$425,000,000
CREDIT AGREEMENT
among
CHECKPOINT SYSTEMS, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent,
BANK ONE, NA,
as Syndication Agent
and
FIRST UNION SECURITIES INC.,
as Arranger
Dated as of October 27, 1999
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
1.1 Defined Terms 2
1.2 Other Definitional Provisions 27
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 27
2.1 Term Commitments 27
2.2 Procedure for Term Loan Borrowing 28
2.3 Repayment of Term Loans 28
2.4 Revolving Commitments 30
2.5 Procedure for Revolving Loan Borrowings 30
2.6 Swingline Commitment 32
2.7 Procedure for Swingline Borrowing; Refunding of
Swingline Loans 32
2.8 Commitment Fees, etc. 34
2.8 Termination or Reduction of Revolving
Commitments 35
2.9 Repayment of Revolving Loans; Evidence
of Debt. 35
2.11 Redenomination and Alternative Currencies 36
SECTION 3. LETTERS OF CREDIT 36
3.1 L/C Commitment 36
3.2 Procedure for Issuance of Letter of Credit 36
3.3 Fees and Other Charges 37
3.4 L/C Participations 37
3.5 Reimbursement Obligation of the Borrower 38
3.6 Obligations Absolute 38
3.7 Letter of Credit Payments 39
3.8 Applications 39
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
THE LOANS 39
4.1 Interest Rates and Payment Dates 39
4.2 Computation of Interest and Fees 40
4.3 Inability to Determine Interest Rate 41
4.4 Optional Prepayments 41
4.5 Mandatory Prepayments and Commitment
Reductions 42
4.6 Conversion and Continuation Options 45
4.7 Limitations on Tranches 46
4.8 Pro Rata Treatment and Payments 46
4.9 Requirements of Law 49
4.10 Taxes 50
4.11 Indemnity 51
4.12 Change of Lending Office 52
4.13 Replacement of Lenders 52
4.14 Lending Installations 53
4.15 Reporting Requirements of Swingline Lenders
and Issuing Lenders 53
4.16 Conversion of Loans 53
SECTION 5. REPRESENTATIONS AND WARRANTIES 54
5.1 Financial Condition 54
5.2 No Change 56
5.3 Corporate Existence; Compliance with Law 56
5.4 Corporate Power; Authorization; Enforceable
Obligations 56
5.5 No Legal Bar 57
5.6 Litigation 57
5.7 No Default 57
5.8 Ownership of Property; Liens 57
5.9 Intellectual Property 57
5.10 Taxes 58
5.11 Federal Regulations 58
5.12 Labor Matters 58
5.13 ERISA 58
5.14 Investment Company Act; Other Regulations 59
5.15 Subsidiaries 59
5.16 Use of Proceeds 59
5.17 Environmental Matters 59
5.18 Accuracy of Information, etc 60
5.19 Security Documents 61
5.20 Solvency 61
5.21 Year 2000 Matters 61
5.22 Certain Documents 62
5.23 Regulation H. 62
SECTION 6. CONDITIONS PRECEDENT 62
6.1 Conditions to Initial Extension of Credit 62
6.2 Conditions to Each Extension of Credit 68
SECTION 7. AFFIRMATIVE COVENANTS 69
7.1 Financial Statements 69
7.2 Certificates; Other Information 70
7.3 Payment of Obligations 71
7.4 Maintenance of Existence; Compliance. 71
7.5 Maintenance of Property; Insurance 71
7.6 Inspection of Property; Books and Records;
Discussions 71
7.7 Notices 72
7.8 Environmental Laws 72
7.9 Interest Rate Protection 73
7.10 Additional Collateral, etc 73
7.11 Year 2000 Compliance 74
7.12 The Acquisition 74
SECTION 8. NEGATIVE COVENANTS 75
8.1 Financial Condition Covenants 75
8.2 Indebtedness 76
8.3 Liens 77
8.4 Fundamental Changes 78
8.5 Disposition of Property 78
8.6 Restricted Payments 79
8.7 Capital Expenditures 79
8.8 Investments 80
8.9 Optional Payments and Modifications of
Certain Debt Instruments. 81
8.10 Transactions with Affiliates 81
8.11 Sales and Leasebacks 81
8.12 Changes in Fiscal Periods 81
8.13 Negative Pledge Clauses 82
8.14 Clauses Restricting Subsidiary
Distributions 82
8.15 Lines of Business 82
8.16 Amendments to Acquisition Documents 82
SECTION 9. EVENTS OF βββββββ ββ
βββββββ ββ. THE AGENTS 85
10.1 Appointment 85
10.2 Delegation of Duties 86
10.3 Exculpatory Provisions 86
10.4 Reliance by Administrative Agent 86
10.5 Notice of Default 87
10.6 Non-Reliance on Agents and Other Lenders 87
10.7 Indemnification 88
10.8 Each Agent in Its Individual Capacity 88
10.9 Successor Administrative Agent 88
10.10 Documentation Agent and Syndication Agent 89
SECTION 11. MISCELLANEOUS 89
11.1 Amendments and Waivers 89
11.2 Notices 90
11.3 No Waiver; Cumulative Remedies 91
11.4 Survival of Representations and Warranties 91
11.5 Payment of Expenses and Taxes 91
11.6 Successors and Assigns; Participations and
Assignments 92
11.7 Adjustments; Set-off 94
11.8 Counterparts 95
11.9 Severability 95
11.10 Integration 96
11.11 GOVERNING LAW 96
11.12 Submission To Jurisdiction; Waivers 96
11.13 Acknowledgments 96
11.14 Releases of Guarantees and Liens 97
11.15 Conversion of Currencies 97
11.16 Confidentiality 98
11.17 Section Headings 98
11.18 WAIVERS OF JURY TRIAL 98
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Properties
5.4 Consents, Authorizations, Filings and Notices 5.6 Litigation 5.13 ERISA
Termination 5.15 Subsidiaries 5.19(a) UCC Filing Jurisdictions 5.19(b) Mortgage
Filing Jurisdictions 6.1(b) Terminated Credit Facilities 6.1(e) Approvals 7.12
Target Debt 8.2(d) Existing Indebtedness 8.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of ββββββββ Ronon, counsel to the
Borrower
F-2 Form of Legal Opinion of ββββ β. ββββββ, General Counsel
of the Borrower
G Form of Exemption Certificate
H-1 Form of Term Note
H-2 Form of Revolving Note
H-3 Form of Swingline Note
I Form of Acquisition Certificate
CREDIT AGREEMENT, dated as of October 27, 1999, among CHECKPOINT SYSTEMS, INC.,
a Pennsylvania corporation (the "Borrower"), the several banks and other
financial institutions or entities from time to time parties to this Agreement
(the "Lenders"), FIRST UNION NATIONAL BANK, as administrative agent (in such
capacity, the "Administrative Agent"), PNC BANK, NATIONAL ASSOCIATION., as
documentation agent (in such capacity, the "Documentation Agent"), BANK ONE, NA,
as syndication agent (in such capacity, the "Syndication Agent") and FIRST UNION
SECURITIES INC., as advisor and arranger (in such capacity, the "Arranger").
W I T N E S S E T H:
WHEREAS, the Borrower intends to acquire, through a newly-formed
wholly-owned German subsidiary organized as a stock corporation (the
"Acquiror"), up to all, and at least 95%, of the issued and outstanding shares
of stock of Meto AG, a German stock corporation (the "Target") traded on the
Stockholm Stock Exchange, for aggregate consideration, the U.S. Dollar
Equivalent of which is approximately $275,000,000;
WHEREAS, such acquisition shall be effected under an offer by
the Borrower for all of the issued and outstanding shares of stock of the Target
(all of such common stock collectively, the "Shares") at a price of 65 Swedish
Krona per share (the "Tender Offer") and the purchase of the Shares tendered
pursuant to the Tender Offer and not validly withdrawn (the "Tendered Shares");
WHEREAS, as promptly as is practicable following the
consummation of the Tender Offer and the acquisition of 95% or more of the
Tendered Shares, the Acquiror intends to integrate the Target, through
shareholder resolutions of both the Acquiror and the Target and thereby acquire
the remaining Shares not acquired in the Tender Offer at the time of the
registration of the integration in the commercial register at the seat of the
Target according to Section 320(a) of the German Stock Corporation Act (the
"Integration"; collectively with the Tender Offer, the "Acquisition");
WHEREAS, in order to provide for financing of the Tender Offer
and the related costs and expenses, and to provide financing for working capital
and general corporate purposes of the Borrower and its Subsidiaries, including
certain Permitted Acquisitions, the Borrower has requested the Lenders to make
available the credit facilities described herein; and
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this Section
1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of () the Prime Rate in
effect on such day and () the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Reference Lender
as its prime rate in effect at its principal office in Charlotte, North Carolina
(the Prime Rate not being intended to be the lowest rate of interest charged by
the Reference Lender in connection with extensions of credit to debtors). Any
change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which
is based upon the ABR.
"Acquired Business": as defined in the definition of
Permitted Acquisitions.
"Acquisition": as defined in the recitals.
"Acquisition Documentation": collectively, all written materials
describing the Borrower's offer to holders of Shares and all schedules, exhibits
and annexes thereto and all side letters and agreements affecting the terms
thereof or entered into in connection therewith provided to the holders of the
Shares on or prior to the Closing Date, in each case as amended, supplemented or
otherwise modified from time to time in accordance with Section 8.16.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": First Union National Bank, together
with its affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other
Loan Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication
Agent, the Documentation Agent and the Administrative Agent.
"Aggregate Available Revolving Commitments": as at any date
of determination with respect to all Revolving Lenders, an amount in
Dollars equal to the Available Revolving Commitments of all Revolving
Lenders on such date.
"Aggregate Committed Outstandings": as at any date of
determination with respect to any Revolving Lender, an amount in Dollars
equal to the sum of (a) the Aggregate Revolving Outstandings of such
Revolving Lender on such date and (b) the U.S. Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Revolving Lender on such
date.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the sum of
the then unpaid principal amount of such Lender's Dollar Term Loans plus the
U.S. Dollar Equivalent of the then unpaid principal amount of such Lender's
Multicurrency Term Loans and (ii) the amount of such Lender's Revolving
Commitment then in effect or, if the Revolving Commitments have been terminated,
the amount of such Lender's Aggregate Committed Outstandings then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender
at any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all Lenders
at such time.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Revolving Lender, an amount in the
applicable Available Foreign Currencies equal to the aggregate unpaid
principal amount of such Revolving Lender's Multicurrency Revolving
Loans.
"Aggregate Revolving Outstandings": as at any date of
determination with respect to any Revolving Lender, an amount equal to
the sum of () the aggregate unpaid principal amount of such Lender's
Dollar Revolving Loans on such date, () such Lender's Revolving
Percentage of the aggregate unpaid principal amount of all L/C
Obligations on such date and (c) such Lender's Revolving Percentage of
the aggregate principal amount of Swingline Loans then outstanding.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per
annum determined pursuant to the Pricing Grid.
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing
Lender to open a Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in
commercial loans and is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d) or (e) of Section 8.5) that yields gross proceeds to the
Borrower or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $5,000,000.
"Assignee": as defined in Section 11.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 11.6(c).
"Available Foreign Currencies": () with respect to the Term
Loans, euro, and () with respect to the Revolving Loans or Swingline
Loans, euro, Pounds Sterling, Deutsche Marks, French Francs, Dutch
Guilders and Japanese Yen.
"Available Revolving Commitment": as to any Revolving Lender at
any time, an amount equal to the excess, if any, of () such Lender's Revolving
Commitment then in effect over () such Lender's Aggregate Committed Outstandings
on such date; provided, that in calculating any Lender's Aggregate Committed
Outstandings for the purpose of determining such Lender's Available Revolving
Commitment pursuant to Section 2.8(a), the aggregate principal amount of
Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 11.7(a).
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the
Borrower as a date on which the Borrower requests the relevant Lenders
to make Loans hereunder.
"Business": as defined in Section 5.17(b).
"Business Day": (a) when such term is used in respect of any
amount denominated or to be denominated in () any Available Foreign Currency, a
London Banking Day which is also a day other than a Saturday or Sunday on which
banks are open for general banking business in (x) the city which is the
principal financial center of the country of issuance of such Available Foreign
Currency, (y) in the case of euro only, Frankfurt am Main, Germany (or such
other principal financial center as the Administrative Agent may from time to
time nominate for this purpose) and (z) Charlotte, North Carolina and ()
Dollars, a London Banking Day which is also a day other than a Saturday or
Sunday on which banks are open for general banking business in Charlotte, North
Carolina and (b) when such term is used for the purpose of determining the date
on which the Eurocurrency Base Rate is determined under this Agreement for any
Loan denominated in euro for any Interest Period and for purposes of determining
the first and last day of any such Interest Period (but not any Borrowing Date),
references in this Agreement to Business Days shall be deemed to be references
to Target Operating Days.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by βββββ'β
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Change in Control": (a) an event whereby any "person" or
"group" (as such terms are used in Sections 12(d) and 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), shall become, or obtain
rights (whether by means of warrants, options or otherwise) to become, the
"beneficial owner" (as defined in Rules 13(d)- 3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 30% of the outstanding common stock
of the Borrower or (b) the board of directors of the Borrower shall cease to
consist of a majority of Continuing Directors.
"Closing Date": the date on which the conditions precedent set
forth in Section 6.1 shall have been satisfied, which date shall be no later
than the earlier of (i) December 31, 1999 or (ii) five Business Days after the
Borrower's application for antitrust approval has been approved by the German
antitrust authorities. The Administrative Agent shall notify the Lenders of the
anticipated Closing Date.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all property of the Loan Parties, now owned
or hereafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commitment": as to any Lender, the sum of the Term
Commitment and the Revolving Commitment of such Lender then in effect.
"Commitment Fee Rate": at any time, the rate per annum
determined pursuant to the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated September 1999 and furnished to the
Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Loans
or Swingline Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs and (e) any extraordinary, unusual
or non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business), provided, that the amounts referred to in this clause (e) shall not,
in the aggregate during the term of this Agreement, exceed $35,000,000, and
minus, to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (a) interest income, (b) any extraordinary, unusual
or non-recurring income or gains (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business
and excluding any payment received pursuant to business interruption insurance)
and (c) any other non-cash income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA to determine compliance with
the covenants set forth in Section 7.1 for any fiscal quarter of the Borrower
ending prior to December 31, 2000, for any such period, the calculation of
Consolidated EBITDA for the most recently completed four consecutive fiscal
quarters of the Borrower shall include $15,000,000 in respect of the Borrower's
good faith estimate of the value of synergies associated with the consummation
of the Acquisition.
"Consolidated Fixed Charge Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period less the aggregate amount
actually paid by the Borrower and its Subsidiaries during such period on account
of Capital Expenditures (excluding the principal amount of Indebtedness incurred
in connection with such expenditures) to (b) Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b) income
and franchise taxes accrued by the Borrower and its Subsidiaries during such
period and (c) scheduled payments made during such period on account of
principal of Indebtedness of the Borrower or any of its Subsidiaries (including
scheduled principal payments in respect of the Term Loans).
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Hedge Agreements
in respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).
"Consolidated Leverage Ratio": as at any day, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
the most recently completed four fiscal quarters of the Borrower for
which financial statements have been provided to the Lenders.
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Consolidated Net Worth": at any date, all amounts that would,
in conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date; provided
that Consolidated Net Worth shall be determined without adjustment (whether
positive or negative) for any foreign currency translation.
"Consolidated Total Assets": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total
assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Senior Indebtedness": at any time,
Consolidated Total Debt less the aggregate outstanding principal amount
of any Subordinated Indebtedness at such time.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the directors of the Borrower on the
Closing Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director, if, in each case, such other
director's nomination for election to the board of directors of the Borrower is
recommended by a majority of the then Continuing Directors or by a nominations
committee thereof.
"Contractual Obligation": as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 9,
whether or not any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Disposition": with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Documentation Agent": as defined in the preamble hereto.
"Dollar Loans": the collective reference to Dollar Term
Loans, Dollar Revolving Loans and Dollar Swingline Loans.
"Dollar Revolving Loans": as defined in Section 2.4(a).
"Dollar Swingline Loans": as defined in Section 2.6(a).
"Dollar Term Loan": as defined in Section 2.1(a).
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States,
including Puerto Rico.
"EMU": Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU Legislation": legislative measures of the European
Union for the introduction of, changeover to or operation of the euro in
one or more member states.
"Environmental Laws": any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"euro": the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation.
"Eurocurrency Base Rate": () with respect to each Interest
Period pertaining to a Multicurrency Loan denominated in any currency other than
Pounds Sterling, the rate per annum determined by the Administrative Agent to be
the offered rate for deposits in such currency with a term comparable to such
Interest Period that appears on the applicable Reuters Page (or any successor
page) at approximately 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period (or, in the case of Multicurrency Swingline
Loans, on the same day); provided, however, that if at any time for any reason
such offered rate for any such currency does not appear on a Reuters Page (or
any successor page), "Eurocurrency Base Rate" shall mean, with respect to each
day during each Interest Period pertaining to a Multicurrency Loan denominated
in such currency, the rate per annum equal to the average (rounded upward to the
nearest 1/16th of 1%) of the respective rates notified to the Administrative
Agent by the Multicurrency Reference Lender as the rate at which the
Multicurrency Reference Lender is offered deposits in such currency at or about
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period in the London interbank market for delivery on the first day of
such Interest Period for the number of days comprised therein; and () with
respect to each day during each Interest Period pertaining to a Multicurrency
Loan denominated in Pounds Sterling, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates notified to
the Administrative Agent by the Multicurrency Reference Lender as the rate at
which the Multicurrency Reference Lender is offered deposits in Pounds Sterling
at or about 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period (or, in the case of Multicurrency Swingline Loans, on the
same day) in the Paris interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Multicurrency Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurocurrency Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan or a Multicurrency Loan, the aggregate (without duplication) of
the maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen (or any successor screen) as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on Page 3750 of the Telerate screen
(or otherwise on such screen or any successor screen), the "Eurodollar Base
Rate" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Administrative Agent is offered Dollar deposits at or
about 11:00 A.M., Charlotte, North Carolina time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and exchange operations are then being conducted
for delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under a particular Facility the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date (whether
or not such Loans shall originally have been made on the same day).
"euro unit": the currency unit of the euro as defined in
the EMU Legislation.
"Event of Default": any of the events specified in Section
9, provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) an amount equal to the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working Capital for
such fiscal year, and (iv) an amount equal to the aggregate net non-cash loss on
the Disposition of property by the Borrower and its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent deducted in arriving at such Consolidated Net Income over (b) the
sum, without duplication, of (i) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Borrower and its Subsidiaries in cash during such
fiscal year on account of Capital Expenditures (excluding the principal amount
of Indebtedness incurred in connection with such expenditures and any such
expenditures financed with the proceeds of any Reinvestment Deferred Amount),
(iii) the aggregate amount of all prepayments of Revolving Loans and Swingline
Loans during such fiscal year to the extent accompanying permanent optional
reductions of the Revolving Commitments and all optional prepayments of the Term
Loans during such fiscal year, (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including the Term Loans) of the
Borrower and its Subsidiaries made during such fiscal year (other than in
respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) increases in
Consolidated Working Capital for such fiscal year, and (vi) an amount equal to
the aggregate net non-cash gain on the Disposition of property by the Borrower
and its Subsidiaries during such fiscal year (other than sales of inventory in
the ordinary course of business), to the extent included in arriving at such
Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section
4.5(e).
"Exchange Rate": with respect to any currency other than
Dollars, the rate determined by reference to such publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Borrower or, in the absence of such agreement, such "Exchange Rate" shall
instead be the Administrative Agent's spot rate of exchange in the interbank
market where its foreign currency exchange operations in respect of such
non-Dollar currency are then being conducted, at or about 11:00 A.M., local
time, on such date for the purchase of Dollars with such non-Dollar currency,
for delivery two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in
respect of which either (a) the pledge of all of the Capital Stock of
such Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary
of the Obligations, would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Borrower.
"Facility": each of (a) the Term Commitments (including the
commitment to make Multicurrency Term Loans) and the Term Loans made thereunder
(the "Term Facility") and (b) the Revolving Commitments (including the
commitment to make Multicurrency Revolving Loans) and the extensions of credit
made thereunder (the "Revolving Facility").
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that
is not a Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures within
one year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"Funding Office": the office of the Administrative Agent
specified in Section 11.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by
written notice to the Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 8.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 5.1(b). In the event that
any "Accounting Change" (as defined below) shall occur and such change results
in a change in the method of calculation of financial covenants, standards or
terms in this Agreement, then the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this Agreement so
as to equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof including, without limitation, the
Commonwealth of Puerto Rico, any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative functions of or pertaining to
government, any securities exchange and any self-regulatory organization
(including the National Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit A, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or
currency exchange rates or the exchange of nominal interest obligations,
either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person and the obligations (including contingent obligations) of such
Person under and in respect of synthetic lease transactions under which such
Person or any Affiliate of such Person is the lessee, (f) all obligations of
such Person, contingent or otherwise, as an account party or applicant under or
in respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all redeemable preferred Capital
Stock of such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) for the purposes of
Sections 8.2 and 9(e) only, all obligations of such Person in respect of Hedge
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor. From and after the date the Tender Offer is consummated,
the definition of Indebtedness shall include the obligation, if any, of the
Target to Esselte AB, a Swedish corporation, or an affiliate thereof, in an
aggregate amount on the date hereof the U.S. Dollar Equivalent of which shall
not exceed $13,500,000.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to βββ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurodollar Loan or Multicurrency Loan
having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any
repayment or prepayment made in respect thereof.
"Interest Period": as to (a) any Eurodollar Loan or
Multicurrency Loan (other than a Swingline Loan), (i) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan or Multicurrency Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto (or, in the
case of a Multicurrency Swingline Loan, such number of days as may be agreed
between the Borrower and the Swingline Lender or, in the absence of any such
agreement, one day); and (ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current Interest
Period with respect thereto and (b) any Swingline Loan, such number of days
commencing on the Borrowing Date thereof and ending on or up to one month
thereafter as may be agreed upon between the Borrower and the Swingline Lender,
or in the absence of any such agreement, one day; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
() if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
() the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Scheduled Revolving
Termination Date or beyond the date final payment is due on the Term
Loans;
() any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
() the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan or
Multicurrency Loan during an Interest Period for such Loan.
"International Accounting Standards": international
accounting standards as promulgated by the International Accounting
Standards Committee.
"Investments": as defined in Section 8.8.
"Issuing Lenders": First Union National Bank and, with respect
to Letters of Credit denominated in an Available Foreign Currency, ABN AMRO
Bank, N.V., each in its capacity as issuer of a Letter of Credit.
"Judgment Currency": as defined in Section 11.15(b).
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit,
the collective reference to all the Revolving Lenders other than the
Issuing Lender that issued such Letter of Credit.
"Lenders": as defined in the preamble hereto.
"Lending Installation": with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of
such Lender or the Administrative Agent listed on the signature pages
hereof or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 4.14.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents
and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower that is a party to a Loan Document.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Aggregate Committed Outstandings, as the case may be, outstanding
under such Facility (or, in the case of the Revolving Facility, prior to any
termination of the Revolving Commitments, the holders of more than 50% of the
Total Revolving Commitments).
"Material Adverse Effect": a material adverse effect on (a) the
Acquisition, (b) the business, property, operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole,
(c) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights and remedies of the Administrative Agent or the Lenders
hereunder or thereunder or (d) the Borrower's ability to pay the Obligations.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Mortgaged Properties": the real properties listed on
Schedule 1.1B, as to which the Administrative Agent for the benefit of
the Lenders shall be granted a Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multicurrency Default Rate": with respect to any due and unpaid
principal amount or interest of any Multicurrency Loan or Reimbursement
Obligation in an Available Foreign Currency, the rate per annum equal to the
higher of (i) the sum of 2% plus the Applicable Margin for Multicurrency Loans
for such day plus the Eurocurrency Rate applicable to such Loan on the day
before such payment was due and (ii) the sum of 2% plus the Applicable Margin
for Multicurrency Loans for such day plus a rate per annum equal to the average
(rounded upward, if necessary, to the next higher of 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Business Days, then for such period of time not longer
than three months as the Administrative Agent may select) deposits in the
relevant currency in an amount approximately equal to such overdue payment due
to the Multicurrency Reference Lender are offered to the Multicurrency Reference
Lender in the London interbank market for the applicable period as provided
above.
"Multicurrency Loans": the collective reference to
Multicurrency Term Loans, Multicurrency Revolving Loans and
Multicurrency Swingline Loans.
"Multicurrency Reference Lender": First Union National Bank.
"Multicurrency Revolving Loans": as defined in Section
2.4(b).
"Multicurrency Swingline Loan Rate": with respect to each
day during each Interest Period, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) determined as follows:
(a) for any Multicurrency Swingline Loan with an Interest Period of
one month, the Eurocurrency Rate; or
(b) for any Multicurrency Swingline Loan with an Interest Period of less than
one month, (i) with respect to any such Loans denominated in Pounds Sterling,
the published base rate of HSBC Bank at its London office in effect on the
related Borrowing Date, and (ii) with respect to any such Loans denominated in
any other Available Foreign Currency, the unpublished rate per annum at which
the Swingline Lender is offered deposits in the relevant Available Foreign
Currency at or about 11:00 A.M, London time, on the related Borrowing Date for
the relevant Interest Period.
"Multicurrency Swingline Loans": as defined in Section
2.6(a).
"Multicurrency Term Loan": as defined in Section 2.1.
"Multiemployer Plan": a Plan that is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"National Currency Unit": the unit of currency (other than
a euro unit) of a Participating Member State.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash
proceeds received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"Non-Excluded Taxes": as defined in Section 4.10(a).
"Non-Guarantor Subsidiary": any Subsidiary that is not a
Wholly Owned Subsidiary Guarantor.
"Non-U.S. Lender": as defined in Section 4.10(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender (or, in the case of Hedge Agreements, any affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any Hedge
Agreement entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participating Member State": any member state of EMU which
has the euro as its lawful currency.
"Participant": as defined in Section 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"Permitted Acquisitions": any acquisition of all the Capital
Stock or all or substantially all of the assets of any Person or any line of
business or product line of any Person (any such Person, line of business or
product line, an "Acquired Business") if: (i) the Borrower can demonstrate pro
forma compliance with all provisions of this Agreement, before and after giving
effect to such acquisition, (ii) such acquisition is not hostile in nature and
(iii) such acquisition is in a similar or complementary line of business to that
of the Borrower.
.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pricing Grid":
Applicable Margin Applicable Margin
Senior for Eurodollar Loans for ABR Loans Commitment
Leverage and Multicurrency Dollar Swingline Fee
Ratio Loans Loans Rate
----------- -------------------- ------------------- -------------
3.50x 2.500% 1.250% 0.500%
< 3.50x to
> 3.125x 2.250% 1.000% 0.500%
<3.125x to
> 2.75x 2.000% 0.750% 0.500%
<2.75x to
> 2.375x 1.750% 0.500% 0.375%
<2.375x to
> 2.00x 1.500% 0.250% 0.375%
<2.00x 1.250% 0.000% 0.250%
Changes in the Applicable Margin or in the Commitment Fee Rate
resulting from changes in the Senior Leverage Ratio shall become effective on
the date (the "Adjustment Date") on which financial statements are delivered to
the Lenders pursuant to Section 7.1 (but in any event not later than the 45th
day after the end of each of the first three quarterly periods of each fiscal
year or the 90th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Senior Leverage Ratio as at the end of the fiscal period that
would have been covered thereby shall for the purposes of this definition be
deemed to be greater than 3.50x. In addition, at all times while an Event of
Default shall have occurred and be continuing, the Senior Leverage Ratio shall
for the purposes of this definition be deemed to be greater than 3.50x. Each
determination of the Senior Leverage Ratio pursuant to this pricing grid shall
be made with respect to (or, in the case of Consolidated Total Senior
Indebtedness, as at the end of) the period of four consecutive fiscal quarters
of the Borrower ending at the end of the period covered by the relevant
financial statements.
Notwithstanding the foregoing (unless an Event of Default shall
have occurred and be continuing), until the Adjustment Date for the quarter
ending March 31, 2000, the Applicable Margins and Commitment Fee Rate will be as
set forth above opposite the Senior Leverage Ratio of <3.50x to 3.125x.
"Prime Rate": as defined in the definition of ABR.
"Pro Forma Balance Sheet": as defined in Section 5.1(a).
"Projections": as defined in Section 7.2(c).
"Properties": as defined in Section 5.17(a).
"Recovery Event": any settlement of or payment in respect
of any property or casualty insurance claim or any condemnation
proceeding relating to any asset of the Borrower or any of its
Subsidiaries in excess of $5,000,000.
"Reference Lender": First Union National Bank.
"Refunded Swingline Loans": as defined in Section 2.7(c).
"Refunding Date": as defined in Section 2.7(d).
"Register": as defined in Section 11.6(d).
"Regulation D": Regulation D of the Board as in effect from
time to time.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Regulation X": Regulation X of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower
to reimburse each Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Revolving Commitments pursuant to Section 4.5(d) as a result
of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale or Recovery Event, (i) with respect to any such Asset Sale, to
replace the assets in respect of which such Asset Sale occurred or to purchase
other assets used in the existing business of the Borrower and its Subsidiaries
or (ii) with respect to any Recovery Event, to repair, replace or relocate the
affected assets within 180 days from the date of receipt of such Net Cash
Proceeds, in each case, provided that if such affected assets constituted
Collateral, such restored, replacement or other purchased assets shall also
constitute Collateral.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business or repair, replace or relocate any
affected assets.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring six months after such Reinvestment
Event and (b) the date on which the Borrower shall have determined not to, or
shall have otherwise ceased to, acquire assets useful in the Borrower's business
or repair, replace or relocate any affected assets with all or any portion of
the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. 4043.
"Required Lenders": at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments then in effect and (b) thereafter,
the sum of (i) the aggregate U.S. Dollar Equivalent of the unpaid principal
amount of the Term Loans then outstanding and (ii) the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been
terminated, the Aggregate Committed Outstandings then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer,
president or chief financial officer of the Borrower, but in any event,
with respect to financial matters, the chief financial officer of the
Borrower.
"Restricted Payments": as defined in Section 8.6.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such Lender's
name on Schedule 1.1A or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $150,000,000.
"Revolving Commitment Period": the period from and
including the Closing Date to the Revolving Termination Date.
"Revolving Facility": as defined in the definition of
Facility.
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans": the collective reference to Dollar
Revolving Loans and Multicurrency Revolving Loans.
"Revolving Percentage": as to any Revolving Lender at any time,
the percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the sum of (a) aggregate
principal amount of such Lender's Dollar Revolving Loans then outstanding and
(b) the U.S. Dollar Equivalent of such Lender's Multicurrency Revolving Loans
then outstanding, constitutes of the aggregate principal amount of the Dollar
Revolving Loans and the U.S. Dollar Equivalent of the Multicurrency Revolving
Loans then outstanding).
"Revolving Termination Date": the earliest of () the
Scheduled Revolving Termination Date, () the date on which the Revolving
Commitments are terminated pursuant to the terms hereof, (c) the date on
which the German antitrust authorities issue a final, non-appealable
determination to decline the Borrower's application for antitrust
approval and (d) if the German antitrust authorities have neither
declined nor approved the Borrower's application for antitrust approval,
December 31, 1999.
"Scheduled Revolving Termination Date": March 31, 2006.
"SEC": the Securities and Exchange Commission, any
successor thereto and any analogous Governmental Authority.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a
Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
"Senior Leverage Ratio": as at any day, the ratio of (a)
Consolidated Total Senior Indebtedness on such day to (b) Consolidated
EBITDA for the most recently completed four fiscal quarters of the
Borrower for which financial statements have been provided to the
Lenders.
"Single Employer Plan": any Plan that is covered by Title
IV of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, as of any date
of determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Specified Change of Control": a "Change of Control" as
defined in the Subordinated Note Indenture.
"Subordinated Notes": the 51/2% Convertible Subordinated
Debentures of the Borrower due 2005.
"Subordinated Indebtedness": () Indebtedness of the
Borrower in respect of the Subordinated Notes and () other Indebtedness
of the Borrower which by its terms is subordinated to the Obligations in
a manner and to an extent satisfactory to the Administrative Agent.
"Subordinated Note Indenture": the Indenture, dated as of
October 24, 1995, between the Borrower, as issuer, and The Chase Manhattan Bank,
as trustee, as amended by the First Supplemental Indenture, dated February 27,
1998 (as the same may be further amended, restated or otherwise modified from
time to time).
"Subsequent Participant": any member state of EMU that
becomes a Participating Member State after the date hereof.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower
other than any Excluded Foreign Subsidiary.
"Swingline Commitment": the obligation of the Swingline
Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $30,000,000.
"Swingline Lender": First Union National Bank, in its
capacity as the lender of Swingline Loans.
"Swingline Loans": the collective reference to Dollar
Swingline Loans and Multicurrency Swingline Loans.
"Swingline Participation Amount": as defined in Section
2.7(d).
"Syndication Agent": as defined in the preamble hereto.
"Target Operating Day": any day that is not (a) a Saturday
or Sunday, (b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative Agent).
"Term Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading "Term Commitment"
opposite such Lender's name on Schedule 1.1A. The original aggregate amount of
the Term Commitments is $275,000,000.
"Term Lender": each Lender that has a Term Commitment or is
the holder of a Term Loan.
"Term Loans": the collective reference to Dollar Term Loans
and Multicurrency Term Loans.
"Term Percentage": as to any Term Lender at any time, the
percentage which such Lender's Term Commitment then constitutes of the aggregate
Term Commitments (or, at any time after the Closing Date, the percentage which
the sum of (a) the aggregate principal amount of such Lender's Dollar Term Loans
then outstanding and (b ) the U.S. Dollar Equivalent of such Lender's
Multicurrency Term Loans then outstanding, constitutes of the aggregate
principal amount of the Dollar Term Loans and the U.S. Dollar Equivalent of the
Multicurrency Term Loans then outstanding).
"Total Aggregate Committed Outstandings": at any time, the
aggregate amount of the Aggregate Committed Outstandings of the
Revolving Lenders outstanding at such time.
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans of any Facility the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
"Transferee": any Assignee or Participant.
"Treaty on European Union": the Treaty of Rome of March 25,
1957, as amended by the Single ββββββββ βββ ββββ and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Type": as to any Term Loan or Revolving Loan, its nature
as an ABR Loan, a Eurodollar Loan or a Multicurrency Loan.
"United States": the United States of America.
"U.S. Dollar Equivalent": with respect to an amount
denominated in any currency other than Dollars, the equivalent in Dollars of
such amount determined at the Exchange Rate on the date of determination of such
equivalent. In making any determination of the U.S. Dollar Equivalent for
purposes of calculating the amount of Loans to be borrowed from the respective
Lenders on any Borrowing Date, the Administrative Agent shall use the relevant
Exchange Rate in effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other Loan
Documents.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly
and/or through other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. () Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, ()
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, () the
words "include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation", () the word "incur" shall be construed to mean
incur, create, issue, assume, become liable in respect of or suffer to exist
(and the words "incurred" and "incurrence" shall have correlative meanings), and
() the words "asset" and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and
properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions hereof,
each Term Lender severally agrees to make a term loan (a "Dollar Term Loan") in
Dollars and a term loan (a "Multicurrency Term Loan") in an Available Foreign
Currency to the Borrower on the Closing Date in an aggregate amount not to
exceed the amount of the Term Commitment of such Lender. The Dollar Term Loans
may from time to time be Eurodollar Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 4.6.
2.2 Procedure for Term Loan Borrowing. () The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent () with respect to Dollar Term Loans, prior to 10:00
A.M., Charlotte, North Carolina time, one Business Day prior to the anticipated
Borrowing Date or () with respect to Multicurrency Term Loans, prior to 10:00
A.M. Charlotte, North Carolina time, three Business Days prior to the
anticipated Borrowing Date) requesting that the Term Lenders make the Term Loans
on the anticipated Closing Date and specifying the respective amounts to be
borrowed in Dollars and an Available Foreign Currency. The Term Loans made on
the Closing Date in Dollars shall initially be ABR Loans and, unless otherwise
agreed by the Administrative Agent in its sole discretion, no Term Loan may be
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the date that is 60 days after the Closing Date.
Upon receipt of such notice the Administrative Agent shall promptly notify each
Term Lender thereof.
(b) Not later than 12:00 Noon, Charlotte, North Carolina time, on
the Closing Date each Term Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to
the Term Loan or Term Loans to be made by such Lender in Dollars or an Available
Foreign Currency. The Administrative Agent shall credit an account of the
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Lenders in immediately available funds.
2.3 Repayment of Term Loans. () Each Term Loan of each Term Loan
Lender shall mature in 25 consecutive quarterly installments, commencing on
March 31, 2000, each of which shall be in an amount equal to such Lender's Term
Percentage multiplied by an amount determined by multiplying () the aggregate
principal amount of Term Loans in the relevant currency as of the Closing Date
and () the percentage set forth below:
Installment Principal Amount
March 31, 2000 1.10%
June 30, 2000 3.30%
September 30, 2000 3.30%
December 31, 2000 3.30%
March 31, 2001 1.30%
June 30, 2001 3.80%
September 30, 2001 3.80%
December 31, 2001 3.80%
March 31, 2002 1.60%
June 30, 2002 4.30%
September 30, 2002 4.30%
December 31, 2002 4.30%
March 31, 2003 1.60%
June 30, 2003 4.30%
September 30, 2003 4.30%
December 31, 2003 4.30%
March 31, 2004 1.80%
June 30, 2004 5.50%
September 30, 2004 5.50%
December 31, 2004 5.50%
March 31, 2005 2.20%
June 30, 2005 6.50%
September 30, 2005 6.50%
December 31, 2005 6.50%
March 31, 2006 7.30%
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Term Lender the
principal amount of each Term Loan of such Term Lender in installments according
to the amortization schedule set forth in paragraph (a) above (or on such
earlier date on which the Loans become due and payable pursuant to Section 9).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Term Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in Section 4.1.
(c) Each Term Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Term Lender resulting from each Term Loan of such Term Lender from time to time,
including the amounts of principal and interest payable and paid to such Term
Lender from time to time in respect of such Term Loans under this Agreement.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 11.6(d), and a subaccount therein for
each Term Lender, in which shall be recorded () the amount of each Term Loan
made hereunder and any Note evidencing such Term Loan, the Type thereof and each
Interest Period (if any) applicable thereto, () the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Term Lender hereunder and () both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Term Lender's share
thereof.
(e) The entries made in the Register and the accounts of each Term
Lender maintained pursuant to Section 2.3(d) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Term Lender or the Administrative Agent to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Term Loans by
such Term Lender in accordance with the terms of this Agreement. Any discrepancy
between the Register and the account of any Lender with respect to any amounts
owed by the Borrower to such Lender or paid by the Borrower to such Lender shall
be settled between the Administrative Agent and such Lender.
(f) The Borrower agrees that, upon the request to the
Administrative Agent by any Term Lender, the Borrower will execute and deliver
to such Term Lender a promissory note of the Borrower evidencing any Term Loans
of such Lender, substantially in the form of Exhibit H-1, with appropriate
insertions as to date and principal amount.
2.4 Revolving Commitments. () Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit loans
("Dollar Revolving Loans") in Dollars to the Borrower from time to time during
the Revolving Commitment Period so long as after giving effect thereto and to
any concurrent repayment or prepayment of Loans () the Available Revolving
Commitment of each Revolving Lender is greater than or equal to zero and () the
Total Aggregate Committed Outstandings do not exceed the Total Revolving
Commitments. During the Revolving Commitment Period the Borrower may use the
Revolving Commitments by borrowing, prepaying the Dollar Revolving Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Dollar Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 4.6.
(b) Subject to the terms and conditions hereof, each Revolving
Lender severally agrees to make revolving credit loans ("Multicurrency Revolving
Loans") in any Available Foreign Currency to the Borrower from time to time
during the Revolving Commitment Period so long as after giving effect thereto
and to any concurrent repayment or prepayment of Loans () the Available
Revolving Commitment of each Revolving Lender is greater than or equal to zero,
() the aggregate outstanding principal amount of Multicurrency Revolving Loans
does not exceed an amount of which the U.S. Dollar Equivalent is $75,000,000 and
() the Total Aggregate Committed Outstandings do not exceed the Total Revolving
Commitments. During the Revolving Commitment Period, the Borrower may borrow
Multicurrency Revolving Loans under the Revolving Commitments by borrowing,
repaying the Multicurrency Revolving Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
(c) The Borrower may borrow Revolving Loans on the Closing Date in
an aggregate amount of up to $50,000,000.
(d) The Borrower shall repay all outstanding Revolving Loans on the
Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowings. () The Borrower may
borrow Dollar Revolving Loans under the Revolving Commitments during the
Revolving Commitment Period on any Business Day, provided that the Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, Charlotte, North
Carolina time, (x) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, or (y) one Business Day prior to the requested
Borrowing Date, in the case of ABR Loans), specifying () the amount and Type of
Dollar Revolving Loans to be borrowed, () the requested Borrowing Date and () in
the case of Eurodollar Loans, the respective amounts of such Type of Loan and
the respective lengths of the initial Interest Period therefor. Any Dollar
Revolving Loans made on the Closing Date shall initially be ABR Loans and,
unless otherwise agreed by the Administrative Agent in its sole discretion, no
Revolving Loan may be converted into or continued as a Eurodollar Loan having an
Interest Period in excess of one month prior to the date that is 60 days after
the Closing Date. Each borrowing of Dollar Revolving Loans under the Revolving
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple thereof (or, if the then Aggregate Available
Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in
the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; provided, that the Swingline Lender may make, at the request of
the Borrower, Dollar Swingline Loans in other amounts pursuant to Section 2.6.
Upon receipt of any such notice from the Borrower, the Administrative Agent
shall promptly notify each Revolving Lender thereof. Each Revolving Lender will
make the amount of its pro rata share of each Dollar Revolving Loan borrowing
available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 12:00 Noon, Charlotte, North Carolina time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as received by
the Administrative Agent.
(b) The Borrower may request the Revolving Lenders to make
Multicurrency Revolving Loans during the Revolving Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., Charlotte, North Carolina time, three Business Days prior
to the requested Borrowing Date), specifying in each case () the amount and
currency to be borrowed, () the requested Borrowing Date and () the length of
the initial Interest Period therefor. Each borrowing of Multicurrency Revolving
Loans under the Revolving Commitments shall be in an amount in Dollars equal to,
or an amount in an Available Foreign Currency of which the U.S. Dollar
Equivalent is equal to, at least $2,500,000 (or, if the then Aggregate Available
Revolving Commitments are less than $2,500,000, such lesser amount; provided,
that the Swingline Lender may make, at the request of the Borrower,
Multicurrency Swingline Loans in other amounts pursuant to Section 2.6). Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Lender thereof. Not later than 12:00 Noon, London
time, on the requested Borrowing Date, each Revolving Lender shall make an
amount equal to its Revolving Percentage of the principal amount of
Multicurrency Revolving Loans requested to be made on such Borrowing Date
available to the Administrative Agent at the Administrative Agent's funding
office for the applicable currency specified by the Administrative Agent from
time to time by notice to the Revolving Lenders and in immediately available
funds. The amounts made available by each Revolving Lender will then be made
available to the Borrower at the funding office for the relevant Available
Foreign Currency specified from time to time by the Administrative Agent by
notice to the Revolving Lenders and in like funds as received by the
Administrative Agent.
2.6 Swingline Commitment. () Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swingline loans in Dollars
("Dollar Swingline Loans") or any Available Foreign Currency ("Multicurrency
Swingline Loans") to the Borrower; provided that () the aggregate principal
amount of Swingline Loans outstanding to the Borrower at any time shall not
exceed the Swingline Commitment, () the Borrower shall not request, and the
Swingline Lender shall not make, any Swingline Loan in any Available Foreign
Currency if () after giving effect to the making of such Swingline Loan, the
aggregate amount of the Total Aggregate Committed Outstandings denominated in
Available Foreign Currencies would exceed an amount of which the U.S. Dollar
Equivalent is $30,000,000 or () the aggregate amount of the Available Revolving
Commitments would be less than zero and () the Borrower shall not request, and
the Swingline Lender shall not make, any Swingline Loan in Dollars if after
giving effect thereto the aggregate principal amount of Swingline Loans
denominated in Dollars would exceed $10,000,000. During the Revolving Commitment
Period, the Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Dollar
Swingline Loans shall be ABR Loans and Multicurrency Swingline Loans shall bear
interest at the applicable Multicurrency Swingline Loan Rate.
(b) The Borrower shall repay all outstanding Swingline Loans on
the Revolving Termination Date.
2.7 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. () The Borrower may borrow Dollar Swingline Loans by giving the Swingline
Lender irrevocable telephonic notice (which telephonic notice must be received
by the Swingline Lender not later than 1:00 P.M., Charlotte, North Carolina
time, on the proposed Borrowing Date) confirmed promptly in writing (with a copy
to the Administrative Agent), specifying () the amount to be borrowed, () the
requested Borrowing Date (which shall be a Business Day during the Revolving
Commitment Period) and () the length of the Interest Period therefor. Each
borrowing by the Borrower of Dollar Swingline Loans under the Swingline
Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof, but not exceeding $10,000,000. Not later than 3:00
P.M., Charlotte, North Carolina time, on the requested Borrowing Date, the
Swingline Lender shall make available to the Borrower, in immediately available
funds, the proceeds of such requested Swingline Loan.
(b) The Borrower may borrow Multicurrency Swingline Loans by giving
the Swingline Lender irrevocable telephonic notice (which telephonic notice must
be received by such Swingline Lender not later than () 2:00 P.M., London time
(or such other time as the Administrative Agent and the Swingline Lender may
consent), on the anticipated Borrowing Date, with respect to Swingline Loans
denominated in Pounds Sterling, or () 11:00 A.M. London time, three days prior
to the anticipated Borrowing Date, with respect to Swingline Loans denominated
in any other Available Foreign Currency) confirmed promptly in writing (with a
copy to the Administrative Agent), specifying () the amount and Available
Foreign Currency to be borrowed, () the requested Borrowing Date (which shall be
a Business Day during the Revolving Commitment Period), () the length of the
Interest Period therefor and () any other information requested by the Swingline
Lender in accordance with its particular borrowing procedures. Each borrowing by
the Borrower of Multicurrency Swingline Loans under the Swingline Commitment
shall be in an amount the U. S. Dollar Equivalent of which is at least
approximately $500,000. Not later than 3:00 P.M., London time, on the requested
Borrowing Date, the Swingline Lender shall make available to the Borrower, in
immediately available funds, the proceeds of such requested Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on (x) one
Business Day's notice, in the case of Dollar Swingline Loans, no later than
12:00 Noon, Charlotte, North Carolina time, or (y) three Business Days' notice,
in the case of Multicurrency Swingline Loans, no later than 10:00 A.M.,
Charlotte, North Carolina time, request each Revolving Lender to make, and each
Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to
such Revolving Lender's Revolving Percentage of the aggregate amount of the
outstanding Swingline Loans (the "Refunded Swingline Loans") with respect to
which such notice has been given, to repay the Swingline Lender. Each Revolving
Lender shall make the amount of such Revolving Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 1:00 P.M., Charlotte, North Carolina time, in the case of Dollar
Revolving Loans, and 1:00 P.M., London time, in the case of Multicurrency
Revolving Loans, in each case, one Business Day (or three Business Days, as the
case may be) after the date of such notice. Dollar Revolving Loans made pursuant
to this Section 2.7(c) shall be ABR Loans and Multicurrency Revolving Loans made
pursuant to this Section 2.7(c) shall have an Interest Period of one month
(unless an Interest Period of two, three or six months is requested by the
Borrower). The proceeds of such Revolving Loans shall be immediately applied by
the Swingline Lender to repay the Refunded Swingline Loans. The Borrower
irrevocably authorizes the Administrative Agent to charge the Borrower's
accounts with the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swingline Loans
to the extent amounts received from the Revolving Lenders are not sufficient to
repay in full such Refunded Swingline Loans.
(d) If prior to the time a Revolving Loan would have otherwise been
made pursuant to Section 2.7(c), one of the events described in Section 9(f)
shall have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 2.7(c), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.7(c) (the "Refunding Date"),
purchase for cash an undivided participating interest in an amount equal to ()
its Revolving Percentage times () the aggregate principal amount of Swingline
Loans then outstanding which were to have been repaid with such Revolving Loans
(the "Swingline Participation Amount").
(e) Whenever, at any time after the Swingline Lender has received
from any Revolving Lender such Lender's Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to the Administrative Agent for distribution to
such Lender its Swingline Participation Amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender's pro rata portion of
such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided, however, that in the event
that such payment received by the Swingline Lender is required to be returned,
such Revolving Lender will return to the Administrative Agent for distribution
to the Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender.
(f) Each Revolving Lender's obligation to make the Loans referred
to in Section 2.7(c) and to purchase participating interests pursuant to Section
2.7(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, () any setoff, counterclaim,
recoupment, defense or other right which such Revolving Lender or the Borrower
may have against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever; () the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 6; () any adverse change in the condition (financial or otherwise) of
the Borrower; () any breach of this Agreement or any other Loan Document by the
Borrower, any other Loan Party or any other Revolving Lender; or () any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(g) Notwithstanding anything to the contrary contained herein, no
Revolving Lender shall be required to make a Revolving Loan pursuant to Section
2.7(c) or acquire a participation pursuant to Section 2.7(d) in a Swingline Loan
if an Event of Default shall have occurred and be continuing at the time such
Swingline Loan was made and such Revolving Lender shall have notified the
Swingline Lender and the Administrative Agent in writing, at least one Business
Day prior to the time such Swingline Loan was made, that such Event of Default
has occurred and that such Revolving Lender will not acquire participations in
Swingline Loans made while such Event of Default is continuing.
2.8 Commitment Fees, etc. () The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Termination
Date, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a fee equal to 0.25% per annum of the Commitment of such
Lender for the period from and including November 1, 1999 to the earlier of (i)
the Closing Date and (ii) the Revolving Termination Date, payable on such date.
(c) The Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates previously agreed to in writing by the Borrower
and the Administrative Agent.
2.9 Termination or Reduction of Revolving Commitments. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent (which shall promptly notify each of the Revolving
Lenders), to terminate the Revolving Commitments or, from time to time, to
reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Aggregate
Committed Outstandings would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect.
2.10 Repayment of Revolving Loans; Evidence of Debt. () The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Lender the then unpaid principal amount of
its Revolving Loans on the Revolving Termination Date and on such other dates
and in such other amounts as may be required from time to time pursuant to this
Agreement. The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Revolving Loans from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
Section 4.1.
(b) Each Revolving Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the Borrower
resulting from each Revolving Loan made by it from time to time, including the
amounts of principal and interest payable thereon and paid from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to Section 11.6(d), and a subaccount therein for each Revolving Lender, in which
shall be recorded () the date and amount of each Revolving Loan made hereunder,
() the date and amount of any principal or interest due and payable or to become
due and payable from the Borrower hereunder in respect of the Revolving Loans
and () both the date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Revolving Loans and each Revolving
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Revolving Lender maintained pursuant to this Section 2.10 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Revolving Lender or the Administrative Agent to maintain
the Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Revolving Loans made to the Borrower by each Revolving Lender in accordance with
the terms of this Agreement. Any discrepancy between the Register and the
account of any Lender with respect to any amounts owed by the Borrower to such
Lender or paid by the Borrower to such Lender shall be settled between the
Administrative Agent and such Lender.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Revolving Lender, the Borrower will execute and
deliver to such Revolving Lender a promissory note of the Borrower evidencing
any Revolving Loans of such Lender, substantially in the form of Exhibit H-2,
with appropriate insertions as to date and principal amount.
2.11 Redenomination and Alternative Currencies Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
National Currency Unit of a Subsequent Participant shall be redenominated into
the euro unit in accordance with EMU legislation immediately upon such
Subsequent Participant becoming a Participating Member State (but otherwise in
accordance with EMU Legislation).
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. () Subject to the terms and conditions hereof,
each Issuing Lender, in reliance on the agreements of the other Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by
such Issuing Lender; provided that no Issuing Lender shall issue any Letter of
Credit if, after giving effect to such issuance, () the L/C Obligations would
exceed the L/C Commitment or () the aggregate amount of the Available Revolving
Commitments would be less than zero. Each Letter of Credit shall () be
denominated in Dollars or an Available Foreign Currency, () have a face amount
in Dollars or of the U.S. Dollar Equivalent of at least $50,000 (unless
otherwise agreed by such Issuing Lender) and () expire no later than the earlier
of (x) the first anniversary of its date of issuance and (y) the date that is
five Business Days prior to the Revolving Termination Date, provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may reasonably request. Upon receipt of any Application, an
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall any Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the Borrower. The relevant Issuing Lender shall furnish a
copy of such Letter of Credit to the Borrower promptly following the issuance
thereof. The relevant Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).
3.3 Fees and Other Charges. () The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans or Eurocurrency Loans, as the
case may be, under the Revolving Facility, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date. In addition, the Borrower shall pay to the relevant Issuing
Lender for its own account a fronting fee of 0.25% per annum on the undrawn and
unexpired amount of each Letter of Credit, payable quarterly in arrears on each
L/C Fee Payment Date after the Issuance Date of any such Letter of Credit.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. () Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in each Issuing Lender's obligations and
rights under and in respect of each Letter of Credit issued by such Issuing
Lender hereunder and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
each Issuing Lender that, if a draft is paid under any Letter of Credit issued
by such Issuing Lender for which such Issuing Lender is not reimbursed in full
by the Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount in the currency of such
Letter of Credit equal to such L/C Participant's Revolving Percentage of the
amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is paid to
such Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of () such amount, times () the daily average Federal Funds
Effective Rate (or, if such payment is in an Available Foreign Currency, the
then current rate in such Available Foreign Currency as is used to settle
short-term obligations between banks, as determined by the Issuing Lender)
during the period from and including the date such payment is required to the
date on which such payment is immediately available to such Issuing Lender,
times () a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is not
made available to such Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, such Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans under the Revolving Facility (or, if such payment is in an
Available Foreign Currency, the then current rate in such Available Foreign
Currency as is used to settle short-term obligations between banks, as
determined by the Issuing Lender) plus 2%. A certificate of such Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse each Issuing Lender on each date on which such Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by such Issuing Lender for the amount of () such draft so paid
and () any taxes, fees, charges or other costs or expenses incurred by such
Issuing Lender in connection with such payment. Each such payment shall be made
to such Issuing Lender at its relevant Lending Installation in the currency in
which the relevant Letter of Credit was issued in lawful money and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate set forth in () until the second Business Day
following the date of the applicable drawing, Section 4.1(b) (or, in the case of
any such amount outstanding in an Available Foreign Currency, Section 4.1(d)
minus 2%) and () thereafter, Section 4.1(d).
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against an Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that such Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower agrees that any action taken or omitted by an Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, shall be binding on the Borrower and shall not result
in any liability of such Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of the
relevant Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO THE LOANS
4.1 Interest Rates and Payment Dates. () Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) Each Multicurrency Loan shall bear interest (payable in the
Available Foreign Currency in which such Multicurrency Loan is denominated) for
each day during each Interest Period with respect thereto at a rate per annum
equal to the applicable Eurocurrency Rate or the Multicurrency Swingline Loan
Rate, as the case may be, determined for such Interest Period plus the
Applicable Margin in effect for such day.
(d) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
equal to (x) in the case of the Loans in Dollars, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section plus
2%, (y) in the case of Reimbursement Obligations in Dollars, the rate applicable
to ABR Loans plus 2% or (z) in the case of any Loans or Reimbursement
Obligations in an Available Foreign Currency, the Multicurrency Default Rate,
and () if all or a portion of any interest payable on (x) any Loan or
Reimbursement Obligation or any commitment fee or other amount payable in
Dollars hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to ABR Loans plus 2% or (y) any Loan
or Reimbursement Obligation payable in an Available Foreign Currency shall not
be paid when due, such overdue amount shall bear interest at the Multicurrency
Default Rate (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate then applicable to ABR Loans under the Revolving
Facility plus 2%), in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this Section
shall be payable from time to time on demand.
4.2 Computation of Interest and Fees. () Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate and Loans denominated in
Pounds Sterling, the interest thereon shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate or Eurocurrency
Rate. Any change in the interest rate on a Loan resulting from a change in the
ABR or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Sections 4.1(a) and (c).
(c) (i) If the Multicurrency Reference Lender shall for any reason
no longer have a Revolving Commitment or any Multicurrency Loans, the
Multicurrency Reference Lender shall thereupon cease to be the Multicurrency
Reference Lender and the Administrative Agent (after consultation with the
Borrower and the Revolving Lenders) shall, by notice to the Borrower and the
Lenders, designate another Revolving Lender as the Multicurrency Reference
Lender.
(ii) The Multicurrency Reference Lender shall use its best efforts
to furnish quotations of rates to the Administrative Agent as contemplated
hereby. If the Multicurrency Reference Lender shall be unable or shall otherwise
fail to supply such rates to the Administrative Agent upon its request, the rate
of interest shall, subject to the provisions of Section 4.3, be determined by
the Administrative Agent in consultation with the Borrower.
4.3 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate or the Eurocurrency Rate with
respect to the currency in which a Loan or a requested Loan is denominated (the
"Affected Currency"), as the case may be, for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority
Facility Lenders in respect of the relevant Facility that the Eurodollar Rate or
the Eurocurrency Rate, as the case may be, determined or to be determined with
respect to any Affected Currency for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (w) any Eurodollar Loans or Multicurrency Loans, as the case may
be, under the relevant Facility requested to be made on the first day of such
Interest Period shall be made as ABR Loans in Dollars, (x) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be converted into or continued as ABR
Loans, (y) any outstanding Eurodollar Loans under the relevant Facility shall be
converted, on the last day of the then-current Interest Period, to ABR Loans and
(z) () any Multicurrency Revolving Loans to which such Interest Period relates
shall be repaid on the last day of the then current Interest Period and () any
Multicurrency Term Loans shall bear interest at a rate determined by the
Administrative Agent as the rate at which the Lenders can reasonably fund the
Multicurrency Term Loans for such Interest Period plus the Applicable Margin.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans or Multicurrency Loans under the relevant Facility shall be
made or continued as such, nor shall the Borrower have the right to convert
Loans under the relevant Facility to Eurodollar Loans, as the case may be,
provided that Loans may continue to be made, converted or continued, as the case
may be, in Dollars or Available Foreign Currencies other than the Affected
Currency.
4.4 Optional Prepayments. () The Borrower may at any time and from
time to time prepay the Dollar Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans (or, in the case of
Dollar Swingline Loans, on the date of such prepayment), which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except in
the case of Dollar Revolving Loans that are ABR Loans) accrued interest to such
date on the amount prepaid. Partial prepayments of Dollar Term Loans and Dollar
Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof and partial prepayments of Dollar Swingline Loans shall
be in an aggregate principal amount of $100,000 or a whole multiple thereof.
(b) The Borrower may at any time and from time to time prepay,
without premium or penalty, the Multicurrency Loans, in whole or in part, upon
at least three Business Days' irrevocable notice to the Administrative Agent
(or, in the case of Multicurrency Swingline Loans, on the date of such
prepayment) specifying the date and amount of prepayment; provided, that if a
Multicurrency Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 4.11. Upon the receipt of any such notice, the
Administrative Agent shall promptly notify each Revolving Lender or Term Lender,
as the case may be, thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayments of Multicurrency Term Loans and Multicurrency Revolving Loans shall
be in an aggregate principal amount of which the U.S. Dollar Equivalent is at
least $1,000,000 and partial prepayments of Multicurrency Swingline Loans shall
be in an aggregate principal amount of which the U.S. Dollar Equivalent is
$100,000 or a whole multiple thereof.
4.5 Mandatory Prepayments and Commitment Reductions. () If, at any
time during the Revolving Commitment Period, for any reason the Aggregate
Committed Outstandings of all Revolving Lenders exceed the Total Revolving
Commitments then in effect, the Borrower shall, without notice or demand,
immediately prepay the Revolving Loans such that the aggregate principal amount
of the Revolving Loans so prepaid equals or exceeds the amount of such excess.
The Borrower will implement and maintain internal controls to monitor the
borrowings and repayments of Revolving Loans by the Borrower and the issuance of
and drawings under Letters of Credit, with the object of preventing any request
for an extension of credit that would result in the Aggregate Committed
Outstandings being in excess of the Total Revolving Commitments then in effect,
and of promptly identifying and remedying any circumstance where, by reason of
changes in exchange rates, the Aggregate Committed Outstandings (made in Dollars
or in any Available Foreign Currency) with respect to all of the Lenders
(including the Swingline Lender) exceeds the Total Revolving Commitments then in
effect. The Administrative Agent will calculate the Aggregate Committed
Outstandings (including any portion made in an Available Foreign Currency) with
respect to all of the Lenders (including the Swingline Lender) from time to time
and, in any event, not less frequently than at the end of each Interest Period.
In making such calculations, the Administrative Agent will rely on the
information most recently received by it from the Swingline Lender in respect of
outstanding Swingline Loans and from each of the Issuing Lenders in respect of
the outstanding L/C Obligations.
(b) If any Indebtedness shall be issued or incurred by the
Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in
accordance with Section 8.2 as in effect on the date hereof) and the Borrower's
Consolidated Leverage Ratio after giving effect to such incurrence is greater
than 3.00 to 1.00, an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such incurrence toward the prepayment of the
Term Loans and the reduction of the Revolving Commitments as set forth in
Section 4.5(h).
(c) If any Capital Stock of the Borrower shall be sold or issued by
the Borrower (other than in connection with (x) any Permitted Acquisition, (y)
options exercisable for the purchase of Capital Stock issued to officers,
employees, directors or consultants of the Borrower and (z) conversion of the
Subordinated Notes into common stock of the Borrower in accordance with their
terms) and the Borrower's Consolidated Leverage Ratio after giving effect to
such issuance and the use of proceeds therefrom is greater than 3.00 to 1.00, an
amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the
date of such sale or issuance toward the prepayment of the Term Loans and the
reduction of the Revolving Commitments as set forth in Section 4.5(h).
(d) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event and the
Borrower's Consolidated Leverage Ratio after giving effect thereto and to the
use of proceeds therefrom is greater than 3.00 to 1.00 then, unless a
Reinvestment Notice shall be delivered in respect thereof, such Net Cash
Proceeds shall be applied on such date toward the prepayment of the Term Loans
and the reduction of the Revolving Commitments as set forth in Section 4.5(h);
provided, that, notwithstanding the foregoing, () the aggregate Net Cash
Proceeds of Asset Sales and Recovery Events that may be excluded from the
foregoing requirement pursuant to a Reinvestment Notice shall not exceed
$15,000,000 in any fiscal year of the Borrower and () on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward the
prepayment of the Term Loans and the reduction of the Revolving Commitments as
set forth in Section 4.5(h).
(e) If, for any fiscal year of the Borrower, there shall be Excess
Cash Flow and the Borrower's Consolidated Leverage Ratio is greater than 3.00 to
1.00, the Borrower shall, on the relevant Excess Cash Flow Application Date,
apply 50% of such Excess Cash Flow toward the prepayment of the Term Loans and
the reduction of the Revolving Commitments as set forth in Section 4.5(h). Each
such prepayment and commitment reduction shall be made on a date (an "Excess
Cash Flow Application Date") no later than five days after the earlier of () the
date on which the financial statements of the Borrower referred to in Section
7.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and () the date such financial
statements are actually delivered.
(f) Notwithstanding anything to the contrary contained herein, in
the event that at least $108,000,000 of the Subordinated Notes have not been
converted into shares of the Borrower's common stock pursuant to their terms by
June 30, 2005, then, on such date, the Loans (including accrued interest
thereon) of each Lender and all other amounts owing under this Agreement and the
other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall automatically become immediately due
and payable and the Revolving Commitments shall immediately terminate. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to reimburse the
relevant Issuing Lender for the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
(g) Notwithstanding the foregoing, mandatory prepayments of
Multicurrency Loans that would otherwise be required pursuant to this Section
4.5 solely as a result of fluctuations in Exchange Rates from time to time shall
only be required to be made pursuant to this Section 4.5 on the last Business
Day of each month on the basis of the Exchange Rate in effect on such Business
Day.
(h) Subject to Section 4.5(a), amounts to be applied in connection
with prepayments and Revolving Commitment reductions made pursuant to this
Section 4.5 shall be applied, first, to the prepayment of the Term Loans and,
second, to reduce permanently the Revolving Commitments. Any such reduction of
the Revolving Commitments shall be accompanied by prepayment of the Dollar
Revolving Loans and/or Dollar Swingline Loans, or, if the Borrower elects, the
Multicurrency Revolving Loans to the extent, if any, that the Total Aggregate
Committed Outstandings exceed the amount of the Total Revolving Commitments as
so reduced, provided that if the aggregate principal amount of Revolving Loans
and Swingline Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the Borrower shall, to
the extent of the balance of such excess, replace outstanding Letters of Credit
and/or deposit an amount in cash in a cash collateral account established with
the Administrative Agent for the benefit of the Lenders on terms and conditions
satisfactory to the Administrative Agent. Any such prepayment of the Term Loans
shall be made to the Dollar Term Loans, or, if the Borrower elects, the
Multicurrency Term Loans. The application of any prepayment of Dollar Term Loans
or Dollar Revolving Loans pursuant to Section 4.5 shall be made, first, to ABR
Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under
Section 4.5 (except in the case of Dollar Revolving Loans that are ABR Loans and
Swingline Loans) shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
(i) Notwithstanding anything to the contrary herein, if the
information with respect to the Target and its Subsidiaries contained in the
financial statements delivered to the Administrative Agent pursuant to Section
7.1(c) is materially adversely different from the information contained in the
financial statements delivered pursuant to Section 6.1(c) as specified in a
notice from the Administrative Agent to the Borrower to such effect, then the
Term Loans automatically become immediately due and payable and the Term
Commitments shall immediately terminate.
4.6 Conversion and Continuation Options. () The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving no less than three Business Days' prior irrevocable notice to
the Administrative Agent, in accordance with the applicable provisions of the
term "Interest Period" set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that no Eurodollar Loan
under a particular Facility may be continued as such when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Majority
Facility Lenders in respect of such Facility have determined in its or their
sole discretion not to permit such continuations, and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
(c) Any Multicurrency Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election, provided, that if the Borrower shall fail
to give such notice or if any Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined that
such continuation would not be appropriate, such Multicurrency Loans shall
automatically be continued for an Interest Period of one month. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
4.7 Limitations on Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, () () after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and () no more than ten Eurodollar
Tranches shall be outstanding at any one time and () the aggregate principal
amount of the Multicurrency Loans comprising each Tranche shall be in an amount
of which the U.S. Dollar Equivalent is at least $2,500,000.
4.8 Pro Rata Treatment and Payments. () Each borrowing by the
Borrower from the Lenders hereunder (other than in the case of Swingline Loans),
each payment by the Borrower on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the
respective Term Percentages or Revolving Percentages, as the case may be, of the
relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders. The amount of each principal prepayment of the Term
Loans shall be applied to reduce the then remaining installments of the Term
Loans pro rata based upon the then remaining principal amount thereof. Amounts
prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders. Each payment in respect of
Reimbursement Obligations in respect of any Letter of Credit shall be made to
the Issuing Lender that issued such Letter of Credit.
(d) All payments (including prepayments) to be made by the Borrower
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, Charlotte, North Carolina
time, on the due date thereof to the Administrative Agent, for the account of
the Lenders, at the Funding Office, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received.
(e) All payments (including prepayments) to be made by the Borrower
on account of Multicurrency Loans hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, London time (or, in the case of payments in
euro units, 12:00 Noon, Frankfurt time), on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the payment office for
the currency of such Multicurrency Loans specified from time to time by the
Administrative Agent by notice to the Borrower, in the currency of such
Multicurrency Loans and in immediately available funds. The Administrative Agent
shall distribute such payments to the Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(f) If any payment hereunder (other than payments on the Eurodollar
Loans or Multicurrency Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(g) A payment shall be deemed to have been made by the
Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before that date, taken all
relevant steps to make that payment. With respect to the payment of any amount
denominated in euro, the Administrative Agent shall not be liable to the
Borrower or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds in the euro unit to the account with the bank
in the principal financial center in the Participating Member State which the
Borrower or, as the case may be, any Lender shall have specified for such
purpose. In this paragraph (g), "all relevant steps" means all such steps as may
be prescribed from time to time by the regulations or operating procedures of
such clearing or settlement system as the Administrative Agent may from time to
time determine for the purpose of clearing or settling payments of euro.
(h) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to () the daily average Federal Funds Effective Rate (in the case of
a borrowing of Dollar Revolving Loans or Dollar Term Loans) and () the then
current rate in the relevant currency as is used to settle short-term
obligations between banks, as determined by the Administrative Agent (in the
case of a borrowing of Multicurrency Loans), in each case for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount (together with interest thereon from the date such amount was made
available to the Borrower () at the rate per annum applicable to ABR Loans
hereunder (in the case of a borrowing of Dollar Revolving Loans or Dollar Term
Loans) or () the Administrative Agent's reasonable estimate of its average daily
cost of funds plus the Applicable Margin applicable to Multicurrency Loans (in
the case of a borrowing of Multicurrency Loans)), on demand, from the Borrower.
(i) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon () at the rate per annum equal to the daily
average Federal Funds Effective Rate (in the case of amounts payable in Dollars)
and () the then current rate in the relevant currency as is used to settle
short-term obligations between banks, as determined by the Administrative Agent
(in the case of amounts payable in an Available Foreign Currency). Nothing
herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against the Borrower.
(j) Any amount payable by the Administrative Agent to the Lenders
under this Agreement in the currency of a Participating Member State shall be
paid in the euro unit.
(k) If, in relation to the currency of any Subsequent Participant,
the basis of accrual of interest or fees expressed in this Agreement with
respect to such currency shall be inconsistent with any convention or practice
in the London Interbank Market or, as the case may be, the Paris Interbank
Market for the basis of accrual of interest or fees in respect of the euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such Subsequent Participant becomes a Participating
Member State; provided, that if any Loan in the currency of such Subsequent
Participant is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.
(l) Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU legislation and (i) without prejudice to the
respective liabilities for Indebtedness of the Borrower to the Lenders and the
Lenders to the Borrower under or pursuant to this Agreement and (ii) without
increasing the Revolving Commitment of any Lender:
(i) the Multicurrency Loans and each reference in this Agreement to a
minimum amount (or an integral multiple thereof) in a national currency
denomination of a Subsequent Participant to be paid to or by the Administrative
Agent shall, immediately upon such Subsequent Participant becoming a
Participating Member State, be replaced by a reference to such reasonably
comparable and convenient amount (or an integral multiple thereof) in the euro
unit as the Administrative Agent may from time to time specify; and
(ii) except as expressly provided in this Section 4.8, 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 necessary or
appropriate to reflect the adoption of the euro in any Participating Member
State and any relevant market conventions or practices relating to the euro.
4.9 Requirements of Law. () If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan or Multicurrency Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-Excluded
Taxes and Other Taxes covered by Section 4.10 and changes in the rate of tax on
the overall net income of such Lender);
(ii) 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 that is not otherwise included in the determination of the
Eurodollar Rate or the Eurocurrency Rate hereunder, including, without
limitation, the imposition of any reserves with respect to Eurocurrency
Liabilities under Regulation D of the Board; or
(i) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Multicurrency Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this paragraph, it
shall promptly notify the Borrower (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled.
(ii) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction; provided that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts incurred more
than six months prior to the date that such Lender notifies the Borrower of such
Lender's intention to claim compensation therefor; and provided further that, if
the circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.10 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply(if required)
with the requirements of paragraph (d) of this Section,(ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement or(iii) that are United States
withholding taxes imposed other than as a result of a change in any Requirement
of Law or the application or interpretation thereof, except in the case of (ii)
or (iii) to the extent that such Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Borrower with respect
to such Non-Excluded Taxes pursuant to this paragraph .
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a U.S. Person as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8EC1,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S.
Lender is not legally able to deliver.
(e) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.11 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans or Multicurrency Loans
after the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans or Multicurrency Loans after
the Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans or
Multicurrency Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (d) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over () the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
4.12 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 4.9 or 4.10(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 4.9 or 4.10(a).
4.13 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that(a) requests reimbursement for amounts owing pursuant to
Section 4.9 or 4.10(a) or(b) defaults in its obligation to make Loans hereunder,
with a replacement financial institution; provided that() such replacement does
not conflict with any Requirement of Law,()no Event of Default shall have
occurred and be continuing at the time of such replacement, () prior to any such
replacement, such Lender shall have taken no action under Section 4.12 so as to
eliminate the continued need for payment of amounts owing pursuant to Section
4.9 or 4.10(a), () the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the
date of replacement, () the Borrower shall be liable to such replaced Lender
under Section 4.11 if any Eurodollar Loan or Multicurrency Loan owing to such
replaced Lender shall be purchased other than on the last day of the Interest
Period relating thereto, () the replacement financial institution, if not
already a Lender, shall be reasonably satisfactory to the Administrative Agent,
() the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 11.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein), ()
until such time as such replacement shall be consummated, the Borrower shall pay
all additional amounts (if any) required pursuant to Section 4.9, 4.10(a) or
11.5, as the case may be, and () any such replacement shall not be deemed to be
a waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.
4.14 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change Lending
Installations from time to time; provided that such Lender shall be solely
responsible with respect to any Loans so booked, and the Borrower and the
Administrative Agent shall be entitled to deal solely with such Lender with
respect to such Loans. All terms of this Agreement shall apply to any such
Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending Installation.
Each Lender may, by written notice to the Administrative Agent and the Borrower
in accordance with Section 11.2, designate replacement or additional Lending
Installations through which Loans will be made by it and for whose account Loan
payments are to be made.
4.15 Reporting Requirements of Swingline Lenders and Issuing
Lenders. () Within two Business Days following the last day of each calendar
month, the Swingline Lender shall deliver to the Administrative Agent a
statement showing the average daily principal amount of the Swingline Loans
outstanding in each currency during the calendar month most recently ended.
(b) Within two Business Days following the last day of each
calendar month, each Issuing Lender shall deliver to the Administrative Agent a
report detailing all activity during the preceding month with respect to any
Letters of Credit issued by any such Issuing Lender, including the face amount,
the account party, the beneficiary and the expiration date of such Letters of
Credit and any other information with respect thereto as may be requested by the
Administrative Agent.
4.16 Conversion of Loans. Upon the occurrence of any of the
following events:
(a) an Event of Default specified in clause (i) or (ii) of Section
9(f); or
(b) at the request of the Administrative Agent in its discretion or upon
the direction of the Required Lenders, in each case, upon the occurrence of an
Event of Default specified in Section 9(a) with respect to any Loan or
Reimbursement Obligation or interest or other amount payable thereon in an
Available Foreign Currency; then,
(i) if such event is an event specified in clause (a) above, () all
outstanding Multicurrency Loans and Reimbursement Obligations denominated in an
Available Foreign Currency shall promptly be converted into Dollars at the
actual exchange rate at which each Lender is able to obtain the applicable
amount of the relevant Available Foreign Currency for Dollars and () all
outstanding Letters of Credit denominated in any Available Foreign Currency with
respect to which presentment for honor shall not have occurred at the time of
the occurrence of such event shall automatically be converted by the relevant
Issuing Lender thereof into Dollars in the manner provided in clause (A) of this
paragraph (i) immediately after the time, if any, at which a draft shall have
been presented under any such Letter of Credit and shall have been paid by the
relevant Issuing Lender; and
(ii) if such event is an event specified in clause (b) above, with respect
to the affected Available Foreign Currency () all outstanding Multicurrency
Loans and Reimbursement Obligations denominated in such Available Foreign
Currency shall promptly be converted into Dollars at the actual exchange rate at
which each Lender is able to obtain the applicable amount of such Available
Foreign Currency for Dollars and () all outstanding Letters of Credit
denominated in such Available Foreign Currency with respect to which presentment
for honor shall not have occurred at the time of the occurrence of such event
shall be automatically converted into Dollars in the manner provided in clause
(A) of this paragraph (ii) immediately after the time, if any, at which a draft
shall have been presented under any such Letter of Credit and shall have been
paid by the relevant Issuing Lender.
Promptly following any such conversion, each Lender shall notify
the Administrative Agent of the exchange rate utilized by it in making its
conversion (which rate shall be deemed to be correct, in the absence of manifest
error) and the amount in Dollars of its relevant converted Loans (after giving
effect to such conversion). The Administrative Agent promptly shall notify each
Lender and the Borrower of the aggregate outstanding principal amount (in
Dollars) of such converted Loan and shall provide the Borrower with the
conversion data provided to the Administrative Agent by each Lender. From and
after such conversion, () all such specified Loans shall be deemed to be
outstanding in Dollars as ABR Loans (with such conversion constituting, for
purposes of Section 4.11, a prepayment of such Loans before the last day of the
Interest Period with respect thereto) and () all amounts from time to time
accruing, and all amounts from time to time payable, on account of such
converted Loans (including, without limitation, any interest and other amounts
which were accrued but unpaid on the date of such conversion) shall be payable
in Dollars as if such Loan originally had been made in Dollars. Any such request
specified in clause (b) of this Section 4.16 shall be made by delivering to the
relevant Lenders and the Borrower a notice to such effect (an "Acquisition Loan
Conversion Notice"), which Acquisition Loan Conversion Notice shall, in the case
of the event specified in clause (a) of this Section 4.16, be deemed to have
been delivered automatically, without actual delivery thereof or any other
action by any Person, immediately prior to the occurrence of such event.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
5.1 Financial Condition. () The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at September
26, 1999 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies
of which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to () the consummation of
the Acquisition, () the Loans to be made on the Closing Date and the use of
proceeds thereof and () the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrower as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of
Borrower and its consolidated Subsidiaries as at September 26, 1999, assuming
that the events specified in the preceding sentence had actually occurred at
such date.
(b) The audited consolidated balance sheets of the Borrower and its
Subsidiaries as at December 29, 1996, December 28, 1997 and December 27, 1998,
and the related consolidated statements of income and of cash flows for the
fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from PricewaterhouseCoopers LLP, present fairly the
consolidated financial condition of the Borrower and its Subsidiaries as at each
such date, and the consolidated results of operations and consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as at June 27, 1999, and the
related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, present fairly the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of operations and consolidated cash flows for the six-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Borrower and its Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph. During the period
from December 27, 1998 to and including the date hereof there has been no
Disposition by the Borrower and its Subsidiaries of any material part of their
business or property.
(c) The audited statutory consolidated balance sheet of the Target
as at December 31, 1998, and the related audited consolidated statements of
income and cash flows for the fiscal year ended on such date, reported on by and
accompanied by an unqualified report from ββββββ ββββββββ, present fairly the
consolidated financial condition of the Target as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
generally accepted accounting principles in Germany applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein).
(d) The audited legal consolidated balance sheet of the Target and
its Subsidiaries as at December 31, 1998, and the related audited consolidated
statements of income and cash flows for the fiscal year ended on such date,
reported on by and accompanied by a qualified report from ββββββ ββββββββ (such
qualification concerning the fact that comparative figures for 1997 were not
presented), present fairly the consolidated financial condition of the Target
and its Subsidiaries as at such date, and the consolidated results of operations
and consolidated cash flows for the respective fiscal years then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with International Accounting Standards applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein).
(e) The unaudited pro forma consolidated balance sheets of the
Target as at December 31, 1996, December 31, 1997 and December 31, 1998, and the
related unaudited consolidated statements of income and of cash flows for the
fiscal years ended on such dates, reviewed by ββββββ ββββββββ ββ, present fairly
the consolidated financial condition of the Target as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Target as at June 30, 1999, and the related unaudited consolidated
statements of income and cash flows for the six-month period ended on such date,
present fairly the consolidated financial condition of the Target as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the six-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with generally accepted auditing
standards in Sweden applied consistently throughout the periods involved (except
as approved by the aforementioned firm of accountants and disclosed therein).
The Target does not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1998 to and
including the date hereof there has been no Disposition by the Target of any
material part of its business or property.
5.2 No Change. Since June 27, 1999 there has been no development or
event involving or relating to, or affecting, the Borrower and its Subsidiaries,
taken as a whole, that has had or could reasonably be expected to have a
Material Adverse Effect.
5.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries () is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, () has the corporate
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, () is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and () is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow and obtain other extensions of credit hereunder. Each
Loan Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings and other extensions of
credit on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
Acquisition and the borrowings and other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of this
Agreement or any of the other Loan Documents, except () consents,
authorizations, filings and notices described in Schedule 5.4, which consents,
authorizations, filings and notices have (except as set forth on Schedule 5.4)
been obtained or made and are in full force and effect and () the filings
referred to in Section 5.19. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
5.6 Litigation. Except as set forth on Schedule 5.6, no material
litigation, bankruptcy, insolvency, injunction, order, claim, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues ()
with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or () that could reasonably be expected to have
a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other property, and none of such property is subject to any Lien except as
permitted by Section 8.3.
5.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted and the use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person such that any claim for any infringement, if adversely
determined, could reasonably be expected to have a Material Adverse Effect. No
material claim has been asserted in writing and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim.
5.10 Taxes. Each of the Borrower and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
5.11 Federal Regulations. The extensions of credit hereunder will
not be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
5.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: () there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; () hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters; and () all payments due from the Borrower or any
of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
5.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. Except as described on Schedule 5.13, no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to fund such
Plan) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by a material amount. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA, and neither the Borrower
nor any Commonly Controlled Entity would become subject to any material
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
5.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
5.15 Subsidiaries. Except as disclosed to the Administrative Agent
by the Borrower in writing from time to time after the Closing Date, () Schedule
5.15 sets forth the name and jurisdiction of incorporation of each Subsidiary
and, as to each Subsidiary, the percentage of each class of Capital Stock owned
by any Loan Party and () there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors, directors' qualifying shares and
conversion rights with respect to the Subordinated Notes) of any nature relating
to any Capital Stock of the Borrower or any Subsidiary, except as created by the
Loan Documents.
5.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to finance a portion of the Acquisition and to pay related fees and expenses.
The proceeds of the Revolving Loans and Swingline Loans and the Letters of
Credit, shall be used for general corporate purposes, including Permitted
Acquisitions.
5.17 Environmental Matters. Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by the Borrower
or any of its Subsidiaries (the "Properties") do not contain, and have not
previously contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a violation
of, or could reasonably be expected to give rise to liability under, any
Environmental Law;
(b) neither the Borrower nor any of its Subsidiaries has received actual
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business operated by the Borrower or
any of its Subsidiaries (the "Business"), nor does the Borrower have knowledge
that any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could reasonably be expected to give rise
to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) during the period of the Borrower's use or occupancy, there has been no
release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of the Borrower or
any Subsidiary in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that could reasonably
be expected to give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the Business; and
(g) neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
5.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
by, or reviewed by the Borrower and furnished on behalf of, any Loan Party to
the Administrative Agent or the Lenders, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the statements regarding
the Borrower and the Target contained in the Acquisition Documentation are true
and correct in all material respects. There is no fact known to any Loan Party
that could reasonably be expected to have a Material Adverse Effect that has not
been expressly disclosed herein, in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
5.19 Security Documents. () The Guarantee and Collateral Agreement
is effective to create in favor of the Administrative Agent, for the benefit of
the Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule
5.19(a) in appropriate form are filed in the offices specified on Schedule
5.19(a), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 8.3).
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
5.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person. As of the Closing Date, Schedule 1.1B lists each of the
real properties in the United States owned in fee simple by the Borrower or any
of its Subsidiaries having a value, in the reasonable opinion of the Borrower,
in excess of $1,000,000.
5.20 Solvency. The Borrower is, and after giving effect to the
Acquisition and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will
be and will continue to be, Solvent.
5.21 Year 2000 Matters. () Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower and its
Subsidiaries, taken as a whole, or used or relied upon in the conduct of their
business (including any such systems and other equipment supplied by others or
with which the computer systems of the Borrower or any of its Subsidiaries
interface), and the testing of all such systems and other equipment as so
reprogrammed, is substantially complete. The costs to the Borrower and its
Subsidiaries that have not been incurred as of the date hereof for such
reprogramming and testing and for the other reasonably foreseeable consequences
to them of any improper functioning of other computer systems and equipment
containing embedded microchips due to the occurrence of the year 2000 could not
reasonably be expected to result in a Default or Event of Default or to have a
Material Adverse Effect. Except for any reprogramming referred to above, the
computer systems of the Borrower and its Subsidiaries are and, with ordinary
course upgrading and maintenance, will continue for the term of this Agreement
to be, sufficient for the conduct of their business as currently conducted.
(b) To the best of the Borrower's knowledge, any reprogramming
required to permit the proper functioning (but only to the extent that such
proper functioning would otherwise be impaired by the occurrence of the year
2000) in and following the year 2000 of computer systems and other equipment
containing embedded microchips, in either case owned or operated by the Target
or used or relied upon in the conduct of its business (including any such
systems and other equipment supplied by others or with which the computer
systems of the Target interface), and the testing of all such systems and other
equipment as so reprogrammed, is substantially complete. The costs to the Target
that have not been incurred as of the date hereof for such reprogramming and
testing and for the other reasonably foreseeable consequences to them of any
improper functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000, after the consummation of the
Tender Offer, could not reasonably be expected to result in a Default or Event
of Default or to have a Material Adverse Effect. Except for any reprogramming
referred to above, the computer systems of the Target are and, with ordinary
course upgrading and maintenance, will continue for the term of this Agreement
to be, sufficient for the conduct of their business as currently conducted.
5.22 Certain Documents. The Borrower has delivered to the
Administrative Agent a complete and correct copy of the Acquisition
Documentation, including any amendments, supplements or
modifications with respect thereto.
5.23 Regulation H. Subject to Section 6.1(q)(iv), no Mortgage
encumbers improved real property that is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under
the National Flood Insurance Act of 1968.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date (but in any event no later than December
31, 1999), of the following conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received () this Agreement, executed and
delivered by the Administrative Agent, the Borrower and each Person listed on
Schedule 1.1A, () the Guarantee and Collateral Agreement, executed and delivered
by the Borrower and each Subsidiary Guarantor and () an Acknowledgment and
Consent in the form attached to the Guarantee and Collateral Agreement, executed
and delivered by each Issuer (as defined therein), if any, that is not a Loan
Party.
In the event that this Agreement has not been duly executed and
delivered by each Person listed on Schedule 1.1A on the date scheduled to be the
Closing Date, the condition referred to in clause (i) above shall nevertheless
be deemed satisfied if on such date the Borrower and the Administrative Agent
shall have designated one or more Persons (the "Designated Lenders") to assume,
in the aggregate, all of the Commitments that would have been held by the
Persons listed on Schedule 1.1A (the "Non-Executing Persons") which have not so
executed and delivered this Agreement (subject to each such Designated Lender's
consent and its execution and delivery of this Agreement). Schedule 1.1A shall
automatically be deemed to be amended to reflect the respective Commitments of
the Designated Lenders and the omission of the Non-Executing Persons as Lenders
hereunder.
(b) Existing Indebtedness. The Administrative Agent shall have received
satisfactory evidence that () the Borrower's existing credit facilities listed
on Schedule 6.1(b) shall have been terminated and all amounts thereunder shall
have been paid in full (excluding the Subordinated Notes and the Indebtedness
described on Schedule 8.2(d)), and () satisfactory arrangements shall have been
made for the termination of all Liens granted in connection therewith.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received () the Pro Forma Balance Sheet, () audited consolidated financial
statements described in Section 5.1 and () unaudited interim consolidated
financial statements of the Borrower for each quarterly period ended subsequent
to the date of the latest applicable financial statements delivered pursuant to
clause (ii) of this paragraph as to which such financial statements are
available, and such financial statements shall not, in the reasonable judgment
of the Lenders, reflect any material adverse change in the consolidated
financial condition of the Borrower and its Subsidiaries, as reflected in the
financial statements or projections contained in the Confidential Information
Memorandum.
(d) Business Plan. The Lenders shall have received a satisfactory
business plan for the Borrower and its Subsidiaries (including the Target) for
the 1999 fiscal year and a written analysis of the business and prospects of the
Borrower and its Subsidiaries (including the Target) for the six-year period
from the Closing Date through the final maturity of the Term Loans.
(e) Approvals. All governmental and third party approvals (including,
without limitation, landlords' and other consents and all such approvals with
respect to antitrust matters, other than as described in on Schedule 6.1(e))
necessary in connection with the Acquisition, the continuing operations of the
Borrower and its Subsidiaries and the transactions contemplated hereby shall
have been obtained and be in full force and effect, and all applicable waiting
periods (other than as described on Schedule 6.1(e)) shall have expired without
any action being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose adverse conditions on the Acquisition or
the financing contemplated hereby.
(f) Lien Searches. The Lenders shall have received the results of a
recent lien search in each of the jurisdictions (including Puerto Rico) where
assets of the Loan Parties are located, and such search shall reveal no liens on
any of the assets of the Borrower or its Subsidiaries except for liens permitted
by Section 8.3 or discharged on or prior to the Closing Date pursuant to
documentation satisfactory to the Administrative Agent.
(g) Environmental Audit. The Lenders shall have received an environmental
audit with respect to the real properties of the Borrower and its Subsidiaries
specified by the Administrative Agent from a firm satisfactory to the
Administrative Agent.
(h) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or
before the Closing Date. All such amounts will be paid with proceeds of Loans
made on the Closing Date and will be reflected in the funding instructions given
by the Borrower to the Administrative Agent on or before the Closing Date.
(i) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(j) Good Standing Certificates. The Administrative Agent shall have
received a good standing certificate for the Borrower and each of its Domestic
Subsidiaries from the Secretary of State (or similar, applicable Governmental
Authority) of their respective states of incorporation and each state where the
Borrower or any of its Domestic Subsidiaries is qualified to do business as a
foreign corporation as of a recent date, together with a bring-down certificate
by facsimile dated the Closing Date.
(k) Legal Opinions. The Lenders shall have received the following
executed legal opinions:
(i) the legal opinion of ββββββββ Ronon, Philadelphia, Pennsylvania,
counsel to the Borrower and its Subsidiaries, substantially in the form of
Exhibit F-1;
(ii) the legal opinion of ββββ β. ββββββ, general counsel of the
Borrower and its Subsidiaries, substantially in the form of Exhibit F-2;
(iii) the legal opinion of Simpson, Thacher & ββββββββ, counsel to the
Lenders, with respect to matters of New York law;
(iv) to the extent consented to by the relevant counsel, each executed
legal opinion, if any, delivered in connection with the Acquisition, accompanied
by a reliance letter in favor of the Lenders; and
(v) the legal opinion of local counsel in Puerto Rico and Germany and of
such other special and local counsel as may be required by the Administrative
Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(l) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent
shall have received () the certificates representing the shares of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement (the "Pledged
Stock"), together with an undated stock power for each such certificate executed
in blank by a duly authorized officer of the pledgor thereof or, in the case of
any uncertificated securities, evidence satisfactory to the Administrative Agent
that a notation evidencing the Lenders' security interest in the Pledged Stock
has been entered into the books and stock registry of the issuer of such Pledged
Stock and () each promissory note (if any) pledged to the Administrative Agent
pursuant to the Guarantee and Collateral Agreement endorsed (without recourse)
in blank (or accompanied by an executed transfer form in blank) by the pledgor
thereof.
(m) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 8.3), shall be in proper form
for filing, registration or recordation.
(n) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.2(a) of the Guarantee and
Collateral Agreement.
(o) Current Asset Audit. The Lenders shall have received a satisfactory
audit prepared by the Administrative Agent's asset-based evaluating group with
respect to the accounts receivable and inventory of the Borrower and its
Subsidiaries.
(p) Designated Senior Indebtedness. The Lenders shall have received a
certificate of the Borrower specifying that the Indebtedness hereunder is
"Designated Senior Indebtedness" as contemplated by the definition of
"Designated Senior Indebtedness" in the Subordinated Note Indenture.
(q) Mortgages, etc. () The Administrative Agent shall have received a
Mortgage with respect to each Mortgaged Property, executed and delivered by a
duly authorized officer of each party thereto.
(ii) If requested by the Administrative Agent, the Administrative Agent
shall have received, and the title insurance company issuing the policy referred
to in clause (iii) below (the "Title Insurance Company") shall have received,
maps or plats of an as-built survey of the sites of the Mortgaged Properties
certified to the Administrative Agent and the Title Insurance Company in a
manner satisfactory to them, dated a date satisfactory to the Administrative
Agent and the Title Insurance Company by an independent professional licensed
land surveyor satisfactory to the Administrative Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based shall be
made in accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and shown on
such maps, plats or surveys the following: () the locations on such sites of all
the buildings, structures and other improvements and the established building
setback lines; () the lines of streets abutting the sites and the width thereof;
() all access and other easements appurtenant to the sites; () all roadways,
paths, driveways, easements, encroachments and overhanging projections and
similar encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; () any
encroachments on any adjoining property by the building structures and
improvements on the sites; () if the site is described as being on a filed map,
a legend relating the survey to said map; and () the flood zone designations, if
any, in which the Mortgaged Properties are located.
(iii) The Administrative Agent shall have received in respect of each
Mortgaged Property a mortgagee's title insurance policy (or policies) or marked
up unconditional binder for such insurance. Each such policy shall () be in an
amount satisfactory to the Administrative Agent; () be issued at ordinary rates;
() insure that the Mortgage insured thereby creates a valid first Lien on such
Mortgaged Property free and clear of all defects and encumbrances, except as
disclosed therein; () name the Administrative Agent for the benefit of the
Lenders as the insured thereunder; () be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70 and 10/17/84) (or equivalent policies); () contain such
endorsements and affirmative coverage as the Administrative Agent may reasonably
request and () be issued by title companies satisfactory to the Administrative
Agent (including any such title companies acting as co-insurers or reinsurers,
at the option of the Administrative Agent). The Administrative Agent shall have
received evidence satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related expenses, if
any, have been paid.
(iv) If requested by the Administrative Agent, the Administrative Agent
shall have received () a policy of flood insurance that () covers any parcel of
improved real property that is encumbered by any Mortgage, () is written in an
amount not less than the outstanding principal amount of the indebtedness
secured by such Mortgage that is reasonably allocable to such real property or
the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, whichever is less,
and () has a term ending not later than the maturity of the Indebtedness secured
by such Mortgage and () confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board.
(v) The Administrative Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (iii) above and a copy of all other material
documents affecting the Mortgaged Properties.
(r) Acquisition, etc. The following transactions shall have been
consummated (and the Administrative Agent shall have received a certificate of
the Borrower to such effect, substantially in the form of Exhibit I, accompanied
by copies of any documentary evidence thereof reasonably requested by the
Administrative Agent), in each case on terms and conditions reasonably
satisfactory to the Administrative Agent:
(i) the Borrower shall have the right to acquire, directly or indirectly,
95% of the Shares of the Target for an aggregate purchase price the U.S. Dollar
Equivalent of which does not exceed $275,000,000, and arrangements satisfactory
to the Administrative Agent shall have been made for the application of
approximately $312,600,000 of the proceeds of the Loans made on the Closing Date
to the purchase of such Shares and the repayment of the Indebtedness of the
Target and its Subsidiaries described in Schedule 7.12 promptly following the
making of such Loans on a basis that assures that such proceeds can be used only
for such purposes;
(ii) the Tender Offer, in the opinion of the Borrower, prior to the
announcement that the Tender Offer will be completed, is not wholly or in part
made impossible or significantly difficult to implement as a result of
legislation, court decision, action of public authority, or similar event in
Sweden, Germany, the U.S. or another country which has occurred or is expected
to occur, or as a consequence of any other circumstance beyond the Borrower's
control;
(iii) to the extent received by the Borrower, the Borrower shall have
delivered to the Administrative Agent copies of the executed resignation letters
of the four members of the Target's Supervisory Board representing the
shareholders, which letters shall be () effective upon the closing of the Tender
Offer and () in form and substance reasonably satisfactory to the Administrative
Agent;
(iv) the Borrower shall have used its best efforts to commence
discussions with the Commercial Register Judge in Bensheim, Germany, responsible
for the review and approval of the Integration, regarding the replacement of the
four members of the Target's Supervisory Board referred to in clause (iii)
above, pursuant to Section 104 of the German Stock Corporation Act to be
effective upon or promptly following the closing of the Tender Offer.
(v) since the date of this Agreement, the terms of the Tender Offer shall
not have been amended, waived or modified as to price, consideration,
conditions, termination or expiration or in any other material respects without
the prior approval of the Administrative Agent;
(vi) neither the Target nor any of its Subsidiaries shall have taken, or be
taking, any action (including reorganization, recapitalization, asset sale,
stock purchase or distribution to its stockholders) that, in the good faith
judgment of the Administrative Agent, could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), business,
operations, assets or properties of the Target or its Subsidiaries or on the
consummation of the Tender Offer and the Acquisition;
(vii) the Administrative Agent shall have received satisfactory evidence
that the fees and expenses to be incurred in connection with the Acquisition and
the financing thereof shall not exceed $17,000,000; and
(viii) the Borrower and its Subsidiaries, on a combined pro forma basis,
after giving effect to the Acquisition, shall have a minimum Consolidated EBITDA
for the most recently completed four fiscal quarters of the Borrower for which
financial statements are available of $90,000,000.
6.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
() Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct on and as of such date as if made on and as of such date,
provided, however, that the representations and warranties contained in Sections
5.1(c), (d) and (e) shall survive only until the Administrative Agent has
received the first audited consolidated financial statements of the Borrower
which include the Target, to be delivered by the Borrower pursuant to Section
7.1(a) and such Sections shall no longer be applicable to extensions of credit
thereafter, provided, further, that the information in such consolidated
financial statements with respect to the Target shall not be materially
adversely different than the information presented in the financial statements
referred to in Sections 5.1(c), (d) and (e).
() No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to
the extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 6.2 have been satisfied.
SECTION . AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall and shall cause each of its Subsidiaries to:
. Financial Statements. Furnish to the Administrative
Agent and each Lender:
() as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated and consolidating statements of income
and of cash flows for such year, setting forth in each case in comparative form
the figures as at the end of and for the corresponding periods in the previous
year, reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing;
() as soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures as at the end of and for the
corresponding periods in the previous year, certified by a Responsible Officer
as being fairly stated in all material respects (subject to normal year-end
audit adjustments); and
() as soon as available, but in any event not later than 75 days after
the consummation of the Tender Offer, copies of the audited consolidated balance
sheets of the Target and its Subsidiaries as at December 31, 1996, December 31,
1997 and December 31, 1998, and the related audited consolidated statements of
income and cash flows for the respective fiscal years ended on such dates,
reported on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by PricewaterhouseCoopers
LLP or other independent certified public accountants of nationally recognized
standing.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
. Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (f),
to the relevant Lender):
() concurrently with the delivery of the financial statements referred
to in Section 7.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
() concurrently with the delivery of any financial statements pursuant
to Section 7.1, () a certificate of a Responsible Officer stating that, to the
best of such Responsible Officer's knowledge, each Loan Party during such period
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by it,
and that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and () in the case of
quarterly or annual financial statements, (x) a Compliance Certificate
containing all information and calculations necessary for determining compliance
by the Borrower and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year of
the Borrower, as the case may be, and (y) to the extent not previously disclosed
to the Administrative Agent, a listing of any county or state within the United
States where any Loan Party keeps inventory or equipment and of any Intellectual
Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list so
delivered, since the Closing Date);
() as soon as available, and in any event no later than 45 days after
the end of each fiscal year of the Borrower, a detailed consolidated budget for
the following fiscal year (including a projected consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of the following fiscal year,
the related consolidated and consolidating statements of projected cash flow,
projected changes in financial position and projected income and a description
of the underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the "Projections"), which Projections shall in
each case be accompanied by a certificate of a Responsible Officer stating that
such Projections are based on reasonable estimates, information and assumptions
and that such Responsible Officer has no reason to believe that such Projections
are incorrect or misleading in any material respect;
() no later than 10 Business Days prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to the Subordinated Note Indenture or
the Acquisition Documentation;
() within five days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of any class of
its debt securities or public equity securities and, within five days after the
same are filed, copies of all financial statements and reports that the Borrower
may make to, or file with, the SEC; and
() promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
. Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature (including taxes), except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its Subsidiaries, as
the case may be.
. Maintenance of Existence; Compliance. () () Preserve, renew
and keep in full force and effect its corporate existence and () take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 8.4 and except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and () comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
. Maintenance of Property; Insurance. () Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and () maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.
. Inspection of Property; Books and Records; Discussions. ()
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and ()
permit representatives of any Lender, upon reasonable notice and during normal
business hours, to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and with its
independent certified public accountants.
. Notices. Promptly give notice to the Administrative
Agent and each Lender of:
() the occurrence of any Default or Event of Default;
() any () default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or ()
litigation, investigation or proceeding that may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority (including, without limitation, environmental
proceedings), that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have
a Material Adverse Effect;
() any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not covered
by insurance (as to which the relevant insurance company has acknowledged
coverage) or in which injunctive or similar relief is sought or which relates to
any Loan Document;
() the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: () the occurrence
of any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or () the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
() any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
. Environmental Laws. () Comply in all material respects
with, and ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and
ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by
applicable Environmental Laws.
() Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
. Interest Rate Protection. In the case of the Borrower, within
30 days after the Closing Date, enter into and thereafter maintain Hedge
Agreements to the extent necessary to provide that at least 50% of the aggregate
principal amount of the Term Loans is subject to either a fixed interest rate or
interest rate protection for a period of not less than three years, which Hedge
Agreements shall have terms and conditions reasonably satisfactory to the
Administrative Agent.
. Additional Collateral, etc. () With respect to any property
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than (x) any property described in paragraph (b) or (c) below, (y) any
property subject to a Lien expressly permitted by Section 8.3(g) and (z)
property acquired by any Excluded Foreign Subsidiary) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected
Lien, promptly () execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such property and () take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in such property, including the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
() With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date by the Borrower
(which, for the purposes of this paragraph (b), shall include any existing
Subsidiary that ceases to be an Excluded Foreign Subsidiary) or any of its
Subsidiaries, promptly () execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent
deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, () deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, () cause such new Subsidiary () to become a
party to the Guarantee and Collateral Agreement, () to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Lenders a perfected first priority security interest in the Collateral
described in the Guarantee and Collateral Agreement with respect to such new
Subsidiary, including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent and () to
deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
() With respect to any new Excluded Foreign Subsidiary created
or acquired after the Closing Date by the Borrower or any of its Subsidiaries,
promptly () execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the Capital Stock
of such new Subsidiary that is owned by the Borrower or any of its Subsidiaries
(provided that in no event shall more than 65% of the total outstanding Capital
Stock of any such new Subsidiary be required to be so pledged), () deliver to
the Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be, and
take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein for the ratable benefit of the Lenders, and () if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
. Year 2000 Compliance. Each Loan Party will promptly notify the
Administrative Agent in the event such Loan Party discovers or determines that
any computer application that is material to its or any of its Subsidiaries'
businesses and operations (including those of its suppliers, vendors and
customers) will not be Year 2000 compliant, except to the extent that such
failure could not reasonably be expected to have a Material Adverse Effect. Upon
receipt of such notice the Administrative Agent shall promptly notify each
Lender thereof.
. The Acquisition. () Upon the closing of the Tender
Offer, the Borrower shall repay the outstanding net funded debt of
the Target listed on Schedule 7.12 in an aggregate amount the U.S.
Dollar Equivalent of which does not exceed approximately
$24,100,000.
() The Borrower shall use its best efforts to complete as
promptly as reasonably practicable the following:
() The Acquisition of the Target through the registration of the
Integration by the Commercial Register Judge in the commercial register in
Bensheim, Germany by May 31, 2000, in accordance with Section 320(a) of the
German Stock Corporation Act; provided that the Integration is necessary in
order for the Borrower to acquire 100% of the Shares of the Target.
() The sale of the shares of Target to a direct or indirect Wholly-Owned
German Subsidiary of the Borrower (the "Merger Vehicle") for consideration in
the form of an intercompany note and the liquidation of the Acquiror.
() The merger of the Target with and into the Merger Vehicle by May 31,
2000, in accordance with Sections 19 and 20 of the German Stock Corporate
Conversion Act.
SECTION . NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
. Financial Condition Covenants.
() Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower (or, if less, the number of full fiscal quarters subsequent to the
Closing Date) ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Ending Leverage Ratio
--------------------- ---------------
December 31, 1999 4.50 to 1.00
March 31, 2000 4.50 to 1.00
June 30, 2000 4.25 to 1.00
September 30, 2000 3.75 to 1.00
December 31, 2000 to
September 30, 2001 3.50 to 1.00
December 31, 2001 to
September 30, 2002 3.00 to 1.00
December 31, 2002 and thereafter 2.50 to 1.00
() Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower (or, if less, the number of full fiscal quarters subsequent to the
Closing Date) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Consolidated Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ---------------
December 31, 1999 2.50 to 1.00
March 31, 2000 2.50 to 1.00
June 30, 2000 2.50 to 1.00
September 30, 2000 2.75 to 1.00
December 31, 2000 and thereafter 3.00 to 1.00
() Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower (or, if less, the number of full fiscal quarters
subsequent to the Closing Date) ending with any fiscal quarter to be less than
1.05 to 1.00.
() Consolidated Net Worth. Permit Consolidated Net Worth
at any time to be less than the sum of () $200,000,000, () 50% of
cumulative Consolidated Net Income for each fiscal quarter of the
Borrower (beginning with the fiscal quarter ending September 30,
1999) for which Consolidated Net Income is positive and () 100% of
the Net Cash Proceeds of any issuance by the Borrower of any equity
included within shareholders' equity of the Borrower consummated
after the Closing Date.
. Indebtedness. Create, issue, incur, assume, become
liable in respect of or suffer to exist any Indebtedness, except:
() Indebtedness of any Loan Party pursuant to any Loan Document;
() () Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary or () Indebtedness of any Non-Guarantor Subsidiary to any
other Non-Guarantor Subsidiary;
() Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations
of any Wholly Owned Subsidiary Guarantor;
() Indebtedness outstanding on the date hereof and listed on
Schedule 8.2(d) and any refinancings, refundings, renewals or
extensions thereof (without increasing, or shortening the maturity
of, the principal amount thereof);
() Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 8.3(g) in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding;
() Indebtedness of the Borrower in respect of the Subordinated
Notes in an aggregate principal amount not to exceed $120,000,000;
() Hedge Agreements in respect of () Indebtedness otherwise
permitted hereby that bears interest at a floating rate, ()
intercompany accounts payable or receivable and () trade payables to
third parties for products purchased in the ordinary course of
business, in each case, so long as such agreements are not entered
into for speculative purposes;
() Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations
of any Wholly Owned Subsidiary with respect to: () real estate
lease payments, () payments to vendors for products for resale and
() any other payments to third parties on account of the
Indebtedness of any Wholly Owned Subsidiary; provided that the
aggregate amount of such payments guaranteed shall not exceed
$1,000,000 in any fiscal year of the Borrower;
() from and after the date the Tender Offer is consummated, Indebtedness
of the Target to Esselte AB, a Swedish corporation, or an affiliate thereof;
provided that the principal amount of such Indebtedness shall be in an aggregate
amount on the date hereof the U.S. Dollar Equivalent of which shall not exceed
$13,500,000 and such principal amount shall not increase thereafter; and
() additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and
all Subsidiaries) not to exceed $10,000,000 at any one time
outstanding.
. Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired,
except for:
() Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
() carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business that are not overdue
for a period of more than 30 days or that are being contested in good faith by
appropriate proceedings;
() pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
() deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
() easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
() Liens in existence on the date hereof listed on Schedule 8.3(f),
securing Indebtedness permitted by Section 8.2(d), provided that no such Lien is
spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
() Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred pursuant to Section 8.2(e) to finance the acquisition of fixed or
capital assets, provided that () such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, () such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness and () the amount of Indebtedness secured thereby is not
increased;
() Liens created pursuant to the Security Documents;
() any interest or title of a lessor under any lease entered into
by the Borrower or any Subsidiary in the ordinary course of its
business and covering only the assets so leased; and
() Liens not otherwise permitted by this Section so long as neither ()
the aggregate outstanding principal amount of the obligations secured thereby
nor () the aggregate fair market value (determined as of the date such Lien is
incurred) of the assets subject thereto exceeds (as to the Borrower and all
Subsidiaries) $10,000,000 at any one time.
. Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of,
all or substantially all of its property or business, except that:
() any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the continuing or surviving corporation shall be a Wholly Owned
Subsidiary Guarantor);
() any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Subsidiary Guarantor;
() any Non-Guarantor Subsidiary may merge or consolidate with or
into any other Non-Guarantor Subsidiary;
() any Non-Guarantor Subsidiary may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to any other
Subsidiary; and
() any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Subsidiary Guarantor.
. Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital
Stock to any Person, except:
() the Disposition of obsolete or worn out property in the
ordinary course of business;
() the sale of inventory in the ordinary course of business;
() the sale of discontinued or remanufactured products in the
ordinary course of business;
() Dispositions permitted by Section 8.4(b);
() () the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary Guarantor or () the sale
or issuance of the Capital Stock of any Non-Guarantor Subsidiary to
any other Non-Guarantor Subsidiary; and
() the Disposition of other property having a fair market value
not to exceed $10,000,000 in the aggregate for any fiscal year of
the Borrower.
. Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now
or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary on any payments on account of the Subordinated
Notes (collectively, "Restricted Payments"), except that:
() any Subsidiary may make Restricted Payments to the Borrower or
any Wholly Owned Subsidiary Guarantor;
() any Non-Guarantor Subsidiary may make Restricted Payments to
any other Subsidiary; and
() so long as any such payment is not prohibited or otherwise "blocked"
under the Subordinated Note Indenture, the Borrower may make a scheduled payment
of principal or interest when and as due on account of the Subordinated Notes.
. Capital Expenditures. Make or commit to make any Capital
Expenditure, except:
() Capital Expenditures of the Borrower and its Subsidiaries in the
ordinary course of business not exceeding in the aggregate, for each fiscal year
of the Borrower, the amount set forth below opposite such fiscal year:
Fiscal Year Capital Expenditures
----------- --------------------
1999 $35,000,000
2000 $35,000,000
2001 $40,000,000
2002 $40,000,000
2003 $40,000,000
2004 $45,000,000
2005 $45,000,000
2006 $45,000,000
provided, that () up to any such amount referred to above, if not so expended in
the fiscal year for which it is permitted, may be carried over for expenditure
in the next succeeding fiscal year only and () Capital Expenditures made
pursuant to this clause (a) during any fiscal year shall be deemed made, first,
in respect of amounts permitted for such fiscal year as provided above and,
second, in respect of amounts carried over from the prior fiscal year pursuant
to subclause (i) above; and
() Capital Expenditures made with the proceeds of any Reinvestment
Deferred Amount.
. Investments. Make any advance, loan, extension of credit (by
way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, "Investments"), except:
() extensions of trade credit in the ordinary course of business;
() investments in Cash Equivalents;
() Guarantee Obligations permitted by Section 8.2;
() loans and advances to employees of the Borrower or any Subsidiary of
the Borrower in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
or any Subsidiary of the Borrower not to exceed $1,000,000 at any one time
outstanding;
() the Acquisition;
() Investments in assets useful in the business of the Borrower
and its Subsidiaries made by the Borrower or any of its Subsidiaries
with the proceeds of any Reinvestment Deferred Amount;
() intercompany Investments by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such
investment, is a Wholly Owned Subsidiary Guarantor;
() a Permitted Acquisition, provided that () the purchase price for such
acquisition (including assumed liabilities) does not exceed $25,000,000, () the
aggregate purchase price for all Permitted Acquisitions (including such
Permitted Acquisition) consummated during the immediately preceding twelve-month
period does not exceed $50,000,000, () Consolidated EBITDA (or the equivalent)
of the Acquired Business being acquired in such acquisition for the most
recently completed four consecutive fiscal quarters is greater than zero and
(iv) 30 days prior to the proposed closing date of such acquisition, the
Borrower has delivered to the Administrative Agent a description of such
acquisition in a format and such detail as reasonably requested by the
Administrative Agent (copies of which information the Administrative Agent shall
provide to the Lenders); and
() in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an aggregate
amount (valued at cost) not to exceed $10,000,000 during the term of this
Agreement.
. Optional Payments and Modifications of Certain Debt
Instruments. () Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
defease or segregate funds with respect to the Subordinated Notes, () amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Subordinated
Notes (other than any such amendment, modification, waiver or other change that
() would extend the maturity or reduce the amount of any payment of principal
thereof or reduce the rate or extend any date for payment of interest thereon
and () does not involve the payment of a consent fee), or () designate any
Indebtedness (other than obligations of the Loan Parties pursuant to the Loan
Documents) as "Designated Senior Indebtedness" for the purposes of the
Subordinated Note Indenture.
. Transactions with Affiliates. Enter into any transaction
(other than such transactions between Non-Guarantor Subsidiaries), including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the Borrower or any Subsidiary) unless such transaction is ()
otherwise permitted under this Agreement, () in the ordinary course of business
of the Borrower or such Subsidiary, as the case may be, and () upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person that is not an Affiliate.
. Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of real or
personal property that has been or is to be sold or transferred by the Borrower
or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Borrower or such Subsidiary.
. Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than the last Sunday in December or
change the Borrower's method of determining fiscal quarters.
. Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a
party other than () this Agreement and the other Loan Documents and () any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby).
. Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to () make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary of the Borrower, () make loans or
advances to, or other Investments in, the Borrower or any other Subsidiary of
the Borrower or () transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of () any restrictions existing under the Loan
Documents and () any restrictions with respect to a Subsidiary imposed pursuant
to an agreement that has been entered into in connection with the Disposition of
all or substantially all of the Capital Stock or assets of such Subsidiary.
. Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement (after giving effect
to the Acquisition) or that are reasonably related thereto.
. Amendments to Acquisition Documents. Amend, supplement
or otherwise modify terms and conditions of the Acquisition
Documentation or any such other documents except for any such
amendment, supplement or modification that () becomes effective
after the Closing Date and () could not reasonably be expected to
have a Material Adverse Effect.
SECTION . EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
() the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
() any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
() () any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
Section 7.4(a) (with respect to the Borrower only), Section 7.7(a)
or Section 8 of this Agreement or Sections 5.5 and 5.7(b) of the
Guarantee and Collateral Agreement or () an "Event of Default" under
and as defined in any Mortgage shall have occurred and be
continuing; or
() any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after notice thereof;
or
() the Borrower or any of its Subsidiaries shall () default in making
any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the scheduled or original due date with
respect thereto; or () default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or () default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in clause (i),
(ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate an amount equal to $5,000,000
(or an amount in another currency of which the U.S. Dollar Equivalent is
$5,000,000); or
() () the Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action () under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or ()
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or () there shall be commenced against the Borrower or
any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above that () results in the entry of an order for
relief or any such adjudication or appointment or () remains undismissed,
undischarged or unbonded for a period of 60 days; or () there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or () the Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or () the
Borrower or any of its Subsidiaries shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due; or
() () any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
() any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, () a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, () any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, () the Borrower
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
() any other event or condition shall occur or exist with respect to a Plan; and
in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in the sole
judgment of the Required Lenders, reasonably be expected to have a Material
Adverse Effect; or
() one or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability (not
paid or fully covered by insurance as to which the relevant insurance company
has acknowledged coverage) in an amount equal to $5,000,000 (or an amount in
another currency of which the U.S. Dollar Equivalent is $5,000,000) or more, and
all such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
() any of the Security Documents shall cease, for any reason other than
by the action of the Lenders, to be in full force and effect, or any Loan Party
or any Affiliate of any Loan Party shall so assert, or any Lien created by any
of the Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby; or
() the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full
force and effect or any Loan Party or any Affiliate of any Loan
Party shall so assert; or
() a Change of Control or a Specified Change of Control shall
occur; or
() the Subordinated Notes shall cease, for any reason, to be validly
subordinated to the Obligations, as provided in the Subordinated Note Indenture,
or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of
the Subordinated Notes or the holders of at least 25% in aggregate principal
amount of the Subordinated Notes shall so assert;
then, and in any such event, () if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and () if such event is any other Event of Default,
either or both of the following actions may be taken: () with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and () with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION . THE AGENTS
. Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, 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 to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, 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 other Loan Document or
otherwise exist against the Administrative Agent.
. Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
. Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be () liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or () responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default (other than a Default or an Event of Default under Section 9(a))
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
. Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to each of the
Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent 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 analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the Administrative Agent's gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder.
. Each Agent in Its Individual Capacity. Each Agent and its
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent were not
an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9(a) or Section
9(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
. Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any duties
or responsibilities hereunder in its capacity as such.
SECTION . MISCELLANEOUS
. Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
() enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or () waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall () eliminate or reduce any voting rights under
this Section 11.1, forgive or reduce the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date or reduce the
amount of any amortization payment in respect of any Term Loan, extend the
expiration date of any Letter of Credit beyond the Revolving Termination Date,
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Revolving Commitment or Term Commitment, in each
case without the consent of each Lender directly affected thereby; () reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, amend any other provision of
any Loan Document that by its terms, requires the consent, approval or
satisfaction of all the Lenders, release all or substantially all or any
material part of the Collateral or release all or substantially all of the
Subsidiary Guarantors from their obligations under the Guarantee and Collateral
Agreement or subordinate the Loans to any other Indebtedness of the Borrower, in
each case without the consent of all Lenders; () amend, modify or waive any
condition precedent to any extension of credit under the Revolving Facility set
forth in Section 6.1 (including in connection with any waiver of an existing
Default or Event of Default) without the consent of the Majority Facility
Lenders in respect of the Revolving Facility; () amend, modify or waive any
provision of Section 4.8 without the consent of the Majority Facility Lenders in
respect of each Facility adversely affected thereby; () reduce the amount of Net
Cash Proceeds or Excess Cash Flow required to be applied to prepay Loans under
this Agreement without the consent of the Majority Facility Lenders under each
Facility; () reduce the percentage specified in the definition of Majority
Facility Lenders with respect to any Facility without the consent of all Lenders
under such Facility; () amend, modify or waive any provision of Section 10
without the consent of the Agents; () amend, modify or waive any provision of
Section 2.7 without the written consent of the Swingline Lender; or () amend,
modify or waive any provision of Section 3 without the consent of each Issuing
Lender. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the Loans. In
the case of any waiver, the Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Checkpoint Systems, Inc.
βββ ββββ βββββ
βββββββββ, ββ βββββ
Attention: βββββββ β. ββββββββ,
SVP and Chief Financial Officer
Telecopy: (βββ) βββ-ββββ
Telephone: (βββ) βββ-ββββ
and
Attention: ββββ β. ββββββ, Vice
President, General Counsel and Secretary
Telecopy: (βββ) βββ-ββββ
Telephone: (βββ) βββ-ββββ
with a copy to: ββββββββ Ronon βββββββ & βββββ LLP
ββββ βββ ββββββββ ββββββ
ββββββββββββ, ββ βββββ-ββββ
Attention: βββββββ β. βββββ, Esq.
Telecopy: (βββ) βββ-ββββ
Telephone: (βββ) βββ-ββββ
The Administrative Agent: First Union National Bank
βββ βββββ βββββββ ββββββ
βββββββββ, ββ βββββ
Attention: Syndication Agency Services
Telecopy: (βββ) βββ-ββββ
Telephone: (βββ) βββ-ββββ
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
. Payment of Expenses and Taxes. The Borrower agrees () to pay
or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements
of counsel to the Administrative Agent and filing and recording fees and
expenses, with statements with respect to the foregoing to be submitted to the
Borrower prior to the Closing Date (in the case of amounts to be paid on the
Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, () to
pay or reimburse each Lender and the Administrative Agent for all their
respective costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, () to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and () to pay, indemnify, and hold each Lender and the Administrative
Agent and their respective officers, directors, employees, affiliates, agents
and controlling persons (each, an "Indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties and the reasonable fees and expenses of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against any Loan Party under any Loan Document (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 11.5 shall be payable not later than five days
after written demand therefor. Statements payable by the Borrower pursuant to
this Section 11.5 shall be submitted to First Union National Bank, βββ βββββ
βββββββ ββββββ, βββββββββ, ββ βββββ, Attn: Syndication Agency Services,
(Telephone No. (βββ) βββ-ββββ) (Telecopy No. (βββ) βββ-ββββ and to the Borrower
at the address of the Borrower set forth in Section 11.2, or to such other
Person or address as may be hereafter designated by the Borrower in a written
notice to the Administrative Agent. The agreements in this Section 11.5 shall
survive repayment of the Loans and all other amounts payable hereunder.
. Successors and Assigns; Participations and Assignments. ()
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
() Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans, Reimbursement
Obligations or any fees payable hereunder, or postpone the date of the final
maturity of the Loans or extend the expiration date of any Letter of Credit
beyond the Scheduled Revolving Termination Date, in each case to the extent
subject to such participation. The Borrower agrees that if amounts outstanding
under this Agreement and the Loans are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by applicable
law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 4.9, 4.10 and 4.11 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if it were a
Lender; provided that, in the case of Section 4.10, such Participant shall have
complied with the requirements of said Section and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
() Any Lender (an "Assignor") may, in accordance with applicable
law, at any time and from time to time assign to any Lender, any affiliate of
any Lender or any Approved Fund or, with the consent of the Borrower and the
Administrative Agent (which, in each case, shall not be unreasonably withheld or
delayed), to an additional bank, financial institution or other entity (an
"Assignee") all or any part of its rights and obligations under this Agreement
and the other Loan Documents pursuant to an Assignment and Acceptance, executed
by such Assignee, such Assignor and any other Person whose consent is required
pursuant to this paragraph, and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that () no such assignment to
an Assignee (other than any Lender, any affiliate of any Lender or any Approved
Fund) shall be in an aggregate principal amount of less than $5,000,000 (other
than in the case of an assignment of all of a Lender's interests under this
Agreement), and () the Assignor shall have commitments and Loans aggregating at
least $5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement) unless otherwise agreed by the Borrower and the
Administrative Agent. For purposes of the proviso contained in the preceding
sentence, the amount described therein shall be aggregated in respect of each
Lender and its related Approved Funds, if any. Any such assignment need not be
ratable as among the Facilities. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto, except in respect of Sections 4.9, 4.10 and 11.5 for
the period prior to the effective date thereof). Notwithstanding any provision
of this Section 11.6, the consent of the Borrower shall not be required for any
assignment that occurs when an Event of Default shall have occurred and be
continuing with respect to the Borrower.
() The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 11.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
the principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not evidenced
by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be issued
to the designated Assignee.
() Upon its receipt of an Assignment and Acceptance executed by
an Assignor, an Assignee and any other Person whose consent is required by
Section 11.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $4,000, the Administrative Agent shall ()
promptly accept such Assignment and Acceptance and () record the information
contained therein in the Register on the effective date determined pursuant
thereto; provided that such fee shall not be paid in the event a Lender executes
an Assignment and Acceptance in favor of an Affiliate of such Lender.
() For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 11.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
() The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (f) above.
. Adjustments; Set-off. () Except to the extent that this
Agreement expressly provides for payments to be allocated to a
particular Lender or to the Lenders under a particular Facility, if
any Lender (a "Benefitted Lender") shall receive any payment of all
or part of the Obligations owing to it, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such
Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of the Obligations owing to
each such other Lender (with such participating interest to be
ratabale in the Obligations of each such other Lender), or shall
provide such other Lenders with the benefits of any such collateral,
as shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest (other than any interest required to
be paid by such Benefitted Lender to the recovering party).
() In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch, affiliate or
agency thereof to or for the credit or the account of the Borrower, as the case
may be. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
() Any amounts to be adjusted, purchased or set-off pursuant to
paragraphs (a) or (b) above shall be denominated in Dollars and any amount
denominated in a currency other than Dollars shall be in an amount equal to the
U.S. Dollar Equivalent of such amount determined at the Administrative Agent's
spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non-Dollar currency are then being
conducted, at or about 11:00 A.M., local time, on such date for the purchase of
Dollars with such non-Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such spot rate can
reasonably be quoted, the Administrative Agent may use any reasonable method as
it deems applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
. Severability. Any provision of this Agreement 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
. Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
() submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and appellate
courts from any thereof;
() consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
() agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower, at its
address set forth in Section 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
() agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall
limit the right to βββ in any other jurisdiction; and
() waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
. Acknowledgments. The Borrower hereby acknowledges that:
() it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
() neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
() no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
. Releases of Guarantees and Liens. () Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 11.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations () to the extent necessary
to permit consummation of any transaction not prohibited by any Loan Document or
that has been consented to in accordance with Section 11.1 or () under the
circumstances described in paragraph (b) below.
() At such time as the Loans, the Reimbursement Obligations and
the other obligations under the Loan Documents (other than obligations under or
in respect of Hedge Agreements) shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created by the Security Documents,
and the Security Documents and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and each Loan
Party under the Security Documents shall terminate, all without delivery of any
instrument or performance of any act by any Person.
. Conversion of Currencies. () If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum
owing hereunder 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.
() The obligations of the Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"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 Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 11.15 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
. Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information () to the
Administrative Agent, any other Lender, any affiliate of any Lender or any
Approved Fund, () to any Transferee or swap counterparty or prospective
Transferee or swap counterparty that agrees to comply with the provisions of
this Section, () to its employees, directors, agents, attorneys, accountants and
other professional advisors or those of any of its affiliates, () upon the
request or demand of any Governmental Authority, () in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, () in connection with any litigation or
similar proceeding to which such Lender is a party, () that has been publicly
disclosed, () to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, or () in connection with the
exercise of any remedy hereunder or under any other Loan Document.
. Section Headings. The Section headings used in and the
Table of Contents of this Agreement are for convenience of reference
only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CHECKPOINT SYSTEMS, INC.
By:/S/ βββββββ β. ββββββββ
Name: βββββββ β. ββββββββ
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
FIRST UNION NATIONAL BANK, as
Administrative Agent and as a Lender
By: /S/ β.β. βββββββ
Name: β.β. βββββββ
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Documentation Agent and as a Lender
By: /S/ ββββββ β. ββββββββ
Name:ββββββ β. ββββββββ
Title: Assistant Vice President
BANK ONE, NA (MAIN OFFICE, CHICAGO), as
Syndication Agent and as a Lender
By: /S/ CLT ββββββ III
Name: CLT ββββββ III
Title: Vice President
FIRST UNION SECURITIES INC., as Arranger
By: /S/ β.β. βββββββ
Name: β.β. βββββββ
Title: Director
BANKBOSTON, N.A.
By: /S/ ββββββ β. Massimo
Name: ββββββ β. Massimo
Title: Director
SUMMIT BANK
By: /S/ βββββ β. ββββββ
Name: βββββ β. ββββββ
Title: Managing Director
ABN AMRO BANK, N.V.
By: ββββββ ββββββ
Name: ββββββ ββββββ
Title: Vice President
By: /S/ ββββ β. ββββββ
Name: ββββ β. ββββββ
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /S/ A. βββββββ ββββββ
Name: A. βββββββ ββββββ
Title: First Vice President
By: /S/ βββββββ ββββββββββ
Name: βββββββ ββββββββββ
Title: Assistant Treasurer
THE BANK OF NEW YORK
By: /S/ βββββ βββ βββββ
Name: βββββ βββ βββββ
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /S/ W.A. ββββββββ
Name: W.A. ββββββββ
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /S/ βββββ βββββ
Name: βββββ βββββ
Title: First Vice President
By: /S/ ββββ βββββββββ
Name: ββββ βββββββββ
Title: Vice President
COMERICA BANK
By: /S/ ββββββββ β. βββββββ
Name: ββββββββ β. βββββββ
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /S/ ββββββββ β. βββββ
Name: ββββββββ β. βββββ
Title: Vice President
By: /S/ βββββββ β. ββββββ
Name: βββββββ β. ββββββ
Title:Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /S/ βββββ β. βββββββββ
Name: βββββ β. βββββββββ
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN, AG
By: /S/ ββββ ββββββ
Name: ββββ ββββββ
Title: Vice President
By: /S/ ββββ β. βββββββ
Name: ββββ β. βββββββ
Title: First Vice President
THE FUJI BANK, LIMITED
By: /S/ βββββββ βββββββ
Name: βββββββ βββββββ
Title: Vice President & Manager
ββββββ TRUST AND SAVINGS BANK
By: /S/ M. βββββ βββββ III
Name: M. βββββ βββββ III
Title: Vice President
SOVEREIGN BANK
By: /S/ ββββββ ββββββ
Name: ββββββ ββββββ
Title:Vice President
USTRUST
By: /S/ βββββ β. βββββββ
Name: βββββ β. βββββββ
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By: /S/ ββββββββ βββββββββ
Name: βββββββ βββββββββ
Title: First Vice President
By: /S/ ββββββ β. Medida
Name: ββββββ β. Medida
Title: Vice President
BANK HAPOALIM B.M.
By: /S/ βββββ ββββ βββββ
Name: βββββ ββββ βββββ
Title: First Vice President and Corporate Manager
By: /S/ ββββββ ββββββ
Name: ββββββ ββββββ
Title: First Vice President
BANK LEUMI USA
By: /S/ βββββ βββ Hong
Name: βββββ βββ Hong
Title: Vice President