding Vehicles. Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (a "SPC"), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and Xxxxxxxxx, the option to
provide to any Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to any such Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to make any Loan or
shall reduce the Commitment of any Granting Lender, (ii) if any SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms of this Agreement. The
making of a Loan by any SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by such Granting Lender. Each party to
this Agreement hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain with the
Granting Lender pursuant to the terms of this Agreement and the other Loan Documents). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section 11.06(h),
any SPC may (i) with notice to, but without the prior written consent of, Xxxxxxxxx and
the Administrative Agent and without paying any processing fee therefor, assign all or a
portion of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to in writing by Xxxxxxxxx and Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section
11.06(h) may not be amended without the written consent of each SPC that has made a
Loan which is outstanding at the time of any such amendment.
Section 11.13 Severability. Any
provision of this Agreement and the other Loan Documents to which any Borrower is a party
that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 11.14 Headings. The headings
and captions of the sections and subsections hereof are provided for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
Section 11.16 Governing Law; Submission to
Jurisdiction
- THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND OTHER THAN
AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN
SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500 AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE INTERNAL
LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Any
legal action or proceeding with respect to this Agreement or any other Loan Document may
be brought in the courts of the State of North Carolina in Mecklenburg County, or of the
United States for the Western District of North Carolina, and, by execution and delivery
of this Agreement, each Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditional, the nonexclusive jurisdiction of such courts.
The Borrowers irrevocably waive, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such proceeding
brought in such court and any claim that any such proceeding brought in any such court has
been brought in an inconvenient forum.
- The Borrowers hereby irrevocably appoint C.T. Corporation System its authorized agent to
accept and acknowledge service of any and all process which may be served in any suit,
action or proceeding of the nature referred to in this Section 11.16 and consents
to process being served in any such suit, action or proceeding upon C.T. Corporation
System in any manner or by the mailing of a copy thereof by registered or certified mail,
postage prepaid, return receipt requested, to the Borrowers' address referred to in Section
11.02. The Borrower agrees that such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid personal
service upon and personal delivery to it. Nothing in this Section 11.16 shall
affect the right of any Lender to serve process in any manner permitted by law or limit
the right of any Lender to bring proceedings against any Borrower in the courts of any
jurisdiction or jurisdictions.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXXXXXX TECHNOLOGY (UK) LIMITED, as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
CERTECH INTERNATIONAL LIMITED, as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
XXXXXXXXX TECHNOLOGY (EUROPE) S.A., as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
XXXXXXXXX POWDER PRODUCTS AB, as a Borrower
By: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director
FIRST UNION NATIONAL BANK,
as Administrative Agent
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
as Lender
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
as SwinglineLender
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
as Issuing Lender
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, as Lender
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
MELLON BANK, N.A., as Lender
By: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, as Lender
By: /s/Xxxx X'Xxxx
Name: Xxxx X'Xxxx
Title: Vice President
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Associate
ALLFIRST BANK, as Lender
By: /s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
