EXHIBIT 4.3
U.S. REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 10, 2004
AMONG
EMS TECHNOLOGIES, INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT
================================================================================
SUNTRUST XXXXXXXX XXXXXXXX
(A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.)
AS LEAD ARRANGER
TABLE OF CONTENTS
PAGE
U.S. REVOLVING CREDIT AGREEMENT................................................................... 2
ARTICLE I DEFINITIONS; CONSTRUCTION..................................................... 2
SECTION 1.1. DEFINITIONS................................................................... 2
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS....................................... 24
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION............................................ 24
SECTION 1.4. TERMS GENERALLY; RULES OF INTERPRETATION...................................... 25
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........................................... 25
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES............................................. 25
SECTION 2.2. REVOLVING LOANS............................................................... 26
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS............................................ 26
SECTION 2.4. SWINGLINE COMMITMENT.......................................................... 26
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC........................................ 27
SECTION 2.6. INCREASE OF REVOLVING COMMITMENTS............................................. 28
SECTION 2.7. [RESERVED.]................................................................... 29
SECTION 2.8. [RESERVED].................................................................... 29
SECTION 2.9. FUNDING OF BORROWINGS......................................................... 29
SECTION 2.10. INTEREST ELECTIONS; CONVERSIONS; CONTINUATIONS................................ 30
SECTION 2.11. TERMINATION OF COMMITMENTS.................................................... 31
SECTION 2.12. REPAYMENT OF LOANS............................................................ 31
SECTION 2.13. EVIDENCE OF INDEBTEDNESS...................................................... 31
SECTION 2.14. OPTIONAL AND MANDATORY PREPAYMENTS............................................ 32
SECTION 2.15. INTEREST ON LOANS............................................................. 34
i
SECTION 2.16. FEES.......................................................................... 35
SECTION 2.17. EFFECTIVE DATE FOR ADJUSTMENT TO APPLICABLE PERCENTAGE AND APPLICABLE
MARGIN........................................................................ 36
SECTION 2.18. COMPUTATION OF INTEREST AND FEES.............................................. 36
SECTION 2.19. INABILITY TO DETERMINE INTEREST RATES......................................... 36
SECTION 2.20. ILLEGALITY.................................................................... 37
SECTION 2.21. INCREASED COSTS............................................................... 37
SECTION 2.22. FUNDING INDEMNITY............................................................. 38
SECTION 2.23. TAXES......................................................................... 39
SECTION 2.24. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS................... 40
SECTION 2.25. MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS............................. 42
SECTION 2.26. LETTERS OF CREDIT............................................................. 43
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT........................... 47
SECTION 3.1. CONDITIONS TO EFFECTIVENESS................................................... 47
SECTION 3.2. EACH CREDIT EVENT............................................................. 51
SECTION 3.3. DELIVERY OF DOCUMENTS......................................................... 52
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................ 52
SECTION 4.1. EXISTENCE; POWER.............................................................. 52
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION........................................... 52
SECTION 4.3. GOVERNMENTAL APPROVALS AND THIRD PARTY APPROVALS.............................. 52
SECTION 4.4. FINANCIAL STATEMENTS.......................................................... 53
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.......................................... 53
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS........................................... 54
SECTION 4.7. INVESTMENT COMPANY ACT, ETC................................................... 54
SECTION 4.8. TAXES......................................................................... 54
ii
SECTION 4.9. MARGIN REGULATIONS............................................................ 54
SECTION 4.10. ERISA......................................................................... 54
SECTION 4.11. OWNERSHIP OF PROPERTY......................................................... 55
SECTION 4.12. DISCLOSURE.................................................................... 55
SECTION 4.13. LABOR RELATIONS............................................................... 56
SECTION 4.14. SUBSIDIARIES.................................................................. 56
SECTION 4.15. SOLVENCY...................................................................... 56
SECTION 4.16. INDEBTEDNESS AT CLOSING DATE.................................................. 56
SECTION 4.17. OFAC.......................................................................... 56
SECTION 4.18. PATRIOT ACT................................................................... 56
SECTION 4.19. DORMANT COMPANIES............................................................. 57
ARTICLE V AFFIRMATIVE COVENANTS......................................................... 57
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.................................... 57
SECTION 5.2. NOTICES OF MATERIAL EVENTS.................................................... 58
SECTION 5.3. EXISTENCE..................................................................... 59
SECTION 5.4. COMPLIANCE WITH LAWS, ETC..................................................... 59
SECTION 5.5. PAYMENT OF OBLIGATIONS........................................................ 59
SECTION 5.6. BOOKS AND RECORDS............................................................. 60
SECTION 5.7. VISITATION, INSPECTION, ETC................................................... 60
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE.......................................... 60
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT......................................... 60
SECTION 5.10. ADDITIONAL SUBSIDIARIES....................................................... 60
SECTION 5.11. AMENDMENT TO CANADIAN LOAN DOCUMENTS.......................................... 61
SECTION 5.12. ADDITIONAL REAL PROPERTY; LEASED LOCATIONS.................................... 61
SECTION 5.13. DISPUTE RESERVE............................................................... 62
iii
SECTION 5.14. NOTICES IN CONNECTION WITH XXXXXXXXX XXXXXXXXX CONTRACT....................... 62
SECTION 5.15. FURTHER ASSURANCES............................................................ 63
ARTICLE VI FINANCIAL COVENANTS........................................................... 63
SECTION 6.1. LEVERAGE RATIO................................................................ 63
SECTION 6.2. FIXED CHARGE COVERAGE RATIO................................................... 63
SECTION 6.3. MINIMUM NET WORTH............................................................. 64
SECTION 6.4. MINIMUM EBITDA................................................................ 64
ARTICLE VII NEGATIVE COVENANTS............................................................ 64
SECTION 7.1. INDEBTEDNESS.................................................................. 64
SECTION 7.2. NEGATIVE PLEDGE............................................................... 65
SECTION 7.3. FUNDAMENTAL CHANGES........................................................... 66
SECTION 7.4. INVESTMENTS, LOANS, ACQUISITIONS, ETC......................................... 66
SECTION 7.5. RESTRICTED PAYMENTS........................................................... 67
SECTION 7.6. SALE OF ASSETS................................................................ 68
SECTION 7.7. TRANSACTIONS WITH AFFILIATES.................................................. 68
SECTION 7.8. RESTRICTIVE AGREEMENTS........................................................ 68
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS............................................... 69
SECTION 7.10. HEDGING AGREEMENTS............................................................ 69
SECTION 7.11. AMENDMENT TO ORGANIZATION DOCUMENTS........................................... 69
SECTION 7.12. ACCOUNTING CHANGES; CHANGE OF FISCAL YEAR..................................... 69
SECTION 7.13. LIMITATION ON LOCATION OF COLLATERAL.......................................... 69
ARTICLE VIII EVENTS OF DEFAULT............................................................. 70
SECTION 8.1. EVENTS OF DEFAULT............................................................. 70
ARTICLE IX THE ADMINISTRATIVE AGENT...................................................... 72
iv
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT........................................... 72
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT...................................... 73
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.................................. 74
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.................................... 74
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT.............................................. 74
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY........................... 74
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT................................................ 74
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS................................. 75
ARTICLE X MISCELLANEOUS................................................................. 75
SECTION 10.1. NOTICES....................................................................... 75
SECTION 10.2. WAIVER; AMENDMENTS............................................................ 77
SECTION 10.3. EXPENSES; INDEMNIFICATION..................................................... 78
SECTION 10.4. SUCCESSORS AND ASSIGNS........................................................ 79
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.................... 82
SECTION 10.6. WAIVER OF JURY TRIAL.......................................................... 83
SECTION 10.7. RIGHT OF SETOFF............................................................... 83
SECTION 10.8. COUNTERPARTS; INTEGRATION..................................................... 83
SECTION 10.9. SURVIVAL...................................................................... 83
SECTION 10.10. SEVERABILITY.................................................................. 84
SECTION 10.12. INTEREST RATE LIMITATION...................................................... 84
SECTION 10.12. CONFIDENTIALITY............................................................... 84
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL............................................ 85
v
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Real Property
Schedule 1.1 - Existing Letters of Credit
Schedule 4.3 - Excluded Contractual Obligations
Schedule 4.5(a) - Litigation
Schedule 4.5(b) - Environmental Matters
Schedule 4.14 - Subsidiaries and Affiliates
Schedule 4.16 - Indebtedness
Schedule 4.19 - Assets and Liabilities of Dormant
Companies
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
vi
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Pledge Agreement
Exhibit C - Form of Revolving Credit Note
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guaranty Agreement
Exhibit F - Form of Swingline Note
Exhibit G - Form of Trademark Security Agreement
Exhibit H - Form of Patent Security Agreement
Exhibit I - Form of Opinion of Counsel to Loan Parties
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.5 - Form of Notice of Swingline Borrowing
Exhibit 2.10 - Form of Notice of Continuation/Conversion
vii
U.S. REVOLVING CREDIT AGREEMENT
THIS U.S. REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered into as of December 10, 2004 by and among EMS TECHNOLOGIES, INC., a
Georgia corporation (the "Borrower"), the several banks and other financial
institutions from time to time party hereto (the "Lenders") and SUNTRUST BANK,
in its capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish a
$25,000,000 revolving credit facility in favor of the Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments are willing to
establish the requested revolving credit facility for the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"ACQUISITION" shall mean any acquisition, whether by stock or other
equity purchase, asset purchase, merger, consolidation or otherwise of a Person,
of all or substantially all of the assets of a Person or a business line or
division of a Person.
"ADDITIONAL REVOLVING COMMITMENT AMOUNT" shall have the meaning
assigned to such term in Section 2.6(a).
"ADJUSTED LIBOR" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by multiplying (a) LIBOR
for such Interest Period by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term
in the opening paragraph hereof.
2
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form provided by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the Closing
Date, the Aggregate Revolving Commitments equal $25,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean, as of any date, with respect to all
Eurodollar Loans and all Base Rate Loans outstanding on any date, the percentage
per annum determined by reference to the applicable Leverage Ratio in effect on
such date as set forth on Schedule I attached hereto, as adjusted and otherwise
determined from time to time in accordance with Section 2.17.
"APPLICABLE PERCENTAGE" shall mean, at any date, with respect to the
commitment fee or the letter of credit fee, as the case may be, the percentage
per annum determined by reference to the applicable Leverage Ratio in effect on
such date as set forth on Schedule I attached hereto, as adjusted and otherwise
determined from time to time in accordance with Section 2.17.
"APPLICABLE PLEDGE AMOUNT" shall mean, in respect of the amount of
capital stock or other equity interest of any Foreign Subsidiary to be pledged
to the Collateral Agent pursuant to a Pledge Agreement, the lesser of (a) 65% of
all outstanding capital stock or other equity interest of such Foreign
Subsidiary and (b) the total amount of all outstanding capital stock or other
equity interest of such Foreign Subsidiary owned by the Borrower and its
domestic Subsidiaries.
"APPROVED FUND" shall mean any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"ASSET DISPOSITION" shall have the meaning assigned to that term in
Section 7.6.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section
3
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A
attached hereto or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Commitment Termination Date.
"BASE RATE" shall mean the higher of (a) the per annum rate which
the Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal Funds Rate, as
in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning given such term in the
introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (a) Loans of the
same Class and Type, made, converted or continued on the same date and in the
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(b) a Swingline Loan.
"BUSINESS DAY" shall mean (a) any day other than a Saturday or
Sunday or other day on which commercial banks in Atlanta, Georgia are authorized
or required by law to close and (b) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to the
foregoing, any day on which dealings in Dollars are carried on the London
interbank market.
"CANADIAN BORROWER" shall mean EMS Technologies Canada, Ltd.
"CANADIAN COLLATERAL AGENT" shall mean Bank of America, National
Association (Canada Branch), in its capacity as "Canadian Collateral Agent"
under and as defined in the Intercreditor Agreement, or any other successor who
shall become Canadian Collateral Agent pursuant to terms of the Intercreditor
Agreement.
"CANADIAN FACILITY INDEBTEDNESS" shall mean the Indebtedness of the
Canadian Borrower owing to the "Lenders" under and as defined in the Canadian
Revolving Credit Agreement.
"CANADIAN LENDERS" shall mean Bank of America, National Association
(Canada Branch) and its assigns under the Canadian Revolving Credit Agreement.
"CANADIAN LOAN DOCUMENTS" shall mean any or all of the Canadian
Revolving Credit Agreement and all other instruments, agreements, documents and
writings executed in connection therewith.
4
"CANADIAN PREPAYMENT AMOUNT" shall mean the Dollar Equivalent of the
amount prepaid by the Canadian Borrower in connection with the Canadian Sale and
Prepayment Event; provided that such Dollar Equivalent shall be rounded down to
the nearest multiple of $500,000.
"CANADIAN PRO RATA SHARE" shall mean, with respect to each Canadian
Lender, the "Pro Rata Share" of such Lender under the Canadian Revolving Credit
Agreement.
"CANADIAN REVOLVING CREDIT AGREEMENT" shall mean that certain
Canadian Revolving Credit Agreement dated as of December 10, 2004 among the
Canadian Borrower, the Borrower, the Canadian Lenders and Bank of America,
National Association, Canada Branch.
"CANADIAN SALE AND PREPAYMENT EVENT" shall mean the consummation of
the sale of Space & Technology / Montreal and the making of the prepayment
required under Section 2.11(b)(i) of the Canadian Revolving Credit Agreement.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (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 the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any property (including
any interest in property) of the Borrower or any of its Subsidiaries, any loss
of, damage to, or condemnation or other taking of, such property for which the
Borrower or such Subsidiary receives insurance proceeds, proceeds of a
condemnation award or other compensation.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower or the Canadian Borrower to any Person or "group"
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission as in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) of 30% or more of the outstanding shares of the voting stock
of the Borrower or the Canadian Borrower; or (c) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower or the
Canadian Borrower by Persons who were neither (i) nominated by the then current
board of directors or (ii) appointed by directors so nominated.
"CHANGE IN LAW" shall mean (a) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (b) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or
the Issuing Bank (or for purposes of Section 2.21(b), by such Lender's or the
Issuing Bank's holding
5
company, if applicable) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.
"CIBC" shall mean Canadian Imperial Bank of Commerce.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean December 13, 2004.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"COLLATERAL" shall mean any property directly or indirectly securing
any of the Obligations or any other obligation of a Person under or in respect
of any Loan Document to which it is a party, and includes without limitation,
all "Collateral" under and as defined in the Security Agreement and all "Pledged
Collateral" under and as defined under the Pledge Agreement.
"COLLATERAL AGENT" shall mean SunTrust Bank, in its capacity as
"Collateral Agent" under and as defined in the Intercreditor Agreement, or any
other successor who shall become Collateral Agent pursuant to terms of the
Intercreditor Agreement.
"COLLATERAL DOCUMENTS" shall mean the Security Agreement, each
Pledge Agreement, each Real Estate Document, the Trademark Security Agreement or
the Patent Security Agreement, or any or all of the foregoing and any other
agreement or instrument now or hereafter existing pursuant to which Liens are
granted to the Collateral Agent or the Administrative Agent to secure any of the
Obligations.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (a)
December 9, 2007 and (b) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
(whether by acceleration or otherwise).
"CONSOLIDATED EBITDA" shall mean, for the Consolidated Parties for
any period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) without duplication and only to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation and amortization, and (iv)
such "add-backs" or adjustments as are scheduled and approved by the
Administrative Agent in its sole discretion.
6
"CONSOLIDATED FIXED CHARGES" shall mean, for the Consolidated
Parties for any Test Period, the sum (without duplication) of: (a) Consolidated
Interest Expense for such Test Period, (b) scheduled principal payments (or the
equivalent thereof) made on or in respect of Consolidated Total Funded Debt
during such Test Period and (c) (i) dividends and other distributions to holders
of capital stock, options, warrants and related instruments of the Borrower and
(ii) payments made with respect to the purchase, redemption, retirement,
defeasance or other acquisition of capital stock, options, warrants and related
instruments of the Borrower, made or paid during such Test Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Consolidated
Parties for any period determined on a consolidated basis in accordance with
GAAP, the sum of (a) total cash interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (b) the net amount payable (or minus the net amount
receivable) under Hedging Transactions relating to interest rate xxxxxx during
such period (whether or not actually paid or received during such period).
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Consolidated Parties for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein): (a) any extraordinary gains or losses, (b)
any gains attributable to write-ups of assets, (c) any equity interest of any
Consolidated Party in the unremitted earnings of any Person that is not a
Subsidiary, (d) any income (or loss) of any Person accrued prior to the date
such Person becomes a Subsidiary or is merged into or amalgamated or
consolidated with the Borrower or any Subsidiary or the date that such Person's
assets are acquired by the Borrower or any such Subsidiary and (e) any income of
any Subsidiary which is not a Subsidiary Loan Party to the extent the payment of
such income in the form of dividends or other distributions to either the
Borrower or any Subsidiary is then prohibited, whether on account of
restrictions in such Subsidiary's organizational documents or restrictions in
any agreement, document, contract, deed or other instrument applicable to such
Subsidiary.
"CONSOLIDATED PARTIES" shall mean, at any time, the Borrower and
each Consolidated Subsidiary of the Borrower.
"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any Person that,
in accordance with GAAP, would or should be consolidated in the Borrower's
consolidated financial statements on such date.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, at any time, all then
outstanding obligations, liabilities and indebtedness of the Consolidated
Parties on a consolidated basis of the types described in the definition of
Indebtedness (other than clause (j) of the definition thereof), including,
without limitation, all Obligations under the Loan Documents; provided, however,
that Consolidated Total Funded Debt shall not include any obligations of the
Canadian Borrower owing to CIBC described in clause (k) of the defined term
Permitted Encumbrances.
7
"CONTRACTUAL OBLIGATIONS" shall mean, as to any Person, any
provision of any security issued by such Person or any agreement, instrument or
other undertaking to which such Person is a party or by which such Person or any
of its properties is bound.
"CONTROL" shall mean the power, directly or indirectly, either to
(a) vote 5% or more of securities having ordinary voting power for the election
of directors (or persons performing similar functions) of a Person or (b) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"DEBT ISSUANCE" shall mean the issuance or sale by the Borrower or
any of its Subsidiaries of any debt securities or similar indebtedness, whether
in a private or public offering or otherwise; provided, however, that nothing
contained in this definition shall be deemed or construed to permit any Debt
Issuance that is not otherwise expressly permitted pursuant to the terms hereof.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning assigned to that term in
Section 2.15(c).
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"DOLLAR EQUIVALENT" of any amount expressed in Canadian dollars,
means the equivalent amount of Dollars as of the most recent date on which the
Administrative Agent in its judgment determines to make a foreign exchange
calculation, after giving effect to a conversion of such amount of such Canadian
dollars to Dollars at the buy spot rate quoted for wholesale transactions by the
Administrative Agent at approximately 11:00 a.m. on the date of determination in
accordance with its normal practices.
"DORMANT COMPANY" means Netsat 28 Company, LLC, a Delaware limited
liability company.
"ELIGIBLE ASSIGNEE" shall mean (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
Person) approved by the Administrative Agent, and unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment thresholds specified
in Section 10.4(b)), the Borrower shall be deemed to have given its consent five
Business Days after the date notice thereof
8
has actually been delivered by the assigning Lender (through the Administrative
Agent) to the Borrower, unless such consent is expressly refused by the Borrower
prior to such fifth Business Day.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY OFFERING means a private or public offering of any capital
stock of the Borrower, or any debt security convertible into or exchangeable for
capital stock of the Borrower (whether conditionally or unconditionally
convertible or exchangeable or convertible currently or in the future), or any
debt security issued with a warrant or other instrument conferring upon its
owner the right to purchase capital stock of the Borrower, in each case pursuant
to an effective registration statement filed with the Securities and Exchange
Commission in accordance with the Securities Act of 1933, as amended. In no
event shall an Equity Offering include any issuances of stock and stock options
to employees and directors of the Borrower or its Subsidiaries.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303 of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention
9
to terminate any Plan or Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBOR and the Applicable Margin.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCHANGE ACT" shall have the meaning provided in the defined term
"Change of Control".
"EXCLUDED TAXES" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or (ii) is imposed on amounts payable to such Foreign Lender at any
time that such Foreign Lender designates a new lending office, other than taxes
that have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes and (iii) is attributable to such Foreign Lender's
failure to comply with Section 2.23(e).
"EXISTING LENDERS" means each of SunTrust Bank and CIBC.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued for
the account of the Borrower or its Subsidiaries prior to the Closing Date, all
as more particularly described on Schedule 1.1.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
10
"FIXED CHARGE COVERAGE RATIO" shall mean, for any Test Period, the
ratio of (a) Consolidated EBITDA for such Test Period minus cash payments for
all federal, state, provincial, local, foreign and other income taxes paid by
the Loan Parties during such Test Period minus all capital expenditures
(determined in accordance with GAAP) for such Test Period to the extend paid in
cash to (b) Consolidated Fixed Charges for such Test Period.
"FOREIGN LENDER" shall mean any Lender that is not a United States
Person under Section 7701(a)(3) of the Code.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect Subsidiary of
the Borrower that is organized under the laws of a jurisdiction other than the
United States of America or any political subdivision thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other foreign country or nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (whether foreign or domestic).
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
legally binding obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly and including any obligation, direct or indirect,
of the guarantor (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term
"Guarantee" shall not include endorsements for collection or deposits in the
ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith. The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious
11
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired under (a) any and all Hedging
Transactions, (b) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (c) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.
"HEDGING TRANSACTION" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate transaction,
commodity swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"INDEBTEDNESS" of any Person shall mean, without duplication: (a)
obligations of such Person for borrowed money, (b) obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations of such Person in respect of the deferred purchase price of property
or services (other than trade payables incurred in the ordinary course of
business on terms customary in the trade), (d) obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (e) Capital Lease Obligations of such Person, (f)
obligations, contingent or otherwise, of such Person in respect of letters of
credit, acceptances or similar extensions of credit, (g) all indebtedness or
other obligations of another Person secured by any Lien on property owned by
such Person, whether or not such indebtedness or obligations have been assumed
by such Person, (h) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any capital stock or
other security of such Person, (i) off-balance sheet liability retained in
connection with asset securitization programs, Synthetic Leases, sale and
leaseback transactions or other similar obligations arising with respect to any
other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person and its Subsidiaries, (j) obligations under any Hedging
Transaction or foreign exchange agreement, and (k) guaranties by such Person of
the type of indebtedness described in clauses (a) through (j) immediately above.
For purposes of determining Indebtedness under clause (j) the obligations of the
Borrower or any Subsidiary in respect to any Hedging Transaction at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Transaction were terminated at such time.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
12
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
Agreement dated as of the date hereof by and among the Collateral Agent, the
Administrative Agent, the Canadian Collateral Agent, the Lenders, the Canadian
Lenders and the other parties thereto.
"INTEREST PERIOD" shall mean (a) with respect to any Eurodollar
Borrowing, a period of one, two, three or six months and (b) with respect to a
Swingline Loan, a period of such duration not to exceed 7 days, as the Borrower
may request and the Swingline Lender may agree in accordance with Section 2.5;
provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing which
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 such
calendar month; and
(iv) no Interest Period may extend beyond the Commitment Termination
Date or the Swingline Termination Date, as the case may be.
"INVESTMENT" shall have the meaning given such term in Section 7.4.
"ISSUING BANK" shall mean SunTrust Bank, in its capacity as an
issuer of Letters of Credit pursuant to Section 2.26, and its successors and
assigns in such capacity.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit in an aggregate stated amount not to exceed $10,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (b) the
aggregate amount of all LC
13
Disbursements that have not been reimbursed by or on behalf of the Borrower at
such time. The LC Exposure of any Lender shall be its Pro Rata Share of the
total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"LENDER DEFAULT" shall mean (a) the failure (which has not been
cured) of any Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.26 or (b) a Lender
having notified the Administrative Agent and/or the Borrower that it does not
intend to comply with the obligations under Sections 2.2, 2.5 and 2.26.
"LETTER OF CREDIT" shall mean any standby letter of credit issued
pursuant to Section 2.26 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment and shall include each Existing Letter of Credit.
"LEVERAGE RATIO" shall mean, as of any date of determination, the
ratio of (a) Consolidated Total Funded Debt as of such date minus, for any
period of determination from December 31, 2004 through December 31, 2005, all
cash and Permitted Investments held by the Consolidated Parties (excluding (i)
any such cash and/or Permitted Investments subject to any Liens other than in
favor of the Collateral Agent or the Canadian Collateral Agent and (ii) any such
cash and/or Permitted Investments used to satisfy the dispute reserve
requirement set forth in Section 5.13 hereof) plus any taxes or other costs
incurred or to be incurred by a Foreign Subsidiary in connection with the
transfer or repatriation of such cash and/or Permitted Investments to a
Consolidated Party located in the United States to (b) Consolidated EBITDA for
the Test Period; provided, however, for purposes of Section 2.17 and the defined
terms "Applicable Margin" and "Applicable Percentage", the immediately preceding
clause (b) shall be Consolidated EBITDA for the four fiscal quarters of the
Borrower ending on or most recently preceding the date of determination.
"LIBOR" shall mean, for any applicable Interest Period with respect
to any Eurodollar Loan, the British Bankers' Association Interest Settlement
Rate per annum for deposits in Dollars for a period equal to such Interest
Period appearing on the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two Business
Days preceding the first day of such Interest Period by leading banks in the
London interbank market as of 10:00 a. m. (Atlanta, Georgia time) for delivery
on the first day of such Interest Period, for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar Loan of the
Administrative Agent.
14
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing 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
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the LC Documents, all Notices of Borrowing, all Notices of
Conversion/Continuation, the Subsidiary Guaranty Agreement, the Collateral
Documents required to be entered into pursuant to the terms hereof, and any and
all other instruments, agreements, documents and writings executed in connection
with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Subsidiary Loan
Parties.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"XXXXXXXXX XXXXXXXXX" means XxxXxxxxx, Xxxxxxxxx and Associates Ltd.
"XXXXXXXXX XXXXXXXXX CONTRACT" shall mean RADARSAT-2 Payload
Subcontract #SC29352RC/SC29352RC, as amended between the Canadian Borrower and
XxxXxxxxx Xxxxxxxxx originally entered into on September 1, 1998.
"MARGIN REGULATIONS" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), a material adverse change in, or a material adverse effect on, (a)
the business, operations, condition (financial or otherwise), prospects, assets,
income or liabilities of the Consolidated Parties taken as a whole, (b) the
ability of the Borrower or any Subsidiary Loan Party to perform any of its
respective obligations under the Loan Documents, (c) the rights, remedies or
benefits available to the Administrative Agent, the Issuing Bank and/or the
Lenders under any of the Loan Documents, (d) the legality, validity, binding
effect or enforceability of any of the Loan Documents or (e) the attachment,
perfection or priority of any Lien of the Administrative Agent under the
Security Agreement, the Pledge Agreement or any other Loan Document.
"MATERIAL SUBSIDIARY" shall mean at any time of determination any
direct or indirect Subsidiary of the Borrower having: (a) assets in an amount
equal to $1,000,000 or more; (b) revenues in an amount which equals or exceeds
2.5% of the total revenues of the Borrower and its Subsidiaries on a
consolidated basis for the 12-month period ending on the last day of the most
recent fiscal quarter of the Borrower at such time; or (c) revenues in an amount
which, together with
15
the revenues of all other direct or indirect Subsidiaries which are not Material
Subsidiaries, equals or exceeds 10% of the total revenues of the Borrower and
its Subsidiaries on a consolidated basis for the 12-month period ending on the
last day of the most recent fiscal quarter of the Borrower at such time.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean (a) in the case of any Debt Issuance, the
aggregate cash proceeds received by the Borrower and its Subsidiaries less
Transaction Costs, (b) in the case of any Casualty Event, the aggregate cash
proceeds of insurance, condemnation awards and other compensation received by
the Borrower and its Subsidiaries in respect of such Casualty Event less
reasonable fees and expenses incurred by the Borrower and its Subsidiaries in
connection therewith, (c) in the case of any Asset Disposition, the aggregate
amount of all cash payments at any time received by the Borrower and its
Subsidiaries in connection with such Asset Disposition less (i) Transaction
Costs, (ii) Indebtedness to the extent the amount thereof is secured by a Lien
on the property that is the subject of such Asset Disposition and the transferee
of (or holder of the Lien on) such property requires that such Indebtedness be
repaid as a condition to such Asset Disposition, and (iii) any income or
transfer taxes paid or reasonably estimated by the Borrower to be payable by the
Borrower and its Subsidiaries as a result of such Asset Disposition and (d) in
the case of any Equity Offering, the aggregate cash proceeds received by the
Borrower and its Subsidiaries less Transaction Costs.
"NET WORTH" shall mean, as of any date, the total shareholders'
equity of the Consolidated Parties that would be reflected on the Borrower's
consolidated balance sheet as of such date prepared in accordance with GAAP.
"NON-DEFAULTING LENDER" shall mean and include each Lender other
than a Defaulting Lender.
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by
the Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.10(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth
in Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth
in Section 2.5.
16
"OBLIGATIONS" shall mean all amounts owing by the Borrower or its
Subsidiaries to the Administrative Agent, the Issuing Bank, the Collateral Agent
or any Lender (including the Swingline Lender) pursuant to or in connection with
this Agreement or any other Loan Document, including without limitation, all
principal, interest (including any 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), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs
and expenses (including all actual and reasonable fees and expenses of counsel
to the Administrative Agent and any Lender (including the Swingline Lender)
incurred pursuant to this Agreement or any other Loan Document), whether direct
or indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, and all Hedging Obligations owed to
the Administrative Agent, any Lender or any of their Affiliates incurred in
compliance with Section 7.10 and all obligations and liabilities incurred in
connection with collecting and enforcing the foregoing, together with all
renewals, extensions, modifications or refinancings thereof.
"OTHER TAXES" shall mean 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.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
"PATENT SECURITY AGREEMENT" shall have the meaning provided in
Section 3.1(b)(vii).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or
such other location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.
"PAYOFF LETTER" means a letter, in form and substance reasonably
satisfactory to the Administrative Agent, from all Existing Lenders, notifying
the Administrative Agent and the Borrower of the amount necessary to repay in
full all of the obligations of the Borrower and its Subsidiaries to the Existing
Lenders and committing to terminate and release any and all Liens, if any,
existing in favor of the Existing Lenders in the properties and assets of the
Borrower or any Subsidiary.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, and any successor entity performing similar functions.
"PENSION PLAN" shall mean any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
17
"PERFECTION CERTIFICATES" shall have the meaning assigned to such
term in the Security Agreement.
"PERMITTED ENCUMBRANCES" shall mean:
(a) Liens imposed by law for taxes, rates, assessments or other
charges of Governmental Authorities not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(b) inchoate or statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, craftsmen, builders, contractors,
architects, engineers, subcontractors, and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance
with GAAP;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance, employment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
(g) title defects or irregularities which are of a minor nature and
which do not materially reduce the value of the affected asset or
materially interfere with the use of such asset;
(h) with respect to any assets located in Canada, the reservations,
limitations, provisos and conditions, if any, expressed in any original
grant from the Crown of any real property or any interest therein which do
not materially reduce the value of the affected asset or materially
interfere with the use of such asset;
18
(i) Liens given to a public utility or any municipality or
governmental or other public authority when required by such utility or
other authority in connection with the operation of business or the
ownership of assets which do not materially reduce the value of the
affected asset or materially interfere with the use of such asset;
(j) the right reserved to or vested in any Government Authority by
any statutory provision or by the terms of any lease, licence, franchise,
grant or permit of the Person, to terminate any such lease, licence,
franchise, grant or permit, or to require annual or other payments as a
condition to the continuance thereof; and
(k) Liens in favor of CIBC in cash on deposit with CIBC in deposit
account number 05-59911 Transit #2 to secure obligations of the Canadian
Borrower described under that certain letter agreement dated December 13,
2004 between CIBC and the Canadian Borrower; provided, that such cash
collateral shall not at any time exceed U.S.$4,715,398.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing within
one year from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Xxxxx'x and in either case maturing within
12 months from the date of acquisition thereof;
(c) certificates of deposit, bankers' acceptances and time deposits
maturing within 360 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above;
(e) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (a) through (d) above; and
(f) Investments in CIBC to the extent provided in clause (k) of the
defined term Permitted Encumbrances.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
19
"PLAN" shall mean any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by the Borrower or, with respect
to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate.
"PLEDGE AGREEMENT" shall mean a Pledge Agreement in favor of the
Collateral Agent in substantially the form of Exhibit B.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time,
a percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and the denominator of which shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving Commitments have been terminated or
expired or if the Loans have been declared to be due and payable, a percentage,
the numerator of which shall be such Lender's Revolving Credit Exposure and the
denominator of which shall be the aggregate Revolving Credit Exposure of all
Lenders.
"REAL ESTATE DOCUMENTS" shall mean collectively, all mortgages,
deeds of trust, deeds to secure debt, assignments of rents and leases,
environmental indemnity agreements, and all other documents, instruments,
agreements and certificates executed and delivered by any Loan Party to the
Collateral Agent or the Administrative Agent in connection with the foregoing.
"REAL PROPERTY" shall mean all real property owned or leased by the
Borrower or Subsidiary Loan Party.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Non-Defaulting Lenders
holding 66 2/3% or more of the aggregate outstanding Revolving Credit Exposures
of all Non-Defaulting Lenders at such time or if the Non-Defaulting Lenders have
no Revolving Credit Exposure outstanding, then Non-Defaulting Lenders holding 66
2/3% or more of the Aggregate Revolving Commitments of all Non-Defaulting
Lenders; provided however, that if only two Non-Defaulting Lenders exist
hereunder, Required Lenders shall mean both such Non-Defaulting Lenders.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a
20
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" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer, controller or a vice president in the finance division of the
Borrower or such other representative of the Borrower as may be designated in
writing by any one of the foregoing with the consent of the Administrative
Agent; and, with respect to the financial covenants only, the chief financial
officer or the treasurer of the Borrower.
"RESTRICTED INVESTMENT" shall mean Investments in joint ventures and
in Subsidiaries that are not Consolidated Subsidiaries.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section
7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person becoming a Lender
after the Closing Date, the amount of the assigned "Revolving Commitment" as
provided in the Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to the terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender
at any time, the sum at such time, without duplication, of (a) the outstanding
principal amount of such Lender's Revolving Loans, (b) such Lender's LC Exposure
and (c) such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit C.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender in its capacity as such) to the Borrower under its Revolving
Commitment, which may be either a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SECURITY AGREEMENT" shall mean the Security Agreement in the form
of Exhibit D among the Loan Parties and the Collateral Agent.
"SOLVENT" means, with respect to the Borrower as of a particular
date, (a) the Borrower is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (b) the Borrower does not intend to, and does not believe that it
will, incur debts or liabilities beyond the Borrower's ability to pay as such
debts and liabilities mature in their ordinary course, (c) the Borrower is not
engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which the Borrower's assets
21
would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which the Borrower is engaged or is
to engaged and (d) the aggregate fair saleable value of the assets of the
Borrower will exceed its debts and other liabilities (including contingent,
subordinated, unmatured and unliquidated debts and liabilities). For purposes of
this definition, "debt" means any liability on a claim, and "claim" means (i) a
right to a payment or (ii) a right to an equitable remedy for breach of
performance, if in light of all of the facts and circumstances existing at such
time, such right can reasonably be expected to give rise to an actual or matured
liability.
"SPACE & TECHNOLOGY / MONTREAL" shall mean the Space & Technology /
Montreal division of the Canadian Borrower.
"STATEMENT OF FUNDS FLOW" shall mean that certain Statement of Funds
Flow dated as of December 13, 2004 executed by the Borrower and the
Administrative Agent on behalf of the Lenders.
"STATUTORY RESERVE RATE" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which any Lender is subject with
respect to the Adjusted LIBOR pursuant to regulations issued by the Board of
Governors of the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as "eurocurrency liabilities" under Regulation
D). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under Regulation D. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would or should be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (a) of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power, or in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
Controlled or held, or (b) that is, as of such date, otherwise Controlled by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the Subsidiary Guaranty
Agreement, substantially in the form of Exhibit E, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Subsidiary, other than the
Dormant Company, that is not a Foreign Subsidiary.
22
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans as to which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, and its successors and
assigns hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit F.
"SWINGLINE RATE" shall mean, for any Interest Period, the rate as
offered by the Swingline Lender and accepted by the Borrower in writing.
"SWINGLINE TERMINATION DATE" shall mean the date that is five
Business Days prior to the Commitment Termination Date.
"SYNTHETIC LEASE" shall mean a lease transaction under which the
parties intend that (a) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (b) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TEST PERIOD" shall mean, for purposes of calculating and
determining compliance with the financial covenants set forth in Sections 6.1
and 6.2, a period of four full fiscal quarters of the Borrower, as selected by
the Borrower out of the six most recently completed fiscal quarters of the
Borrower preceding the date of determination; provided, however, that the
Borrower shall use the same four fiscal quarters selected by the Borrower when
(a) determining and calculating compliance with the Fixed Charge Coverage Ratio
at any time and (b) determining and calculating compliance with both the
Leverage Ratio and the Fixed Charge Coverage Ratio at any time; provided,
further, that any particular quarter selected by the Borrower during any Test
Period may only be used once during such Test Period.
23
"TRADEMARK SECURITY AGREEMENT" shall have the meaning provided in
Section 3.1(b)(vii).
"TRANSACTION COSTS" shall mean, with respect to a given transaction,
all investment banking fees, legal fees, brokerage fees, finder's fees, printing
fees, filing fees and accountant's fees, in each case directly related to such
transaction, and other out-of-pocket costs and expenses incurred by a Loan Party
and directly related to such transaction; provided, that any such fees, costs
and expenses paid to an Affiliate of the Borrower shall be excluded from this
definition.
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR or the Base Rate.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"WHOLLY-OWNED SUBSIDIARY" shall mean any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares, or, in the case of any Subsidiary which is not organized or
created under the laws of the United States of America or any political
subdivision thereof, such nominal ownership interests as are required to be held
by third parties under the laws of the foreign jurisdiction under which such
Subsidiary was incorporated or organized) are at the time directly or indirectly
owned by the Borrower.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "Revolving Eurodollar
Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the Borrower delivered pursuant to Section 5.1(a); provided, that
all such accounting terms interpreted and accounting determinations made shall,
in any event, include all activities, operations and financial results of Space
&Technology / Montreal and any other discontinued operations of the Borrower or
its Subsidiaries as if such division or other
24
discontinued operations were continuing operations (other than accounting for
depreciation and valuation allowances of such discontinued operations); provided
further, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI to eliminate the effect of
any change in GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Borrower that the Required Lenders wish to amend Article VI
for such purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY; RULES OF INTERPRETATION. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". In the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the word "to" means "to but excluding". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and permitted assigns, (c) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to refer
to this Agreement as a whole and not to any particular provision hereof, (d) all
references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement, (e) 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, securities, accounts and contract rights, and (f)
all references to a specific time shall be construed to refer to the time in the
city and state of the Administrative Agent's principal office, unless otherwise
indicated. To the extent that any of the representations and warranties
contained in Section IV under this Agreement or in any of the other Loan
Documents is qualified by "Material Adverse Effect", then the qualifier "in all
material respects" contained in Section 3.2(b) and the qualifier "in any
material respect" contained in Section 8.1(c) shall not apply. Unless otherwise
indicated, all references to time are references to Eastern Standard Time or
Eastern Daylight Savings Time, as the case may be.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (a) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
25
accordance with Section 2.2, (b) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.26, (c) the Swingline Lender agrees to make
Swingline Loans in accordance with Section 2.4, and (d) each Lender agrees to
purchase a participation interest in the Letters of Credit and the Swingline
Loans pursuant to the terms and conditions hereof; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans,
Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower from time to time on any Business Day during the Availability Period,
in an aggregate principal amount outstanding at any time that will not result in
(a) such Lender's Revolving Credit Exposure exceeding such Lender's Revolving
Commitment or (b) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitments. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS. the Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "NOTICE OF REVOLVING BORROWING") (i) prior to
11:00 a.m. (Atlanta, Georgia time) one Business Day prior to the requested date
of each Base Rate Borrowing and (ii) prior to 11:00 a.m. (Atlanta, Georgia time)
three Business Days prior to the requested date of each Eurodollar Borrowing.
Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i)
the aggregate principal amount of such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing, and (iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $1,000,000 or a larger multiple of $500,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $500,000 or
a larger multiple of $100,000; provided, that Base Rate Loans made pursuant to
Section 2.5 or Section 2.26(e) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender's Revolving Loan to
be made as part of the requested Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower, from time to time from the Closing Date to the Swingline
Termination Date, in an aggregate principal amount outstanding at any time not
to exceed the lesser of (a) the Swingline Commitment then in effect and (b) the
difference between the Aggregate Revolving Commitments and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. The Borrower shall be entitled to
26
borrow, repay and reborrow Swingline Loans in accordance with the terms and
conditions of this Agreement. Notwithstanding anything herein to the contrary,
the Borrower is under no obligation to accept any offer by the Swingline Lender
to make a Swingline Loan, and the Swingline Lender is under no obligation
whatsoever to offer to make a Swingline Loan to the Borrower.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) the
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing substantially
in the form of Exhibit 2.5 attached hereto ("NOTICE OF SWINGLINE BORROWING")
prior to 11:00 a.m. (Atlanta, Georgia time) on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account to
which the proceeds of such Swingline Loan should be credited. The Administrative
Agent will promptly advise the Swingline Lender of each Notice of Swingline
Borrowing. Each Swingline Loan shall accrue interest at the Swingline Rate and
shall have an Interest Period (subject to the definition thereof) as agreed
between the Borrower and the Swingline Lender. The aggregate principal amount of
each Swingline Loan shall be not less than $500,000 or a larger multiple of
$100,000, or such other minimum amounts agreed to by the Swingline Lender and
the Borrower. The Swingline Lender will make the proceeds of each Swingline Loan
available to the Borrower in Dollars in immediately available funds at the
account specified by the Borrower in the applicable Notice of Swingline
Borrowing not later than 3:00 p.m. (Atlanta, Georgia time) on the requested date
of such Swingline Loan. The Administrative Agent will notify the Lenders on a
quarterly basis if any Swingline Loans occurred during such quarter.
(b) If (i) any Swingline Loan matures and remains unpaid; (ii) any
Default or Event of Default occurs or (iii) the Swingline Lender's total amount
of outstanding aggregate Revolving Credit Exposures and Swingline Loans exceed
the Swingline Lender's Revolving Commitment, the Swingline Lender may, on behalf
of the Borrower (which hereby irrevocably authorizes and directs the Swingline
Lender to act on its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the Swingline Lender) to
make Base Rate Loans in an amount equal to the unpaid principal amount of any
Swingline Loan. Each Lender will make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent for the account
of the Swingline Lender in accordance with Section 2.9, which will be used
solely for the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
27
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof at the
Federal Funds Rate. Until such time as such Lender makes its required payment,
the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan
Documents. In addition, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans and any other amounts due
to it hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section, until such amount has been purchased in full.
SECTION 2.6. INCREASE OF REVOLVING COMMITMENTS.
(a) Upon the Canadian Sale and Prepayment Event, the Aggregate
Revolving Commitments shall be increased by $15,000,000 (the "Additional
Revolving Commitment Amount"). No less than ten days prior to the consummation
of the Canadian Sale and Prepayment Event, the Borrower shall give written
notice to the Administrative Agent (who shall promptly notify the Lenders
thereof) of the date that the Canadian Sale and Prepayment Event will be
effective. On the effective date of the Canadian Sale and Prepayment Event, so
long as no Default or Event of Default has occurred and is then continuing, each
Canadian Lender (or an Affiliate thereof designated by such Canadian Lender who
becomes a party to this Agreement and is otherwise reasonably acceptable to the
Borrower and the Administrative Agent (such Affiliate, an "Approved Affiliate"))
shall be deemed to have increased its Revolving Commitment by a principal amount
equal to its Canadian Pro Rata Share of the Additional Revolving Commitment
Amount. No Lender (other than the Canadian Lenders (or Approved Affiliates))
shall have any obligation to increase its Revolving Commitment or its other
obligations under this Agreement and the other Loan Documents.
(b) An increase in the Aggregate Revolving Commitments pursuant to
this Section shall become effective as and when provided in subsection (a)
above. The Canadian Lenders (or Approved Affiliates) agree to enter into an
agreement in form and substance satisfactory to the Administrative Agent setting
forth the new Revolving Commitments of such Canadian Lenders (or Approved
Affiliate) and Annex I shall automatically be deemed amended to reflect the
Revolving Commitments of all Lenders after giving effect to the addition of such
Revolving Commitments.
28
(c) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section, within five Business Days, in the case of
any Base Rate Loans then outstanding, and at the end of the then current
Interest Period with respect thereto, in the case of any Eurodollar Loans then
outstanding, the Borrower shall prepay such Loans in their entirety and, the
Borrower shall reborrow Loans from the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase, until such time as
all outstanding Loans are held by the Lenders in such proportion.
SECTION 2.7. [RESERVED.].
SECTION 2.8. [RESERVED.]
SECTION 2.9. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Borrowing in Dollars of
Revolving Loans to be made by it hereunder on the proposed date thereof by wire
transfer in immediately available funds by 11:00 a.m. (Atlanta, Georgia time) to
the Administrative Agent at the Payment Office. Swingline Loans will be made as
set forth in Section 2.5. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it receives, in
like funds by the close of business on such proposed date, to an account
maintained with the Administrative Agent or, at the Borrower's option, by
effecting a wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 3:00 p.m. (Atlanta, Georgia time) one Business Day prior to the
date of a Borrowing in which such Lender is participating that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date, and the
Administrative Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at a
rate per annum equal to the Administrative Agent's cost of funds for such amount
for up to two days and thereafter at the rate specified for such Borrowing. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor and the Administrative Agent has made the
amount of such Borrowing available to the Borrower, the Administrative Agent
shall promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest at the
rate specified for such Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share of any
Borrowing hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Loans shall be made by the Lenders on the basis of
their respective Pro Rata Shares. No Lender shall be responsible for any default
by any other Lender in its
29
obligations hereunder, and each Lender shall be obligated to make its Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to make its Loans hereunder.
SECTION 2.10. INTEREST ELECTIONS; CONVERSIONS; CONTINUATIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing (subject to satisfaction of any conditions
applicable to Borrowings of that Type), and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.10 attached hereto (a "NOTICE OF CONVERSION/CONTINUATION") that is to
be converted or continued, as the case may be, (x) prior to 11:00 a.m. (Atlanta,
Georgia time) one Business Day prior to the requested date of a conversion into
a Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia time) three
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing and the
duration of the Interest Period applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of "Interest
Period". If any such Notice of Continuation/Conversion requests a Eurodollar
Borrowing but does not specify an Interest Period, the Borrower shall be deemed
to have selected an Interest Period of one month. The principal amount of any
resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. Further, any Eurodollar Borrowing that may not be continued as a
Eurodollar Borrowing as a result of a Default or Event of Default shall
automatically convert to a Base Rate Borrowing at the end of then
30
applicable Interest Period, and such Borrowing shall be subject to the increased
interest rate specified under Section 2.15(c) both before and after the
conversion thereof, such increased interest rate commencing on and as of the
date of such Default or Event of Default. No conversion of any Eurodollar Loans
shall be permitted except on the last day of the Interest Period in respect
thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.11. TERMINATION OF COMMITMENTS.
Unless previously terminated, all Revolving Commitments shall
terminate on the Commitment Termination Date, except that the Swingline
Commitment shall terminate on the Swingline Termination Date.
SECTION 2.12. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Commitment Termination Date.
(b) The principal amount of each Swingline Loan shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Loan and (ii) the Swingline
Termination Date.
SECTION 2.13. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.10, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.10, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the
31
case of the Swingline Lender only, a Swingline Note, payable to the order of
such Lender, and such Lender agrees, upon receipt of such new Note and request
of the Borrower, such Lender will promptly cancel and return any Note replaced
by such new Note to the Borrower.
SECTION 2.14. OPTIONAL AND MANDATORY PREPAYMENTS.
(a) Optional Prepayment. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, without
premium or penalty, by giving irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent no later than (i) in
the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. (Atlanta, Georgia
time) not less than three Business Days prior to any such prepayment, (ii) in
the case of any prepayment of any Base Rate Borrowing, not less than one
Business Day prior to the date of such prepayment, and (iii) in the case of
Swingline Borrowings, prior to 11:00 a.m. (Atlanta, Georgia time) on the date of
such prepayment. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.15(d); provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.22. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in minimum amounts of $500,000 or larger
multiples of $100,000. Each prepayment of a Borrowing shall be applied ratably
to the Loans comprising such Borrowing.
(b) Mandatory Prepayment.
(i) Promptly upon (and in any event not later than five
Business Days after) its receipt thereof, the Borrower shall, subject to
clause (iv) immediately below, prepay or cause to be prepaid the
outstanding principal amount of Revolving Loans in an amount equal to 100%
of the Net Proceeds from any Debt Issuance made after the Closing Date,
and will deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by the Chief Financial Officer of the
Borrower in form and substance satisfactory to the Administrative Agent
and setting forth the calculation of such Net Proceeds. Notwithstanding
the foregoing, nothing in this subsection (i) shall be deemed to permit
any Debt Issuance not expressly permitted under Section 7.1.
(ii) Promptly upon (and in any event not later than five
Business Days after) its receipt thereof, the Borrower shall, subject to
clause (iv) immediately below, prepay or cause to be prepaid the
outstanding principal amount of Revolving Loans in an amount equal to 50%
of the Net Proceeds from any Asset Disposition (other than any Asset
Disposition under Section 7.6(b)) and will deliver to the Administrative
Agent, concurrently with such prepayment, a certificate signed by the
Chief Financial Officer of the Borrower in form and substance satisfactory
to the Administrative Agent and setting forth the calculation of such Net
Proceeds. Notwithstanding the foregoing, nothing in this subsection (ii)
shall be
32
deemed to permit any Asset Disposition not expressly permitted under
Section 7.6.
(iii) Not later than thirty days after its receipt of any
proceeds of insurance, condemnation award or other compensation in respect
of any Casualty Event (and in any event upon its determination not to
repair or replace any property subject to such Casualty Event), the
Borrower shall, subject to clause (iv) immediately below, prepay or cause
to be prepaid the outstanding principal amount of Revolving Loans in an
amount equal to 100% of the Net Proceeds from such Casualty Event (less
any amounts theretofore applied, to be applied or contractually committed
to be applied within 180 days after the occurrence of such Casualty Event
to the repair or replacement of property subject to such Casualty Event)
and will deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by the Chief Financial Officer of the
Borrower in form and substance satisfactory to the Administrative Agent
and setting forth the calculation of such Net Proceeds.
(iv) Each prepayment of Revolving Loans made pursuant to
clauses (i) through (iii) above shall be applied to reduce the outstanding
principal amount of Revolving Loans, with a corresponding permanent
reduction to the Revolving Commitment in an amount equal to the amount of
the prepayment required by this subsection (b); provided, however, that so
long as a prepayment of the Canadian Facility Indebtedness for the events
described under clauses (i) through (iii) above would not have an adverse
tax consequence for the Borrower or the Canadian Borrower (as reasonably
determined by the Borrower), each prepayment of Revolving Loans required
to be made pursuant to clauses (i) through (iii) above shall be applied to
reduce the outstanding principal amount of Revolving Loans and the
"Revolving Loans" under and as defined in the Canadian Revolving Credit
Agreement, pro rata based on the then outstanding principal amount under
this Agreement and the Canadian Revolving Credit Agreement, with a
corresponding permanent reduction to the Revolving Commitment hereunder
and a corresponding permanent reduction to the "Revolving Commitment"
under and as defined in the Canadian Revolving Credit Agreement, in each
case, in an amount equal to the amount so prepaid; provided, further, that
the Canadian Prepayment Amount shall be applied solely towards the
prepayment of the Canadian Facility Indebtedness.
(v) Each prepayment of Loans made pursuant to this
subsection (b) shall be first applied to the repayment of Base Rate Loans
until all Base Rate Loans are paid in full, and then to Eurodollar Loans.
Each prepayment of a Eurodollar Loan made pursuant to the provisions of
this subsection (b) on a day other than the last day of the Interest
Period applicable thereto shall be made together with all amounts required
under Section 2.22.
(c) Additional Mandatory Reduction and Permanent Repayment.
Commencing on December 31, 2005 and continuing on each June 30 and December 31
thereafter, the Aggregate Revolving Commitment shall be automatically reduced in
an amount equal to $1,250,000 until such time as the "Aggregate Revolving
Commitment" (as such term is defined in the Canadian Credit Agreement) of the
Canadian Lenders under the Canadian Revolving Credit Agreement is reduced to an
amount of not more than $22,500,000; for greater certainty this obligation shall
cease at such time, if ever, that the "Revolving Commitment" (as such term is
defined in the Canadian Credit
33
Agreement) under the Canadian Revolving Credit Agreement is reduced to an amount
of not more than $22,500,000 in accordance with Section 2.11(b)(i) thereof. If
at any time, as a result in the reduction of the Aggregate Revolving Commitment
under this subsection (c), the sum of the outstanding amount of the Loans plus
the LC Exposure exceeds the Aggregate Revolving Commitment, then the Borrower
shall immediately pay the amount of such excess to the Administrative Agent for
the respective accounts of the Lenders for application: first, to unreimbursed
LC Disbursements; second, to the Swingline Loans; third, to the Revolving Loans;
and fourth, to provide to the Administrative Agent cash collateral for the
aggregate undrawn amount of all outstanding Letters of Credit as contemplated by
Section 2.26(h). Each payment of any unreimbursed LC Disbursements or prepayment
of Loans shall be allocated among the Lenders, in proportion, as nearly as
practicable, to each unreimbursed LC Disbursement or (as the case may be) the
respective unpaid principal amount of any Loan owed to such Lender, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
SECTION 2.15. INTEREST ON LOANS.
(a) The Borrower shall pay interest (i) on each Base Rate Loan at
the Base Rate in effect from time to time plus the Applicable Margin in effect
from time to time for Base Rate Loans, and (ii) on each Eurodollar Loan at the
Adjusted LIBOR for the applicable Interest Period then in effect for such
Eurodollar Loan plus the Applicable Margin in effect from time to time for
Eurodollar Loans.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("DEFAULT
INTEREST") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans and all other Obligations hereunder (other than Loans), at the Base
Rate then in effect for Base Rate Loans plus the Applicable Margin for Base Rate
Loans plus an additional 2.0% per annum. While an Event of Default exists and
after acceleration, the Applicable Percentage for the letter of credit fees
provided for under Section 2.16(c) shall be increased by 2.0%.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof, provided such Loans are repaid within the times provided for
hereunder. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Commitment Termination Date. Interest on all outstanding Eurodollar
Loans shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurodollar Loans having an Interest Period in
excess of three months or 90 days, respectively, on each day which occurs every
three months or 90 days, as the case may be, after the initial date of such
Interest Period, and on the Commitment Termination Date. Interest on each
Swingline Loan shall be payable on the maturity date of such Loan, which shall
be the last day of the Interest Period applicable thereto, and on the Swingline
Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
34
conversion or on the date of any such repayment or prepayment (on the amount
repaid or prepaid) thereof. All Default Interest and increased letter of credit
fees payable under subsection (c) of this Section shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.16. FEES.
(a) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon by the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which fee shall accrue at
the Applicable Percentage on the average daily amount of the unused Revolving
Commitment of such Lender during the Availability Period. Accrued commitment
fees shall be payable in arrears on the last day of each March, June, September
and December of each year and on the Commitment Termination Date, commencing on
the first such date after the Closing Date. For purposes of computing commitment
fees with respect to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender. Any Swingline Loans outstanding shall be treated as
if such Loan were unused for purposes of this subsection (b).
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of credit fee
with respect to its participation in each Letter of Credit (including the
Existing Letters of Credit), which shall accrue at the Applicable Percentage
then in effect on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
attributable to such Letter of Credit during the period from and including the
date of issuance of such Letter of Credit to but excluding the date on which
such Letter of Credit expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Commitment Termination Date)
and (ii) to the Issuing Bank for its own account a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the Availability Period (or until the date that such
Letter of Credit is irrevocably cancelled, whichever is later), as well as the
Issuing Bank's standard fees with respect to issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Notwithstanding any term of any letter of credit application, reimbursement
agreement or other agreement entered into between the Borrower and the Issuing
Bank in connection with any Existing Letter of Credit which term relates to fees
payable in connection with such Existing Letter of Credit, the terms of this
Section regarding letter of credit fees and fronting fees shall control from and
after the Closing Date.
35
(d) Payments. Accrued fees (other than the Administrative Agent's
fees in subsection (a) above) shall be payable quarterly in arrears on the last
day of each of March, June, September and December, commencing on the first such
date after the Closing Date and on the Commitment Termination Date (and if
later, the date the Loans and LC Exposure shall be repaid in their entirety).
SECTION 2.17. EFFECTIVE DATE FOR ADJUSTMENT TO APPLICABLE PERCENTAGE
AND APPLICABLE MARGIN. The Applicable Percentage and Applicable Margin shall be
determined and adjusted quarterly on the date that is two Business Days after
the date on which the Borrower provides the officer's certificate in accordance
with the provisions of Section 5.1.(c) (each "Margin Calculation Date");
provided, however that (i) the Applicable Percentage and the Applicable Margin
from the Closing Date until the first Margin Calculation Date subsequent to the
Closing Date shall be at Level V (as set forth in Schedule I), and, thereafter,
such level shall be determined by the then current Leverage Ratio, and (ii) if
the Borrower fails to provide the officer's certificate to the Administrative
Agent by the date such certificate is required to be delivered under Section
5.1.(c), the Applicable Percentage and the Applicable Margin from such date
shall be at Level V until such time as an appropriate officer's certificate is
provided, whereupon the level shall be determined by the then current Leverage
Ratio. Except as set forth above, the Applicable Percentage and the Applicable
Margin shall be effective from one Margin Calculation Date until the next Margin
Calculation Date.
SECTION 2.18. COMPUTATION OF INTEREST AND FEES. All computations of
interest and all fees hereunder shall be made on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the first day but
excluding the last day). Each determination by the Administrative Agent of an
interest amount or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all purposes.
SECTION 2.19. INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining the LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBOR does not adequately and fairly
reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (A) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (B) all
such affected Loans shall be converted into Base Rate Loans on the
36
last day of the then current Interest Period applicable thereto unless the
Borrower repays or prepays such Loans in accordance with this Agreement. Unless
the Borrower notifies the Administrative Agent at least one Business Day before
the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing
has previously been given that it elects not to borrow on such date, then such
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.20. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans or to
continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended. In the case of the making of a Eurodollar Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate Loan as part of the same Borrowing
for the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the
last day of the then current Interest Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to maintain such Loan to such date or (ii)
immediately if such Lender shall determine that it may not lawfully continue to
maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid
the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.
SECTION 2.21. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBOR hereunder against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBOR ) or the Issuing
Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
Eurodollar interbank market any other condition affecting this Agreement
or any Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan, or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of
37
such notice and demand, additional amount or amounts sufficient to compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on
or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) 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 the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five Business Days after receipt by
the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) [RESERVED]
(d) [RESERVED]
(e) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company, as the case may be,
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(f) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided,
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank under this Section for any increased costs or reductions incurred more than
six months prior to the date that such Lender or the Issuing Bank notifies the
Borrower of such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefore; provided further, that
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then such six-month period shall be extended to include the period
of such retroactive effect.
SECTION 2.22. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five Business Days after written demand from such Lender, for any loss,
cost or expense attributable to such event. In the case of a Eurodollar Loan,
such loss, cost
38
or expense shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Eurodollar Loan if such event had not occurred at the
Adjusted LIBOR applicable to such Eurodollar Loan for the period from the date
of such event to the last day of the then current Interest Period therefor (or
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Eurodollar Loan) over (ii) the
amount of interest that would accrue on the principal amount of such Eurodollar
Loan for the same period if the Adjusted LIBOR were set on the date such
Eurodollar Loan was prepaid or converted or the date on which the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A certificate as to
any additional amount payable under this Section 2.22 submitted to the Borrower
by any Lender shall be conclusive, absent manifest error.
SECTION 2.23. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, any Lender or the Issuing Bank (as
the case may be) shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
39
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code, or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two duly completed copies of (i) Internal Revenue Service
Form W-8 ECI, or any successor form thereto, certifying that the payments
received from the Borrower hereunder are effectively connected with such Foreign
Lender's conduct of a trade or business in the United States or (ii) Internal
Revenue Service Form W-8 BEN, or any successor form thereto, certifying that
such Foreign Lender is entitled to benefits under an income tax treaty to which
the Untied States is a party which reduces the rate of withholding tax on
payments of interest or (iii) Internal Revenue Service Form W-8 BEN, or any
successor form prescribed by the Internal Revenue Service; or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Lender. Each
such Lender shall promptly notify the Borrower and the Administrative Agent at
any time that 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 Internal Revenue Service for such purpose).
(f) If the Borrower pays any additional amounts under this Section
2.23 to a Lender and such Lender reasonably determines that it has actually
received or realized in connection therewith any refund or any reduction of, or
credit against, its Tax liabilities in or with respect to the taxable year in
which the additional amount is paid (a "Tax Benefit"), such Lender shall pay to
the Borrower an amount that such Lender shall reasonably determine is equal to
the net benefit, after tax, which was obtained by such Lender in such year as a
consequence of such Tax Benefit; provided, however, that (i) any Lender may
reasonably determine whether to seek a Tax Benefit, (ii) any Taxes that are
imposed on a Lender as a result of a disallowance or reduction (including
through the expiration of any tax credit carryover or carryback of such Lender
that otherwise would not have expired) of any Tax Benefit with respect to which
such Lender has made a payment to the Borrower pursuant to this Section shall be
treated as a Tax for which the Borrower is obligated to indemnify such Lender
pursuant to this Section without any exclusions or defenses and (iii) nothing in
this Section shall require any Lender to disclose any confidential information
to the Borrower (including, without limitation, its tax returns). If the
Borrower determines in good faith that a reasonable basis exists for contesting
any Taxes for which indemnification has been demanded hereunder, the relevant
Lender or the Administrative Agent, as applicable, shall cooperate with the
Borrower in challenging such Taxes at the Borrower's sole cost and expense if so
requested by the Borrower in writing.
SECTION 2.24. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OFSET-OFFS.
40
(a) The Borrower shall make each payment required to be made
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.21, 2.22 or 2.23, or
otherwise) prior to 12:00 noon (Atlanta, Georgia time) on the date when due, in
immediately available funds, free and clear of any claims or defenses, and
without deduction, withholding, set-off or counterclaim of any kind. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except payments
to be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.21, 2.22 and
2.23 and 10.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable
41
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b), 2.9, 2.24(d) 2.26(e), or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.25. MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.21, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.23,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.21 or Section 2.23, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with such designation or assignment made
with the knowledge or at the request of the Borrower.
(b) If any Lender requests compensation under Section 2.21, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Section 2.23, or
any Lender is unable to make Eurodollar Loans for the reasons set forth in
Section 2.20 or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
set forth in Section 10.4(b)) all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be
42
another Lender); provided, that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal amount of all Loans owed to it, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (in the case of such outstanding principal and accrued
interest) and from the Borrower (in the case of all other amounts) and (iii) in
the case of a claim for compensation under Section 2.21 or payments required to
be made pursuant to Section 2.23, such assignment will result in a reduction in
such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.26. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance
upon the agreements of the other Lenders pursuant to Section 2.26(e), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; provided, that (i)
each Letter of Credit shall be a standby letter of credit which shall expire on
the earlier of (A) the date one year after the date of issuance of such Letter
of Credit (or in the case of any renewal or extension thereof, one year after
such renewal or extension) and (B) the date that is five Business Days prior to
the Commitment Termination Date; (ii) each Letter of Credit shall be in a stated
amount of at least $50,000; and (iii) the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A) the aggregate LC Exposure
would exceed the LC Commitment or (B) the aggregate LC Exposure, plus the
aggregate outstanding Revolving Loans of all Lenders would exceed the Aggregate
Revolving Commitments. Upon the issuance of each Letter of Credit (including the
Existing Letters of Credit), each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank
without recourse a participation in such Letter of Credit equal to such Lender's
Pro Rata Share of the aggregate amount available to be drawn under such Letter
of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an amount equal to the amount of such
participation.
(b) Each of the parties hereto: (i) acknowledges that, prior to the
Closing Date, the Issuing Bank issued the Existing Letters of Credit for the
account of the Borrower and (ii) agrees that the Existing Letters of Credit
shall, for all purposes be deemed to constitute a Letter of Credit issued by the
Issuing Bank pursuant to this Agreement for the account of the Borrower. The
Existing Letters of Credit shall be deemed to be issued on and as of the Closing
Date and the L/C Commitment shall be deemed to have automatically been reduced
on the Closing Date in an amount equal to the aggregate stated amount of the
Existing Letters of Credit. The Issuing Bank shall, upon the request of any
Lender, deliver copies of any information concerning the Existing Letters of
Credit as any such Lender may reasonably request. All of the parties hereto
agree that in the event there is any inconsistency between the terms of the
letter of credit agreement or application or reimbursement agreement with
respect to an Existing Letter of Credit and this Agreement including, without
limitation, terms relating to the timing of reimbursement, fees, standards of
conduct and other matters, the terms of this Agreement shall control.
43
(c) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit) (other than the
Existing Letters of Credit), the Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three Business Days
prior to the requested date of such issuance specifying the date (which shall be
a Business Day) such Letter of Credit is to be issued (or amended, extended or
renewed, as the case may be), the expiration date of such Letter of Credit, the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the conditions
in Article III, the issuance of such Letter of Credit (or any amendment which
increases the amount of such Letter of Credit) will be subject to the further
conditions that such Letter of Credit shall be in such form and contain such
terms as the Issuing Bank shall approve and that the Borrower shall have
executed and delivered any additional applications, agreements and instruments
relating to such Letter of Credit as the Issuing Bank shall reasonably require;
provided, that in the event of any conflict between such applications,
agreements or instruments and this Agreement, the terms of this Agreement shall
control.
(d) At least two Business Days prior to the issuance of any Letter
of Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit directing the Issuing Bank not
to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.26(a) or that one or
more conditions specified in Article III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices.
(e) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. (Atlanta, Georgia time) on the Business
Day immediately prior to the date on which such drawing is honored that the
Borrower intends to reimburse the Issuing Bank for the amount of such drawing in
funds other than from the proceeds of Revolving Loans, the Borrower shall be
deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the
date on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the conditions
precedent set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Lenders of such Borrowing in accordance
with Section 2.3, and each Lender shall make the proceeds of its Base Rate Loan
included in such
44
Borrowing available to the Administrative Agent for the account of the Issuing
Bank in accordance with Section 2.9. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
(f) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any Subsidiary, (iv) any breach of this Agreement by the
Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(g) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) of this Section 2.26 on the due
date therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three
Business Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the Default Rate.
(h) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, with demand or notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
subsection (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as
45
collateral in an interest bearing account (which account shall be chosen in the
sole discretion of the Administrative Agent and at the Borrower's risk and
expense) for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Interest and profits on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not so applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(i) Promptly following the end of each fiscal quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrower a report describing the aggregate Letters of Credit outstanding at the
end of such fiscal quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(j) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary or Affiliate of the Borrower
may have at any time against a beneficiary or any transferee of any Letter
of Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or any
other Person, whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any unrelated
transaction;
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing Bank that
does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or
46
equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that nothing in this Agreement, any Letter of Credit or any other Loan
Document shall be construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's failure to exercise care when determining whether drafts or
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree, that in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a
Letter of Credit is issued and subject to applicable laws, performance under
Letters of Credit by the Issuing Bank, its correspondents, and the beneficiaries
thereof will be governed by the rules of the "International Standby Practices
1998" (ISP98) (or such later revision as may be published by the Institute of
International Banking Law & Practice on any date any Letter of Credit may be
issued) and to the extent not inconsistent therewith, the governing law of this
Agreement set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2):
47
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Xxxxxxxx Xxxxxxxx, as Lead
Arranger.
(b) The Administrative Agent (or its counsel) shall have received
the following, each in form and substance satisfactory to the Administrative
Agent, on or prior to the Closing Date:
(i) a counterpart of this Agreement signed by or on behalf
of each party hereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement;
(ii) duly executed Notes payable to each Lender, as
applicable;
(iii) a duly executed Subsidiary Guaranty Agreement from each
Subsidiary Loan Party;
(iv) a Pledge Agreement duly executed by each Loan Party
covering (A) the Applicable Pledge Amount of the capital stock of each
direct Foreign Subsidiary of the each Loan Party, together with delivery
of the original stock certificates evidencing such shares and undated
stock powers executed in blank, and such documents shall be accompanied by
such other documents as the Administrative Agent may reasonably request
(including without limitation, certificates of incorporation, incumbency
certificates of such entities, articles of incorporation, bylaws, other
organizational documents, membership operating agreements, opinion letters
and appropriate resolutions of the Board of Directors or other governing
body of any such Foreign Subsidiary) and (B) 100% of the capital stock of
each Subsidiary (other than Foreign Subsidiaries) of the Borrower,
together with delivery of the original stock certificates evidencing such
shares, undated stock powers executed in blank;
(v) such landlord waivers, consents and/or estoppel
certificates as the Administrative Agent may have reasonably requested
with respect to Real Property leased by a Loan Party;
(vi) a Security Agreement duly executed by each Loan Party,
together with:
(A) proper Financing Statements (Form UCC-1 or the
equivalent) fully completed and authorized for filing under the UCC
with the Secretary of State of the debtor's state of organization or
other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interests purported to be created
by the
48
Security Agreement;
(B) certified copies of search results, or equivalent
reports, listing all effective financing statements that name any
Loan Party as debtor and that are filed in the jurisdictions
referred to in clause A above, together with copies of such other
financing statements that name any Loan Party as debtor (none of
which shall cover the Collateral except to the extent evidencing
Permitted Liens or in respect of which the Administrative Agent
shall have received UCC termination statements);
(C) fully completed and executed Perfection
Certificates from each of the Loan Parties; and
(D) evidence of the completion of all other recordings
and filings of, or with respect to, the Security Agreement and the
other Collateral Documents as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to perfect the
security interests intended to be created by the Security Agreement
and such other Collateral Documents;
(vii) a duly executed (x) Trademark Collateral Security and
Pledge Agreement in the form of Exhibit G (the "Trademark Security
Agreement") and (y) Patent Security Agreement in the form of Exhibit H
(the "Patent Security Agreement"), in each case executed by the Borrower
and LXE Inc. covering all of such Loan Party's present and future
Intellectual Property (as defined in the Security Agreement), together
with:
(A) proper Financing Statements (Form UCC-1 or the
equivalent), in each case fully completed and authorized for filing
under the UCC with the Secretary of State of the debtor's state of
organization or other appropriate filing offices (including, without
limitation, the United States Patent and Trademark Office) as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interests purported to be created
by the Trademark Security Agreement and the Patent Security
Agreement; and
(B) evidence of the completion of, or satisfactory
arrangements for, all other recordings and filings of, or with
respect to, the Trademark Security Agreement and the Patent Security
Agreement as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to perfect the security interests
intended to be created by the Trademark Security Agreement and the
Patent Security Agreement;
(viii) duly executed Payoff Letters, executed by each of the
Existing Lenders;
(ix) a duly executed Intercreditor Agreement;
49
(x) a certificate of the Secretary or Assistant Secretary of
each Loan Party, attaching and certifying copies of its bylaws,
partnership or operating agreement, as the case may be, and of the
resolutions of its boards of directors, board of managers or partnership
resolutions, as the case may be, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such Loan Party
executing the Loan Documents to which it is a party;
(xi) certified copies of the certificate or articles of
incorporation or other documents of formation or organization of each Loan
Party, together with certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of organization
of such Loan Party and each other jurisdiction where the ownership of
property or the conduct of its business require such Loan Party to be
qualified, except where a failure to be so qualified would not have a
Material Adverse Effect;
(xii) a favorable written opinion of (A) general counsel to
the Borrower and (B) Xxxxxxxxxx Xxxxxxxx LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each of the Lenders,
substantially in the form attached hereto as Exhibit I hereof;
(xiii) a certificate, dated the date hereof and signed by a
Responsible Officer of the Borrower, confirming, among other things,
compliance with the conditions of Section 3.1 and compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;
(xiv) duly executed Notices of Borrowing, and duly executed
Statement of Funds Flow;
(xv) (A) the consolidated financial statements of the
Borrower and its Consolidated Subsidiaries for the fiscal year ended
December 31, 2003 including balance sheets, income and cash flow
statements audited by KPMG LLP and the consolidating financial statements
prepared internally with respect to such audited financial statements,
each prepared in accordance with GAAP, and (B) the consolidated and
consolidating financial statements of the Borrower and its Consolidated
Subsidiaries for the fiscal quarter ending June 30, 2004, certified by the
chief financial officer of the Borrower and prepared in conformity with
GAAP, and such other financial information as the Administrative Agent may
request;
(xvi) delivery of certified copies of all consents, approvals,
authorizations, registrations, or filings required to be made or obtained
by the Borrower and any Subsidiary Loan Party in connection with the Loan
Documents and the other transactions contemplated herein;
(xvii) certificates of insurance complying with the
requirements of Section 5.8 for the business and properties of the
Borrower and its Subsidiaries, describing in reasonable detail the types
and amounts of insurance (property and liability) maintained by the Loan
Parties, and naming the Administrative Agent as an additional insured and
as loss
50
payee, as applicable, and stating that such insurance shall not be
cancelled without at least 30 days prior written notice by the respective
insurer to the Administrative Agent;
(xviii) a fully executed copy of the Canadian Revolving Credit
Agreement and the other "Loan Documents" (as defined in the Canadian
Revolving Credit Agreement) with evidence that all conditions precedent to
the effectiveness of the Canadian Revolving Credit Agreement have been
satisfied; and
(xix) such other documents, certificates or information with
respect to any Loan Party as the Administrative Agent or the Required
Lenders may reasonably request.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
before and after giving effect thereto (except for such representations and
warranties which relate to an earlier date or such changes in factual
circumstances as are expressly permitted under the Loan Documents);
(c) since the date of the most recent financial statements of the
Borrower described in Section 5.1(a), there shall have been no event,
circumstance, condition or change which has had or could reasonably be expected
to have a Material Adverse Effect;
(d) without limiting the generality of 3.2(c), the Lenders shall not
have determined, in their unfettered discretion, that any event, circumstance,
condition or change shall have occurred in connection with the XxxXxxxxx
Xxxxxxxxx Contract or in the relationship between the parties thereto that could
result in a Material Adverse Effect;
(e) there shall not have been filed or commenced any action, suit or
proceeding by or before any arbitrator or Governmental Authority against the
Borrower or the Canadian Borrower, in connection with the XxxXxxxxx Xxxxxxxxx
Contract; and
(f) the Borrower shall provide evidence satisfactory to the
Administrative Agent of the Borrower's compliance with Section 5.13 after giving
effect to the requested Borrowing or the requested issuance of the Letter of
Credit unless and until the Borrower has delivered a copy of the "no default"
letter delivered to the Canadian Borrower by XxxXxxxxx Xxxxxxxxx as provided in
Section 5.13;
51
(g) delivery of such other documents, certificates, or information
as the Administrative Agent or the Required Lenders may reasonably request.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in this Section
3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (other than Dormant Companies) (a) is duly organized or formed,
validly existing and in good standing as a corporation, limited liability
company or partnership, as the case may be, under the laws of the jurisdiction
of its organization or formation, (b) has all requisite power and authority to
carry on its business and to execute, deliver and perform its respective
obligations under each Loan Document to which it is a party, and (c) is duly
qualified to transact business, and is in good standing, in each jurisdiction
where such qualification is required, except in the case of clause (c), where a
failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder, member
or partner, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL AND THIRD PARTY APPROVALS; NO CONFLICTS.
The execution, delivery and performance by the Borrower of this Agreement, and
by each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority or any other Person, except those as have been
obtained or made and are in full force and effect, (b) will not violate any
52
Requirements of Law applicable to the Borrower or any of its Subsidiaries or any
judgment, order or ruling (c) will not violate or result in a default under any
indenture, material Contractual Obligation binding on the Borrower or any
Subsidiary or any of its respective assets or give rise to a right thereunder to
require any payment to be made by the Borrower or any Subsidiary and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any Subsidiary, except Liens (if any) created under the Loan
Documents. Other than as described on Schedule 4.3 hereto, no Loan Party is in
default under any Contractual Obligations referenced to in subsection (c)
immediately above.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to the
Administrative Agent and each Lender (a) the audited consolidated balance sheet
of the Borrower and its Subsidiaries as of December 31, 2003 and the related
audited consolidated statements of income, changes in shareholders' equity and
cash flows for the fiscal year then ended prepared by KPMG accompanied by an
internally prepared consolidating balance sheet of the Borrower and its
Subsidiaries as of such date and related consolidating statements of income,
stockholders' equity and cash flows for the fiscal year then ended and (b) the
unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of June 30, 2004, and the related unaudited
consolidated and consolidating statements of income and cash flows for the
fiscal quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present in all material respects the
consolidated and consolidating financial condition of the Borrower and its
Subsidiaries as of such dates and the consolidated results of operations for
such periods in conformity with GAAP consistently applied, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in subsection (b). Since December 31, 2003, there have been no
changes, events, acts, conditions or occurrences of any nature, singly or in the
aggregate that have had or could reasonably be expected to have a Material
Adverse Effect. Since the December 31, 2003, no Consolidated Party has made any
Restricted Payment except as permitted pursuant to Section 7.5.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Except for matters set forth on Schedule 4.5(a), no litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any Subsidiary (i) as to which there is a
reasonable possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect or (ii) which in any manner challenges the validity or enforceability of
this Agreement or any other Loan Document. With respect to any pending
litigation, investigation or proceeding of or before any arbitrators or
Governmental Authorities, no events, acts or conditions have occurred in respect
of or in relation to any such pending litigation, investigation or proceeding
that could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(b) Except for the matters set forth on Schedule 4.5(b) and except
for matters which could not reasonably be expected to have a Material Adverse
Effect, neither the Borrower nor any Subsidiary (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become
53
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability in each case.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. Except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect and except as disclosed on
Schedule 4.3 with respect to clause (b) immediately below, the Borrower and each
Subsidiary is in compliance with (a) all Requirements of Law and all judgments,
decrees and orders of any Governmental Authority, and (b) all Contractual
Obligations of such Consolidated Parties.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any Subsidiary is (a) an "investment company" or is "controlled' by an
"investment company" as such terms are defined in, or is subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary are liable, have timely
filed or caused to be filed all federal, state and foreign tax returns and all
other tax returns or reports that are required to be filed by them, and have
paid all taxes shown to be due and payable on such returns or reports or on any
assessments made against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority,
except where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of Regulation U. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying "margin stock".
SECTION 4.10. ERISA. (a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
state laws. Each Plan that is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred
which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan subject
to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
54
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) The Borrower and each Subsidiary (other than the Dormant
Company) has good title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business free and clear of
all Liens prohibited by this Agreement.
(b) The Borrower and each Subsidiary owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights and other intellectual property material to its business,
and the use thereof by the Borrower and the Subsidiaries does not infringe on
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, would not have a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the
Administrative Agent and the Lenders, all agreements, instruments, and corporate
or other restrictions to which the Borrower or any Subsidiary is subject, and
all other matters known to any of them, with respect to any of the foregoing,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No reports (including without limitation all
reports that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material
55
fact necessary to make the statements therein, taken as a whole, in light of the
circumstances under which they were made, not misleading.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or
other labor disputes or grievances against the Borrower or any Subsidiary, or,
to the Borrower's knowledge, threatened against or affecting the Borrower or any
Subsidiary, and no significant unfair labor practice, charges or grievances are
pending against the Borrower or any Subsidiary, or to the Borrower's knowledge,
threatened against any of them before any Governmental Authority that could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a liability on the
books of such Borrower or any such Subsidiary, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. As of the Closing Date, Schedule 4.14
sets forth the exact legal name of, the percentage and type of ownership
interest in, the name of the Person who is the record owner of, the jurisdiction
of incorporation or formation of, and the type of, each Subsidiary and Affiliate
of the Borrower, and identifies each Subsidiary that is a Subsidiary Loan Party,
in each case, as of the Closing Date.
SECTION 4.15. SOLVENCY. The Borrower is Solvent (including after
giving effect to all Borrowings on the Closing Date).
SECTION 4.16. INDEBTEDNESS AT CLOSING DATE. As of the Closing Date,
neither the Borrower nor any Consolidated Subsidiary has any Indebtedness except
as set forth on Schedule 4.16.
SECTION 4.17. OFAC. No Loan Party (a) is a person whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (b) engages in any dealings or transactions
prohibited by Section 2 of such executive order, or is otherwise associated with
any such person in any manner violative of Section 2, or (c) is a person on the
list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury's Office
of Foreign Assets Control regulation or executive order.
SECTION 4.18. PATRIOT ACT. Each Loan Party is in compliance, in all
material respects, with the (i) the Trading with the Enemy Act, as amended, and
each of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the
Loans will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
56
SECTION 4.19. DORMANT COMPANIES. Except as set forth on Schedule
4.19, the Dormant Company does not own any material assets or have any
outstanding Indebtedness or other material liabilities. The aggregate revenues
and assets of the Dormant Company is less than 1% of the aggregate revenues and
assets of the Borrower and its Subsidiaries on a consolidated basis.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or any Obligation remains
unpaid or any Letter of Credit remains outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Administrative Agent:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the annual audited report for
such fiscal year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated statements of
income, stockholders' equity and cash flows (together with all footnotes
thereto) of the Borrower and its Consolidated Subsidiaries for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and reported on by KPMG LLP or other
independent public accountants of nationally recognized standing (without a
"going concern" or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit), accompanied by (i) a
certificate from such accountants to the effect that such financial statements
present fairly in all material respects the financial condition and the results
of operations of the Borrower and its Consolidated Subsidiaries (including Space
& Technology / Montreal and any other discontinued operations) for such fiscal
year on a consolidated basis in accordance with GAAP and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards and (ii) an
internally prepared consolidating balance sheet and related consolidating
statements of income, stockholders' equity and cash flows of the Borrower and
its Consolidated Subsidiaries for such fiscal year;
(b) as soon as available and in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, an unaudited consolidated and consolidating balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal quarter
and the related unaudited consolidated and consolidating statements of income
and cash flows of the Borrower and its Consolidated Subsidiaries for such fiscal
quarter and the then elapsed portion of such fiscal year, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all
57
certified by the chief financial officer or treasurer of the Borrower as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its Consolidated Subsidiaries (including Space
& Technology / Montreal and any other discontinued operations) on a consolidated
basis in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in subsections (a) and (b) above, a certificate of the Chief
Financial Officer or treasurer of the Borrower, (i) certifying as to whether
there exists a Default or Event of Default on the date of such certificate, and
if a Default or an Event of Default then exists, specifying the details thereof
and the action which the Borrower has taken or proposes to take with respect
thereto, (ii) setting forth in reasonable detail calculations demonstrating
compliance with Article VI and (iii) stating whether any change in GAAP or the
application thereof has occurred since the date of the Borrower's audited
financial statements referred to in Section 4.4 and, if any change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently with the delivery of the financial statements
referred to in subsection (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be;
(f) promptly after delivery to the recipient thereof, copies of all
notices and financial information relating to any Consolidated Party delivered
to any Person in accordance with the Canadian Revolving Credit Agreement; and
(g) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of any "Default" or "Event of Default" under and
as defined in the Canadian Revolving Credit Agreement;
58
(c) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or, to the knowledge
of the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any event or any other development (which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect) by which the Borrower or any Consolidated Subsidiary
(i) fails to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) becomes subject to any Environmental Liability, (iii) receives notice of
any claim with respect to any Environmental Liability, or (iv) becomes aware of
any basis for any Environmental Liability;
(e) the occurrence of any ERISA Event; and
(f) any development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and, if applicable, any action taken
or proposed to be taken with respect thereto.
SECTION 5.3. EXISTENCE. The Borrower will, and will cause each of
the Subsidiaries (other than the Dormant Company) to, do or cause to be done all
things necessary to preserve, renew and maintain in full force and effect its
legal existence and its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided, that nothing in this Section shall prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.3 or any disposition permitted by Section 7.6.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of the Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its business and
properties, including, without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS.
(a) The Borrower will duly and punctually pay or cause to be paid
the principal and interest on the Loans and all other Obligations provided for
in this Agreement and the other Loan Documents to which the Borrower is a party,
all in accordance with the terms of this Agreement and such other Loan
Documents.
(b) The Borrower will, and will cause each of the Subsidiaries to,
pay and discharge at or before maturity, all Indebtedness and other monetary
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before
59
the same shall become delinquent or in default, except where (i) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (ii)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (iii) the failure to make
payment could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause
each of the Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all material dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of the Borrower in conformity
with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and
will cause each of the Subsidiaries to, permit any representative of the
Administrative Agent or any Lender to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower
will, and will cause each of the Subsidiaries (other than the Dormant Company)
to, (a) keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect and (b) maintain
with financially sound and reputable insurance companies, insurance with respect
to its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower
will use the proceeds of all Loans solely to refinance Indebtedness owing to the
Persons referenced in the Statement of Funds Flow on the Closing Date, and
thereafter to finance working capital needs and capital expenditures of the
Borrower and its Subsidiaries and for other general corporate purposes of the
Borrower and its Subsidiaries. Notwithstanding the foregoing, the Borrower will
not, directly or indirectly, use the proceeds of any Loan or any Letter of
Credit to make any loan or other advance to, or Investment in, the Dormant
Company. All Letters of Credit will be used solely for general corporate
purposes. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X.
SECTION 5.10. ADDITIONAL SUBSIDIARIES.
If any Subsidiary is acquired, formed or created after the Closing
Date, the Borrower will, within five Business Days, notify the Administrative
Agent and the Lenders thereof and (a) if such Subsidiary is not a Foreign
Subsidiary, will cause such Subsidiary
60
to become a Subsidiary Loan Party by executing an agreement in the form of Annex
I to Exhibit E and will cause such Subsidiary to become a party to each of the
Collateral Documents, and (b) will cause such Subsidiary to deliver
simultaneously therewith similar documents applicable to such Subsidiary
required under Section 3.1 as reasonably requested by the Administrative Agent.
SECTION 5.11. AMENDMENT TO CANADIAN LOAN DOCUMENTS. If at any time
on or after the Closing Date the Borrower or any Subsidiary enters into, assumes
or otherwise becomes bound or obligated under, or agrees to, any new agreement
with the holders of the Canadian Facility Indebtedness or, without derogating
from any of the restrictions contained herein, any amendment, modification or
supplement of any agreement which relates to the Canadian Loan Documents in any
manner the effect of which would be (a) to create, amend or add covenants or
obligations of the Borrower and the Subsidiaries which are in addition to those
contained herein or (b) more restrictive on the Borrower or any Subsidiary than
are the covenants contained in the Loan Documents, then this Agreement and the
other Loan Documents shall, without any further action on the part of the
Borrower, any Subsidiary, the Administrative Agent or any Lender, be deemed to
be amended automatically to include each such additional covenant or provision.
The Borrower further covenants to promptly, and in any event within 15 Business
Days, execute and deliver, or to cause to be executed and delivered, at its
expense (including, without limitation, the fees and expenses of counsel for the
Administrative Agent) a document or documents which amend this Agreement and the
other Loan Documents in form and substance satisfactory to the Administrative
Agent to reflect any amendment, modification or supplement of any covenants or
provision in this Agreement or the other Loan Documents pursuant to this Section
5.11, provided that the execution and delivery of such document shall not be a
precondition to the effectiveness of such amendment, modification or supplement.
The provisions of this Section 5.11 shall apply successively to each amendment,
modification or supplement so that the Lenders shall have the benefit of every
such amendment, modification or supplement. In the event that the terms of any
Canadian Loan Documents are amended, modified or supplemented, the Borrower
shall promptly deliver, or cause to be delivered, to the Administrative Agent a
certified copy of such amendment, modification or supplement.
SECTION 5.12. ADDITIONAL REAL PROPERTY; LEASED LOCATIONS.
(a) To the extent otherwise permitted hereunder, if, after the
Closing Date, any Loan Party proposes to acquire (i) a fee ownership in Real
Property or (ii) a leasehold interest in Real Property pursuant to which the
lease agreement governing such leasehold interest requires the payment of annual
rent in excess of $100,000, such Loan Party shall at the time of such
acquisition provide to the Administrative Agent all Real Estate Documents
requested by the Administrative Agent granting the Administrative Agent a first
priority Lien on such Real Property, together with environmental audits,
mortgage title insurance commitment, real property survey, local counsel
opinion(s) and, if required by the Administrative Agent, supplemental casualty
insurance and flood insurance, and such other documents, instruments or
agreements reasonably requested by the Administrative Agent, in each case, in
form and substance reasonably satisfactory to the Administrative Agent.
(b) To the extent otherwise permitted hereunder, if any Loan Party
proposes to lease any Real Property where Collateral with an aggregate value of
$250,000 or more will be located, it shall first provide to the Administrative
Agent a copy of such lease and a landlord's
61
agreement or bailee letter, as applicable, from the landlord of any leased
property or bailee with respect to any warehouse, processor converter facility
or other location where such Collateral will be stored or located, which
agreement or letter shall be reasonably satisfactory in form and substance to
the Administrative Agent.
SECTION 5.13. DISPUTE RESERVE. The Borrower shall ensure that the
aggregate of: (x) the unused Revolving Commitment of all Lenders hereunder; (y)
the unused "Revolving Commitment" (as such term is defined in the Canadian
Revolving Credit Agreement) of all Canadian Lenders under the Canadian Revolving
Credit Agreement; and (z) all amounts held in cash or maintained in Permitted
Investments by the Consolidated Parties minus, if applicable, any taxes or other
costs incurred or to be incurred by a Foreign Subsidiary in connection with the
transfer or repatriation of such amounts to a Consolidated Party located in the
United States, at all times equals or exceeds $5,000,000 until such time as
XxxXxxxxx Xxxxxxxxx has provided the Canadian Borrower with a letter, in form
and content satisfactory to the Administrative Agent in its sole discretion,
rescinding any notices and/or declarations by XxxXxxxxx Xxxxxxxxx that the
Borrower is in default or breach under the XxxXxxxxx Xxxxxxxxx Contract.
SECTION 5.14. NOTICES IN CONNECTION WITH XXXXXXXXX XXXXXXXXX
CONTRACT. Until such time as XxxXxxxxx Xxxxxxxxx has provided the Canadian
Borrower with a "no default" letter as described in Section 5.13, the Borrower
will promptly furnish to the Administrative Agent and each Lender:
(a) all material correspondence between the Borrower or the Canadian
Borrower and XxxXxxxxx Xxxxxxxxx in connection with the XxxXxxxxx Xxxxxxxxx
Contract;
(b) notice of any failure by either party to the XxxXxxxxx Xxxxxxxxx
Contract to effect timely performance of its obligations thereunder;
(c) notice of all material events in connection with the XxxXxxxxx
Xxxxxxxxx Contract, including, without limitation, meetings between senior
management of the Borrower or the Canadian Borrower and XxxXxxxxx Xxxxxxxxx to
discuss performance under or settlement of claims under the XxxXxxxxx Xxxxxxxxx
Contract;
(d) copies of each weekly report issued by the Borrower or the
Canadian Borrower pursuant to the letter dated October 21, 2004 between the
Canadian Borrower and XxxXxxxxx Xxxxxxxxx;
(e) notice of any dispute or other matter in connection with the
XxxXxxxxx Xxxxxxxxx Contract that has had or is likely to have a Material
Adverse Effect;
(f) notice of the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against the
Borrower or the Canadian Borrower in connection with the XxxXxxxxx Xxxxxxxxx
Contract;
62
(g) unless otherwise provided in compliance with Section 3.2(f)
hereof within the immediately preceding 30 days, on the first day of each month,
evidence, satisfactory to the Administrative Agent, of the Borrower's compliance
with Section 5.13; and
(h) such other information in connection with the XxxXxxxxx
Xxxxxxxxx Contract as the Administrative Agent may from time to time reasonably
request.
SECTION 5.15. FURTHER ASSURANCES. The Borrower will, and will cause
each Subsidiary Loan Party to, execute any and all further documents, agreements
and instruments, and take all such further actions which may be required under
any applicable law, or which the Administrative Agent or the Required Lenders
may reasonably request, to effectuate the transactions contemplated by the Loan
Documents.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or any Obligations remain
unpaid or any Letter of Credit remains outstanding:
SECTION 6.1. LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio, as at the end of each fiscal quarter of the Borrower set forth
below, to exceed the ratio set forth opposite such period:
PERIOD RATIO
--------------------------------- ------------
December 31, 2004 3.25 to 1.00
March 31, 2005 3.15 to 1.00
June 30, 2005 through
September 30, 2005 3.00 to 1.00
December 31, 2005 through
September 30, 2006 2.75 to 1.00
December 31, 2006 and thereafter 2.50 to 1.00
SECTION 6.2. FIXED CHARGE COVERAGE RATIO. The Borrower will not
permit the Fixed Charge Coverage Ratio, as at the end of each fiscal quarter of
the Borrower, to be less than 1.50 to 1.00. The foregoing covenant shall be
calculated and tested quarterly on the last day of each fiscal quarter of the
Borrower commencing with the fiscal quarter ending December 31, 2004.
63
SECTION 6.3. MINIMUM NET WORTH. The Borrower will maintain a Net
Worth in an amount equal to or greater than the sum of (a) $113,000,000, plus
(b) 50% of cumulative positive Consolidated Net Income accrued after April 3,
2004, plus (c) 100% of the Net Proceeds from any Equity Offering; provided, that
the Net Proceeds of an Equity Offering of a debt security that is convertible
into or exchangeable for capital stock of the Borrower or a debt security that
is issued with a warrant or other instrument to purchase capital stock of the
Borrower shall not be required to be added under this clause (c) unless and
until such debt security is converted into or exchanged for, or such warrant or
other instrument is exercised for, capital stock of the Borrower. The foregoing
covenant shall be calculated and tested quarterly on the last day of each fiscal
quarter of the Borrower commencing with the fiscal quarter ending December 31,
2004.
SECTION 6.4. MINIMUM EBITDA. The Borrower will not permit
Consolidated EBITDA for the nine-month period ending on September 30, 2004 to be
less than $12,500,000.
For purposes of calculating and determining compliance with the financial
covenants in this Article VI, all activities, operations and financial results
of Space & Technology / Montreal and any other discontinued operations of the
Consolidated Parties shall be included as if such division or other discontinued
operations were continuing operations of the Consolidated Parties at all times.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or any Obligation remains
unpaid or any Letter of Credit remains outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrower will not, and will not
permit any Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the Closing Date and set forth on
Schedule 4.16;
(c) Indebtedness of any Consolidated Party incurred to finance the
acquisition, construction or improvement of any fixed or capital assets
(including Capital Lease Obligations) and any extensions, renewals, and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof; provided, that such Indebtedness permitted by this subsection (c), (i)
shall be incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvements and (ii) does not, in the
aggregate, exceed $2,000,000 at any time outstanding;
64
(d) (i) Indebtedness of any Loan Party owing to another Loan Party
and (ii) Indebtedness of any Foreign Subsidiary owing to a Loan Party (other
than the Dormant Company) to the extent permitted under Section 7.4(h);
(e) Guarantees by any Consolidated Subsidiary of Indebtedness of the
Borrower and guarantees by the Borrower of Indebtedness of any Consolidated
Subsidiary (other than the Dormant Company); provided, that any Indebtedness of
the Borrower which is guaranteed by a Consolidated Subsidiary and any
Indebtedness of any Consolidated Subsidiary which is guaranteed by the Borrower
must otherwise be permitted under this Section 7.1;
(f) Indebtedness of the Borrower in respect of obligations under
Hedging Transactions permitted by Section 7.10;
(g) Canadian Facility Indebtedness, including amendments,
supplements or modifications thereof on the terms and conditions herein;
provided that the aggregate principal amount (as the same may be permanently
reduced from time to time) of Canadian Facility Indebtedness shall not be
increased at any time; and
(h) other unsecured Indebtedness of the Borrower and the
Consolidated Subsidiaries (other than the Dormant Company) in an aggregate
principal amount not to exceed $5,000,000 at any time outstanding.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances and Liens in favor of the Collateral
Agent or the Lenders under the Loan Documents;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(c) purchase money Liens, reservations of ownership, rights of the
lessor or other similar title retention devises to secure indebtedness permitted
pursuant to Section 7.1(c); provided, that (i) such Lien attaches to such asset
concurrently or within 90 days after the acquisition, improvement or completion
of the construction thereof and (ii) such Lien does not extend to any other
asset;
(d) Liens securing the Canadian Facility Indebtedness; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section; provided, that the Indebtedness
secured thereby is not increased and that any such extension, renewal or
replacement is limited to the assets originally encumbered thereby.
65
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary (other
than the Dormant Company) to, merge into or consolidate into any other Person,
or permit any other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now
owned or hereafter acquired) or all or substantially all of the stock of any of
its Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing (i) any Subsidiary may merge with or into the Borrower if the
Borrower is the surviving Person, (ii) any Subsidiary may merge into another
Subsidiary (other than the Dormant Company); provided, that if any party to such
merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the
surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary (other than the Dormant Company); provided, that a Subsidiary Loan
Party may only sell, lease or otherwise dispose of all or substantially all of
its assets to the Borrower or another Subsidiary Loan Party, (iv) any Subsidiary
may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders and (v) any Subsidiary may be sold so
long as such sale is permitted under Section 7.6; provided, that any merger
involving a Person that is not a Wholly-Owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any Subsidiary to,
engage in any business other than businesses of the type conducted by the
Borrower and the Subsidiaries on the Closing Date and businesses reasonably
related thereto. The Borrower will not permit the Dormant Company to own any
material assets or incur any Indebtedness or other material liabilities. The
Borrower will not at any time permit the aggregate revenues and assets of the
Dormant Company to exceed 1% of the aggregate revenues and assets of the
Borrower and its Subsidiaries on a consolidated basis.
SECTION 7.4. INVESTMENTS, LOANS, ACQUISITIONS, ETC. The Borrower
will not, and will not permit any Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a Wholly-Owned
Subsidiary prior to such merger), any capital stock, evidence of Indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to
(including intercompany loans or advances), Guarantee any obligations of, or
make or permit to exist any investment or any other interest in, any Person (all
of the foregoing being collectively called "INVESTMENTS"), or consummate any
Acquisitions or make any Restricted Investments, except:
(a) Permitted Investments;
(b) Guarantees or Indebtedness permitted by Section 7.1;
66
(c) Investments made by any Consolidated Subsidiary (other than the
Dormant Company) in or to any Loan Party;
(d) Investments made by the Borrower in the form of Indebtedness of
any Subsidiary Loan Party owing to the Borrower;
(e) loans or advances to employees, officers or directors of the
Borrower or any Consolidated Subsidiary (other than the Dormant Company) either
(i) in the ordinary course of business for travel, relocation and other business
related expenses or (ii) for purposes of retention or bonuses which, in the case
of both clause (i) and (ii) immediately above, do not to exceed an aggregate
amount of $500,000 (determined without regard to any write-downs, write-offs or
forgiveness of the principal amount of any such loans) in any fiscal year;
(f) Hedging Obligations permitted by Section 7.10;
(g) Investments (other than Permitted Investments) existing on the
Closing Date and set forth on Schedule 7.4 (including Investments in
Consolidated Subsidiaries); provided, that, with respect to any Investment set
forth on Schedule 7.4 in or to a Consolidated Subsidiary that is not a
Subsidiary Loan Party, such Investment may not be increased;
(h) Investments in Foreign Subsidiaries (other than the Dormant
Company) that are organized in Canada in an aggregate amount not to exceed
$2,000,000 in any fiscal year of the Borrower; provided, that, if, in any fiscal
year of the Borrower, the Canadian Borrower sells Space & Technology / Montreal,
such Investments under this clause (h) may be in an aggregate amount not to
exceed $10,000,000 in such fiscal year and any fiscal year thereafter;
(i) Investments in Foreign Subsidiaries owned by LXE, Inc. in an
aggregate amount not to exceed 25% of the total amount of Restricted Payments
made by such Foreign Subsidiaries to LXE, Inc. since the Closing Date; and
(j) other Investments (other than Investments in Foreign
Subsidiaries that are organized in Canada) which in the aggregate do not exceed
$2,500,000 in any fiscal year of the Borrower.
Notwithstanding the foregoing, no Investment shall be made, directly or
indirectly, by the Borrower or any of its Subsidiaries in the Dormant Company.
SECTION 7.5. RESTRICTED PAYMENTS.. The Borrower will not, and will
not permit any Subsidiary to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment or
prepayment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, retirement, defeasance or other acquisition
of, any shares of capital stock, or Indebtedness subordinated in any manner to
the Obligations, or any options, warrants, or other rights to purchase such
capital stock or such Indebtedness, whether now or hereafter outstanding (each,
a "RESTRICTED PAYMENT"), except for (a) dividends payable by the Borrower solely
in shares of any class of its capital stock; (b) Restricted Payments made by any
67
Subsidiary to the Borrower or to another Subsidiary (other than the Dormant
Company) and (c) so long as no Default or Event of Default then exists or would
be caused thereby, cash payments made for the purpose of purchasing, redeeming,
retiring or otherwise acquiring shares of capital stock from employees of the
Borrower or any Consolidated Subsidiary which payments in the aggregate do not
exceed $500,000 in any fiscal year.
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will not
permit any Subsidiary (other than the Dormant Company) to, convey, sell, lease,
assign, transfer or otherwise dispose of, any of its respective assets, business
or 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 other than the Borrower or any Wholly-Owned Subsidiary of the Borrower
(other than the Dormant Company) (or to qualify directors if required by
applicable law) (each of the foregoing, an "Asset Disposition"), except:
(a) the sale or other disposition for fair market value of obsolete
or worn-out property or other property not necessary for operations disposed of
in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the ordinary
course of business;
(c) the sale of Space & Technology / Montreal; and
(d) the sale or other disposition of such assets in an aggregate
amount in any fiscal year of the Borrower not to exceed $2,500,000.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and Wholly-Owned Subsidiaries not
involving any other Affiliates (subject to limitations in Section 7.4) and (c)
any Restricted Payment permitted by Section 7.5. Notwithstanding the foregoing,
the Borrower will not, and will not permit any Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, the Dormant Company.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any Contractual Obligation that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit any Lien upon any of its assets or properties, whether now owned
or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its capital stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to
68
transfer any of its property or assets to the Borrower or any Subsidiary;
provided, that (i) the foregoing shall not apply to restrictions or conditions
imposed by law or by this Agreement, or any other Loan Document or the Canadian
Revolving Credit Agreement as in existence on the Closing Date, (ii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such
sale is permitted hereunder, and (iii) subsection (a) immediately above shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions and
conditions apply only to the property or assets securing such Indebtedness.
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower will not,
and will not permit any Subsidiary to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets that is
made for cash consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 90 days after the Borrower or such
Subsidiary acquires or completes the construction of such fixed or capital
asset.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
SECTION 7.11. AMENDMENT TO ORGANIZATIONAL DOCUMENTS. The Borrower
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights in a manner materially adverse to the Lenders under its articles or
certificate of incorporation, bylaws or other organizational documents.
SECTION 7.12. ACCOUNTING CHANGES; CHANGE OF FISCAL YEAR. The
Borrower will not, and will not permit any Subsidiary to, make any significant
change in accounting treatment or reporting practices, except as required by
GAAP, or change the fiscal year of the Borrower or any Subsidiary, except to
change the fiscal year of a Subsidiary to conform to that of the Borrower.
SECTION 7.13. LIMITATION ON LOCATION OF COLLATERAL. The Borrower
will not, and will not permit any Subsidiary to, store, keep or otherwise locate
any Collateral having an aggregate fair market value in excess of $500,000 at
its facility located at 2800 Colonnades Court, Building 00 Xxxxxxxxxx Xxxxxxxx
Xxxx, Xxxxxxxx XX, unless the Borrower has delivered a landlord's agreement
69
from the landlord with respect to such location to the Administrative Agent,
which agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under subsection (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by the Borrower or any Subsidiary or any representative of
the Borrower or any Subsidiary pursuant to or in connection with this Agreement
or any other Loan Document shall prove to be incorrect in any material respect
when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the Borrower's
existence), 5.10, 5.11 or Articles VI or VII; or
(e) the Borrower or any Subsidiary shall fail to observe or perform
any covenant or agreement contained in this Agreement or any other Loan Document
(other than those referred to in subsections (a), (b) and (d) above), and such
failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii)
notice thereof shall have been given to the Borrower by the Administrative Agent
or any Lender; or
(f) any Consolidated Party (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Indebtedness which exceeds $1,000,000 individually or in the
aggregate, when and as the same shall become due and payable (whether at
scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument evidencing such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to such Indebtedness and shall continue after the
70
applicable grace period, if any, specified in the agreement or instrument
evidencing such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to such Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to accelerate, or
permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable; or required to be prepaid
or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or any offer to prepay, redeem, purchase or
defease such Indebtedness shall be required to be made, in each case prior to
the stated maturity thereof; or
(g) the Borrower or any Material Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this subsection, (iii) apply
for or consent to the appointment of a custodian, trustee, receiver, liquidator
or other similar official for the Borrower or any such Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Material Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Material Subsidiary or for a substantial part
of its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Material Subsidiary shall become unable to
pay, shall admit in writing its inability to pay, or shall fail generally to
pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, when taken together
with other ERISA Events that have occurred, could reasonably be expected to
result in liability to the Borrower or any Consolidated Subsidiary in an
aggregate amount exceeding $1,000,000; or
(k) any judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Borrower or any Consolidated
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment shall have been rendered against any
Consolidated Party that could reasonably be expected to have a Material Adverse
Effect and there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
71
(m) a Change in Control shall occur or exist; or
(n) a Consolidated Party is enjoined, restrained or in any way
prevented by the order of any Governmental Authority from conducting all of a
material part of its business and such order continues for 30 or more days; or
(o) an "Event of Default" under and as defined in the Canadian
Revolving Credit Agreement shall have occurred; or
(p) the Subsidiary Guaranty Agreement or any Collateral Document
shall for any reason cease to be valid and binding on, or enforceable against,
any Loan Party, or any Loan Party shall so state in writing, or any Loan Party
or other Person shall challenge the validity of or seek to terminate any such
Collateral Document or the Subsidiary Guaranty Agreement, any provision of this
Agreement or any other Loan Document,
then, and in every such event (other than an event with respect to the Borrower
described in subsection (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either subsection (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more sub-agents or
attorneys-in fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent or attorney-in-fact and the Related Parties of the Administrative
Agent and any such
72
sub-agent and any such attorney-in-fact and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to
73
the Administrative Agent. The Administrative Agent may consult with legal
counsel (including counsel for the Borrower) concerning all matters pertaining
to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
74
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations as such under this
Agreement and the other Loan Documents. If within 45 days after written notice
is given of the retiring Administrative Agent's resignation under this Section
9.7 no successor Administrative Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the retiring Administrative
Agent's resignation shall become effective, (ii) the retiring Administrative
Agent shall thereupon be discharged from its duties and obligations as such
under the Loan Documents and (iii) the Required Lenders shall thereafter perform
all duties of the retiring Administrative Agent under the Loan Documents until
such time as the Required Lenders appoint a successor Administrative Agent as
provided above. After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article IX shall continue in effect for the benefit of
such retiring Administrative Agent and its representatives and agents in respect
of any actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: EMS Technologies, Inc.
000 Xxxxxxxxxxx Xxxxx
00
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
With a copy to: EMS Technologies, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy Number: (000) 000-0000
To the Administrative Agent: SunTrust Xxxxxxxx Xxxxxxxx
c/o Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Agency Services
Telecopy Number: (000) 000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy Number: (000) 000-0000
To the Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X.X./ 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: (000) 000-0000
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall, when transmitted by
overnight delivery, or faxed, be effective when actually delivered by overnight
(next-day) delivery, or when transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the mails or if delivered, upon delivery; provided, that notices delivered
to the Administrative Agent, the Issuing Bank or the Swingline Bank shall not be
effective until actually received by such Person at its address specified in
this Section.
76
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment or waiver shall: (i) except as
expressly provided in Section 2.6, increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or interest
on, any Loan or LC Disbursement or interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.24(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without
77
the written consent of each Lender, (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender; and (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement without the written consent of each Lender; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations, without
the written consent of each Lender; provided, further, that no such agreement
shall amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Bank or the Issuing Bank without the prior
written consent of such Person. No amendment which adversely affects the
Borrower shall be entered into without the Borrower's written consent.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of outside counsel for the
Administrative Agent and its Affiliates in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents and any amendments, modifications or waivers thereof (whether
or not the transactions contemplated in this Agreement or any other Loan
Document shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket costs and expenses (including, without limitation, the
fees, charges and disbursements of outside counsel actually incurred) incurred
by the Administrative Agent, the Issuing Bank or any Lender in connection with
the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
any Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party, the Borrower
or any other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or Release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to
78
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by any third party, the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for a material breach of such Indemnitee's obligations hereunder
or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral that may be granted by Borrower or a
Subsidiary, or any payments due thereunder, and, if the Borrower fails to pay
any stamp, documentary, and other similar taxes with respect to this Agreement
and any other Loan Documents when due, or fails to remit to the Administrative
Agent or any Lender any such tax with respect to which the Administrative Agent
or such Lender has demanded repayment from the Borrower, the Borrower shall save
the Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay such
taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Issuing Bank or the Swingline Lender
under subsections (a), (b) or (c) hereof, each Lender severally agrees to pay to
the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case
may be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall
not assert, and the Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) arising out of, in connection
with or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the transactions contemplated therein, any Loan or any
Letter of Credit or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that
79
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans and LC Exposure at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder and the
LC Exposure) of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000, in the
case of any assignment of a Commitment, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except that
this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Commitments on a non-pro rata
basis, and (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $1,000, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon (i) the execution and delivery of the Assignment and
Acceptance by the assigning Lender and assignee Lender, (ii) acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, (iii) consent thereof from the Borrower to the extent required pursuant
to this subsection (b) and (iv) if such assignee Lender is a Foreign Lender,
compliance by such Person with Section 2.23(e), from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.20, 2.21, 2.22 and 10.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the
80
Lenders, and the Revolving Commitments of, and principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of or notice to
the Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment, the Loans owing to
it and its LC Exposure); provided, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
hereunder, and (iii) the Borrower, the Administrative Agent, the Swingline Bank,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (A) increase the Revolving Commitment of any Lender without
the written consent of such Lender, (B) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (C) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Revolving Commitment, without the written consent of each
Lender affected thereby, (D) change Section 2.24(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (E) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (F) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
consent of each Lender except to the extent such release is expressly provided
under the terms of the Guaranty Agreement; or (G) release all or substantially
all collateral (if any) securing any of the Obligations. Subject to paragraph
(e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.21, 2.22 and 2.23 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section, provided such Participant agres to be subject to Section 2.25
as though it were a Lender hereunder. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7 as though it
were a Lender, provided such Participant agrees to be subject to Section 10.7 as
though it were a Lender.
81
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.21 and Section 2.23 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.23
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.23(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided, that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed
in accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the Northern District of Georgia, and of any state court of
the State of Georgia located in Xxxxxx County and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction in which the property that is the subject of such action or
proceeding is located.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan
82
Document will affect the right of any party hereto to serve process in any other
manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9. SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may
83
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.21, 2.22, 2.23, and
10.3 and Article IX shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and in other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans and the issuance of the Letters of
Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.12. CONFIDENTIALITY. Each of the Administrative Agent and
each Lender agrees to take normal and reasonable precautions to maintain the
confidentiality of (i) any information designated in writing as confidential, or
that should reasonably be understood by the Administrative Agent and such Lender
to be confidential and provided to the Administrative Agent or such Lender in
writing by the Borrower or any Subsidiary or (ii) any information designated as
confidential which is otherwise provided to the Administrative Agent or such
Lender, except that such information may be disclosed (a) to any Related Party
of the Administrative Agent or any such Lender, including without limitation
accountants, legal counsel and other advisors, so long as such information
remains confidential, (b) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (c) to the extent
required by any regulatory agency or authority, (d) to the extent that such
information becomes publicly available other than as a result of a breach of
this Section, or which becomes available to the Administrative Agent, any Lender
or any
84
Related Party of any of the foregoing on a nonconfidential basis from a source
other than the Borrower, (e) in connection with the exercise of any remedy
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to provisions substantially similar
to this Section, to any actual or prospective assignee or Participant or to any
prospective contractual counterparty (or its advisor) to any securitization,
hedge or other derivative transaction, or (g) with the consent of the Borrower.
Any Person required to maintain the confidentiality of any information as
provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such information as such Person would reasonably
accord its own confidential information.
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that neither the Borrower nor any other Loan Party is
required to affix its corporate seal to this Agreement or any other Loan
Document pursuant to any requirement of law or regulation, agrees that this
Agreement is delivered by the Borrower under seal and waives any shortening of
the statute of limitations that may result from not affixing the corporate seal
to this Agreement or such other Loan Documents.
(remainder of page left intentionally blank)
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal in the case of the Borrower by its authorized
officer as of the day and year first above written.
EMS TECHNOLOGIES, INC.
By____________________________________
Name:
Title:
[SEAL]
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING BANK,
AS SWINGLINE LENDER AND AS A LENDER
By____________________________________
Name:______________________________
Title:_____________________________
Revolving Commitment: $25,000,000
LC Commitment: $10,000,000
Swingline Commitment: $5,000,000
BANK OF AMERICA, NATIONAL ASSOCIATION
(CANADA BRANCH), AS A LENDER
By___________________________________
Name: ____________________________
Title:____________________________
Revolving Commitment: $0
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Applicable Applicable
Applicable Applicable Percentage for Percentage for
Pricing Leverage Margin for Margin for Base Commitment Letter of Credit
Level Ratio Eurodollar Loans Rate Loans Fee Fees
----------- --------------- ---------------- --------------- -------------- ----------------
I Less than
1.00:1.00
2.25% p.a. .75% p.a. .375% p.a. 2.25% p.a.
II Less than
1.50:1.00 but
greater than
or equal to
1.00:1.00 2.50% p.a. 1.00% p.a. .375% p.a. 2.50% p.a.
III Less than
2.00:1.00 but
greater than
or equal to
1.50:1.00 2.75% p.a. 1.25% p.a. .50% p.a. 2.75% p.a.
IV Less than
2.50:1.00 but
greater than
or equal to
2.00:1.00 3.00% p.a. 1.50% p.a. .50% p.a. 3.00% p.a.
V Greater than
or equal to
2.50:1.00 3.50% p.a. 2.00% p.a. .50% p.a. 3.50% p.a.
SCHEDULE 1.1
EXISTING LETTERS OF CREDIT
SCHEDULE 4.3
EXCLUDED CONTRACTUAL OBLIGATIONS
[Describe dispute with XxXxxxxxx [Radarsat]]
SCHEDULE 4.5(a)
LITIGATION
SCHEDULE 4.5(b)
ENVIRONMENTAL MATTERS
SCHEDULE 4.14
SUBSIDIARIES AND AFFILIATES
SCHEDULE 4.16
INDEBTEDNESS
SCHEDULE 4.19
ASSETS AND LIABILITIES OF DORMANT COMPANIES
SCHEDULE 7.2
EXISTING LIENS
SCHEDULE 7.4
EXISTING INVESTMENTS
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
[date to be supplied]
Reference is made to the U.S. Revolving Credit Agreement dated as of
December 10, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among EMS Technologies, Inc., a Georgia corporation, as Borrower,
the Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
_____________________ (the "Assignor") hereby sells and assigns, without
recourse, to _____________________, the assignee designated below (the
"Assignee"), and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Assignment Date set forth below, the
interests set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth below in the Revolving Commitment of the Assignor on the
Assignment Date and Revolving Loans owing to the Assignor which are outstanding
on the Assignment Date, together with the participations in the LC Exposure and
the Swingline Exposure of the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.23(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Georgia.
Legal Name of Assignor:
Legal Name of Assignee:
A-1
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned
Revolving Commitment (set
forth, to at least 8 decimals,
as a percentage of the aggregate
Principal Amount Revolving Commitments of
Facility Assigned all Lenders thereunder)
________________________________________________________________________________
Revolving Loans: $___________ %
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By: ____________________________________________
Name:
Title:
[Name of Assignee], as Assignee
By: ____________________________________________
Name:
Title:
A-2
Each of the undersigned hereby consents to the within assignment: 1
EMS TECHNOLOGIES, INC. SunTrust Bank, as
Administrative Agent:
By: _______________________ By: _______________________________
Name: Name:
Title: Title:
SunTrust Bank, as
Issuing Bank:
By: _______________________________
Name:
Title:
SunTrust Bank, as
Swingline Lender:
By: _______________________________
Name:
Title:
--------------------------
1 Consents to be included to the extents requited by Section 10.4(b) of the
Credit Agreement.
A-3
EXHIBIT B
FORM OF
PLEDGE AGREEMENT
To Be Provided
B-1
EXHIBIT C
FORM OF
REVOLVING CREDIT NOTE
[$___________]
December 10, 2004
FOR VALUE RECEIVED, the undersigned, EMS Technologies, Inc., a Georgia
corporation (THE "BORROWER"), hereby unconditionally promises to pay to the
order of ________________________ (the "LENDER") or its registered assigns, at
the office of SunTrust Bank ("SUNTRUST") at 000 Xxxxxxxxx Xxxxxx, X.X., 00xx
Xxxxx, Xxxxxxx, Xxxxxxx 00000, on the Commitment Termination Date (as defined in
the U.S. Revolving Credit Agreement dated as of December 10, 2004 (as the same
may be amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"; capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement),
among the Borrower, the Lenders from time to time party thereto and SunTrust, as
Administrative Agent for the Lenders), the principal amount of ________________,
or if the outstanding principal amount of all Revolving Loans is different than
such amount, the aggregate unpaid principal amount of all Revolving Loans made
by the Lender to the Borrower pursuant to the Credit Agreement, in Dollars in
immediately available funds, and to pay interest from the date hereof on the
principal amount thereof from time to time outstanding, in like funds, at said
office, at the rate or rates per annum and payable on such dates as provided in
the Credit Agreement. In addition, should legal action or an attorney-at-law be
utilized to collect any amount due hereunder, the Borrower further
unconditionally promises to pay all costs of collection, including reasonable
attorneys' fees.
The Borrower unconditionally promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING
CREDIT NOTE SHALL BE
C-1
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EMS TECHNOLOGIES, INC.
By: __________________________________________
Name:
Title:
[SEAL]
C-2
LOANS AND PAYMENTS
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
---- ------------- --------- ---- --------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
---- ------------- ---------- ---------------- --------------
C-3
EXHIBIT D
FORM OF
SECURITY AGREEMENT
TO BE PROVIDED
D-1
EXHIBIT E
FORM OF
SUBSIDIARY GUARANTY AGREEMENT
SUBSIDIARY GUARANTY AGREEMENT dated as of December 10, 2004 (this
"Guaranty"), among each of the Subsidiaries listed on Schedule I hereto (each
such Subsidiary individually, a "Guarantor" and collectively, the "Guarantors")
of EMS Technologies, Inc., a Georgia corporation (the "Borrower"), and SUNTRUST
BANK, a Georgia banking corporation as Administrative Agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the U.S. Revolving Credit Agreement dated as of
December 10, 2004 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to time
party thereto (the "Lenders"), and the Administrative Agent for the Lenders.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a direct or indirect domestic
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders, and the issuance of the
Letters of Credit by the Issuing Bank. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Guarantors of a Subsidiary
Guaranty Agreement in the form hereof. As consideration therefor and in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit, the Guarantors are willing to execute this Guaranty.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor hereby guarantees,
jointly and severally, to the Lenders, the Administrative Agent and the
Collateral Agent, the full and punctual payment when due (whether at stated
maturity, by required pre-payment, by acceleration or otherwise), as well as the
performance, of all of the Obligations, including all such which would become
due but for the operation of the automatic stay pursuant to Section 362(a) of
the Bankruptcy Code of 1978, as amended (the "Bankruptcy Code") and the
operation of Sections 502(b) and 506(b) of the Bankruptcy Code. This Guaranty is
an absolute, unconditional and continuing guaranty of the full and punctual
payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Administrative Agent, any Lender or the Collateral Agent first attempt to
collect any of the Obligations from the Borrower or resort to any collateral
security or other means of obtaining payment. The obligations of each Guarantor
E-1
hereunder with respect to such Obligations shall be primary and shall, upon
demand by the Administrative Agent or the Collateral Agent, as applicable,
following an Event of Default, become immediately due and payable to the
Administrative Agent, for the benefit of the Lenders, the Administrative Agent
and the Collateral Agent, without demand or notice of any nature, all of which
are expressly waived by each Guarantor. Payments by the Guarantors hereunder may
be required by the Administrative Agent on any number of occasions. All payments
by any Guarantor hereunder shall be made to the Administrative Agent or the
Collateral Agent, as applicable, in the manner and at the place of payment
specified therefor in the Credit Agreement, for the account of the Lenders and
the Administrative Agent.
3. GUARANTORS' AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. (a) Each Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Administrative Agent or the Collateral Agent, as applicable, on demand, all
reasonable costs and expenses (including court costs and reasonable legal
expenses) incurred or expended by the Administrative Agent, the Collateral Agent
or any Lender in connection with the Obligations and this Guaranty, together
with interest on amounts recoverable under this Section 3 from the time when
such amounts become due until payment, whether before or after judgment, at the
rate of interest after an Event of Default set forth in the Credit Agreement,
provided that if such interest exceeds the maximum amount permitted to be paid
under applicable law, then such interest shall be reduced to such maximum
permitted amount.
(b) Each Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to the Administrative Agent or the Collateral Agent, as
applicable, on demand, all costs and expenses (including court costs and legal
expenses actually incurred) incurred or expended by the Administrative Agent,
the Collateral Agent or any Lender in connection with the enforcement of the
Obligations and this Guaranty, together with interest on amounts recoverable
under this Section 3 from the time when such amounts become due until payment,
whether before or after judgment, at the rate of interest after an Event of
Default set forth in the Credit Agreement, provided that if such interest
exceeds the maximum amount permitted to be paid under applicable law, then such
interest shall be reduced to such maximum permitted amount.
4. WAIVERS BY GUARANTORS; LENDERS' FREEDOM TO ACT. Each Guarantor agrees
that the Obligations will be paid and performed strictly in accordance with
their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent, the Collateral Agent or any Lender with
respect thereto. Each Guarantor waives, except to the extent that any such
waiver would be expressly prohibited by law, promptness, diligences,
presentment, demand, protest, notice of acceptance, notice of any Obligations
incurred and all other notices of any kind, all defenses which may be available
by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets of the
Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations, and all suretyship defenses generally.
Without limiting the generality of the foregoing, each Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of the Guarantors
hereunder shall not be released or discharged, in whole or in
-2-
part, or otherwise affected by (i) the failure of the Administrative Agent, the
Collateral Agent or any Lender to assert any claim or demand or to enforce any
right or remedy against the Borrower or any other entity or other Person
primarily or secondarily liable with respect to any of the Obligations; (ii) any
extensions, compromise, refinancing, consolidation or renewals of any
Obligation; (iii) any change in the time, place or manner of payment of any of
the Obligations or any rescissions, waivers, compromise, refinancing,
consolidation or other amendments or modifications of any of the terms or
provisions of the Credit Agreement, the Notes, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations, (iv) the addition, substitution or release of any entity
or other Person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Administrative Agent, the Collateral Agent or
any Lender may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (vi) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Administrative Agent, the Collateral
Agent or any Lender might have in such collateral security or the substitution,
exchange, surrender, release, loss or destruction of any such collateral
security; or (vii) any other act or omission which might in any manner or to any
extent vary the risk of any Guarantor or otherwise operate as a release or
discharge of any Guarantor, all of which may be done without notice to any
Guarantor. To the fullest extent permitted by law, each Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law, which would otherwise prevent the
Administrative Agent, the Collateral Agent or any Lender from bringing any
action, including any claim for a deficiency, or exercising any other right or
remedy (including any right of set-off), against such Guarantor before or after
the Administrative Agent's, the Collateral Agent's or such Lender's commencement
or completion of any foreclosure action, whether judicially, by exercise of
power of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by the Administrative Agent or any
Lender.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on each Guarantor to the same extent as
if such Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Notes, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantors.
6. SUBROGATION; SUBORDINATION.
6.1. WAIVER OF RIGHTS AGAINST BORROWER. Until the final payment in
cash and performance in full of all of the Obligations, no Guarantor shall
exercise, and each Guarantor hereby waives, any rights against the
Borrower arising as a result of payment by such Guarantor hereunder, by
way of subrogation, reimbursement, restitution, contribution or
-3-
otherwise, and no Guarantor will prove any claim in competition with
the Administrative Agent or any Lender in respect of any payment hereunder
in any bankruptcy, insolvency or reorganization case or proceedings of any
nature; no Guarantor will claim any setoff, recoupment or counterclaim
against the Borrower in respect of any liability of such Guarantor to the
Borrower; and each Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the
Administrative Agent or any Lender.
6.2 SUBORDINATION. The payment of any amounts due with respect to
any indebtedness of the Borrower for money borrowed or credit received now
or hereafter owed to any Guarantor is hereby subordinated to the prior
payment in full in cash of all of the Obligations. Each Guarantor agrees
that, if an Event of Default exists, no Guarantor will demand, xxx for or
otherwise attempt to collect any such indebtedness of the Borrower to any
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, any Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected,
enforced and received by such Guarantor as trustee for the Lenders, the
Collateral Agent and the Administrative Agent and be paid over to the
Administrative Agent or the Collateral Agent, for the benefit of the
Lenders, the Collateral Agent and the Administrative Agent, on account of
the Obligations without affecting in any manner the liability of any
Guarantor under the other provisions of this Guaranty.
6.3 PROVISIONS SUPPLEMENTAL. The provisions of this Section 6 shall
be supplemental to and not in derogation of any rights and remedies of the
Lenders and the Administrative Agent or the Collateral Agent under any
separate subordination agreement which the Administrative Agent or the
Collateral Agent may at any time and from time to time enter into with any
Guarantor for the benefit of the Lenders, the Collateral Agent and the
Administrative Agent.
7. SECURITY; SETOFF. Each Guarantor grants to the Administrative Agent and
each of the Lenders, as security for the full and punctual payment and
performance of all of the Guarantors' obligations hereunder, a continuing lien
on and security interest in all securities or other property belonging to such
Guarantor now or hereafter held by the Administrative Agent or such Lender and
in all deposits (general or special, time or demand, provisional or final) and
other sums credited by or due from the Administrative Agent or such Lender to
such Guarantor or subject to withdrawal by such Guarantor. Regardless of the
adequacy of any collateral security or other means of obtaining payment of any
of the Obligations and in addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, after the
occurrence and during the continuance of an Even of Default, the Administrative
Agent and the Lenders are hereby authorized at any time and from time to time,
without notice to any Guarantor (any such notice being expressly waived by each
Guarantor) and to the fullest extent permitted by law, to set off and apply such
deposits and other sums against the obligations of the Guarantors under this
Guaranty, whether or not the Administrative Agent or such Lender shall have made
any demand under this Guaranty and although such obligations may be contingent
or unmatured.
-4-
8. FURTHER ASSURANCES. Each Guarantor agrees that it will from time to
time, at the request of the Administrative Agent, do all such things and execute
all such documents as the Administrative Agent may reasonably consider necessary
or desirable to give full effect to this Guaranty and to perfect and preserve
the rights and powers of the Lenders, the Collateral Agent and the
Administrative Agent hereunder. Each Guarantor acknowledges and confirms that
such Guarantor itself has established its own adequate means of obtaining from
the Borrower on a continuing basis all information desired by such Guarantor
concerning the financial condition of the Borrower and that such Guarantor will
look to the Borrower and not to the Administrative Agent or any Lender in order
for such Guarantor to keep adequately informed of changes in the Borrower's
financial condition.
9. TERMINATION; REINSTATEMENT. This Guaranty shall terminate upon (a)
payment in full in cash of the Obligations (other than contingent reimbursement
and indemnification obligations to the extent no unsatisfied claim has been
asserted), (b) termination of the Commitments under the Credit Agreement, and
(c) either termination of all Letters of Credit or delivery by the Borrower of
cash collateral or back-up letters of credit issued by a bank acceptable to the
Issuing Bank in favor of the Issuing Bank, in amounts and on terms satisfactory
to the Issuing Bank, covering all obligations of the Lenders with respect to all
Letters of Credit. This Guaranty shall continue to be effective or be reinstated
if at any time any payment made or value received with respect to any Obligation
is rescinded or must otherwise be returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy or reorganization of the Borrower, or
otherwise, all as though such payment had not been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor, its successors and assigns, and shall inure to the benefit of the
Administrative Agent and the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, each Lender may assign or otherwise transfer its interest under the
Credit Agreement, Notes, its interest under the other Loan Documents or any
other agreement or note held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participations in any interest therein,
to any other Person, and such other Person shall thereupon become vested, to the
extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Lender
herein, all in accordance with Section 10.4 of the Credit Agreement. No
Guarantor may assign any of its obligations hereunder.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and otherwise in accordance with
Section 10.2 of the Credit Agreement. No failure on the part of Administrative
Agent or any Lender to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right.
-5-
12. NOTICES. All communications and notices hereunder shall be in writing
and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
13. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Each Guarantor agrees that any suit for the enforcement of this Guaranty may be
brought in the courts of the State of Georgia or any federal court sitting
therein and consents to the nonexclusive jurisdiction of such court and to
service of process in any such suit being made upon such Guarantor by mail at
the address specified by reference in Section 12. Each Guarantor hereby waives
any objection that it may now or hereafter have to the venue of any such suit or
any such court or that such suit was brought in an inconvenient court.
14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Each Guarantor (a) certifies
that neither the Administrative Agent or any Lender, nor any representative,
agent or attorney of the Administrative Agent, or any Lender, has represented,
expressly or otherwise, that the Administrative Agent or any Lender would not,
in the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Administrative Agent or any Lender is a party, the
Administrative Agent and the Lenders are relying upon, among other things, the
waivers and certifications contained in this Section 14.
15. LIMITATION ON GUARANTOR LIABILITY. (a) It is the intent of each
Guarantor, the Lenders, the Collateral Agent and the Administrative Agent that
each Guarantor's maximum liability hereunder shall not be in excess of:
(i) in a Proceeding (as defined below) commenced by or against such
Guarantor under the Bankruptcy Code, on or within one year from the date
on which any of such Guarantor's obligations hereunder are incurred, the
maximum amount which would not otherwise cause such Guarantor's
obligations hereunder to be avoidable or unenforceable against such
Guarantor under (A) Section 548 of the Bankruptcy Code, or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the Bankruptcy Code;
or
(ii) in a Proceeding commenced by or against such Guarantor under
the Bankruptcy Code subsequent to one year from the date on which any of
such Guarantor's obligations hereunder are incurred, the maximum amount
which would not otherwise cause such Guarantor's obligations to be
avoidable or unenforceable against such Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in any
such case or proceeding by virtue of Section 544 of the Bankruptcy Code;
or
-6-
(iii) in a Proceeding commenced by or against such Guarantor under
any law, statute or regulation other than the Bankruptcy Code (including,
without limitation, any other bankruptcy, reorganization, arrangement,
moratorium, readjustment of debt, dissolution, liquidation or similar
debtor relief laws), the maximum amount which would not otherwise cause
such Guarantor's obligations hereunder to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation, including,
without limitation, any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guarantors' obligations hereunder shall be determined in any such case or
proceeding shall hereinafter be referred to as the "Avoidance Provisions".
"Proceeding" means a voluntary case commenced by any Guarantor concerning itself
under the Bankruptcy Code or any other applicable bankruptcy laws; or any
involuntary case commenced against any Guarantor; or the appointment of, or
taking charge by, a custodian (as defined in the Bankruptcy Code or any other
applicable bankruptcy laws) for all or any substantial part of the property of
any Guarantor, or any other proceedings commenced by any Guarantor under any
reorganization, arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to such Guarantor, or any such proceeding commenced
against such Guarantor, or the adjudication of any Guarantor to be insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any appointment of any custodian or the like suffered
by any Guarantor for it or any substantial part of its property; or a general
assignment by any Guarantor for the benefit of its creditors).
(b) To the end set forth in Section 15(a), but only to the extent that
such Guarantor's obligations hereunder would otherwise be subject to avoidance
under the Avoidance Provisions, if such Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for such
obligations, or if such obligations would render such Guarantor insolvent, or
leave such Guarantor with an unreasonably small capital to conduct its business,
or cause such Guarantor to have incurred debts (or to have intended to have
incurred debts) beyond its ability to pay such debts as they mature, in each
case as of the time any of such Guarantor's obligations hereunder are deemed to
have been incurred under the Avoidance Provisions, the maximum Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that amount
which, after giving effect thereto, would not cause such Guarantor's obligations
hereunder, as so reduced, to be subject to avoidance under the Avoidance
Provisions.
(c) This Section 15 shall be applicable only in connection with a
Proceeding brought by or against any Guarantor and is intended solely to
preserve the rights of the Administrative Agent, the Collateral Agent and
Lenders to the maximum extent that would not cause the obligations of such
Guarantor to be subject to avoidance under the Avoidance Provisions in
connection with any such Proceeding. No Guarantor nor any other Person shall
have any right or claim under this Section 15 as against the Administrative
Agent, the Collateral Agent or Lenders that would not otherwise be available to
such Guarantor or such other Person outside of any Proceeding.
-7-
16. JOINT AND SEVERAL GUARANTEED OBLIGATIONS. This Guaranty shall be
continuing, absolute and unconditional and shall remain in full force and effect
as to each Guarantor hereunder, despite the fact that a Guarantor shall be
dissolved or liquidated or shall otherwise be released or discharged from its
obligations hereunder; the obligations of the Guarantors being joint and several
and each of the Guarantors is liable for the full amount of the Obligations.
17. CONTRIBUTION.
17.1. CONTRIBUTION AND SUBROGATION. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 17.2) that, in the event a payment
shall be made by any other Guarantor under this Guaranty (the "Claiming
Guarantor"), the Contributing Guarantor shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment in each case
multiplied by a fraction of which the numerator shall be the net worth of
the Contributing Guarantor on the date hereof and the denominator shall be
the aggregate net worth of all the Guarantors on the date hereof (or, in
the case of any Guarantor becoming a party hereto pursuant to Section 18,
the date of the Supplement hereto executed and delivered by such
Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this Section 17.1 shall be subrogated to the rights
of such Claiming Guarantor.
17.2. SUBORDINATION. Notwithstanding any provision of this Guaranty
to the contrary, all rights of the Guarantors under Section 17.1 and all
other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment
in full in cash of the Obligations. No failure on the part of the Borrower
or any Guarantor to make the payments required under applicable law or
otherwise shall in any respect limit the obligations and liabilities of
any Guarantor with respect to its obligations hereunder, and each
Guarantor shall remain liable for the full amount of the obligations of
such Guarantor hereunder.
18. ADDITIONAL GUARANTORS. Pursuant to Section 5.10 of the Credit
Agreement, each Subsidiary Loan Party that was not in existence or that was not
owned (directly or indirectly) by the Borrower on the date of the Credit
Agreement is required to enter into this Guaranty as a Guarantor upon becoming a
Subsidiary Loan Party. Upon execution and delivery after the date hereof by the
Administrative Agent and such Subsidiary of an instrument in the form of Annex
1, such Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and delivery
of any instrument adding an additional Guarantor as a party to this Guaranty
shall not require the consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Guaranty.
19. MISCELLANEOUS. This Guaranty constitutes the entire agreement of each
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The
-8-
invalidity or unenforceability of any one or more sections of this Guaranty
shall not affect the validity or enforceability of its remaining provisions.
Captions are for the ease of reference only and shall not affect the meaning of
the relevant provisions. The meanings of all defined terms used in this Guaranty
shall be equally applicable to the singular and plural forms of the terms
defined.
20. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original, but all of such counterparts shall
constitutes one and the same agreement.
[SIGNATURES ON NEXT PAGE]
-9-
IN WITNESS WHEREOF, the parties hereto have duly executed this Subsidiary
Guaranty Agreement as of the day and year first above written.
EMS INVESTMENT HOLDINGS, INC.
By: _____________________________
Xxx X. Xxxxxx
Vice President and Treasurer
LXE, INC.
By: ______________________________
Xxx X. Xxxxxx
Treasurer and Assistant Secretary
SUNTRUST BANK, as
Administrative Agent
By: ________________________________
Name:
Title:
-10-
SCHEDULE I TO THE
SUBSIDIARY GUARANTY AGREEMENT
Guarantors
Name Notice Address for Guarantors
LXE Inc. 000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
EMS Investment Holdings, Inc. 0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Schedule I to
Exhibit E
ANNEX 1 TO THE
SUBSIDIARY GUARANTY AGREEMENT
SUPPLEMENT NO. _____ dated as of ____________________ (this
"Supplement"), to the Subsidiary Guaranty Agreement (the "Guaranty") dated as of
December 10, 2004 among each of the Subsidiaries listed on Schedule I thereto
(each such Subsidiary individually, a "Guarantor" and collectively, the
"Guarantors") of EMS TECHNOLOGIES, INC., a Georgia corporation (the "Borrower")
and SUNTRUST BANK, a Georgia banking corporation, as Administrative Agent (the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
A. Reference is made to the U.S. Revolving Credit Agreement dated as
of December 10, 2004 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the Lenders from time to
time party thereto (the "Lenders") and the Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
B. The Guarantors have entered into the Guaranty in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary Loan Party
that was not in existence or not a Subsidiary Loan Party on the date of the
Credit Agreement is required to enter into the Guaranty as a Guarantor upon
becoming a Subsidiary Loan Party. Section 18 of the Guaranty provides that
additional Subsidiaries of the Borrower may become Guarantors under the Guaranty
by execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Guaranty in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 18 of the Guaranty, the New
Guarantor by its signature below becomes a Guarantor under the Guaranty with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. Each reference to a Guarantor in the
Guaranty shall be deemed to include the New Guarantor. The Guaranty is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that (a) this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
E-1-1
terms and (b) each of the representations and warranties set forth in Article IV
of the Credit Agreement that are applicable to a Subsidiary are true and correct
as of the date hereof as to such New Guarantor.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together shall
constitute a single agreement. This Supplement shall become effective when the
Administrative Agent shall have received (a) counterparts of this Supplement
that, when taken together, bear the signatures of the New Guarantor and the
Administrative Agent and (b) the documents and opinion required by Section 5.10
of the Credit Agreement. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty
shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired thereby
(it being understood that the invalidity of a particular provision hereof in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 12 of the Guaranty. All communications
and notices hereunder to the New Guarantor shall be given to it at the address
set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
the Administrative Agent.
E-1-2
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent
have duly executed this Supplement to the Subsidiary Guaranty Agreement as of
the day and year first above written.
[Name of New Guarantor]
By: _________________________________
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By: _________________________________
Name:
Title:
E-1-3
EXHIBIT F
FORM OF
SWINGLINE NOTE
$5,000,000
December 10, 2004
FOR VALUE RECEIVED, the undersigned, EMS Technologies, Inc., a Georgia
corporation (THE "BORROWER"), hereby unconditionally promises to pay to SunTrust
Bank (the "SWINGLINE LENDER") or its registered assigns, at the office of
SunTrust Bank ("SUNTRUST") at 000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, on the Swingline Termination Date (as defined in the U.S.
Revolving Credit Agreement dated as of December 10, 2004 (as the same may be
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lenders from time to time party thereto and
SunTrust, as Administrative Agent for the Lenders), the aggregate unpaid
principal amount of all Swingline Loans made by the Swingline Lender to the
Borrower pursuant to the Credit Agreement, in lawful money of the United States
of America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further unconditionally promises to pay all costs of collection, including
reasonable attorneys' fees.
The Borrower unconditionally promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE
X-0
XXXXX XX XXXXXXX AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EMS TECHNOLOGIES, INC.
By: __________________
Name:
Title:
[SEAL]
F-2
LOANS AND PAYMENTS
Unpaid
Principal Name of Person
Amount and Payments of Balance of Making
Date Swingline Loan Principal Note Notation
---- -------------- --------- ---- --------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
---- -------------- ----------- ---------- -----------
F-3
EXHIBIT G
FORM OF
TRADEMARK SECURITY AGREEMENT
TO BE PROVIDED
G-1
EXHIBIT H
FORM OF
PATENT SECURITY AGREEMENT
TO BE PROVIDED
H-1
EXHIBIT I
FORM OF
OPINION OF COUNSEL TO LOAN PARTIES
TO BE PROVIDED
I-1
EXHIBIT 2.10
FORM OF CONTINUATION/CONVERSION
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention:
Dear Sirs:
Reference is made to the U.S. Revolving Credit Agreement dated as of
December 10, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders from time to time
party thereto and SunTrust Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings. This notice constitutes
a Notice of Conversion/Continuation and the Borrower hereby requests the
conversion or continuation of a Revolving Borrowing under the Credit Agreement,
and in that connection the Borrower specifies the following information with
respect to the Revolving Borrowing to be converted or continued as requested
hereby:
(A) Revolving Borrowing to which this request applies(2) and, if
different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to
each resulting Borrowing:___________________________________________
(B) Effective date of election (which is a Business Day):_______________
(C) Interest rate basis(3):_____________________________________________
(D) Interest Period(4):_________________________________________________
------------------
2 This request shall not apply to Swingline Borrowings, which may not be
converted or continued.
3 Eurodollar Borrowing or Base Rate Borrowing; specify for each resulting
Borrowing if different options are being elected with respect to different
portions thereof pursuant to line (A).
4 Which must comply with the definition of "Interest Period" and end no later
than the Commitment Termination Date.
Exhibit 2.10 - 1
Very truly yours,
EMS TECHNOLOGIES, INC.
By: _____________________
Name:
Title:
Exhibit 2.10 - 2
EXHIBIT 2.3
NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention:
Dear Sirs:
Reference is made to the U.S. Revolving Credit Agreement dated as of
December 10, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders from time to time
party thereto and SunTrust Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings. This notice constitutes
a Notice of Revolving Borrowing, and the Borrower hereby requests a Revolving
Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing
requested hereby:
(A) Aggregate principal amount of Revolving Borrowing(5):_______________
(B) Date of Revolving Borrowing (which is a Business Day):______________
(C) Type of Revolving Borrowing(6):_____________________________________
(D) Initial Interest Period(7):_________________________________________
(E) Location and number of account to which proceeds of Revolving
Borrowing are to be disbursed:______________________________________
------------------
5 Not less than $5,000,000 for Eurodollar Borrowings or a larger multiple of
$1,000,000; not less than $1,000,000 for Base Rate Borrowings, or a larger
multiple of $100,000.
6 Eurodollar Borrowing or Base Rate Borrowing.
7 Which must comply with the definition of "Interest Period" and end not later
than the Commitment Termination Date.
Exhibit 2.3 - 1
The Borrower hereby represents and warrants that the conditions specified
in Section 3.2 of the Credit Agreement are satisfied.
Very truly yours,
EMS TECHNOLOGIES, INC.
By: ______________________
Name:
Title:
Exhibit 2.3 - 2
EXHIBIT 2.5
NOTICE OF SWINGLINE BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention:
Dear Sirs:
Reference is made to the U.S. Revolving Credit Agreement dated as of
December 10, 2004 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders from time to time
party thereto and SunTrust Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings. This notice constitutes
a Notice of Swingline Borrowing, and the Borrower hereby requests a Swingline
Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Swingline Borrowing
requested hereby:
(A) Principal amount of Swingline Loan(8):______________________________
(B) Date of Swingline Loan (which is a Business Day)____________________
(C) Location and number of account to which proceeds of Swingline Loan
are to be credited:_________________________________________________
The Borrower hereby represents and warrants that the conditions specified
in Section 3.2 of the Credit Agreement are satisfied.
Very truly yours,
EMS TECHNOLOGIES, INC.
By: _____________________
Name:
Title:
------------------
8 Not less than $500,000 or a larger multiple of $100,000.
Exhibit 2.5 - 1
