Exhibit 10.1
$150,000,000
SENIOR UNSECURED
REVOLVING CREDIT
AGREEMENT
Dated as of June 14, 2002
among
FLEET NATIONAL BANK, as Administrative Agent
THE LENDERS LISTED ON SCHEDULE I HERETO
and
BARNES GROUP INC.
with
FLEET SECURITIES, INC. as Arranger
and HSBC BANK USA, KEYBANK NATIONAL ASSOCIATION,
MELLON BANK, N.A. and WEBSTER BANK, as Co-Documentation
Agents
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION........................................ 1
1.1. Definitions............................................................ 1
1.2. Rules of Interpretation................................................ 19
2. THE REVOLVING CREDIT FACILITY.................................................. 20
2.1. Commitment to Lend..................................................... 20
2.2. Commitment Fee......................................................... 21
2.3. Reduction of Total Commitment.......................................... 21
2.3.1. Increase of Total Commitment................................... 21
2.4. The Revolving Credit Notes............................................. 22
2.5. Interest on Loans...................................................... 22
2.6. Requests for Loans..................................................... 23
2.6.1. General........................................................ 23
2.6.2. Swing Line..................................................... 23
2.7. Conversion Options..................................................... 24
2.7.1. Conversion to Different Type of Loan........................... 24
2.7.2. Continuation of Type of Loan................................... 24
2.7.3. LIBOR Rate Loans............................................... 25
2.8. Funds for Loan......................................................... 25
2.8.1. Funding Procedures............................................. 25
2.8.2. Advances by Administrative Agent............................... 25
2.9. Settlements............................................................ 26
2.9.1. General........................................................ 26
2.9.2. Failure to Make Funds Available................................ 27
2.9.3. No Effect on Other Lenders..................................... 28
3. REPAYMENT OF THE LOANS......................................................... 28
3.1. Maturity............................................................... 28
3.2. Mandatory Repayments of Loans.......................................... 28
3.3. Optional Repayments of Loans........................................... 28
4. LETTERS OF CREDIT.............................................................. 29
4.1. Letter of Credit Commitments........................................... 29
4.1.1. Commitment to Issue Letters of Credit.......................... 29
4.1.2. Letter of Credit Applications.................................. 29
4.1.3. Terms of Letters of Credit..................................... 30
4.1.4. Reimbursement Obligations of Lenders........................... 30
4.1.5. Participations of Lenders...................................... 30
4.2. Reimbursement Obligation of the Borrower............................... 30
4.3. Letter of Credit Payments.............................................. 31
4.4. Obligations Absolute................................................... 32
4.5. Reliance by Issuer..................................................... 33
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4.6. Letter of Credit Fee................................................. 33
5. CERTAIN GENERAL PROVISIONS................................................... 34
5.1. Arrangement Fee...................................................... 34
5.2. Administrative Agent's Fee........................................... 34
5.3. Funds for Payments................................................... 34
5.3.1. Payments to Administrative Agent............................. 34
5.3.2. No Offset, etc............................................... 34
5.3.3. Non-U.S. Lenders............................................. 35
5.4. Computations. ....................................................... 36
5.5. Inability to Determine LIBOR Rate.................................... 36
5.6. Illegality........................................................... 37
5.7. Additional Costs, etc................................................ 37
5.8. Capital Adequacy..................................................... 39
5.9. Certificate.......................................................... 39
5.10. Indemnity for LIBOR Rate Loans....................................... 40
5.11. Interest After Default............................................... 40
5.11.1. Overdue Amounts.............................................. 40
5.11.2. Amounts Not Overdue.......................................... 41
5.12. Replacement of Lenders............................................... 41
6. GUARANTORS. ................................................................. 42
6.1. Guaranty by Subsidiaries............................................. 42
7. REPRESENTATIONS AND WARRANTIES............................................... 42
7.1. Corporate Authority.................................................. 42
7.1.1. Incorporation; Good Standing................................. 42
7.1.2. Authorization................................................ 43
7.1.3. Enforceability............................................... 43
7.2. Governmental Approvals............................................... 43
7.3. Title to Properties.................................................. 43
7.4. Financial Statements................................................. 44
7.4.1. Fiscal Year.................................................. 44
7.4.2. Financial Statements......................................... 44
7.5. No Material Adverse Changes, etc..................................... 44
7.6. Franchises, Patents, Copyrights, etc................................. 44
7.7. Litigation........................................................... 44
7.8. Compliance with Other Instruments, Laws, etc......................... 44
7.9. Tax Status........................................................... 45
7.10. No Event of Default.................................................. 45
7.11. Holding Company and Investment Company Acts.......................... 45
7.12. Certain Transactions................................................. 45
7.13. Employee Benefit Plans............................................... 46
7.13.1. Relationship of Benefits to Pension Plan Assets.............. 46
7.13.2. Prohibited Transactions...................................... 46
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7.13.3. Guaranteed Pension Plans........................................ 46
7.13.4 Multiemployer Plans............................................. 46
7.14. Use of Proceeds......................................................... 47
7.14.1. General......................................................... 47
7.14.2. Regulations U and X............................................. 47
7.15. Environmental Compliance................................................ 47
7.16. Subsidiaries, etc....................................................... 49
7.17. Disclosure.............................................................. 49
8. AFFIRMATIVE COVENANTS......................................................... 49
8.1. Punctual Payment........................................................ 49
8.2. Maintenance of Office................................................... 50
8.3. Records and Accounts.................................................... 50
8.4. Financial Statements, Certificates and Information...................... 50
8.5. Notices................................................................. 51
8.5.1. Defaults........................................................ 51
8.5.2. Notice of Litigation and Judgments.............................. 52
8.6. Legal Existence; Maintenance of Properties.............................. 52
8.7. Insurance............................................................... 53
8.8. Taxes................................................................... 53
8.9. Inspection of Properties and Books, etc................................. 53
8.9.1. General......................................................... 53
8.9.2. Communications with Accountants................................. 54
8.10. Compliance with Laws, Contracts, Licenses, and Permits.................. 54
8.11. Employee Benefit Plans.................................................. 54
8.12. Use of Proceeds......................................................... 55
8.13. Further Assurances...................................................... 55
9. CERTAIN NEGATIVE COVENANTS.................................................... 55
9.1. Restrictions on Indebtedness............................................ 55
9.2. Restrictions on Liens................................................... 57
9.2.1. Permitted Liens................................................. 57
9.2.2. Restrictions on Negative Pledges and Upstream Limitations....... 58
9.3. Restrictions on Investments............................................. 59
9.4. Restricted Payments..................................................... 61
9.5. Merger, Consolidation and Disposition of Assets......................... 61
9.5.1. Mergers and Acquisitions........................................ 61
9.5.2. Disposition of Assets........................................... 62
9.6. Sale and Leaseback...................................................... 63
9.7. Compliance with Environmental Laws...................................... 63
9.8. Employee Benefit Plans.................................................. 63
9.9. Business Activities..................................................... 64
9.10. Fiscal Year............................................................. 64
9.11. Transactions with Affiliates............................................ 64
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10. FINANCIAL COVENANTS..................................................... 65
10.1. Interest Coverage............................................ 65
10.2. Leverage Ratio............................................... 65
10.3. Consolidated Net Worth....................................... 65
10.4. Capital Expenditures......................................... 65
11. CLOSING CONDITIONS...................................................... 66
11.1. Loan Documents etc........................................... 66
11.2. Certified Copies of Governing Documents...................... 66
11.3. Corporate or Other Action.................................... 66
11.4. Incumbency Certificate....................................... 66
11.5. Solvency Certificate......................................... 66
11.6. Opinion of Counsel........................................... 66
11.7. Payment of Fees.............................................. 67
11.8. Payoff Letter................................................ 67
12. CONDITIONS TO ALL BORROWINGS............................................ 67
12.1. Representations True; No Default or Event of Default......... 67
12.2. No Legal Impediment.......................................... 67
12.3. Proceedings and Documents.................................... 67
12.4. No Material Adverse Change................................... 68
13. EVENTS OF DEFAULT; ACCELERATION; ETC.................................... 68
13.1. Events of Default and Acceleration............................ 68
13.2. Termination of Commitments.................................... 71
13.3. Remedies...................................................... 72
14. THE ADMINISTRATIVE AGENT................................................ 73
14.1. Authorization................................................. 73
14.2. Employees and Administrative Agents........................... 73
14.3. No Liability.................................................. 74
14.4. No Representations............................................ 74
14.4.1. General............................................. 74
14.4.2. Closing Documentation, etc.......................... 75
14.5. Payments. .................................................... 75
14.5.1. Payments to Administrative Agent.................... 75
14.5.2. Distribution by Administrative Agent................ 75
14.5.3. Delinquent Lenders.................................. 76
14.6. Holders of Notes.............................................. 76
14.7. Indemnity..................................................... 76
14.8. Administrative Agent as Lender................................ 77
14.9. Resignation................................................... 77
14.10. Notification of Defaults and Events of Default................ 77
15. ASSIGNMENT AND PARTICIPATION............................................ 78
15.1. Conditions to Assignment by Lenders........................... 78
15.1.1. General Conditions.................................. 78
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15.2. Certain Representations and Warranties; Limitations;
Covenants ............................................................ 79
15.3. Register ..................................................... 80
15.4. New Notes .................................................... 80
15.5. Participations ............................................... 81
15.6. Assignee or Participant Affiliated with the Borrower ......... 81
15.7. Miscellaneous Assignment Provisions .......................... 82
15.8. Assignment by Borrower ....................................... 82
15.9. Accession .................................................... 82
16. PROVISIONS OF GENERAL APPLICATIONS ..................................... 83
16.1. Setoff ....................................................... 83
16.2. Expenses ..................................................... 84
16.3. Indemnification .............................................. 85
16.4. Treatment of Certain Confidential Information ................ 86
16.4.1. Confidentiality .................................... 86
16.4.2. Prior Notification ................................. 87
16.4.3. Other .............................................. 87
16.5. Survival of Covenants, Etc ................................... 87
16.6. Notices ...................................................... 88
16.7. GOVERNING LAW; SUBMISSION TO JURISDICTION .................... 89
16.8. Headings ..................................................... 89
16.9. Counterparts ................................................. 90
16.10. Entire Agreement, Etc ........................................ 90
16.11. WAIVER OF JURY TRIAL ......................................... 90
16.12. Consents, Amendments, Waivers, Etc ........................... 90
16.13. Severability ................................................. 92
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Exhibits
Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Assignment and Acceptance
Exhibit E Guaranty
Exhibit F Instrument of Accession
Schedules
Schedule 1 Lenders and Commitments
Schedule 7.5 Restricted Payments
Schedule 7.7 Litigation
Schedule 7.15 Environmental Compliance
Schedule 7.16 Subsidiaries Etc.
Schedule 9.1 Existing Senior Debt
Schedule 9.2 Existing Liens
Schedule 9.3 Existing Investments
REVOLVING CREDIT
AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of June 14, 2002, by and among
Barnes Group Inc. (the "Borrower"), a Delaware corporation having its principal
place of business at 123 Main Street, P.O. Box 489, Bristol, Connecticut 06011,
and Fleet National Bank, a national banking association, and the other lending
institutions listed on Schedule 1 (the "Lenders") and Fleet National Bank as
administrative agent for itself and such other lending institutions (the
"Administrative Agent") with Fleet Securities, Inc., as Arranger (the
"Arranger") and HSBC Bank USA, KeyBank National Association, Mellon Bank, N.A.,
and Webster Bank as Co-Documentation Agents (the "Documentation Agents").
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in
this (S)1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accountants. PricewaterhouseCoopers LLP or any other nationally recognized
independent auditors selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
Acquired Business. A company or business acquired by the Borrower or any of
its Subsidiaries (through asset purchase or otherwise) in compliance with
(S)9.5; provided that the company or business acquired will not be considered an
Acquired Business until the Borrower has delivered to the Administrative Agent
historical financial statements of such company or business prepared in
accordance with GAAP, an officer's certificate pursuant to (S)9.5.1(a) and such
other financial information reasonably requested by the Administrative Agent.
Adjustment Date. The first day of the month immediately following the month
in which a Compliance Certificate is to be delivered by the Borrower pursuant to
(S)8.4(c).
Administrative Agent's Office. The Administrative Agent's office located at
100 Federal Street, Boston, Massachusetts 02110, or at such other location as
the Administrative Agent may designate from time to time.
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Administrative Agent. Fleet National Bank, acting as agent for the Lenders
and each other Person appointed as the successor Administrative Agent in
accordance with (S)14.9.
Affiliate. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Applicable Margin. For each period commencing on an Adjustment Date through
the date immediately preceding the next Adjustment Date (each a "Rate Adjustment
Period"), the Applicable Margin shall be the applicable margin set forth below
with respect to the Leverage Ratio, as determined for the four (4) consecutive
fiscal quarters then ending of the Borrower and its Subsidiaries ending on the
last day of the fiscal quarter ended immediately prior to the applicable Rate
Adjustment Period.
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Base LIBOR
Leverage Rate Rate Loans Letter of Commitment Fee
Level Ratio Loans Credit
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I Less than to 2.25:1 0.125% 1.125% 1.125% 0.250%
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II Less than 2.50:1 but
greater than or 0.250% 1.250% 1.250% 0.300%
equal to 2.25:1
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III Less than 2.75:1 but
greater than or 0.375% 1.375% 1.375% 0.350%
equal to 2.50:1
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IV Less than 3.00:1 but 0.500% 1.500% 1.500% 0.375%
greater than or
equal to 2.75:1
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V Greater than or 0.625% 1.625% 1.625% 0.450%
equal to 3.00:1
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Notwithstanding the foregoing, the Applicable Margin for the period from
the date of Closing until the date of receipt of the Compliance Certificate for
the period ending June 30, 2002 shall be Level IV above. If the Borrower fails
to deliver any Compliance Certificate pursuant to (S)8.4(c) hereof, then for the
period commencing on the next Adjustment Date to occur subsequent to such
failure through the date immediately following the date on which such Compliance
Certificate is delivered, the Applicable Margin shall be the highest Applicable
Margin set forth above.
Applicable Pension Legislation. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrower or any of its Subsidiaries.
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Arrangement Fee. See (S)5.1.
Arranger. Fleet Securities, Inc.
Assignment and Acceptance. See (S)15.1.
Attributable Debt. In respect of a sale and leaseback transaction, at the
time of determination, the present value (discounted at the rate of interest
implicit in such transaction, determined in accordance with GAAP) of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
Balance Sheet Date. March 31, 2002.
Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by Fleet as its "prime rate", such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (b) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent. Changes in the Base Rate resulting from any changes in
Fleet's "prime rate" shall take place immediately without notice or demand of
any kind.
Base Rate Loans. Loans bearing interest calculated by reference to the Base
Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in New York, New York
are open for the transaction of banking business and, in the case of LIBOR Rate
Loans, also a day which is a LIBOR Business Day.
Capital Expenditures. For any fiscal period, the aggregate of all
expenditures that, in conformity with GAAP (but excluding capitalized
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interest), are or are required to be included as additions during such period to
property, plant or equipment reflected on the consolidated balance sheet of the
Borrower and its Subsidiaries.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
Change of Control. If (a) any Person or group of Persons (as used in
Sections 13 and 14 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder) shall have become the beneficial owner (as
defined in Rules 13d-3 and 13d-5 promulgated by the Securities and Exchange
Commission under said Act) of 30% or more of the Borrower's outstanding Voting
Stock; provided, however, that members of the Barnes family, Fleet Financial
Group and any of its Affiliates (to the extent that it owns stock in which a
member of the Barnes family has an interest), the Barnes Group Inc. Retirement
Savings Plan and Riggs Bank N.A., in its capacity as trustee under such plan,
and employees of the Borrower (except employees of the Borrower who became
beneficial owners of more than 10% of the Borrower's Voting Stock prior to
becoming employees of the Borrower) shall not be counted as a Person for
purposes hereof; or (b) a "change of control" occurs under the other Existing
Senior Debt, or any future Indebtedness.
Closing Date. The first date on which the conditions set forth in (S)11
have been satisfied and any Loans are to be made or any Letter of Credit is to
be issued hereunder.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Lender, the amount set forth on Schedule 1
hereto as the amount of such Lender's commitment to make Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrower, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Fee. See (S)2.2.
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Commitment Percentage. With respect to each Lender, the percentage set
forth on Schedule 1 hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders.
Compliance Certificate. See (S)8.4(c).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated Cash Interest Expense. As of the last day of any fiscal
quarter, the amount of interest expense, paid or payable in cash, of the
Borrower, its Subsidiaries, and Acquired Businesses (to the extent that such
Acquired Business is included in the calculation of Consolidated EBITDA for such
period), for the four fiscal quarters ended on such date, determined on a
consolidated basis in accordance with GAAP for such period. Except to the extent
approved by the Administrative Agent, all Indebtedness assumed to have been
incurred by the Acquired Businesses shall be deemed to have borne interest at a
rate no less than the sum of (a) the arithmetic mean of (x) the LIBOR Rate for
LIBOR Rate Loans having an Interest Period of one month in effect on the first
day of the four (4) consecutive fiscal quarters then ending and (y) the LIBOR
Rate for LIBOR Rate Loans having an Interest Period of one month in effect on
the last day of the four (4) consecutive fiscal quarters then ending plus (b)
the Applicable Margin for Loans then in effect (after giving effect to such
acquisition on a pro forma basis).
Consolidated EBITDA. For any period, Consolidated Net Income of the
Borrower, its Subsidiaries and, without duplication, the Acquired Businesses
(excluding, without duplication, (a) extraordinary gains and losses in
accordance with GAAP, (b) gains and losses in connection with asset dispositions
whether or not constituting extraordinary gains and losses, (c) gains or losses
on discontinued operations, and (d) one-time restructuring charges, not to
exceed $4,800,000 taken in the quarter ended December 31, 2001) for the four
fiscal quarters ended on such date, plus (i) Consolidated Cash Interest Expense
of the Borrower, its Subsidiaries and, without duplication, the Acquired
Businesses for such period, plus (ii) to the extent deducted in computing such
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses, the sum of income taxes, depreciation and
amortization for such period. The financial results of any Acquired Businesses
acquired at any time during the period tested shall be included as if such
Acquired Business had been acquired as of the first day of the period tested.
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Consolidated Net Income. The consolidated net income (or deficit) of the
Borrower and its Subsidiaries, after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP (excluding any losses
attributable to the use of a fair value methodology for recognition and
measurement of impairment of goodwill identified in accordance with Financial
Accounting Standards Board Statement No. 142).
Consolidated Net Worth. The excess of Consolidated Total Assets over
Consolidated Total Liabilities (excluding incremental adjustments from
translating foreign assets and liabilities for changes in foreign exchange rates
made in accordance with Financial Accounting Standards Board Statement No. 52).
Consolidated Tangible Assets. Consolidated Total Assets at any time less,
(a) patents, copyrights, trademarks, trade names, service marks, brand names,
franchises, goodwill, experimental expenses and other similar intangibles, (b)
unamortized debt discount and expense; and (c) all other property which would be
classified as intangible under GAAP.
Consolidated Total Assets. All assets of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.
Consolidated Total Debt. With respect to the Borrower and its Subsidiaries,
the sum, without duplication, of (a) the aggregate amount of Indebtedness of the
Borrower and its Subsidiaries, on a consolidated basis, outstanding on such date
for borrowed money or the deferred purchase price of property including, without
limitation, in respect of any Synthetic Leases or any Capitalized Leases, plus
(b) Indebtedness of the type referred to in clause (a) of another Person (not
including Borrower or its Subsidiaries) guaranteed by the Borrower or any of its
Subsidiaries.
Consolidated Total Liabilities. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with GAAP and
classified as such on the consolidated balance sheet of the Borrower and its
Subsidiaries.
Conversion Request. A notice given by the Borrower to the Administrative
Agent of the Borrower's election to convert or continue a Loan in accordance
with (S)2.7.
Credit Agreement. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
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Default. See (S).13.1.
Delinquent Lender. See (S)14.5.3.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of Capital Stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of Capital Stock of the Borrower, directly or indirectly through a
Subsidiary of the Borrower or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose); the return
of capital by the Borrower to its shareholders as such; or any other
distribution on or in respect of any shares of any class of Capital Stock of the
Borrower.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated as
such in Schedule 1 hereto; thereafter, such other office of such Lender, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with (S)2.7.
Eligible Assignee. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; (e) a Lender Affiliate, and
(f) if, but only if, any Event of Default has occurred and is continuing, any
other bank, insurance company, commercial finance company or other financial
institution or other Person approved by the Administrative Agent, such approval
not to be unreasonably withheld.
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Employee Benefit Plan. Any employee benefit plan within the meaning of
(S)3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. Any and all Federal, provincial, state, local and
foreign statutes, law, regulations, ordinances, rules, judgements, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to health, safety or the environment,
including but not limited to, the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response Compensation and Liability
Act of 1980 as amended ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"), the Federal Clean Water Act, the Federal Clean Air Act and
the Toxic Substances Control Act.
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under (S)414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any bank subject thereto
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See (S)13.1.
Existing Senior Debt. Indebtedness of the Borrower and its Subsidiaries in
existence as of the Closing Date and listed on Schedule 9.1 hereof.
Fee Letter. The fee letter dated as of March 25, 2002 among the Borrower,
the Administrative Agent and the Arranger.
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Fees. Collectively, the Commitment Fee, the Letter of Credit Fees, the
Administrative Agent's Fee, and the Arrangement Fee.
Financial Affiliate. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary is engaging in any of the activities permitted by
(S)4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. (S)1843).
Fleet. Fleet National Bank, a national banking association, in its
individual capacity.
GAAP or generally accepted accounting principles. (a) When used in (S)10,
whether directly or indirectly through reference to a capitalized term used
therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect on the Closing Date, and (ii) to the extent consistent
with such principles, the accounting practice of the Borrower, and (b) when used
in general, other than as provided above, means principles that are (i)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time,
and (ii) consistently applied with past financial statements of the Borrower
applying the same principles.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of (S)3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantor. Each Subsidiary of the Borrower or Acquired Business that enters
into a Guaranty in favor of the Lenders and the Administrative Agent.
Guaranty. The guaranty dated as of the date required by (S)6.1 from each
Person required to become a Guarantor pursuant to (S)6.1 in favor of
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the Administrative Agent and the Lenders, in each case of the payment and
performance of the Obligations in the form of Exhibit E attached hereto.
Hazardous Substances. See (S)7.15(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) all indebtedness arising from borrowed money and similar monetary
obligations, whether direct or indirect;
(b) all indebtedness of others secured by any mortgage, pledge,
security interest, lien, charge, or other encumbrance existing on property
owned by such Person or any of its Subsidiaries or acquired by such Person
or any of its Subsidiaries subject thereto, whether or not the Indebtedness
secured thereby shall have been assumed;
(c) all indebtedness for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices and
accrued expenses incurred in the ordinary course of business);
(d) all Attributable Debt of such Person with respect to sale and
leaseback transactions of such Person;
(e) all guarantees, endorsements and other contingent obligations, in
respect of Indebtedness of others, including (i) any obligation to supply
funds to or in any manner to invest in, directly or indirectly, the debtor,
to purchase Indebtedness, or to insure the owner of Indebtedness against
loss, through an agreement to purchase goods, supplies or services for the
purpose of enabling the debtor to make payment of the Indebtedness held by
such owner or otherwise, (ii) any obligation of any partnership in which
such Person or any of its Subsidiaries is a general partner and (iii) any
obligation to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such primary obligation;
(f) the obligations to reimburse the issuer in respect of any letters
of credit;
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(g) every obligation of such Person under any Capitalized Lease;
(h) every obligation of such Person under any Synthetic Lease;
(i) all sales by such Person, other than the sale or discounting of
receivables in the ordinary course of business in connection with the
collection thereof, of (i) accounts for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables (collectively "receivables")
and;
(j) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the settlement value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices (a "Derivative
Contract");
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (t) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (u) any
Capitalized Lease shall be the principal component of the aggregate of the
rental obligations under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (v) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (w) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (x) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, (y) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price and (z)
any guaranty or other contingent liability referred to in clause (i) shall be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty or other contingent obligation is made or, if not
stated or determinable, the maximum reasonably anticipated
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liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
Ineligible Securities. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. (S)24, Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan; and (b) as to any LIBOR Rate Loan in respect of
which the Interest Period is (i) 3 months or less, the last day of such Interest
Period and (ii) more than 3 months, the date that is 3 months from the first day
of such Interest Period and, in addition, the last day of such Interest Period.
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request or
as otherwise required by the terms of this Credit Agreement (i) for any Base
Rate Loan, the last day of the calendar quarter; and (ii) for any LIBOR Rate
Loan, 1, 2, 3, or 6 months; and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth above, as selected by the
Borrower in a Conversion Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall be extended to the next succeeding LIBOR Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding LIBOR Business Day;
(B) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in (S)2.7,
the Borrower shall be deemed to have requested a conversion of the affected
LIBOR Rate Loan to a Base Rate Loan and the continuance of all Base Rate
Loans as Base Rate Loans on the last day of the then current Interest
Period with respect thereto;
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(D) any Interest Period relating to any LIBOR Rate Loan that begins on
the last LIBOR 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 LIBOR Business Day of a
calendar month; and
(E) any Interest Period that would otherwise extend beyond the Loan
Maturity Date shall end on the Loan Maturity Date.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (c) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise; and (d) there shall not
be deducted from the aggregate amount of Investments any decrease in the value
thereof.
Lender Affiliate. (a) With respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, limited liability
company, trust or legal entity) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other entity
(whether a corporation, partnership, limited liability company, trust or other
legal entity) that is a fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
Lenders. Fleet and the other lending institutions listed on Schedule 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Lender pursuant to (S)15.
Letter of Credit. See (S)4.1.1.
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Letter of Credit Application. See (S)4.1.1.
Letter of Credit Fee. See (S)4.6.
Letter of Credit Participation. See (S)4.1.5.
Leverage Ratio. See (S)10.2.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
LIBOR Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate of interest equal to (i) the rate determined by the Administrative
Agent at which Dollar deposits for such Interest Period are offered based on
information presented on Telerate Page 3750 as of 11:00 a.m. London time on the
second LIBOR Business Day prior to the first day of such Interest Period,
divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate. If
the rate described above does not appear on the Telerate System on any
applicable interest determination date, the LIBOR Rate shall be the rate
(rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such LIBOR Rate Loan which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the second LIBOR Business Day prior to the first day
of such Interest Period as selected by the Administrative Agent. The principal
London office of each of the four major London banks will be requested to
provide a quotation of its Dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that date will be determined on the basis of the rates quoted for loans in
Dollars to leading European banks for a period of time comparable to such
Interest Period offered by major banks in New York City at approximately 11:00
a.m. New York City time, on the second LIBOR Business Day prior to the first day
of such Interest Period. In the event that the Administrative Agent is unable to
obtain any such quotation as provided above, it will be considered that LIBOR
Rate pursuant to a LIBOR Rate Loan cannot be determined.
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LIBOR Rate Loans. Loans bearing interest calculated by reference to the
LIBOR Rate.
Lien. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any Synthetic Lease, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC or comparable
law of any jurisdiction).
Loan Documents. This Credit Agreement, the Notes, the Guaranties, the
Letter of Credit Applications, and the Letters of Credit.
Loan Request. See (S)2.6.
Loan(s). The Revolving Credit Loan(s) made by the Lenders to the Borrower
pursuant to (S)2, including the Loans advanced by the Administrative Agent
under(S)2.6.2.
Loan Maturity Date. June 14, 2005.
Material Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a material adverse effect on the business, properties, condition
(financial or otherwise), assets, operations or income of the Borrower,
individually or the Borrower and its Subsidiaries, taken as a whole;
(b) an adverse effect on the ability of the Borrower or any other obligor,
individually and taken as a whole, to perform any of their respective
Obligations under any of the Loan Documents to which it is a party; or
(c) any material impairment of the validity, binding effect or
enforceability of this Credit Agreement or any of the other Loan Documents, or
any material impairment of the rights, remedies or benefits available to the
Administrative Agent or any Lender under any Loan Document.
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries
may at any time draw under outstanding Letters of
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Credit, as such aggregate amount may be reduced from time to time pursuant to
the terms of the Letters of Credit.
Notes. The Revolving Credit Notes.
Nova Scotia Notes. The 7.66% Senior Notes due November 12, 2007 and the
7.80% Senior Notes due November 12, 2010 issued by 3031786 Nova Scotia Company,
and any extensions or renewals thereof, provided that the principal amount of
Indebtedness evidenced thereby is not increased.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Lenders and the Administrative
Agent, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Application, Letter of Credit or other instruments
at any time evidencing any thereof.
Operating Account. See (S)2.6.2.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens permitted by (S)9.2.
Person. Any individual, corporation, limited liability company partnership,
limited liability partnership, trust, other unincorporated association,
business, or other legal entity, and any Governmental Authority.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Register. See (S)15.3.
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Reimbursement Obligation. The Borrower's obligation to reimburse the
Administrative Agent and the Lenders on account of any drawing under any Letter
of Credit as provided in (S)4.2.
Required Lenders. As of any date, the Lenders holding sixty-one percent
(61%) of the outstanding principal amount of the Notes on such date; and if no
such principal is outstanding, the Lenders whose aggregate Commitments
constitute sixty-one percent (61%) of the Total Commitment.
Restricted Payment. In relation to the Borrower and its Subsidiaries, any
(a) Distribution, (b) payment or prepayment by the Borrower or its Subsidiaries
to the Borrower's or any Subsidiary's shareholders (or other equity holders), in
each case, other than to the Borrower, or to any Affiliate of the Borrower or
any Subsidiary of any Affiliate of the Borrower's or such Subsidiary's
shareholders (or other equity holders), or (c) derivatives or other transactions
with any financial institution, commodities or stock exchange or clearinghouse
(a "Derivatives Counterparty") obligating the Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of any Capital Stock of the Borrower or such Subsidiary.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Lenders to the Borrower pursuant to (S)2.
Note Record. A Record with respect to a Note.
Revolving Credit Notes. See (S)2.4.
Settlement. The making or receiving of payments, in immediately available
funds, by the Lenders, to the extent necessary to cause each Lender's actual
share of the outstanding amount of Loans (after giving effect to any Loan
Request) to be equal to such Lender's Commitment Percentage of the outstanding
amount of such Loans (after giving effect to any Loan Request), in any case
where, prior to such event or action, the actual share is not so equal.
Settlement Amount. See (S)2.9.1.
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Administrative
Agent, on any Business Day following a day on which the account officers of the
Administrative Agent active upon the Borrower's account become aware of the
existence of an Event of Default, (d) any
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Business Day on which the amount of Loans outstanding from Fleet plus Fleet's
Commitment Percentage of the sum of the Maximum Drawing Amount and any Unpaid
Reimbursement Obligations is equal to or greater than Fleet's Commitment
Percentage of the Total Commitment, (e) any day on which any conversion of a
Base Rate Loan to a LIBOR Rate Loan occurs, or (f) any Business Day on which (i)
the amount of outstanding Loans decreases and (ii) the amount of the
Administrative Agent's Loans outstanding equals zero Dollars ($0).
Settling Lender. See (S)2.9.1.
Significant Subsidiary. Each Subsidiary of the Borrower which in the most
recent fiscal year of the Borrower accounted for more than 10% of the
Consolidated Total Assets for each of the most recent three fiscal years of the
Borrower; provided, however, that with respect to Subsidiaries created or
acquired after the date hereof, if thereafter such entity, in a fiscal year,
accounts for more than 10% of the Consolidated Total Assets in such fiscal year,
it shall be deemed to be a Significant Subsidiary for such fiscal year.
Subordinated Debt. Indebtedness of the Borrower or any of its Subsidiaries
that is expressly subordinated and made junior to the payment and performance in
full of the Obligations, and evidenced as such by a written instrument
containing subordination provisions in form and substance approved by the
Administrative Agent after consultation with the Required Lenders.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Synthetic Lease. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
Total Commitment. The sum of the Commitments of the Lenders, as in effect
from time to time, which amount, as of the Closing Date shall not exceed
$150,000,000, which amount may be increased or decreased from time to time in
accordance with this Credit Agreement.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which the
Borrower does not reimburse the Administrative
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Agent and the Lenders on the date specified in, and in accordance with, (S)4.2.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in the State of New
York, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial
Code.
(h) Reference to a particular "(S)" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
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(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to,
among others, the Administrative Agent and the Borrower and are the
product of discussions and negotiations among all parties. Accordingly,
this Credit Agreement and the other Loan Documents are not intended to
be construed against the Administrative Agent or any of the Lenders
merely on account of the Administrative Agent's or any Lender's
involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time from
the Closing Date up to but not including the Loan Maturity Date upon notice by
the Borrower to the Administrative Agent given in accordance with (S)2.6, such
sums as are requested by the Borrower up to a maximum aggregate amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Lender's Commitment minus such Lender's Commitment Percentage of the sum
of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided
that the sum of the outstanding amount of the Loans (after giving effect to all
amounts requested) plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total Commitment at such time. The
Loans shall be made pro rata in accordance with each Lender's Commitment
Percentage. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in (S)11 and (S)12,
in the case of the initial Loans to be made on the Closing Date, and (S)12, in
the case of all other Loans, have been satisfied on the date of such request.
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2.2. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the "Commitment Fee") calculated at the
rate per annum equal to the Applicable Margin with respect to the Commitment Fee
as in effect from time to time on the average daily amount during each calendar
quarter or portion thereof from the Closing Date to the Loan Maturity Date by
which the Total Commitment minus the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations exceeds the outstanding amount of Loans
(excluding any Loans advanced by the Administrative Agent under (S)2.6.2) during
such calendar quarter. The Commitment Fee shall be payable quarterly in arrears
on the last day of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the date hereof, with a
final payment on the Loan Maturity Date or any earlier date on which the
Commitments shall terminate.
2.3. Reduction of Total Commitment. The Borrower shall have the right
at any time and from time to time upon five (5) Business Days prior written
notice to the Administrative Agent to reduce by $5,000,000 or a whole multiple
of $1,000,000 in excess thereof or to terminate entirely the Total Commitment,
whereupon the Commitments of the Lenders shall be reduced pro rata in accordance
with their respective Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated. Promptly after receiving any notice
of the Borrower delivered pursuant to this (S)2.3, the Administrative Agent will
notify the Lenders of the substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Lenders the full amount of any Commitment Fee
then accrued on the amount of the reduction. No reduction or termination of the
Commitments may be reinstated.
2.3.1. Increase of Total Commitment. Unless a Default or Event
of Default has occurred and is continuing, the Borrower may request,
with prior written notice to the Administrative Agent, and subject to
the approval of the Administrative Agent if with respect to a new
lender, that the Total Commitment be increased, provided that the Total
Commitment shall not, except with the consent of the Required Lenders,
in any event exceed $200,000,000 hereunder, and provided, further, that
(i) any Lender which is a party to this Revolving Credit Agreement
prior to such increase shall have the first option to increase its
Commitment hereunder, but no Lender shall have any obligation to do so,
(ii) in the event that it becomes necessary to include a new Lender to
provide
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additional funding under this (S)2.3.1, such new Lender must be
reasonably acceptable to the Administrative Agent and the Borrower, and
(iii) the Lenders' Commitment Percentages shall be correspondingly
adjusted, as necessary, to reflect any increase in the Total Commitment
and Schedule 1 shall be amended to reflect such adjustments.
2.4. The Revolving Credit Notes. The Loans (other than those Loans
advanced by the Agent under (S)2.6.2) shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto (each a
"Note"), dated as of the Closing Date (or such other date on which a Lender may
become a party hereto in accordance with (S)15 hereof) and completed with
appropriate insertions. One Note shall be payable to the order of each Lender in
a principal amount equal to such Lender's Commitment or, if less, the
outstanding amount of all Loans made by such Lender, plus interest accrued
thereon, as set forth below. The Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Drawdown Date of any Loan
or at the time of receipt of any payment of principal on such Lender's Note, an
appropriate notation on such Lender's Note Record reflecting the making of such
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Loans set forth on such Lender's Note Record shall be prima facie
evidence of the principal amount thereof owing and unpaid to such Lender, but
the failure to record, or any error in so recording, any such amount on such
Lender's Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of principal of or
interest on any Note when due.
2.5. Interest on Loans. Except as otherwise provided in (S)5.11,
(a) Each Loan which is a Base Rate Loan shall bear interest
for the period commencing with the Drawdown Date thereof and ending on
the last day of the Interest Period with respect thereto at the rate
per annum equal to the Base Rate plus the Applicable Margin with
respect to Base Rate Loans as in effect from time to time.
(b) Each Loan which is a LIBOR Rate Loan shall bear interest
for the period commencing with the Drawdown Date thereof and ending on
the last day of the Interest Period with respect thereto at the rate
per annum equal to the LIBOR Rate determined for such Interest Period
plus the Applicable Margin with respect to LIBOR Rate Loans as in
effect from time to time.
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The Borrower promises to pay interest on the Loans on each Interest Payment
Date with respect thereto.
2.6. Requests for Loans.
2.6.1. General. The Borrower shall give to the Administrative
Agent written notice in the form of Exhibit B hereto (or telephonic
notice confirmed in a writing in the form of Exhibit B hereto) of each
Loan requested hereunder (a "Loan Request") no less than (a) one (1)
Business Day prior to the proposed Drawdown Date of any Base Rate Loan
and (b) three (3) LIBOR Business Days prior to the proposed Drawdown
Date of any LIBOR Rate Loan. Each such notice shall specify (i) the
principal amount of the Loan requested, (ii) the proposed Drawdown Date
of such Loan, (iii) the Interest Period for such Loan and (iv) the Type
of such Loan. Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Lenders thereof. Each
Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Loan requested from the Lenders on
the proposed Drawdown Date. Each Loan Request shall be in a minimum
aggregate amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
2.6.2. Swing Line. Notwithstanding the notice and minimum
amount requirements set forth in (S)2.6.1 but otherwise in accordance
with the terms and conditions of this Credit Agreement, the
Administrative Agent may, in its sole discretion and without conferring
with the Lenders, make Loans to the Borrower on a same day basis in an
aggregate amount not exceeding $15,000,000 (a) by entry of credits to
the Borrower's operating account (the "Operating Account") with the
Administrative Agent or such other account which the Borrower has
designated as such to the Administrative Agent by not less than three
(3) Business Days notice, to cover checks or other charges which the
Borrower has drawn or made against such account or (b) in an amount as
otherwise requested by the Borrower. The Borrower hereby requests and
authorizes the Administrative Agent to make from time to time such
Loans by means of appropriate entries of such credits sufficient to
cover checks and other charges then presented for payment from the
Operating Account or as otherwise so requested. The Borrower
acknowledges and agrees that the making of such Loans shall, in each
case, be subject in all respects to the provisions of this Credit
Agreement as if they were Loans covered by a Loan Request including,
without limitation, the limitations set forth in (S)2.1 and the
requirements that the
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applicable provisions of (S)11 (in the case of Loans made on the
Closing Date) and (S)12 be satisfied. All actions taken by the
Administrative Agent pursuant to the provisions of this (S)2.6.2 shall
be conclusive and binding on the Borrower and the Lenders absent the
Administrative Agent's gross negligence or willful misconduct. Loans
made pursuant to this (S)2.6.2 shall be Base Rate Loans until
converted in accordance with the provisions of the Credit Agreement
and, prior to a Settlement, such interest shall be for the account of
the Administrative Agent.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Loan. The Borrower may
elect from time to time to convert any outstanding Loan to a Loan of
another Type, provided that (a) with respect to any such conversion of
a LIBOR Rate Loan to a Base Rate Loan, the Borrower shall give the
Administrative Agent at least one (1) Business Day prior written notice
of such election; (b) with respect to any such conversion of a Base
Rate Loan to a LIBOR Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) LIBOR Business Days prior
written notice of such election; (c) with respect to any such
conversion of a LIBOR Rate Loan into a Base Rate Loan, such conversion
shall only be made on the last day of the Interest Period with respect
thereto and (d) no Loan may be converted into a LIBOR Rate Loan when
any Default or Event of Default has occurred and is continuing. On the
date on which such conversion is being made each Lender shall take such
action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its LIBOR Lending Office, as
the case may be. All or any part of outstanding Loans of any Type may
be converted into a Loan of another Type as provided herein, provided
that any partial conversion shall be in an aggregate principal amount
of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Conversion Request relating to the conversion of a Loan to a LIBOR Rate
Loan shall be irrevocable by the Borrower.
2.7.2. Continuation of Type of Loan. Any Loan of any Type may
be continued as a Loan of the same Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with
the notice provisions contained in (S)2.7.1; provided that no LIBOR
Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to
a Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the
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continuance of any Default or Event of Default of which officers of the
Administrative Agent active upon the Borrower's account have actual
knowledge. In the event that the Borrower fails to provide any such
notice with respect to the continuation of any LIBOR Rate Loan as such,
then such LIBOR Rate Loan shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating
thereto. The Administrative Agent shall notify the Lenders promptly
when any such automatic conversion contemplated by this (S)2.7 is
scheduled to occur.
2.7.3. LIBOR Rate Loans. Any conversion to or from LIBOR Rate
Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of
all LIBOR Rate Loans having the same Interest Period shall not be less
than $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.8. Funds for Loan.
2.8.1. Funding Procedures. Not later than 11:00 a.m. (Boston
time) on the proposed Drawdown Date of any Loans, each of the Lenders
will make available to the Administrative Agent, at the Administrative
Agent's Office, in immediately available funds, the amount of such
Lender's Commitment Percentage of the amount of the requested Loans.
Upon receipt from each Lender of such amount, and upon receipt of the
documents required by (S)(S)11 and 12 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrower the aggregate
amount of such Loans made available to the Administrative Agent by the
Lenders. The failure or refusal of any Lender to make available to the
Administrative Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Loans
shall not relieve any other Lender from its several obligation
hereunder to make available to the Administrative Agent the amount of
such other Lender's Commitment Percentage of any requested Loans.
2.8.2. Advances by Administrative Agent. The Administrative
Agent may, unless notified to the contrary by any Lender prior to a
Drawdown Date, assume that such Lender has made available to the
Administrative Agent on such Drawdown Date the amount of such Lender's
Commitment Percentage of the Loans to be made on such Drawdown Date,
and the Administrative Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Lender
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makes available to the Administrative Agent such amount on a date after
such Drawdown Date, such Lender shall pay to the Administrative Agent
on demand an amount equal to the product of (a) the average computed
for the period referred to in clause (c) below, of the weighted average
interest rate paid by the Administrative Agent for federal funds
acquired by the Administrative Agent during each day included in such
period, times (b) the amount of such Lender's Commitment Percentage of
such Loans, times (c) a fraction, the numerator of which is the number
of days that elapse from and including such Drawdown Date to the date
on which the amount of such Lender's Commitment Percentage of such
Loans shall become immediately available to the Administrative Agent,
and the denominator of which is 360. A statement of the Administrative
Agent submitted to such Lender with respect to any amounts owing under
this paragraph shall be prima facie evidence of the amount due and
owing to the Administrative Agent by such Lender. If the amount of such
Lender's Commitment Percentage of such Loans is not made available to
the Administrative Agent by such Lender within three (3) Business Days
following such Drawdown Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower on demand, with
interest thereon at the rate per annum applicable to the Loans made on
such Drawdown Date.
2.9. Settlements.
2.9.1. General. On each Settlement Date, the Administrative
Agent shall, not later than 11:00 a.m. (Boston time), give telephonic
or facsimile notice (a) to the Lenders and the Borrower of the
respective outstanding amount of Loans made by the Administrative Agent
on behalf of the Lenders from the immediately preceding Settlement Date
through the close of business on the prior day and the amount of any
LIBOR Rate Loans to be made (following the giving of notice pursuant to
(S)2.6.1(b)) on such date pursuant to a Loan Request and (b) to the
Lenders of the amount (a "Settlement Amount") that each Lender (a
"Settling Lender") shall pay to effect a Settlement of any Loan. A
statement of the Administrative Agent submitted to the Lenders and the
Borrower or to the Lenders with respect to any amounts owing under this
(S)2.9 shall be prima facie evidence of the amount due and owing. Each
Settling Lender shall, not later than 3:00 p.m. (Boston time) on such
Settlement Date, effect a wire transfer of immediately available funds
to the Administrative Agent in the amount of the Settlement Amount for
such Settling Lender. All funds advanced by any Lender as a Settling
Lender pursuant to
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this (S)2.9 shall for all purposes be treated as a Loan made by such
Settling Lender to the Borrower and all funds received by any Lender
pursuant to this (S)2.9 shall for all purposes be treated as repayment
of amounts owed with respect to Loans made by such Lender. In the event
that any bankruptcy, reorganization, liquidation, receivership or
similar cases or proceedings in which the Borrower is a debtor prevent
a Settling Lender from making any Loan to effect a Settlement as
contemplated hereby, such Settling Lender will make such dispositions
and arrangements with the other Lenders with respect to such Loans,
either by way of purchase of participations, distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each
Lender's share of the outstanding Loans being equal, as nearly as may
be, to such Lender's Commitment Percentage of the outstanding amount of
the Loans.
2.9.2. Failure to Make Funds Available. The Administrative
Agent may, unless notified to the contrary by any Settling Lender prior
to a Settlement Date, assume that such Settling Lender has made or will
make available to the Administrative Agent on such Settlement Date the
amount of such Settling Lender's Settlement Amount, and the
Administrative Agent may (but it shall not be required to), in reliance
upon such assumption, make available to the Borrower a corresponding
amount. If any Settling Lender makes available to the Administrative
Agent such amount on a date after such Settlement Date, such Settling
Lender shall pay to the Administrative Agent on demand an amount equal
to the product of (a) the average computed for the period referred to
in clause (c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative
Agent during each day included in such period, times (b) the amount of
such Settlement Amount, times (c) a fraction, the numerator of which is
the number of days that elapse from and including such Settlement Date
to the date on which the amount of such Settlement Amount shall become
immediately available to the Administrative Agent, and the denominator
of which is 360. A statement of the Administrative Agent submitted to
such Settling Lender with respect to any amounts owing under this
(S)2.9.2 shall be prima facie evidence of the amount due and owing to
the Administrative Agent by such Settling Lender. If such Settling
Lender's Settlement Amount is not made available to the Administrative
Agent by such Settling Lender within three (3) Business Days following
such Settlement Date, the Administrative Agent shall be entitled to
recover such amount from the Borrower
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on demand, with interest thereon at the rate per annum applicable to
the Loans as of such Settlement Date.
2.9.3. No Effect on Other Lenders. The failure or refusal of
any Settling Lender to make available to the Administrative Agent at
the aforesaid time and place on any Settlement Date the amount of such
Settling Lender's Settlement Amount shall not (a) relieve any other
Settling Lender from its several obligations hereunder to make
available to the Administrative Agent the amount of such other Settling
Lender's Settlement Amount or (b) impose upon any Lender, other than
the Settling Lender so failing or refusing, any liability with respect
to such failure or refusal or otherwise increase the Commitment of such
other Lender.
3. REPAYMENT OF THE LOANS.
3.1. Maturity. The Borrower promises to pay on the Loan Maturity Date,
and there shall become absolutely due and payable on the Loan Maturity Date, all
of the Loans outstanding on such date, together with any and all accrued and
unpaid interest thereon.
3.2. Mandatory Repayments of Loans. If at any time the sum of the
outstanding amount of the Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment at such time, 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 any
Unpaid Reimbursement Obligations; second, to the Loans; and third, to provide to
the Administrative Agent cash collateral for Reimbursement Obligations as
contemplated by (S)4.2(b) and (c). Each payment of any Unpaid Reimbursement
Obligations or prepayment of Loans shall be allocated among the Lenders, in
proportion, as nearly as practicable, to each Reimbursement Obligation or (as
the case may be) the respective unpaid principal amount of each Lender's Note,
with adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
3.3. Optional Repayments of Loans. The Borrower shall have the right,
at its election, to repay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium, provided that, subject to
compliance with (S)5.10, any full or partial prepayment of the outstanding
amount of any LIBOR Rate Loans pursuant to this (S)3.3 may be made on a day
other than the last day of the Interest Period relating thereto. The Borrower
shall give the Administrative Agent, no later than 10:00 a.m., Boston time, at
least one (1) Business Day prior
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written notice of any proposed prepayment pursuant to this (S)3.3 of Base Rate
Loans, and three (3) LIBOR Business Days notice of any proposed prepayment
pursuant to this (S)3.3 of LIBOR Rate Loans, in each case specifying the
proposed date of prepayment of Loans and the principal amount to be prepaid.
Each such partial prepayment of the Loans shall be in an integral multiple of
$1,000,000, shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of prepayment and shall be applied, in the absence
of instruction by the Borrower, first to the principal of Base Rate Loans and
then to the principal of LIBOR Rate Loans. Each partial prepayment shall be
allocated among the Lenders, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Lender's Note, with adjustments to
the extent practicable to equalize any prior repayments not exactly in
proportion.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of Credit. Subject to the
terms and conditions hereof and the execution and delivery by the
Borrower of a letter of credit application on the Administrative
Agent's customary form (a "Letter of Credit Application"), the
Administrative Agent on behalf of the Lenders and in reliance upon the
agreement of the Lenders set forth in (S)4.1.4 and upon the
representations and warranties of the Borrower contained herein,
agrees, in its individual capacity, to issue, extend and renew for the
account of the Borrower one or more standby or documentary letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and agreed to by the
Administrative Agent; provided, however, that, after giving effect to
such request, (a) the sum of the aggregate Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not exceed $50,000,000 at
any one time and (b) the sum of (i) the Maximum Drawing Amount on all
Letters of Credit, (ii) all Unpaid Reimbursement Obligations, and (iii)
the amount of all Loans outstanding shall not exceed the Total
Commitment at such time.
4.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the
Administrative Agent. In the event that any provision of any Letter of
Credit Application shall be inconsistent with any provision of this
Credit Agreement, then the provisions of this Credit Agreement shall,
to the extent of any such inconsistency, govern.
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4.1.3. Terms of Letters of Credit. Each Letter of Credit issued
issued, extended or renewed hereunder shall, among other things, (a)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, and (b) have an expiry date no later
than the date which is fourteen (14) days (or, if the Letter of Credit
is confirmed by a confirmer or otherwise provides for one or more
nominated persons, forty-five (45) days) prior to the Loan Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be
subject to the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500
or any successor version thereto adopted by the Administrative Agent in
the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit (the "Uniform
Customs") or, in the case of a standby Letter of Credit, either the
Uniform Customs or the International Standby Practices (ISP98),
International Chamber of Commerce Publication No. 590, or any successor
code of standby letter of credit practices among banks adopted by the
Administrative Agent in the ordinary course of its business as a
standby letter of credit issuer and in effect at the time of issuance
of such Letter of Credit.
4.1.4. Reimbursement Obligations of Lenders. Each Lender
severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Lender's
Commitment Percentage, to reimburse the Administrative Agent on demand
for the amount of each draft paid by the Administrative Agent under
each Letter of Credit to the extent that such amount is not reimbursed
by the Borrower pursuant to (S)4.2 (such agreement for a Lender being
called herein the "Letter of Credit Participation" of such Lender).
4.1.5. Participations of Lenders. Each such payment made by a
Lender shall be treated as the purchase by such Lender of a
participating interest in the Borrower's Reimbursement Obligation under
(S)4.2 in an amount equal to such payment. Each Lender shall share in
accordance with its participating interest in any interest which
accrues pursuant to (S)4.2.
4.2. Reimbursement Obligation of the Borrower. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Lenders to participate therein, the Borrower hereby agrees to reimburse or pay
to the Administrative Agent, for the account
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of the Administrative Agent or (as the case may be) the Lenders, with respect to
each Letter of Credit issued, extended or renewed by the Administrative Agent
hereunder,
(a) except as otherwise expressly provided in (S)4.2(b) and
(c), on each date that any draft presented under such Letter of Credit
is honored by the Administrative Agent, or the Administrative Agent
otherwise makes a payment with respect thereto, (i) the amount paid by
the Administrative Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by the Administrative Agent or any
Lender in connection with any payment made by the Administrative Agent
or any Lender under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the Lenders and the
Administrative Agent as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with (S)13, an amount equal to the then
Maximum Drawing Amount on all Letters of Credit, which amount shall be
held by the Administrative Agent for the benefit of the Lenders and the
Administrative Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrower under this (S)4.2 at any time
from the date such amounts become due and payable (whether as stated in this
(S)4.2, by acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Administrative Agent on demand at the
rate specified in (S)5.11 for overdue principal on the Loans.
4.3. Letter of Credit Payments. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Administrative Agent shall notify the Borrower of the date and amount of the
draft presented or demand for payment and of the date and time when it expects
to pay such draft or honor such demand for payment. If the Borrower fails to
reimburse the Administrative Agent as
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provided in (S)4.2 on or before the date that such draft is paid or other
payment is made by the Administrative Agent, the Administrative Agent may at any
time thereafter notify the Lenders of the amount of any such Unpaid
Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the Business
Day next following the receipt of such notice, each Lender shall make available
to the Administrative Agent, at the Administrative Agent's Office, in
immediately available funds, such Lender's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (a)
the average, computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, times (b) the amount equal to such Lender's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of
which is the number of days that elapse from and including the date the
Administrative Agent paid the draft presented for honor or otherwise made
payment to the date on which such Lender's Commitment Percentage of such Unpaid
Reimbursement Obligation shall become immediately available to the
Administrative Agent, and the denominator of which is 360. The responsibility of
the Administrative Agent to the Borrower and the Lenders shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
4.4. Obligations Absolute. The Borrower's obligations under this (S)4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Administrative Agent, any
Lender or any beneficiary of a Letter of Credit. The Borrower further agrees
with the Administrative Agent and the Lenders that the Administrative Agent and
the Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligations under (S)4.2 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even if
such documents should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Administrative Agent and the Lenders shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however
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transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Administrative Agent or any Lender under or
in connection with each Letter of Credit and the related drafts and documents,
if done in good faith, shall be binding upon the Borrower and shall not result
in any liability on the part of the Administrative Agent or any Lender to the
Borrower.
4.5. Reliance by Issuer. To the extent not inconsistent with (S)4.4,
the Administrative Agent shall be entitled to rely, and shall be fully protected
in relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement unless it shall first have received such
advice or concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Credit Agreement in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon the Lenders and all future holders of the Notes or of a Letter of
Credit Participation.
4.6. Letter of Credit Fee. The Borrower shall pay a fee (the "Letter
of Credit Fee") equal to the Applicable Letter of Credit Margin on the Maximum
Drawing Amount of the Letters of Credit to the Administrative Agent for the
account of the Lenders, to be shared pro rata by the Lenders in accordance with
their respective Commitment Percentages. The Letter of Credit Fee shall be
payable quarterly in arrears on the first day of each calendar quarter for the
quarter just ended, with the first such payment commencing June 30, 2002, and on
the Maturity Date. In addition, an issuing fee (the "Issuance Fee") equal to one
eighth percent (1/8%) of the Maximum Drawing Amount with respect to each Letter
of Credit shall be payable by the Borrower to the Administrative Agent for its
account and the Borrower shall pay to the Administrative Agent any amendment,
negotiation or document examination and other administrative fees charged by the
Administrative Agent in connection with Letter of Credit as in effect from time
to time.
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5. CERTAIN GENERAL PROVISIONS.
5.1. Arrangement Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of the Arranger, on the Closing Date an arrangement fee
(the "Arrangement Fee") as set forth in the Fee Letter.
5.2. Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent, an Administrative Agent's fee (the "Administrative Agent's
Fee") as set forth in the Fee Letter.
5.3. Funds for Payments.
5.3.1. Payments to Administrative Agent. All payments of
principal, interest, Reimbursement Obligations, Fees and any other
amounts due hereunder or under any of the other Loan Documents shall be
made on the due date thereof to the Administrative Agent in Dollars,
for the respective accounts of the Lenders and the Administrative
Agent, at the Administrative Agent's Office or at such other place that
the Administrative Agent may from time to time designate, in each case
at or about 11:00 a.m. (Boston, Massachusetts, time or other local time
at the place of payment) and in immediately available funds.
5.3.2. No Offset, etc. All payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without
recoupment, setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions
of any nature now or hereafter imposed or levied by any jurisdiction or
any political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower will pay to the Administrative Agent, for
the account of the Lenders or (as the case may be) the Administrative
Agent, on the date on which such amount is due and payable hereunder or
under such other Loan Document, such additional amount in Dollars as
shall be necessary to enable the Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative
Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the
Administrative Agent certificates or other valid vouchers for all taxes
or other charges
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deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
5.3.3. Non-U.S. Lenders. Each Lender and the Administrative
Agent that is not a U.S. Person as defined in Section 7701(a)(30) of
the Code for federal income tax purposes (a "Non-U.S. Lender") hereby
agrees that, if and to the extent it is legally able to do so, it
shall, prior to the date of the first payment by the Borrower hereunder
to be made to such Lender or the Administrative Agent or for such
Lender's or the Administrative Agent's account, deliver to the Borrower
and the Administrative Agent, as applicable, such certificates,
documents or other evidence, as and when required by the Code or
Treasury Regulations issued pursuant thereto, including (a) in the case
of a Non-U.S. Lender that is a "bank" for purposes of Section
881(c)(3)(A) of the Code, two (2) duly completed copies of Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or
statement of exemption required by Treasury Regulations, or any
subsequent versions thereof or successors thereto, properly completed
and duly executed by such Lender or the Administrative Agent
establishing that with respect to payments of principal, interest or
fees hereunder it is (i) not subject to United States federal
withholding tax under the Code because such payment is effectively
connected with the conduct by such Lender or Administrative Agent of a
trade or business in the United States or (ii) totally exempt or
partially exempt from United States federal withholding tax under a
provision of an applicable tax treaty and (b) in the case of a Non-U.S.
Lender that is not a "bank" for purposes of Section 881(c)(3)(A) of the
Code, a certificate in form and substance reasonably satisfactory to
the Administrative Agent and the Borrower and to the effect that (i)
such Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as
a bank for purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application made to
a rating agency or qualification for any exemption from any tax,
securities law or other legal requirements, (ii) is not a ten (10)
percent shareholder for purposes of Section 881(c)(3)(B) of the Code
and (iii) is not a controlled foreign corporation receiving interest
from a related person for purposes of Section 881(c)(3)(C) of the Code,
together with a properly completed Internal Revenue Service Form W-8 or
W-9, as applicable (or successor forms). Each Lender or the
Administrative Agent agrees that it shall, promptly upon a change of
its lending office or the selection of any additional lending office,
to the extent the forms
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previously delivered by it pursuant to this section are no longer
effective, and promptly upon the Borrower's or the Administrative
Agent's reasonable request after the occurrence of any other event
(including the passage of time) requiring the delivery of a Form
W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in replacement
of the forms previously delivered, deliver to the Borrower and the
Administrative Agent, as applicable, if and to the extent it is
properly entitled to do so, a properly completed and executed Form
W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or any successor
forms thereto). The Borrower shall not be required to pay any
additional amounts to any Non-U.S. Lender in respect of United States
federal withholding tax pursuant to (S)6.3.2 above to the extent that
the obligation to pay such additional amounts would not have arisen but
for a failure by such Non-U.S. Lender to comply with the provisions of
this (S)5.3.3; provided, however, that the foregoing shall not relieve
the Borrower of its obligation to pay additional amounts pursuant to
(S).5.3.2 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or
any change in interpretation, administration or application thereof, a
Non-US Lender that was previously entitled to receive all payments
under this Credit Agreement and the Notes without deduction or
withholding of any United States federal income taxes is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject
to withholding.
5.4. Computations. Except as otherwise expressly provided herein, all
computations of interest, and, the Commitment Fee, the Letter of Credit Fees or
other fees shall be based on a 360-day year and paid for the actual number of
days elapsed, except that computations based on the Base Rate (except to the
extent derived from the Federal Funds Rate) shall be based on a 365 or 366, as
applicable, day year and paid for the actual number of days elapsed. Whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension; provided that for any Interest Period for any LIBOR Loan if such next
succeeding Business Day falls in the next succeeding calendar month or after the
Maturity Date, it shall be deemed to end on the next preceding Business Day.
5.5. Inability to Determine LIBOR Rate. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the
Administrative Agent shall determine or be notified by the
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Required Lenders that (a) adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period or (b) the
LIBOR Rate determined or to be determined for such Interest Period will not, in
the Administrative Agent's reasonable opinion, adequately and fairly reflect the
cost to the Lenders of making or maintaining their LIBOR Rate Loans during such
period, the Administrative Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Lenders) to the Borrower and the Lenders. In such event (i) any Loan Request or
Conversion Request with respect to LIBOR Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each LIBOR
Rate Loan will automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (iii) the obligations of
the Lenders to make LIBOR Rate Loans shall be suspended until the Administrative
Agent or the Required Lenders determine that the circumstances giving rise to
such suspension no longer exist, whereupon the Administrative Agent or, as the
case may be, the Administrative Agent upon the instruction of the Required
Lenders, shall so notify the Borrower and the Lenders.
5.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Rate Loans, such Lender shall forthwith give notice of such circumstances
to the Borrower and the other Lenders and thereupon (a) the commitment of such
Lender to make LIBOR Rate Loans or convert Base Rate Loans to LIBOR Rate Loans
shall forthwith be suspended and (b) such Lender's Loans then outstanding as
LIBOR Rate Loans, if any, shall be converted automatically to Base Rate Loans on
the last day of each Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. The Borrower hereby agrees
promptly to pay the Administrative Agent for the account of such Lender, upon
demand by such Lender, any additional amounts necessary to compensate such
Lender for any costs incurred by such Lender in making any conversion in
accordance with this (S)5.6, including any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its LIBOR
Rate Loans hereunder.
5.7. Additional Costs, etc. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests,
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directives, instructions and notices at any time or from time to time hereafter
made upon or otherwise issued to any Lender or the Administrative Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Lender or the Administrative Agent to any tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Credit Agreement, the other Loan Documents, any
Letters of Credit, such Lender's Commitment or the Loans (other than
taxes based upon or measured by the income or profits of such Lender or
the Administrative Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable
to any Lender or the Administrative Agent under this Credit Agreement
or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy
or other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Lender, or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Lender's Commitment forms a part, and
the result of any of the foregoing is
(i) to increase the cost to any Lender of making,
funding, issuing, renewing, extending or maintaining any of the
Loans or such Lender's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender
or the Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Lender or the Administrative Agent
to make any payment or to forego any interest or
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Reimbursement Obligation or other sum payable hereunder, the amount of
which payment or foregone interest or Reimbursement Obligation or other
sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Administrative
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Lender
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise, pay to such Lender or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Lender or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum.
5.8. Capital Adequacy. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a Governmental Authority with appropriate jurisdiction, or (b) compliance by
such Lender or the Administrative Agent or any corporation controlling such
Lender or the Administrative Agent with any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) of any
such entity regarding capital adequacy, has the effect of reducing the return on
such Lender's or the Administrative Agent's commitment with respect to any Loans
to a level below that which such Lender or the Administrative Agent could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or the Administrative Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Administrative
Agent to be material, then such Lender or the Administrative Agent may notify
the Borrower of such fact in writing. To the extent that the amount of such
reduction in the return on capital is not reflected in the Base Rate, the
Borrower agrees to pay such Lender or (as the case may be) the Administrative
Agent for the amount of such reduction in the return on capital as and when such
reduction is determined upon presentation by such Lender or (as the case may be)
the Administrative Agent of a certificate in accordance with (S)5.9 hereof. Each
Lender shall allocate such cost increases among its customers in good faith and
on an equitable basis.
5.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to (S)(S)5.7 or 5.8 showing the calculation in
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reasonable detail, submitted by any Lender or the Administrative Agent to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing. The Lender or the Administrative Agent shall notify the Borrower
within 180 days after it becomes aware of the imposition of such additional
amount or amounts; provided that if such Lender or the Administrative Agent
fails to so notify the Borrower within such 180 day period, such Lender or the
Administrative Agent shall not be entitled to claim any additional amount or
amounts pursuant to this subsection for any period ending on a date which is
prior to 180 days before such notification.
5.10. Indemnity for LIBOR Rate Loans. The Borrower agrees to indemnify
each Lender and to hold each Lender harmless from and against any loss, cost or
expense that such Lender may sustain or incur as a consequence of (a) default by
the Borrower in payment of the principal amount of or any interest on any LIBOR
Rate Loans as and when due and payable, including any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, (b) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is
deemed to have given) a Loan Request or a Conversion Request relating thereto in
accordance with (S)2.6 or (S)2.7 or (c) the making of any payment of a LIBOR
Rate Loan or the making of any conversion of any such Loan to a Base Rate Loan
on a day that is not the last day of the applicable Interest Period with respect
thereto (but excluding loss of margin), including interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain any such
Loans. If any Lender becomes entitled to claim any payment pursuant to this
(S)5.10, it shall notify the Borrower within 60 days of the event by reason of
which it has become so entitled and shall provide Borrower with a certificate as
to any additional amounts payable pursuant to this section, showing the
calculation thereof in reasonable detail. Borrower shall promptly pay all such
amounts upon receipt of Lender's certificate.
5.11. Interest After Default.
5.11.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to two percent (2%) above the rate of
interest then applicable thereto (or, if no rate of interest is then
applicable thereto, the Base Rate) until such amount shall be paid in
full (after as well as before judgment).
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5.11.2. Amounts Not Overdue. During the continuance of a Default
or an Event of Default the principal of the Loans not overdue shall,
until such Default or Event of Default has been cured or remedied or
such Default or Event of Default has been waived by the Required
Lenders pursuant to (S)16.12, bear interest compounded monthly and
payable on demand at a rate per annum equal to two percent (2%) above
the rate of interest then applicable thereto (or, if no rate of
interest is then applicable thereto, the Base Rate).
5.12. Replacement of Lenders. If any Lender (an "Affected Lender") (a)
makes demand upon the Borrower for (or if the Borrower is otherwise required to
pay) amounts pursuant to (S)(S)5.7 or 5.8, (b) is unable to make or maintain
LIBOR Rate Loans as a result of a condition described in (S)5.6 or (c) defaults
in its obligation to make Loans in accordance with the terms of this Credit
Agreement or purchase any Letter of Credit Participation, the Borrower may, so
long as no Default or Event of Default has occurred and is then continuing,
within ninety (90) days of receipt of such demand, notice (or the occurrence of
such other event causing the Borrower to be required to pay such compensation or
causing (S)5.6 to be applicable), or default, as the case may be, by notice (a
"Replacement Notice") in writing to the Administrative Agent and such Affected
Lender (i) request the Affected Lender to cooperate with the Borrower in
obtaining a replacement Lender satisfactory to the Administrative Agent and the
Borrower (the "Replacement Lender"); (ii) request the non-Affected Lenders to
acquire and assume all of the Affected Lender's Loans and Commitment as provided
herein, but none of such Lenders shall be under an obligation to do so; or (iii)
designate a Replacement Lender approved by the Administrative Agent, such
approval not to be unreasonably withheld or delayed. If any satisfactory
Replacement Lender shall be obtained, and/or if any one or more of the
non-Affected Lenders shall agree to acquire and assume all of the Affected
Lender's Loans and Commitment, then such Affected Lender shall assign, in
accordance with (S)15, all of its Commitment, Loans, Letter of Credit
Participations, Notes and other rights and obligations under this Credit
Agreement and all other Loan Documents to such Replacement Lender or
non-Affected Lenders, as the case may be, in exchange for payment of the
principal amount so assigned and all interest and fees accrued on the amount so
assigned, plus all other Obligations then due and payable to the Affected
Lender; provided, however, that (A) such assignment shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender and/or
non-Affected Lenders, as the case may be, and (B) prior to any such assignment,
the Borrower shall have paid to such Affected
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Lender all amounts properly demanded and unreimbursed under (S)(S)5.7 and 5.8.
Upon the effective date of such assignment, the Borrower shall issue replacement
Notes to such Replacement Lender and/or non-Affected Lenders, as the case may
be, and such institution shall become a "Lender" for all purposes under this
Credit Agreement and the other Loan Documents.
6. GUARANTORS.
6.1. Guaranty by Subsidiaries. To the extent any of the Borrower's
Subsidiaries agrees to provide a guaranty to any of the lenders under the
Existing Senior Debt or other Indebtedness permitted hereunder, the Borrower, if
requested by the Administrative Agent with 60 days prior written notice, but in
no event later than the grant of such other guaranty, will cause each Subsidiary
(excluding any foreign Subsidiaries) that has agreed to guaranty such other
Indebtedness to become a Guarantor and shall cause such Subsidiary (excluding
any foreign Subsidiaries) to execute and deliver to the Administrative Agent,
for the benefit of the Administrative Agent and the Lenders, (a) a Guaranty in
the form of Exhibit E attached hereto, and (b) any other instruments and
documents as the Administrative Agent may reasonably require, together with
legal opinions in form and substance reasonably satisfactory to the
Administrative Agent to be delivered to the Administrative Agent and the Lenders
opining as to authorization, validity and enforceability of such Guaranties.
7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the
Administrative Agent as follows:
7.1. Corporate Authority.
7.1.1. Incorporation; Good Standing. Each of the Borrower and
its Subsidiaries (a) is a corporation (or similar business entity) duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, (b) has all requisite
corporate (or the equivalent company) power to own its property and
conduct its business as now conducted and as presently contemplated,
and (c) is in good standing as a foreign corporation (or similar
business entity) and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a
failure to be so qualified would not have a Material Adverse Effect.
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7.1.2. Authorization. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the
Borrower or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (a) are within the
corporate (or the equivalent company) authority of such Person, (b)
have been or will be (prior to becoming a party thereto) duly
authorized by all necessary corporate (or the equivalent company)
proceedings, (c) do not and will not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which the Borrower or any of its Subsidiaries is subject
or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or any of its Subsidiaries and (d) do not conflict with
any provision of the Governing Documents of, or any agreement or other
instrument binding upon, the Borrower or any of its Subsidiaries.
7.1.3. Enforceability. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of
its Subsidiaries is or is to become a party, upon execution and
delivery hereof or thereof, will result in valid and legally binding
obligations of such Person enforceable against it in accordance with
the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any proceeding
therefor may be brought.
7.2. Governmental Approvals. The execution, delivery and performance
by the Borrower and any of its Subsidiaries of this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is or is
to become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
7.3. Title to Properties. Except where the failure to do so would not
have a Material Adverse Effect and would not violate this Credit Agreement, the
Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
free from Liens other than Permitted Liens.
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7.4. Financial Statements.
7.4.1. Fiscal Year. The Borrower and each of its Subsidiaries has
a fiscal year which is the twelve months ending on December 31 of each
calendar year.
7.4.2. Financial Statements. There has been furnished to the
Administrative Agent and each Lender a consolidated balance sheet of
the Borrower and its Subsidiaries as at the Balance Sheet Date, and a
consolidated statement of income of the Borrower and its Subsidiaries
for the fiscal year then ended, certified by the Accountants. Such
balance sheet and statement of income have been prepared in accordance
with GAAP and fairly present the financial condition of the Borrower as
at the close of business on the date thereof and the results of
operations for the fiscal year then ended. There are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such date
involving material amounts required to be disclosed under GAAP, known
to the officers of the Borrower, which were not disclosed in such
balance sheet and the notes related thereto.
7.5. No Material Adverse Changes, etc. Since the Balance Sheet Date
there has been no change in the business, properties, assets or financial
condition of the Borrower and its Subsidiaries taken as a whole which is likely
to have a Material Adverse Effect. Other than as set forth on Schedule 7.5
hereto, since the Balance Sheet Date the Borrower has not made any Restricted
Payment that would violate this Credit Agreement.
7.6. Franchises, Patents, Copyrights, etc. The Borrower and each of
its Subsidiaries possesses all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others.
7.7. Litigation. Except as set forth in Schedule 7.7 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or, to
Borrower's knowledge, threatened against the Borrower or any of its Subsidiaries
before any Governmental Authority, that, if adversely determined, so far as
Borrower can now reasonably foresee, might, individually or in the aggregate,
have a Material Adverse Effect.
7.8. Compliance with Other Instruments, Laws, etc. Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of its
Governing Documents, or any agreement or instrument to which it is a party or by
which it or any of its properties may be bound or any
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decree, order, judgment, law, statute, license, rule or regulation, in any of
the foregoing cases in a manner that could be reasonably foreseen to have a
Material Adverse Effect.
7.9. Tax Status. The Borrower and its Subsidiaries (a) have made or
filed all federal, state and material foreign income and other material tax
returns, reports and declarations required by any jurisdiction to which any of
them is subject, (b) have paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings and
(c) have set aside on their books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and to Borrower's
knowledge, no basis exists for any such claim.
7.10. No Event of Default. No Default or Event of Default has occurred
and is continuing.
7.11. Holding Company and Investment Company Acts. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
7.12. Certain Transactions. Except for transactions permitted under
(S)9.11 and arm's length transactions pursuant to which the Borrower or any of
its Subsidiaries makes payments in the ordinary course of business upon terms no
less favorable than the Borrower or such Subsidiary could obtain from third
parties, none of the officers, directors, or employees of the Borrower or any of
its Subsidiaries or Affiliates is presently a party to any transaction with the
Borrower or any of its Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
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7.13. Employee Benefit Plans.
7.13.1. Relationship of Benefits to Pension Plan Assets. The
aggregate present value of all benefit liabilities within the meaning
of (S)4001 of ERISA under each Guaranteed Pension Plan did not, as of
the last annual valuation date for such Plan, exceed the fair market
value of the assets of such Plan allocable to such benefits by more
than $500,000, all as determined in accordance with Statement of
Financial Accounting Standards No. 87.
7.13.2. Prohibited Transactions. Neither Borrower nor any
ERISA Affiliate nor any Employee Benefit Plan nor any trust created
thereunder, nor, to the Borrower's knowledge, any trustee or
administrator thereof, has engaged in a "prohibited transaction," as
such term is defined in Section 4975 of the Code, or described in
Section 406 of ERISA, which could subject the Borrower, or any ERISA
Affiliate, any of the Employee Benefit Plans, any such trust, or any
trustee or administrator thereof, or any party dealing with the
Employee Benefit Plans or any such trust to the tax or penalty on
prohibited transactions imposed by said Section 4975 or by Section
502(i) of ERISA.
7.13.3. Guaranteed Pension Plans. Each contribution to a
Guaranteed Pension Plan required to be made to avoid the incurrence of
an accumulated funding deficiency and the notice or lien provisions of
(S)302(f) of ERISA, has been timely made. No waiver of an accumulated
funding deficiency or extension of amortization periods has been
received with respect to any Guaranteed Pension Plan, and neither the
Borrower nor any ERISA Affiliate is obligated to or has posted security
in connection with an amendment to a Guaranteed Pension Plan pursuant
to (S)307 of ERISA or (S)401(a)(29) of the Code. No liability to the
PBGC (other than required insurance premiums, all of which have been
paid) has been incurred by the Borrower or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or
condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC.
7.13.4 Multiemployer Plans. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under (S)4201 of ERISA
or as a result of a sale of assets described in
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(S)4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of (S)4241 or (S)4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
(S)4041A of ERISA.
7.14. Use of Proceeds.
7.14.1. General. The proceeds of the Loans shall be used to
refinance the existing senior credit facilities, and for working
capital and general corporate purposes including the acquisitions
permitted under (S)9.5.
7.14.2. Regulations U and X. No portion of any Loan will be
used, and no portion of any Letter of Credit will be obtained, for the
purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.15. Environmental Compliance. Except as could not reasonably be
expected to have a Material Adverse Effect:
(a) none of the Borrower, its Subsidiaries or to Borrower's or
its Subsidiaries' knowledge, any operator of the Real Estate or any
operations thereon is in violation, or, to the knowledge of the
Borrower or its Subsidiaries, alleged violation, of any Environmental
Laws which violation could reasonably be foreseen to have a Material
Adverse Effect;
(b) neither the Borrower nor any of its Subsidiaries has received
notice from any third party including, without limitation, any
Governmental Authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B;
(ii) that any hazardous waste, as defined by 42 U.S.C. (S)6903(5), any
hazardous substances as defined by 42 U.S.C. (S)9601(14), any pollutant
or contaminant as defined by 42 U.S.C. (S)9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any
one of them has generated, transported or disposed of has been found at
any site at which a Governmental Authority has conducted or has ordered
that the Borrower or any of its Subsidiaries conduct a
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remedial investigation, removal or other response action pursuant to
any Environmental Law; or (iii) that it is or shall be a named party to
any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses
or damages of any kind whatsoever in connection with the release of
Hazardous Substances;
(c) except as set forth on Schedule 7.15 attached hereto: (i)
no portion of the Real Estate currently owned, leased or operated by
the Borrower or any of its Subsidiaries, or to the knowledge of the
Borrower or any of its Subsidiaries, formerly owned, leased or operated
has been used for the handling, processing, storage or disposal of
Hazardous Substances except in material compliance with applicable
Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion
of the Real Estate currently owned, leased or operated by the Borrower
or any of its Subsidiaries, or to the knowledge of the Borrower or any
of its Subsidiaries, formerly owned, leased or operated; (ii) in the
course of any activities conducted by the Borrower, its Subsidiaries or
to the knowledge of Borrower or any of its Subsidiaries, by operators
of its Real Property currently owned, leased or operated by the
Borrower or any of its Subsidiaries, no Hazardous Substances have been
generated or are being used on the Real Estate except in material
compliance with applicable Environmental Laws; (iii) there have been no
releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of Hazardous Substances
on, upon, into or from the Real Property currently owned, leased or to
knowledge of Borrower or any of its Subsidiaries, operated by the
Borrower or any of its Subsidiaries, or to the knowledge of the
Borrower or any of its Subsidiaries, formerly owned, leased or operated
by the Borrower or its Subsidiaries; (iv) to the knowledge of the
Borrower or any of its Subsidiaries there have been no releases on,
upon, from or into any real property in the vicinity of any of the Real
Estate which, through soil or groundwater contamination, may have come
to be located on the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA (or the equivalent thereof in any foreign
jurisdiction), treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters
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and facilities have been and are, to the knowledge of the Borrower or
any of its Subsidiaries, operating in compliance with such permits and
applicable Environmental Laws; and
(d) none of the Borrower and its Subsidiaries, or any of the
Real Estate is subject to any applicable Environmental Law requiring
the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving of notice
to any Governmental Authority or the recording or delivery to other
Persons of an environmental disclosure document or statement by virtue
of the transactions set forth herein and contemplated hereby, or as a
condition to the recording of any Mortgage or to the effectiveness of
any other transactions contemplated hereby.
7.16. Subsidiaries, etc. The Subsidiaries of the Borrower are listed on
Schedule 7.16. Except as set forth on Schedule 7.16 hereto, neither the Borrower
nor any Subsidiary of the Borrower is engaged in any joint venture or
partnership with any other Person. The jurisdiction of incorporation/formation
and principal place of business of each Subsidiary of the Borrower is listed on
Schedule 7.16 hereto.
7.17. Disclosure. None of this Credit Agreement or any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to the Borrower or any of its Subsidiaries in the
case of any document or information not furnished by it or any of its
Subsidiaries) necessary in order to make the statements herein or therein not
misleading in light of the circumstances under which they were made.
8. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
8.1. Punctual Payment. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the commitment fees, the Administrative
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
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8.2. Maintenance of Office. The Borrower will maintain its chief executive
office in Bristol, Connecticut, or at such other place in the United States of
America as the Borrower shall designate upon written notice to the
Administrative Agent, where notices, presentations and demands to or upon the
Borrower in respect of the Loan Documents to which the Borrower is a party may
be given or made.
8.3. Records and Accounts. The Borrower will (a) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP, (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves, and (c) at
all times engage the Accountants and will not permit more than thirty (30) days
to elapse between the cessation of such firm's (or any successor firm's)
engagement as the independent certified public accountants of the Borrower and
its Subsidiaries and the appointment in such capacity of a successor firm as
shall be satisfactory to the Administrative Agent.
8.4. Financial Statements, Certificates and Information. The Borrower will
deliver to the Administrative Agent, with a copy for each Lender:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
last day of such fiscal year, and the related consolidated statement of
income and consolidated statement of cash flow for such fiscal year, each
setting forth in comparative form the figures for the previous fiscal year
and all such consolidated statements to be in reasonable detail, prepared
in accordance with GAAP (except as required by a change in GAAP or as
concurred to by the Accountants), and certified, without qualification and
without an expression of uncertainty as to the ability of the Borrower or
any of its Subsidiaries to continue as going concerns, by the Accountants,
together with a written statement from the Accountants to the effect that
they have read a copy of this Credit Agreement, and that, in making the
examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such accountants shall
have obtained knowledge of any then existing Default or Event of Default
they shall disclose in such statement any such Default or Event of Default;
provided that such accountants shall not be liable to the Lenders for
failure to obtain knowledge of any Default or Event of Default;
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(b) as soon as practicable, but in any event not later than sixty (60)
days after the end of each of the fiscal quarters of the Borrower, copies
of the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the last day of such quarter, and the related
consolidated statement of income and consolidated statement of cash flow
for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with GAAP, together with a
certification by the principal financial or accounting officer of the
Borrower that the information contained in such financial statements fairly
presents the financial position of the Borrower and its Subsidiaries on the
date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of the Borrower in substantially
the form of Exhibit C hereto (a "Compliance Certificate") and setting forth
in reasonable detail computations evidencing compliance with the covenants
contained in (S)10 and (if applicable) reconciliations to reflect changes
in GAAP since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Borrower;
(e) upon request of the Administrative Agent, the Borrower's annual
business plan; and
(f) from time to time such other financial data and information
(including accountants' management letters) as the Administrative Agent may
reasonably request.
The Administrative Agent will promptly deliver to each Lender copies
of all information received by it pursuant to this (S)8.4.
8.5. Notices.
8.5.1. Defaults. Promptly upon becoming aware of any such event, the
Borrower will notify the Administrative Agent, with a copy for each of the
Lenders, in writing of the occurrence of any Default or Event of Default,
together with a reasonably detailed description thereof, and the actions
the Borrower proposes to take with respect thereto. If any Person shall
give any notice or take
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any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Credit Agreement or any other
note, evidence of indebtedness, indenture or other obligation to which or
with respect to which the Borrower or any of its Subsidiaries is a party or
obligor, whether as principal, guarantor, surety or otherwise, the Borrower
shall forthwith give written notice thereof to the Administrative Agent,
with a copy for each of the Lenders, describing the notice or action and
the nature of the claimed default.
8.5.2. Notice of Litigation and Judgments. The Borrower will, and will
cause each of its Subsidiaries to, give notice to the Administrative Agent,
with a copy for each of the Lenders, in writing within fifteen (15) days of
becoming aware of (i) any litigation or proceedings threatened in writing
or any pending litigation and proceedings likely to have a Material Adverse
Effect, or (ii) any violation of any Environmental Law that the Borrower or
any of its Subsidiaries reports in writing or is reportable by such Person
in writing (or for which any written report supplemental to any oral report
is made) to any Governmental Authority affecting the Borrower or any of its
Subsidiaries, or (iii) any event in which the Borrower or any of its
Subsidiaries is or becomes a party involving an uninsured claim against the
Borrower or any of its Subsidiaries that in the case of any matter referred
to in clauses (i), (ii), or (iii) above, could reasonably be expected to
have a Material Adverse Effect on the Borrower or any of its Subsidiaries
and stating the nature and status of such litigation, proceedings,
violation or event. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Administrative Agent, with a copy for
each of the Lenders, in writing, in form and detail satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $5,000,000.
The Administrative Agent will promptly deliver to each Lender copies
of all notices and other information received pursuant to this (S)8.5.
8.6. Legal Existence; Maintenance of Properties. The Borrower will do or
cause to be done all things necessary to preserve and keep in full force and
effect its legal existence, rights and franchises and those of its Subsidiaries.
It (i) will cause all of its properties and those of its Subsidiaries necessary
for the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and
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working order and supplied with all necessary equipment, (ii) will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrower may be necessary so that such
property will be able to serve the functions for which they are currently being
used, and (iii) will, and will cause each of its Subsidiaries to, continue to
engage primarily in the businesses now conducted by them and in similar or
related businesses; provided that nothing in this (S)8.6 shall prevent the
Borrower from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such discontinuance is, in the
judgment of the Borrower, desirable in the conduct of its or their business and
will not in the aggregate have a Material Adverse Effect.
8.7. Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be reasonable and prudent in
Borrower's judgment.
8.8. Taxes. The Borrower will, and will cause each of its Subsidiaries to,
duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its Real Estate, sales and activities, or any part thereof,
or upon the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a Lien or charge upon
any of its property; provided that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves or otherwise made
appropriate provisions therefor as required by GAAP with respect thereto; and
provided further that the Borrower and each Subsidiary of the Borrower will pay
all such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any Lien that may have attached as
security therefor.
8.9. Inspection of Properties and Books, etc.
8.9.1. General. The Borrower shall permit the Lenders, through the
Administrative Agent or any of the Lenders' other designated
representatives, to visit and inspect any of the properties of the Borrower
or any of its Subsidiaries, to examine the books of account of the Borrower
and its Subsidiaries (and to
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make copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with, and to be
advised as to the same by, its and their officers, and to conduct
examinations and verifications (whether by internal commercial finance
examiners or independent auditors), all at such reasonable times and
intervals as the Administrative Agent or any Lender may reasonably request.
8.9.2. Communications with Accountants. The Borrower authorizes the
Administrative Agent and, if accompanied by the Administrative Agent, the
Lenders to communicate directly with the Accountants and authorizes the
Accountants to disclose to the Administrative Agent and the Lenders any and
all financial statements and other supporting financial documents and
schedules including copies of any management letter with respect to the
business, financial condition and other affairs of the Borrower or any of
its Subsidiaries. At the request of the Administrative Agent, the Borrower
shall deliver a letter addressed to the Accountants instructing them to
comply with the provisions of this (S)8.9.2.
8.10. Compliance with Laws, Contracts, Licenses, and Permits. The Borrower
will, and will cause each of its Subsidiaries to, comply with (a) the applicable
laws and regulations wherever its business is conducted, including all
Environmental Laws, (b) the provisions of its Governing Documents, (c) all
agreements and instruments by which it or any of its properties may be bound and
(d) all applicable decrees, orders, and judgments except for matters which,
individually or in the aggregate, would not have a Material Adverse Effect. If
any authorization, consent, approval, permit or license from any officer, agency
or instrumentality of any government shall become necessary or required in order
that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Borrower or such
Subsidiary is a party, the Borrower will, or (as the case may be) will cause
such Subsidiary to, immediately take or cause to be taken all reasonable steps
within the power of the Borrower or such Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the
Administrative Agent and the Lenders with evidence thereof.
8.11. Employee Benefit Plans. The Borrower will (a) promptly upon filing
the same with the Department of Labor or Internal Revenue Service upon request
of the Administrative Agent, furnish to the Administrative Agent a copy of the
most recent actuarial statement required to be submitted under (S)103(d) of
ERISA and Annual Report, Form 5500, with all required attachments, in respect of
each Guaranteed
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Pension Plan, (b) promptly upon receipt or dispatch, furnish to the
Administrative Agent any notice, report or demand sent or received in respect of
a Guaranteed Pension Plan under (S)(S)302, 4041, 4042, 4043, 4063, 4065, 4066
and 4068 of ERISA, or in respect of a Multiemployer Plan, under (S)(S)4041A,
4202, 4219, 4242, or 4245 of ERISA and (c) promptly furnish to the
Administrative Agent a copy of all actuarial statements required to be submitted
under all Applicable Pension Legislation.
8.12. Use of Proceeds. The Borrower will use the proceeds of the Loans and
obtain Letters of Credit solely for the purposes set forth in (S)7.14.1.
8.13. Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Lenders and the Administrative Agent and
execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
9. CERTAIN NEGATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligations to issue, extend or renew any Letters of Credit:
9.1. Restrictions on Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Lenders and the Administrative Agent arising
under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(c) Indebtedness in respect of any interest rate contracts and foreign
currency contracts undertaken in the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements or refinancings
thereof; provided that no such refunding or
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refinancing shall shorten the maturity or weighted average life to maturity
or increase the principal amount of any of the Existing Senior Debt;
(e) Indebtedness of the Borrower's domestic Subsidiaries not to exceed
$10,000,000, including such Indebtedness outstanding on the Closing Date;
(f) Indebtedness of the Borrower's foreign Subsidiaries not to exceed
$115,000,000, including such Indebtedness outstanding on the Closing Date;
(g) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition of fixed or capital assets (whether pursuant to a loan,
financing lease or otherwise) in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding;
(h) Indebtedness of the Borrower or any Subsidiary in respect of
Subordinated Debt;
(i) Indebtedness of the Borrower owing to any of its
Subsidiaries which is expressly subordinated to the prior payment in
full in cash of all Obligations on terms disclosed to and reasonably
acceptable to the Administrative Agent prior to the incurrence thereof;
(j) Indebtedness of a Person outstanding at the time it is first
acquired by the Borrower in an acquisition permitted pursuant to (S)9.5(g),
provided that any such Indebtedness was not created at the time of or in
contemplation or in anticipation of such acquisition;
(k) Indebtedness of the Borrower or any of its Subsidiaries incurred
in connection with the issuance of any surety bonds, performance letters of
credit or other similar performance bonds required pursuant to any
contractual Obligation or requirement of law to which Borrower or any of
its Subsidiaries are subject in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding;
(l) additional Indebtedness of the Borrower not exceeding $35,000,000
less any Indebtedness incurred under paragraph (g), in aggregate principal
amount at any one time outstanding; and
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(m) Indebtedness of Subsidiaries of the Borrower owing to any other
Subsidiaries of the Borrower or to the Borrower which results from an
Investment permitted under (S)9.3(g) or (i).
Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the
Borrower (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness
of the Borrower's Subsidiaries (other than the Nova Scotia Notes) (under
paragraphs (e), (f), (j) or (l)) shall not exceed 15% of Consolidated Tangible
Assets of the Borrower, determined as of the end of the then most recently
completed fiscal year of the Borrower.
9.2. Restrictions on Liens.
9.2.1. Permitted Liens. The Borrower will not, and will not permit any
of its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any Lien upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or
profits therefrom; (b) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority
to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other
title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or
(e) sell, assign, pledge or otherwise transfer any receivables with or
without recourse; provided that the Borrower or any of its Subsidiaries may
create or incur or suffer to be created or incurred or to exist:
(i) Liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or Liens to secure claims for labor,
material or supplies in respect of obligations not overdue;
(ii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iii) Liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the
Borrower or such Subsidiary shall at the time
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in good faith be prosecuting an appeal or proceedings for review and in
respect of which a stay of execution shall have been obtained pending such
appeal or review;
(iv) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens on properties in existence less than 180 days from the
date of creation thereof in respect of obligations not overdue;
(v) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens and other minor Liens, provided that none of such Liens (A)
interferes materially with the use of the property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, and (B)
individually or in the aggregate have a Material Adverse Effect;
(vi) Liens securing purchase money Indebtedness and Capitalized
Leases permitted under (S)9.1(g);
(vii) Other Liens in existence on the Closing Date and listed in
Schedule 9.2; and
(viii) Liens securing acquired indebtedness under (S)9.1(j), provided
that such Liens secured such Indebtedness prior to the related acquisitions
and are not spread to cover any additional assets or Indebtedness, and are
not in violation of the final sentence of (S)9.1;
The Borrower covenants and agrees that if any of its Subsidiaries shall create
or assume any Lien upon any of its respective properties or assets, whether now
owned or hereafter acquired, other than Permitted Liens (unless prior written
consent shall have been obtained from the Lenders), the Borrower will make or
cause to be made effective provision whereby the Obligations will be secured by
such Lien equally and ratably with any and all other Indebtedness thereby
secured so long as such other Indebtedness shall be so secured. The covenants of
the Borrower contained herein shall only be in effect for so long as the
Borrower shall be similarly obligated under any other Indebtedness. An Event of
Default shall occur for so long as such other Indebtedness becomes secured
notwithstanding any actions taken by the Borrower to ratably secure the
Obligations hereunder.
9.2.2. Restrictions on Negative Pledges and Upstream Limitations. The
Borrower will not, nor will it permit any of its
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Subsidiaries to (a) enter into or permit to exist any arrangement or
agreement (excluding the Credit Agreement and the other Loan Documents)
which directly or indirectly prohibits the Borrower or any of its
Subsidiaries from creating, assuming or incurring any Lien upon its
properties, revenues or assets or those of any of its Subsidiaries whether
now owned or hereafter acquired, or (b) enter into any agreement, contract
or arrangement (excluding the Credit Agreement and the other Loan
Documents) restricting the ability of any Subsidiary of the Borrower to pay
or make dividends or distributions in cash or kind to the Borrower, to make
loans, advances or other payments of whatsoever nature to the Borrower, or
to make transfers or distributions of all or any part of its assets to the
Borrower; in each case other than (i) restrictions on specific assets which
assets are the subject of purchase money security interests to the extent
permitted under (S)9.2.1, (ii) customary anti-assignment provisions
contained in leases and licensing agreements entered into by the Borrower
or such Subsidiary in the ordinary course of its business and (iii) any
negative pledges granted in the Existing Senior Debt.
9.3. Restrictions on Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America or Canada, or marketable obligations of any instrumentality or agency
thereof, the payment of the principal and interest of which is unconditionally
guaranteed by the United States of America or Canada;
(b) certificates of deposit or other obligations issued by, or
bankers' acceptances of, any bank or trust company organized under the laws of
Brazil, Singapore, the Federal Republic of Germany, France, the United Kingdom,
Japan, Canada or the United States of America or any state thereof (including
foreign branches of any such bank or trust company) and having capital, surplus
and undivided profits in excess of $100,000,000;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States of
America or any state thereof with a maturity not in excess of 270 days from the
date of acquisition thereof and that at the time of purchase have been rated and
the ratings for which are not less than "P 2" if rated by Moody's, and not less
than "A 2" if rated by S&P;
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(d) In the case of any foreign Subsidiary of the Borrower, but only
with respect to countries in which such Subsidiary exists, such Investments of a
comparable quality and term to the other Investments permitted by clauses (a),
(b) and (c) of this (S)9.3 as are usually made in the jurisdiction or
jurisdictions in which the business of such foreign Subsidiary is principally
conducted by prudent corporate investors in like circumstances;
(e) Investments (including debt obligations and capital stock)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;
(f) Investments existing on the date hereof in Subsidiaries; and other
Investments existing on the date hereof and listed on Schedule 9.3 hereto;
(g) Investments by the Borrower in Subsidiaries, subject to the final
sentence of this (S)9.3;
(h) Investments consisting of permitted acquisitions under (S)9.5,
subject to the final sentence of this (S)9.3;
(i) (A) Investments by Subsidiaries of the Borrower in the Borrower,
provided that any Investment by Subsidiaries in the Borrower must be an equity
Investment or expressly subordinated to the prior payment in full in cash of all
Obligations on terms disclosed to and reasonably acceptable to the
Administrative Agent prior to the incurrence thereof, subject to the final
sentence of this (S)9.3; and (B) Investments by Subsidiaries of the Borrower in
other Subsidiaries of the Borrower;
(j) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary course
of business not to exceed $2,000,000 in the aggregate at any time outstanding;
and
(k) Investments in joint ventures; provided that the operation to be
invested in is in a similar or related business and provided further that after
giving effect to such joint venture, the Borrower shall be in compliance, on a
pro forma historical basis, with all financial covenants.
The Investments permitted under clauses (g), (h) and (i)(A) of this (S)9.3
shall be limited as follows: the aggregate dollar amount of such Investments in
the form of acquisitions (excluding consideration paid by
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the issuance of equity of the Borrower), capital contributions, loans or
advances, or their equivalent, net of stock redemptions, capital distributions,
proceeds from the sale of new equity of the Borrower (which shall be limited to
up to 50% of the net proceeds of any such issuance), loan repayments or advances
by such Subsidiaries to the Borrower, shall not at any time exceed 10% of
Consolidated Total Assets.
9.4. Restricted Payments. The Borrower will not, and will not permit any
Subsidiary to make any Restricted Payments except that, so long as no Default or
Event of Default then exists or would result from such payment, the Borrower may
(a) declare or pay any dividends, or (b) redeem, convert, retire or otherwise
acquire shares of any class of its Capital Stock, provided that taking into
account such Restricted Payment, Total Commitment minus the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall exceed the
outstanding amount of Loans during such calendar quarter by $10,000,000.
Notwithstanding the above, any Subsidiary may make Distributions to the Borrower
and the Borrower agrees that neither the Borrower nor any Subsidiary will enter
into any agreement restricting Distributions from such Subsidiary to the
Borrower.
9.5. Merger, Consolidation and Disposition of Assets.
9.5.1. Mergers and Acquisitions. The Borrower will not, and will
not permit any of its Subsidiaries to, become a party to any merger,
amalgamation or consolidation, or agree to or effect any asset acquisition
or stock acquisition (other than the acquisition of assets in the ordinary
course of business consistent with past practices) except the merger or
consolidation of, or asset or stock acquisitions between existing
Subsidiaries, mergers of existing Subsidiaries with and into the Borrower,
and asset or stock acquisitions by the Borrower of existing Subsidiaries,
and except as otherwise provided in this (S)9.5.1. The Borrower may
purchase or otherwise acquire all or substantially all of the assets or
stock or other equity interests of any other Person provided that:
(a) the Borrower is in current compliance with and, giving effect to
the proposed acquisition (including any borrowings made or to be made in
connection therewith), will continue to be in compliance with all of the
covenants in (S)9 hereof as if the transaction occurred on the first day of
the period of measurement; provided, that, to the extent such acquisition
will be included as an Acquired Business, the Administrative Agent shall
have received an Officer's Certificate certifying compliance with
(S)(S)10.1-10.4 on a pro forma historical combined basis as if the
transaction occurred
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on the first day of the period of measurement and the related documentation
showing the estimated calculations (subject to any adjustments) made in
determination thereof; and provided, further, that for proposed
acquisitions occurring prior to December 31, 2002, for which the pro forma
leverage exceeds 3.25x, the Administrative Agent shall have received
documentation from the Borrower which demonstrates compliance with the
December 31, 2002 Leverage Ratio limitation of 3.00x, on a pro forma
historical combined basis;
(b) at the time of such acquisition, no Default or Event of Default
has occurred and is continuing, and such acquisition will not otherwise
create a Default or an Event of Default hereunder;
(c) the business to be acquired is similar to the business conducted
by the Borrower, or businesses reasonably related or incidental thereto;
(d) not later than seven (7) days prior to the proposed acquisition
date, notice of each proposed acquisition together with all information
reasonably requested by the Administrative Agent with respect to the
acquisition shall have been furnished to the Administrative Agent;
(e) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be acquired has
approved such acquisition;
(f) if such acquisition is made by a merger, the Borrower shall be the
surviving entity; and
(g) the total consideration to be paid in connection with any
acquisition or series of related acquisitions shall not exceed $150,000,000
during the term of this Credit Agreement, and the total amount of cash and
assumption of debt with respect to any such acquisition or series of
related acquisitions, shall not exceed $100,000,000, without the consent of
the Administrative Agent and the Required Lenders.
9.5.2. Disposition of Assets. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than transfers of assets between the
Borrower and Subsidiaries of the Borrower that would be permitted
Investments under (S)9.3, transfers of assets from a Subsidiary of the
Borrower to another Subsidiary of the Borrower, the sale of inventory or
discounted receivables, the licensing of
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intellectual property, leases of property and the disposition of obsolete
assets, in each case in the ordinary course of business consistent with
past practices; provided however, that in any fiscal year, the Borrower may
dispose of up to 10% of its Consolidated Total Assets (calculated as of the
most recent quarter end prior to any proposed disposition) in the
aggregate, based on the fair market value or book value, of such assets
being sold or otherwise disposed of, whichever is greater.
9.6. Sale and Leaseback. The Borrower will not, and will not permit any
of its domestic Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any domestic Subsidiary of the Borrower
shall sell or transfer any property owned by it in order then or thereafter to
lease such property or lease other property that the Borrower or any domestic
Subsidiary of the Borrower intends to use for substantially the same purpose as
the property being sold or transferred except to the extent such Indebtedness
and Liens are permitted under (S)(S)9.1(g) and 9.2.1(vi).
9.7. Compliance with Environmental Laws. Except to the extent required
by the day-to-day operations of the Borrower and any of its Subsidiaries, and in
all instances in compliance in all material respects with all applicable
Environmental Laws, the Borrower will not knowingly, and will not knowingly
permit any of its Subsidiaries to, (a) use any of the Real Estate or any portion
thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real Estate, or
(d) conduct any activity at any Real Estate or use any Real Estate in any manner
so as to cause a release (i.e. releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on, upon or into the Real
Estate.
9.8. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
(S)406 of ERISA or (S)4975 of the Code which could have a Material Adverse
Effect on the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S)302
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of ERISA, whether or not such deficiency is or may be waived except for
such deficiencies as would not have a Material Adverse Effect; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower or any of its Subsidiaries pursuant to (S)302(f) or (S)4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to (S)307 of ERISA or (S)401(a)(29) of the
Code;
(e) except for instances which would not have a Material Adverse
Effect, permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of (S)4001 of ERISA) of all
Guaranteed Pension Plans exceeding the fair market value of the aggregate
assets of such Plans, disregarding for this purpose the benefit liabilities
and assets of any such Plan with assets in excess of benefit liabilities;
or
(f) permit or take any action which would contravene any Applicable
Pension Legislation.
9.9. Business Activities. The Borrower will not, and will not permit any
of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in similar or related businesses.
9.10. Fiscal Year. The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in (S)7.4.1.
9.11. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any transaction (except
transactions which in any one calendar year do not involve in the aggregate an
amount in excess of $500,000) with any Affiliate (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such Affiliate or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such
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Person than would have been obtainable on an arm's-length basis in the ordinary
course of business.
10. FINANCIAL COVENANTS.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
10.1. Interest Coverage. As of the end of any fiscal quarter, the
Borrower will not permit the ratio of (a) Consolidated EBITDA to (b)
Consolidated Cash Interest Expense for the four (4) consecutive fiscal quarters
then ending to be less than the applicable ratio set forth in the table below:
For the Four Quarters Ending Ratio
---------------------------- -----
6/30/2002 and 9/30/2002 4.00:1
12/31/2002 - 9/30/2003 4.25:1
12/31/03 - Thereafter 4.50:1
10.2. Leverage Ratio. As of the end of any fiscal quarter, the
Borrower will not permit the ratio of Consolidated Total Debt as at such date to
Consolidated EBITDA for the four (4) consecutive fiscal quarters then ending
(the "Leverage Ratio") to be more than the applicable ratio set forth in the
table below:
For the Four Quarters Ending Ratio
---------------------------- -----
6/30/2002 and 9/30/2002 3.50:1
12/31/2002 - 9/30/2003 3.00:1
12/31/03 - Thereafter 2.75:1
10.3. Consolidated Net Worth. The Borrower will not permit Consolidated
Net Worth at any time to be less than $185,000,000 plus 50% of the Borrower's
Consolidated Net Income for each fiscal year beginning after December 31, 2001
(but without deduction for any fiscal year in which Consolidated Net Income is a
negative amount), with the annual adjustments to be applicable as of December
31, 2002 and as of the end of each subsequent fiscal year.
10.4. Capital Expenditures. The Borrower will not make, or permit any
Subsidiary to make, Capital Expenditures in any fiscal year that exceed, in the
aggregate, $35,000,000 for such fiscal year; provided, however, that, if during
any fiscal year the amount of Capital Expenditures permitted for that fiscal
year is not so utilized, one
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hundred percent (100%) of such unutilized amount may be utilized in any
succeeding fiscal year.
11. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Loans and of the
Administrative Agent to issue any initial Letters of Credit shall be subject to
the satisfaction of the following conditions precedent:
11.1. Loan Documents etc. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the
Lenders. Each Lender shall have received a fully executed copy of each such
document.
11.2. Certified Copies of Governing Documents. Each of the Lenders shall
have received from the Borrower a copy, certified by a duly authorized officer
of the Borrower to be true and complete on the Closing Date, of each of its
Governing Documents as in effect on such date of certification.
11.3. Corporate or Other Action. All corporate (or other) action necessary
for the valid execution, delivery and performance by the Borrower of this Credit
Agreement and the other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Lenders shall have been provided to each of the Lenders.
11.4. Incumbency Certificate. Each of the Lenders shall have received from
the Borrower an incumbency certificate, dated as of the Closing Date, signed by
a duly authorized officer of the Borrower, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign, each
of the Loan Documents; (b) to make Loan Requests and Conversion Requests and to
apply for Letters of Credit; and (c) to give notices and to take other action
under the Loan Documents.
11.5. Solvency Certificate. Each of the Lenders shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Borrower and its Subsidiaries on a consolidated basis following
the consummation of the transactions contemplated herein and in form and
substance satisfactory to the Lenders.
11.6. Opinion of Counsel. Each of the Lenders and the Administrative Agent
shall have received a favorable legal opinion
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addressed to the Lenders and the Administrative Agent, dated as of the Closing
Date, in form and substance satisfactory to the Lenders and the Administrative
Agent, from Signe S. Gates, Esq., General Counsel to the Borrower;
11.7. Payment of Fees. The Borrower shall have paid to the Lenders or the
Administrative Agent, as appropriate, all the Fees due on the Closing Date.
11.8. Payoff Letter. The Administrative Agent shall have received a payoff
letter from Mellon Bank, N.A., as administrative agent, indicating the amount of
the loan obligations of the Borrower to be discharged on the Closing Date.
12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make the Loans, and of the Administrative
Agent to issue, extend or renew any Letter of Credit, in each case whether on or
after the Closing Date, shall also be subject to the satisfaction of the
following conditions precedent:
12.1. Representations True; No Default or Event of Default. Each of the
representations and warranties of the Borrower contained in this Credit
Agreement, the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement shall be true as of the
date as of which they were made and shall also be true at and as of the time of
the making of such Loan or the issuance, extension or renewal of such Letter of
Credit, with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by this
Credit Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing.
12.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
12.3. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement,
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the other Loan Documents and all other documents incident thereto shall be
satisfactory in substance and in form to the Lenders and to the Administrative
Agent and the Administrative Agent shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Administrative Agent may reasonably request.
12.4. No Material Adverse Change. No Material Adverse Change since the
Balance Sheet Date shall have occurred.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans, any
Fees, or other sums due hereunder or under any of the other Loan Documents,
within five (5) Business Days of when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its covenants
contained in (S)(S)8.1, 8.4, 8.5.1, the first sentence of 8.6, 8.12, 8.13,
9 or 10;
(d) the Borrower shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this (S)13.1) for fifteen (15) days after
written notice of such failure has been given to the Borrower by the
Administrative Agent;
(e) any representation or warranty of the Borrower in this Credit
Agreement or any of the other Loan Documents or in any other document or
instrument delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any material respect upon the
date when made or deemed to have been made or repeated;
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(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Lease,
or fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing
borrowed money or credit received or in respect of any Capitalized Lease in
each case in excess of $5,000,000 for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or
holders thereof or of any obligations issued thereunder to accelerate the
maturity thereof, or any such holder or holders shall rescind or shall have
a right to rescind the purchase of any such obligations;
(g) the Borrower or any of its Significant Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability
to pay or generally fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of the Borrower or any of its Significant
Subsidiaries or of any substantial part of the assets of the Borrower or
any of its Significant Subsidiaries or shall commence any case or other
proceeding relating to the Borrower or any of its Significant Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of any jurisdiction, now
or hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or application
shall be filed or any such case or other proceeding shall be commenced
against the Borrower or any of its Significant Subsidiaries and the
Borrower or any of its Significant Subsidiaries shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within forty-five (45) days
following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Significant Subsidiaries bankrupt or insolvent, or approving a petition
in any such case or other proceeding, or a decree or order for relief is
entered in respect of the Borrower or any Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, any final judgment
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against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of
its Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded, in each case otherwise than in accordance with the
terms thereof or with the express prior written agreement, consent or
approval of the Lenders, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower or its stockholders, or
any court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in accordance with
the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $10,000,000, or the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by
a Multiemployer Plan requiring aggregate annual payments exceeding
$10,000,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of (S)302(f)(1)
of ERISA), provided that the Administrative Agent determines in its
reasonable discretion that such event (A) could be expected to result in
liability of the Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000 and
(B) could constitute grounds for the termination of such Guaranteed Pension
Plan by the PBGC, for the appointment by the appropriate United States
District Court of a trustee to administer such Guaranteed Pension Plan or
for the imposition of a lien in favor of such Guaranteed Pension Plan; or
(ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the
PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Significant Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any
Governmental Authority from conducting any material part of its business
and such order shall continue in effect for more than thirty (30) days;
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(m) there shall occur any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty, which in any
such case causes, for more than thirty (30) consecutive days, the cessation
or substantial curtailment of revenue producing activities at any facility
of the Borrower or any of its Significant Subsidiaries if such event or
circumstance is not covered by business interruption insurance and could
reasonably be foreseen to have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a Material Adverse Effect;
(o) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement, the Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of any Event of Default specified in (S)(S)13.1(g) or 13.1(h), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Administrative Agent or any Lender.
13.2. Termination of Commitments. If any one or more of the Events of
Default specified in (S)13.1(g) or (S)13.1(h) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each of the Lenders shall be
relieved of all further obligations to make Loans to the Borrower and the
Administrative Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. If any other Event of Default shall have
occurred and be continuing, or if on any Drawdown Date or other date for
issuing, extending or renewing any Letter of Credit the conditions precedent to
the making of the Loans to be made on such Drawdown Date or (as the case may be)
to issuing, extending or renewing such Letter of Credit on such other date are
not satisfied, the Administrative Agent may and, upon the request of the
Required Lenders, shall, by notice to the Borrower, terminate the unused portion
of the credit hereunder, and upon such notice being given such unused portion of
the credit hereunder shall terminate immediately and each of the Lenders shall
be relieved of all further obligations to make
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Loans and the Administrative Agent shall be relieved of all further obligations
to issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrower of any of the Obligations.
13.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to (S)13.1, each Lender, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Required Lenders but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Lender are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Note or purchaser of any
Letter of Credit Participation is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
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14. THE ADMINISTRATIVE AGENT.
14.1. Authorization.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such powers
as are reasonably incident thereto, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of the
Lenders is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between the Administrative
Agent and any of the Lenders;
(c) As an independent contractor empowered by the Lenders to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Lenders, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of actions for the
benefit of the Lenders and the Administrative Agent with respect to all
collateral security and guaranties contemplated by the Loan Documents. Such
actions include the designation of the Administrative Agent as "secured
party", "mortgagee" or the like on all financing statements and other
documents and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security interests,
mortgages or deeds of trust in collateral security intended to secure the
payment or performance of any of the Obligations, all for the benefit of
the Lenders and the Administrative Agent.
14.2. Employees and Administrative Agents. The Administrative Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The
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Administrative Agent may utilize the services of such Persons as the
Administrative Agent in its sole discretion may reasonably determine, and all
reasonable fees and expenses of any such Persons shall be paid by the Borrower.
14.3. No Liability. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other Person, as the case may be, may be liable for losses due to
its willful misconduct or gross negligence.
14.4. No Representations.
14.4.1. General. The Administrative Agent shall not be responsible
for the execution or validity or enforceability of this Credit Agreement,
the Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or
for the validity, enforceability or collectability of any such amounts
owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrower or any of its Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or to inspect any of the
properties, books or records of the Borrower or any of its Subsidiaries.
The Administrative Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Borrower or any
holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Administrative Agent has not made nor does it
now make any representations or warranties, express or implied, nor does it
assume any liability to the Lenders, with respect to the credit worthiness
or financial conditions of the Borrower or any of its Subsidiaries. Each
Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its
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own credit analysis and decision to enter into this Credit Agreement.
14.4.2. Closing Documentation, etc. For purposes of determining
compliance with the conditions set forth in (S)11, each Lender that has
executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent or the Arranger
to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative Agent
or the Arranger acting upon the Borrower's account shall have received
notice from such Lender not less than three days prior to the Closing Date
specifying such Lender's objection thereto and such objection shall not
have been withdrawn by notice to the Administrative Agent or the Arranger
to such effect on or prior to the Closing Date.
14.5. Payments.
14.5.1. Payments to Administrative Agent. A payment by the Borrower
to the Administrative Agent hereunder or any of the other Loan Documents
for the account of any Lender shall constitute a payment to such Lender.
The Administrative Agent agrees promptly to distribute to each Lender such
Lender's pro rata share of payments received by the Administrative Agent
for the account of the Lenders except as otherwise expressly provided
herein or in any of the other Loan Documents.
14.5.2. Distribution by Administrative Agent. If in the opinion of
the Administrative Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
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14.5.3. Delinquent Lenders. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) to make available to the Administrative Agent its pro
rata share of any Loan or to purchase any Letter of Credit Participation or
(b) to comply with the provisions of (S)16.1 with respect to making
dispositions and arrangements with the other Lenders, where such Lender's
share of any payment received, whether by setoff or otherwise, is in excess
of its pro rata share of such payments due and payable to all of the
Lenders, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Lender") and shall be deemed a Delinquent Lender until such
time as such delinquency is satisfied. A Delinquent Lender shall be deemed
to have assigned any and all payments due to it from the Borrower, whether
on account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations. The Delinquent
Lender hereby authorizes the Administrative Agent to distribute such
payments to the nondelinquent Lenders in proportion to their respective pro
rata shares of all outstanding Loans and Unpaid Reimbursement Obligations.
A Delinquent Lender shall be deemed to have satisfied in full a delinquency
when and if, as a result of application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement Obligations of the nondelinquent
Lenders, the Lenders' respective pro rata shares of all outstanding Loans
and Unpaid Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
14.6. Holders of Notes. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
14.7. Indemnity. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrower as required by
(S)16.2), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or
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any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Administrative Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Administrative Agent's willful misconduct or gross negligence.
14.8. Administrative Agent as Lender. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes and as the purchaser of any Letter of Credit Participations, as it
would have were it not also the Administrative Agent.
14.9. Resignation. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrower. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by S&P. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, 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 hereunder. After any retiring Administrative Agent's
resignation, the provisions of this Credit Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
14.10. Notification of Defaults and Events of Default. Each Lender hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Administrative Agent thereof. The Administrative
Agent hereby agrees that upon receipt of any notice under this (S)14.10 it shall
promptly notify the other Lenders of the existence of such Default or Event of
Default.
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15. ASSIGNMENT AND PARTICIPATION.
15.1. Conditions to Assignment by Lenders.
15.1.1. General Conditions. Except as provided herein, each Lender may
assign to one or more commercial banks, other financial institutions or
other Persons, all or a portion of its interests, rights and obligations
under this Credit Agreement (including all or a portion of its Commitment
Percentage and Commitment and the same portion of the Loans at the time
owing to it, the Notes held by it and its participating interest in the
risk relating to any Letters of Credit) in $5,000,000 minimum amounts;
provided that (a) each of the Administrative Agent and, unless a Default or
Event of Default shall have occurred and be continuing, the Borrower shall
have given its prior written consent to such assignment, which consent will
not be unreasonably withheld; except that the consent of the Borrower or
the Administrative Agent shall not be required in connection with any
assignment by a Lender to (i) an existing Lender or (ii) a Lender Affiliate
of such Lender, (b) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations
under this Credit Agreement, it being understood that non-pro rata
assignments of the Commitments and the Loans are not permitted, (c) each
assignment will include an assignment fee of $3,500, payable by the Lender
to the Administrative Agent upon the effectiveness of any such assignment
(including, an assignment by a Lender to another Lender); provided that no
such payment shall be required whenever the Administrative Agent is the
assigning Lender; and (d) the parties to such assignment shall execute and
deliver to the Administrative Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in the
form of Exhibit D hereto (an "Assignment and Acceptance"), together with
any Notes subject to such assignment. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (y) the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder, and (z)
the assigning Lender shall, to the extent provided in such assignment and
upon payment to the Administrative Agent of the registration fee referred
to in (S)15.3, be released from its obligations under this Credit
Agreement.
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15.2. Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in (S)7.4 and (S)8.4 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Lender, the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Credit Agreement;
(e) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other
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Loan Documents as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto;
(f) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Lender;
(g) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
(h) such assignee acknowledges that it has made arrangements with the
assigning Lender satisfactory to such assignee with respect to its pro rata
share of Letter of Credit Fees in respect of outstanding Letters of Credit;
and
(i) such assignee acknowledges that it has complied with the
provisions of (S)5.3.3 to the extent applicable.
15.3. Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment Percentage of, and principal amount of the Loans owing to and
Letter of Credit Participations purchased by, the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection by the
Borrower and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender agrees
to pay to the Administrative Agent a registration fee in the sum of $3,500.
15.4. New Notes. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Administrative Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrower.
Within five (5) Business Days after receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent, in exchange
for each surrendered Note, a new Note to the order of such Assignee in an amount
equal to the amount assumed by such Assignee pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Lender in an
amount equal to the amount retained by it
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hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Within five (5) days of issuance
of any new Notes pursuant to this (S)15.4, the Borrower shall deliver upon the
request of the assignee Lender an opinion of counsel, addressed to the Lenders
and the Administrative Agent, relating to the due authorization, execution and
delivery of such new Notes and the legality, validity and binding effect
thereof, in form and substance satisfactory to the Lenders. The surrendered
Notes shall be cancelled and returned to the Borrower.
15.5. Participations. Each Lender may sell participations to one or more
Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
that (a) each such participation shall be in an amount of not less than
$5,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrower and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Lender as it relates to such participant,
reduce the amount of any Commitment Fee or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
15.6. Assignee or Participant Affiliated with the Borrower. If any assignee
Lender is an Affiliate of the Borrower, then any such assignee Lender shall have
no right to vote as a Lender hereunder or under any of the other Loan Documents
for purposes of granting consents or waivers or for purposes of agreeing to
amendments or other modifications to any of the Loan Documents or for purposes
of making requests to the Administrative Agent pursuant to (S)13.1 or (S)13.2,
and the determination of the Required Lenders shall for all purposes of this
Credit Agreement and the other Loan Documents be made without regard to such
assignee Lender's interest in any of the Loans or Reimbursement Obligations. If
any Lender sells a participating interest in any of the Loans or Reimbursement
Obligations to a participant, and such participant is the Borrower or an
Affiliate of the Borrower, then such transferor Lender shall promptly notify the
Administrative Agent of the sale of such participation. A transferor Lender
shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents
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for purposes of granting consents or waivers or for purposes of agreeing to
amendments or modifications to any of the Loan Documents or for purposes of
making requests to the Administrative Agent pursuant to (S)13.1 or (S)13.2 to
the extent that such participation is beneficially owned by the Borrower or any
Affiliate of the Borrower, and the determination of the Required Lenders shall
for all purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such transferor Lender in the Loans or
Reimbursement Obligations to the extent of such participation.
15.7. Miscellaneous Assignment Provisions. Any assigning Lender shall
retain its rights to be indemnified pursuant to (S)16.3 with respect to any
claims or actions arising prior to the date of such assignment. If any Reference
Lender transfers all of its interest, rights and obligations under this Credit
Agreement, the Administrative Agent shall, in consultation with the Borrower and
with the consent of the Borrower and the Required Lenders, appoint another
Lender to act as a Reference Lender hereunder. Anything contained in this (S)15
to the contrary notwithstanding, any Lender may at any time pledge or assign a
security interest in all or any portion of its interest and rights under this
Credit Agreement (including all or any portion of its Notes) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to (a) any of the twelve Federal Reserve Banks organized under (S)4
of the Federal Reserve Act, 12 U.S.C. (S)341 and (b) with respect to any Lender
that is a fund that invests in bank loans, to any lender or any trustee for, or
any other representative of, holders of obligations owed or securities issued by
such fund as security for such obligations or securities or any institutional
custodian for such fund or for such lender. Any foreclosure or similar action by
any Person in respect of such pledge or assignment shall be subject to the other
provisions of this (S)15. No such pledge or the enforcement thereof shall
release the pledgor Lender from its obligations hereunder or under any of the
other Loan Documents, provide any voting rights hereunder to the pledgee
thereof, or affect any rights or obligations of the Borrower or Administrative
Agent hereunder.
15.8. Assignment by Borrower. The Borrower shall not assign or transfer any
of its rights or obligations under any of the Loan Documents without the prior
written consent of each of the Lenders.
15.9. Accession. Except as otherwise provided herein, Eligible Assignees
(each such Eligible Assignee, an "Acceding Bank") may, at the request of the
Borrower and with the consent of the Administrative Agent, become party to this
Credit Agreement by entering into an Instrument of Accession in substantially
the form of Exhibit F hereto (an
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"Instrument of Accession") with the Borrower and the Administrative Agent and
assuming thereunder Commitments in an amount to be agreed upon by the Borrower,
such Acceding Bank and the Administrative Agent, to make Loans pursuant to the
terms hereof, and the Total Commitment shall thereupon be increased by the
amount of such Acceding Bank's Commitment; provided that:
(i) the Administrative Agent shall have given its prior written
assent to such accession as Administrative Agent on behalf of itself and
the other Lenders (and for the avoidance of doubt each of the Lenders
irrevocably authorizes the Administrative Agent to execute any Instrument
of Accession on its behalf), such consents not to be unreasonably withheld;
and
(ii) in no event shall the Total Commitment be increased under any one
or more of such Instruments of Accession so as to exceed, in the aggregate,
$200,000,000. On the effective date specified in any Instrument of
Accession, Schedule 1 hereto shall be deemed to be amended to reflect (A)
the name, address, Commitment, and Commitment Percentage of such Acceding
Bank, (B) the Total Commitment as increased by such Acceding Bank's
Commitments, and (C) the changes to the other Lenders' respective
Commitment Percentages and any changes to the other Lenders' respective
Commitments (in the event such Lender is also the Acceding Bank) resulting
from such assumption and such increased Total Commitment.
16. PROVISIONS OF GENERAL APPLICATIONS.
16.1. Setoff. The Borrower hereby grants to the Administrative Agent and
each of the Lenders a right of setoff as security for all liabilities and
obligations to the Administrative Agent and each Lender, whether now existing or
hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
the Administrative Agent or such Lender or any Lender Affiliate and their
successors and assigns or in transit to any of them. Regardless of the adequacy
of any collateral, if any of the Obligations are due and payable and have not
been paid or any Event of Default shall have occurred, any deposits or other
sums credited by or due from any of the Lenders to the Borrower and any
securities or other property of the Borrower in the possession of such Lender
may be applied to or set off by such Lender against the payment of Obligations
and any and all other liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, of the Borrower to such
Lender. ANY AND ALL RIGHTS TO
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REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders
agree with each other Lender that if such Lender shall receive from the
Borrower, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim evidenced by the Notes held
by, or constituting Reimbursement Obligations owed to, such Lender by
proceedings against the Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Note or Notes held
by, or Reimbursement Obligations owed to, such Lender any amount in excess of
its ratable portion of the payments received by all of the Lenders with respect
to the Notes held by, and Reimbursement Obligations owed to, all of the Lenders,
such Lender will make such disposition and arrangements with the other Lenders
with respect to such excess, either by way of distribution, pro tanto assignment
of claims, subrogation or otherwise as shall result in each Lender receiving in
respect of the Notes held by it or Reimbursement Obligations owed it, its
proportionate payment as contemplated by this Credit Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Lender,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
16.2. Expenses. The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (b) any taxes (including
any interest and penalties in respect thereto) payable by the Administrative
Agent or any of the Lenders (other than taxes based upon the Administrative
Agent's or any Lender's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby agreeing to indemnify
the Administrative Agent and each Lender with respect thereto), (c) the
reasonable fees, expenses and disbursements of the Administrative Agent's
Special Counsel or any local counsel to the Administrative Agent incurred in
connection with the preparation, syndication, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, any amendments, modifications, approvals, consents or waivers hereto
or hereunder, or the cancellation of any Loan Document upon payment in full in
cash of all of the Obligations or pursuan to any terms of such Loan Document for
providing for such cancellation, (d) the fees, expenses and disbursements
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of the Administrative Agent or any of its affiliates incurred by the
Administrative Agent or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including all title insurance premiums and
surveyor, engineering, appraisal and examination charges, (e) any fees, costs,
expenses and bank charges, including bank charges for returned checks, incurred
by the Administrative Agent in establishing, maintaining or handling agency
accounts, lock box accounts and other accounts for the collection of any
collateral, (f) all reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Lender or the Administrative Agent, and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any Lender or the Administrative Agent in connection with
(i) the enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or any of its Subsidiaries or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to any Lender's or the Administrative Agent's relationship with the Borrower or
any of its Subsidiaries, and (g) all reasonable fees, expenses and disbursements
of any Lender or the Administrative Agent incurred in connection with UCC
searches, UCC filings, intellectual property searches, intellectual property
filings or mortgage recordings. The covenants contained in this (S)16.2 shall
survive payment or satisfaction in full of all other obligations.
16.3. Indemnification. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, its affiliates and the Lenders from and against any
and all claims, actions and suits whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(a) any actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (b) the reversal or
withdrawal of any provisional credits granted by the Administrative Agent upon
the transfer of funds from lock box, bank agency, concentration accounts or
otherwise under any cash management arrangements with the Borrower or any
Subsidiary or in connection with the provisional honoring of funds transfers,
checks or other items, (c) the Borrower or any of its Subsidiaries entering into
or performing this Credit Agreement or any of the other Loan Documents or (d)
with respect to the Borrower and its Subsidiaries and their respective
properties and assets, the violation of any Environmental Law, the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release or
threatened
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release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding. In litigation, or the preparation therefor, the Lenders and the
Administrative Agent and its affiliates shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this (S)16.3 are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this (S)16.3 shall survive payment or
satisfaction in full of all other Obligations.
16.4. Treatment of Certain Confidential Information.
16.4.1. Confidentiality. Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives, to use reasonable precautions to
keep confidential, in accordance with their customary procedures for
handling confidential information of the same nature and in accordance with
safe and sound banking practices, any non-public information supplied to it
by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement that is identified by such Person as being confidential at the
time the same is delivered to the Lenders or the Administrative Agent,
provided that nothing herein shall limit the disclosure of any such
information (a) after such information shall have become public other than
through a violation of this (S)16.4, or becomes available to any of the
Lenders or the Administrative Agent on a nonconfidential basis from a
source other than the Borrower who is not bound by obligations of
confidentiality to the Borrower, (b) to the extent required by statute,
rule, regulation or judicial process, (c) to counsel for any of the Lenders
or the Administrative Agent, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Lender or the Administrative Agent,
or to auditors or accountants, (e) to the Administrative Agent, any Lender
or any Financial Affiliate, (f) in connection with any litigation to which
any one or more of the Lenders, the Administrative Agent or any Financial
Affiliate is a party, or in connection with the enforcement of rights or
remedies hereunder or under any other Loan Document, (g) to a Lender
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Affiliate or a Subsidiary or affiliate of the Administrative Agent, (h) to
any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under
this Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees to be bound by the
provisions of (S)16.4 or (i) with the consent of the Borrower. Moreover,
each of the Administrative Agent, the Lenders and any Financial Affiliate
is hereby expressly permitted by the Borrower to refer to any of the
Borrower and its Subsidiaries in connection with any advertising, promotion
or marketing undertaken by the Administrative Agent, such Lender or such
Financial Affiliate and, for such purpose, the Administrative Agent, such
Lender or such Financial Affiliate may utilize any trade name, trademark,
logo or other distinctive symbol associated with the Borrower or any of its
Subsidiaries or any of their businesses; provided that the Borrower be
provided with notice and opportunity to review such use to ensure
consistency of presentation.
16.4.2. Prior Notification. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative
Agent shall, prior to disclosure thereof, notify the Borrower of any
request for disclosure of any such non-public information by any
governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Lender
by such governmental agency) or pursuant to legal process.
16.4.3. Other. In no event shall any Lender or the Administrative
Agent be obligated or required to return any materials furnished to it or
any Financial Affiliate by the Borrower or any of its Subsidiaries. The
obligations of each Lender under this (S)16.4 shall supersede and replace
the obligations of such Lender under any confidentiality letter in respect
of this financing signed and delivered by such Lender to the Borrower prior
to the date hereof and shall be binding upon any assignee of, or purchaser
of any participation in, any interest in any of the Loans or Reimbursement
Obligations from any Lender.
16.5. Survival of Covenants, Etc. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower or any of its Subsidiaries pursuant hereto shall be deemed to have
been relied upon by the Lenders and the
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Administrative Agent, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the Lenders of any of the
Loans and the issuance, extension or renewal of any Letters of Credit, as herein
contemplated, and shall continue in full force and effect so long as any Letter
of Credit or any amount due under this Credit Agreement or the Notes or any of
the other Loan Documents remains outstanding or any Lender has any obligation to
make any Loans or the Administrative Agent has any obligation to issue, extend
or renew any Letter of Credit, and for such further time as may be otherwise
expressly specified in this Credit Agreement, subject to, in each case the
applicable statute of limitations. All statements contained in any certificate
or other paper delivered to any Lender or the Administrative Agent at any time
by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.
16.6. Notices. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at 123 Main Street, P.O. Box 489, Bristol,
Connecticut 06011, Attention: Treasurer, or at such other address for
notice as the Borrower shall last have furnished in writing to the
Administrative Agent with a copy to 123 Main Street, P.O. Box 489, Bristol,
Connecticut 06011, Attention: General Counsel;
(b) if to the Administrative Agent, at 100 Federal Street, Boston,
Massachusetts 02110, USA, Attention: Deanne M. Horn, Director, or such
other address for notice as the Administrative Agent shall last have
furnished in writing to the Person giving the notice; and
(c) if to any Lender, at such Lender's address set forth on Schedule 1
hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand,
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overnight courier or facsimile to a responsible officer of the party to which it
is directed, at the time of the receipt thereof by such officer or the sending
of such facsimile and (ii) if sent by registered or certified first-class mail,
postage prepaid, on the third Business Day following the mailing thereof. Any
notice or other communication to be made hereunder or under the Notes or any
Letter of Credit Applications, even if otherwise required to be in writing under
other provisions of this Credit Agreement, the Notes or any Letter of Credit
Applications, may alternatively be made in an electronic record transmitted
electronically under such authentication and other procedures as the parties
hereto may from time to time agree in writing (but not an electronic record),
and such electronic transmission shall be effective at the time set forth in
such procedures. Unless otherwise expressly provided in such procedures, such an
electronic record shall be equivalent to a writing under the other provisions of
this Credit Agreement, the Notes or any Letter of Credit Applications, and such
authentication, if made in compliance with the procedures so agreed by the
parties hereto in writing (but not an electronic record), shall be equivalent to
a signature under the other provisions of this Credit Agreement, the Notes or
any Letter of Credit Applications.
16.7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND EACH OF
THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW (S)5-1401, BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE
BORROWER CONSENTS AND AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON THE BORROWER IN ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED IN (S)16.6.
THE BORROWER 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 IS BROUGHT IN AN
INCONVENIENT COURT.
16.8. Headings. The captions in this Credit Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
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16.9. Counterparts. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment
or waiver hereto shall be as effective as an original executed counterpart
hereof or of such amendment or waiver and shall be considered a representation
that an original executed counterpart hereof or such amendment or waiver, as the
case may be, will be delivered.
16.10. Entire Agreement, Etc. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in (S)16.12.
16.11. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER, THE
ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH LENDER, THE ADMINISTRATIVE AGENT OR SUCH AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT, AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BECAUSE OF, AMONG OTHER THINGS, THE
BORROWER'S WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
16.12. Consents, Amendments, Waivers, Etc. Any consent or approval
required or permitted by this Credit Agreement to be given by
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the Lenders may be given, and any term of this Credit Agreement, the other Loan
Documents or any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrower and
the written consent of the Required Lenders. Notwithstanding the foregoing, no
amendment, modification or waiver shall:
(a) without the written consent of the Borrower and each Lender
directly affected thereby:
(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the Notes
or the amount of the Commitment Fee or Letter of Credit Fees or
eliminate indemnity rights in favor of such Lender;
(ii) increase the amount of such Lender's Commitment or extend
the expiration date of such Lender's Commitment;
(iii) postpone or extend the Loan Maturity Date or any other
regularly scheduled dates for payments of principal of, or interest
on, the Loans or Reimbursement Obligations or any Fees or other
amounts payable to such Lender, or extend the termination of any
Letters of Credit for which such Lender has a Letter of Credit
Participation beyond the Loan Maturity Date;
(b) without the written consent of all of the Lenders, amend or waive
this (S)16.12 or the definition of Required Lenders (it being understood
that the addition of one or more additional credit facilities, the
allowance of the credit extensions, interest and fees thereunder to share
ratably or on a subordinated basis with the Loans, Letters of Credit,
interest and Fees in the benefits of the Loan Documents and the inclusion
of the holders of such facilities in the determination of Required Lenders
shall require only the approval of the Required Lenders); and
(c) without the written consent of the Administrative Agent, amend or
waive (S)14, the amount or time of payment of the Administrative Agent's
Fee or any Letter of Credit Fees payable for
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the Administrative Agent's account or any other provision applicable to the
Administrative Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
16.13. Severability. The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
BARNES GROUP INC.
By: _________________________________
William C. Denninger
Senior Vice President, Finance
and Chief Financial Officer
By: _________________________________
Lawrence W. O'Brien
Vice President, Treasurer
FLEET NATIONAL BANK,
individually and as Administrative
Agent
By: _________________________________
Name:
Title:
HSBC BANK USA, individually and
as Co-Documentation Agent
By: ____________________________
Name:
Title:
KEYBANK NATIONAL
ASSOCIATION, individually and as
Co-Documentation Agent
By: ____________________________
Name:
Title:
MELLON BANK, N.A., individually
and as Co-Documentation Agent
By: ____________________________
Name:
Title:
WEBSTER BANK, individually and
as Co-Documentation Agent
By: ____________________________
Name:
Title:
SUNTRUST BANK
By: ____________________________
Name:
Title:
THE BANK OF NEW YORK
By: ____________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: ____________________________
Name:
Title:
COMERICA BANK
By: ____________________________
Name:
Title:
BANK ONE, NA (Main Office Chicago)
By: ____________________________
Name:
Title:
THE GOVERNOR & COMPANY OF
THE BANK OF IRELAND
By: ____________________________
Name:
Title:
Exhibit A
FORM OF
REVOLVING CREDIT NOTE
$__________ June __, 2002
FOR VALUE RECEIVED, the undersigned BARNES GROUP INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
____________, a[an] [___] (the "Lender") at the Administrative Agent's office at
100 Federal Street, Boston, Massachusetts 02110:
(a) prior to or on the Loan Maturity Date the principal amount
of _____ DOLLARS ($___) or, if less, the aggregate unpaid principal
amount of Revolving Credit Loans advanced by the Lender to the Borrower
pursuant to the Revolving Credit Agreement dated as of June 14, 2002
(as amended and in effect from time to time, the "Credit Agreement"),
by and among the Borrower, the Lender, the Administrative Agent and
other parties thereto;
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through
and including the maturity date hereof at the times and at the rate
provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrower irrevocably authorizes the Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting
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the making of such Revolving Credit Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Revolving Credit Loans set forth on
the grid attached to this Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by the Lender with
respect to any Revolving Credit Loans shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Lender, but the failure to
record, or any error in so recording, any such amount on any such grid,
continuation or other record shall not limit or otherwise affect the obligation
of the Borrower hereunder or under the Credit Agreement to make payments of
principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL, PURSUANT
TO NEW YORK GENERAL OBLIGATIONS LAW (S)5-1401, BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE BORROWER CONSENTS AND
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
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SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN (S)16.6 OF THE CREDIT AGREEMENT. THE BORROWER 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 IS BROUGHT IN AN INCONVENIENT COURT.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be signed in its corporate name and its corporate seal to be impressed
thereon by its duly authorized officer as of the day and year first above
written.
[Corporate Seal]
BARNES GROUP INC.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
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Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
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Exhibit B
FORM OF LOAN REQUEST
_________ __, ____
Fleet National Bank,
as Administrative Agent
100 Federal Street
Boston, Massachusetts 02110
Re: [Loan] [Conversion] [Continuation] Request under Revolving
Credit Agreement, dated as of June 14, 2002
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement, dated
as of June 14, 2002 (as the same may be amended and in effect from time to time,
the "Credit Agreement"), by and among Barnes Group Inc. (the "Borrower"), Fleet
National Bank and the other lending institutions referred to therein as Lenders
(collectively, the "Lenders"), Fleet National Bank, as administrative agent (the
"Administrative Agent") for itself and the other Lenders party thereto and HSBC
Bank USA, KeyBank National Association, Mellon Bank, N.A. and Webster Bank as
co-documentation agents (the "Documentation Agents"). Capitalized terms which
are used herein without definition and which are defined in the Credit Agreement
shall have the same meanings herein as in the Credit Agreement.
Pursuant to (S)2.6 of the Credit Agreement, the undersigned Borrower hereby
requests that a Revolving Credit Loan consisting of a [Base Rate Loan in the
principal amount of $__________] [LIBOR Rate Loan in the principal amount of
$__________ with an Interest Period of [1] [2] [3] [6] months] be made on
_________ __, 20__.
[Pursuant to (S)2.7 of the Credit Agreement, the undersigned Borrower
hereby requests that the Revolving Credit Loans in the amount of $_______ which
are currently [Base Rate][LIBOR Rate] Loans be [converted to] [continued as]
[Base Rate Loans] [LIBOR Rate Loans with an Interest Period of [1] [2] [3] [6]
months] on _________ __, 20__.]
The undersigned Borrower understands that this request is irrevocable and
binding on the Borrower and obligates the Borrower to accept the requested
Revolving Credit Loan on such date. This Loan Request constitutes a
certification that the conditions precedent set forth in (S)12 of the Credit
Agreement to the making of the Revolving Credit Loans requested hereby have been
satisfied as of the date hereof.
The undersigned Borrower hereby certifies (a) that the aggregate
outstanding principal amount of the Revolving Credit Loans plus the Maximum
Drawing Amount plus all Unpaid Reimbursement Obligations on today's date is less
than the Total Commitment after giving effect to this Loan Request, (b) that the
proceeds of the requested Revolving Credit Loan will be used in accordance with
the provisions of the Credit Agreement, (c) that each of the representations and
warranties contained in the Credit Agreement or in any document or instrument
delivered pursuant to or in connection therewith was true as of the date as of
which it was made and is true at and as of the date hereof (except to the extent
of changes resulting from transactions contemplated or permitted by the Credit
Agreement and changes occurring in the ordinary course of business that singly
or in the aggregate do not have a Material Adverse Effect, and to the extent
that such representations and warranties related expressly to an earlier date)
and (d) that no Default or Event of Default has occurred and is continuing.
Very truly yours,
BARNES GROUP INC.
By: ___________________________
Name:
Title:
Exhibit C
FORM OF
COMPLIANCE CERTIFICATE
______ __, 20__
Fleet National Bank, as Administrative Agent
and the Lenders referred to below
100 Federal Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement, dated
as of June 14, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Barnes Group Inc., a Delaware
corporation (the "Borrower"), Fleet National Bank and the other lending
institutions listed on Schedule 1 thereto (the "Lenders") and Fleet National
Bank as administrative agent (the "Administrative Agent"), for itself and the
Lenders, and HSBC Bank USA, KeyBank National Association, Mellon Bank, N.A. and
Webster Bank as co-documentation agents (the "Documentation Agents").
Capitalized terms used herein without definition shall have the same meanings
herein as in the Credit Agreement.
This is a certificate delivered pursuant to (S)8.4(c) of the Credit
Agreement for purposes of evidencing compliance with the financial covenants
provided for in (S)10 of the Credit Agreement. This certificate has been duly
executed by the principal financial or accounting officer of the Borrower.
To the best of the knowledge and belief of the undersigned: (a) each of the
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true in all material respects as of the date hereof, with the
same effect as if made at and as of the date hereof (except to the extent of any
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and to the extent that such
representations and warranties relate expressly to an earlier date); (b)
attached hereto as Appendix 1 and set forth in reasonable detail are
computations evidencing compliance with the covenants contained in (S)10 of the
Credit Agreement as of the date and for the applicable period to which the
financial statements delivered herewith relate; (c) the information furnished in
the calculations attached hereto was true, accurate, correct, and complete in
all material respects as of the last day of such period and for such applicable
period,
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as the case may be, subject to normal year end adjustments; (d) as of the date
hereof, no Default or Event of Default has occurred or is continuing and (e) the
annual financial statements delivered to the Lenders and the Administrative
Agent herewith as required by (S)8.4 of the Credit Agreement were prepared in
accordance with generally accepted accounting principles (except for the absence
of footnotes required by generally accepted accounting principles) and fairly
represents the financial position of the Borrower as of the date thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed this certificate as an
instrument under seal as of the date first written above.
BARNES GROUP INC.
By: ___________________________________
Name:
Title:
Appendix 1
COMPLIANCE CERTIFICATE
BARNES GROUP INC.
A. Interest Coverage
1. Consolidated EBITDA:
(A) Consolidated Net Income of the Borrower, its
Subsidiaries and, without duplication, the
Acquired Businesses (excluding, without
duplication, (1) extraordinary gains and
losses in accordance with GAAP, (2) gains
and losses in connection with asset
dispositions whether or not constituting
extraordinary gains and losses, (3) gains or
losses on discontinued operations, and (4)
one-time restructuring charges, not to exceed
$4,800,000 taken in the quarter ended
December 31, 2001) for the four (4)
consecutive fiscal quarters ended on such date $_______________
(B) Consolidated Cash Interest Expense of the
Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses for such period $_______________
(C) To the extent deducted in computing such
Consolidated Net Income of the Borrower, its
Subsidiaries and, without duplication, the
Acquired Businesses, for such period:
(i) Income taxes $_______________
(ii) Depreciation $_______________
(iii) Amortization $_______________
Sum of Items (i) through (iii) $_______________
Consolidated EBITDA (Sum of Items (A) through (C)) $___________________
2. Consolidated Cash Interest Expense for the four (4) consecutive fiscal
quarters then ending:
Consolidated Cash Interest Expense $___________________
3. Consolidated EBITDA to Consolidated Cash Interest Expense Ratio (Ratio of
Item 1 to Item 2)
_____ : _____
4. Consolidated EBITDA to Consolidated Cash Interest Expense Ratio (Interest
Coverage) under Section 10.1 of the Credit Agreement during the period
shall not be less than the applicable ratio set forth in the table below
For the Four Quarters Ending Ratio
6/30/2002 and 9/30/2002 4.00 : 1.00
12/31/2002 through 9/30/2003 4.25 : 1.00
12/31/03 and thereafter 4.50 : 1.00
B. Leverage Ratio
1. Consolidated Total Debt as at such date:
(A) With respect to the Borrower and its
Subsidiaries, without duplication, the
aggregate amount of Indebtedness of the
Borrower and its Subsidiaries, on a
consolidated basis, outstanding on such date
for the borrowed money or the deferred
purchase price of property including, without
limitation, in respect of any Synthetic
Leases or Capitalized Leases $___________________
(B) With respect to the Borrower and its
Subsidiaries, without duplication,
Indebtedness of the type referred to in clause
(A) of another Person (not including the
Borrower or its Subsidiaries) guaranteed by
the Borrower or any of its Subsidiaries $___________________
Consolidated Total Debt $___________________
2. Consolidated EBITDA for the four (4) consecutive fiscal quarters then
ending:
Consolidated EBITDA (See Item 1 of Interest Coverage
above) $___________________
3. Consolidated Total Debt to Consolidated EBITDA Ratio (Ratio of Item 1 to
Item 2)
_____ : _____
4. Consolidated Total Debt to Consolidated EBITDA Ratio (Leverage Ratio) under
Section 10.2 of the Credit Agreement during the period shall not be more
than the applicable ratio set forth in the table below:
For the Four Quarters Ending Ratio
6/30/2002 and 9/30/2002 3.50 : 1.00
12/31/2002 through 9/30/2003 3.00 : 1.00
12/31/03 and thereafter 2.75 : 1.00
C. Consolidated Net Worth
1. Consolidated Net Worth:
The Borrower has not permitted Consolidated Net Worth at any time to be
less than $185,000,000 plus 50% of the Borrower's Consolidated Net Income
for each fiscal year beginning after December 31, 2001 (but without
deduction for any fiscal year in which Consolidated Net Income is a
negative amount), with the annual adjustments to be applicable as of
December 31, 2002 and as of the end of each subsequent fiscal year.
D. Capital Expenditures
1. Capital Expenditures for the current fiscal year:
Capital Expenditures of the Borrower and any
Subsidiary for the fiscal year then ended $___________________
2. Unutilized Capital Expenditures, if any, from any preceding fiscal year:
Fiscal Year Unutilized Capital Expenditures/1/
___________________ $___________________
___________________ $___________________
___________________ $___________________
Total: $___________________
3. Total Permitted Capital Expenditures for the current fiscal year:
(A) Minimum Capital Expenditures permitted
during any fiscal year under Section 10.4 of
the Credit Agreement $35,000,000
(B) Total Unutilized Capital Expenditures, if
any, from any preceding fiscal year (See
Item (2) above) $___________________
Sum of Item (A) plus Item (B) above $___________________
4. Item (3) less Item (1) equals: $___________________
5. Capital Expenditures under Section 10.4 of the Credit Agreement during the
period shall not exceed, in the aggregate, $35,000,000 for such fiscal
year; provided, however, that, if during any fiscal year the amount of
Capital Expenditures permitted for that fiscal year is not so utilized, one
hundred percent (100%) of such unutilized amount may be utilized in any
succeeding fiscal year.
__________________________
/1/ Unutilized Capital Expenditures shall mean the amount of Capital
Expenditures permitted for that fiscal year not so utilized.
Exhibit D
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated as of _____ __, 20__
Reference is made to the REVOLVING CREDIT AGREEMENT, dated as of June 14,
2002 (as from time to time amended and in effect, the "Credit Agreement"), by
and among BARNES GROUP INC., a Delaware corporation (the "Borrower"), FLEET
NATIONAL BANK, a national banking association, and the other lending
institutions listed therein (collectively, the "Lenders"), FLEET NATIONAL BANK
as administrative agent (in such capacity, the "Administrative Agent") for
itself and the Lenders and HSBC BANK USA, KEYBANK NATIONAL ASSOCIATION, MELLON
BANK, N.A. and WEBSTER BANK as Documentation Agents. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.
____________ (the "Assignor") and ____________ (the "Assignee") hereby
agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment and
Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a $_____
interest in and to the rights, benefits, indemnities and obligations of the
Assignor under the Credit Agreement equal to _____% in respect of the Total
Commitment immediately prior to the Effective Date (as hereinafter defined).
2. Assignor's Representations. The Assignor (i) represents and warrants
that (A) it is legally authorized to enter into this Assignment and Acceptance,
(B) as of the date hereof, its Commitment is $_____, its Commitment Percentage
is _____%, the aggregate outstanding principal balance of its Revolving Credit
Loans equals $_____, the aggregate amount of its Letter of Credit Participations
equals $_____ (in each case after giving effect to the assignment contemplated
hereby but without giving effect to any contemplated assignments which have not
yet become effective), and (C) immediately after giving effect to all
assignments which have not yet become effective, the Assignor's Commitment
Percentage will be sufficient to give effect to this Assignment and Acceptance,
(ii) makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any of the other Loan
Documents or the execution,
-2-
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto or the attachment, perfection or priority of any
security interest or mortgage, other than that it is the legal and beneficial
owner of the interest being assigned by it hereunder free and clear of any claim
or encumbrance; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower or
any of its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of its obligations under the Credit
Agreement or any of the other Loan Documents or any other instrument or document
delivered or executed pursuant thereto; and (iv) attaches hereto the Revolving
Credit Note delivered to it under the Credit Agreement.
The Assignor requests that the Borrower exchange the Assignor's Revolving
Credit Note for new Revolving Credit Notes payable to the Assignor and the
Assignee as follows:
@@
Notes Payable to Amount of Revolving
the Order of: Credit Note
- ---------------- -------------------
Assignor $_________
Assignee $_________
@@
3. Assignee's Representations. The Assignee (i) represents and warrants
that (A) it is duly and legally authorized to enter into this Assignment and
Acceptance, (B) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (C) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to (S)7.4 and (S)8.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon
-3-
the Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) represents and warrants that it is an Eligible Assignee; (v)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (vi)
agrees that it will perform in accordance with their terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Lender; and (vii) acknowledges that it has made arrangements with the Assignor
satisfactory to the Assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit.
4. Effective Date. The effective date for this Assignment and Acceptance
shall be _____ __, 20__ (the "Effective Date"). Following the execution of this
Assignment and Acceptance and the consent of the Borrower hereto having been
obtained, each party hereto shall deliver its duly executed counterpart hereof
to the Administrative Agent for acceptance by the Administrative Agent and
recording in the Register by the Administrative Agent. Schedule 1 to the Credit
Agreement shall thereupon be replaced as of the Effective Date by the Schedule 1
annexed hereto.
5. Rights Under Credit Agreement. Upon such acceptance and recording, from
and after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder, and (ii) the Assignor shall,
with respect to that portion of its interest under the Credit Agreement assigned
hereunder, relinquish its rights and be released from its obligations under the
Credit Agreement; provided, however, that the Assignor shall retain its rights
to be indemnified pursuant to (S)16.3 of the Credit Agreement with respect to
any claims or actions arising prior to the Effective Date.
6. Payments. Upon such acceptance of this Assignment and Acceptance by the
Agent and such recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the rights and interests assigned
hereby (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and the Assignee shall make any appropriate
adjustments in payments for periods prior to the Effective Date by the
Administrative Agent or with respect to the making of this assignment directly
between themselves.
-4-
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW (S)5-1401, BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
8. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
[THE ASSIGNOR]
By: ___________________________________
Name:
Title:
[THE ASSIGNEE]
By: ___________________________________
Name:
Title:
CONSENTED TO:
BARNES GROUP INC.
By: ___________________________
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By: ___________________________
Name:
Title:
Exhibit E
FORM OF
GUARANTY
GUARANTY, dated as of _____ __, 20__, by [_____], a[an] [_____] (the
"Guarantor") in favor of (i) FLEET NATIONAL BANK, a national banking
association, as administrative agent (hereinafter, in such capacity, the
"Administrative Agent") for itself and the other lending institutions
(hereinafter, collectively, the "Lenders") which are or may become parties to a
REVOLVING CREDIT AGREEMENT dated as of June 14, 2002 (as amended and in effect
from time to time, the "Credit Agreement"), by and among Barnes Group Inc., a
Delaware corporation (the "Company"), the Lenders, the Administrative Agent and
the Documentation Agents and (ii) each of the Lenders.
WHEREAS, the Company and the Guarantor are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Company by the Lenders pursuant to
the Credit Agreement (which benefits are hereby acknowledged); and
WHEREAS, the Guarantor wishes to guaranty the Company's obligations to the
Lenders and the Administrative Agent under or in respect of the Credit Agreement
as provided herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Lenders and the
Administrative Agent 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. The Guarantor hereby guarantees to
the Lenders and the Administrative 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 (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b)
and 506(b) of the Federal Bankruptcy Code. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of all
-2-
of the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Administrative Agent or any Lender
first attempt to collect any of the Obligations from the Company or resort to
any collateral security or other means of obtaining payment. Should the Company
default in the payment or performance of any of the Obligations, the obligations
of the Guarantor hereunder with respect to such Obligations in default shall,
upon demand by the Administrative Agent, become immediately due and payable to
the Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, without demand or notice of any nature, all of which are expressly waived
by the Guarantor. Payments by the Guarantor hereunder may be required by the
Administrative Agent on any number of occasions. All payments by the Guarantor
hereunder shall be made to the Administrative Agent, 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. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Administrative Agent, on demand, all costs and expenses (including court
costs and legal expenses) incurred or expended by the Administrative Agent or
any Lender in connection with the Obligations, this Guaranty and the enforcement
thereof, together with interest on amounts recoverable under this (S)3 from the
time when such amounts become due until payment, whether before or after
judgment, at the rate of interest for overdue principal 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 Guarantor; Bank's Freedom to Act. The 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 or any Lender with respect thereto. The Guarantor waives
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 Company 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,
the 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 Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected
-3-
by (i) the failure of the Administrative Agent or any Lender to assert any claim
or demand or to enforce any right or remedy against the Company 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 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 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 the Guarantor or
otherwise operate as a release or discharge of the Guarantor, all of which may
be done without notice to the Guarantor. To the fullest extent permitted by law,
the 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 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 the Guarantor before or after the
Administrative 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 Company. If for any reason the
Company 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 Company by reason of the Company's insolvency, bankruptcy or reorganization
or by other operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the 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 Company, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement, the Note, the other Loan Documents or any other
agreement evidencing,
-4-
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantor.
6. Subrogation; Subordination.
6.1. Waiver of Rights Against Company. Until the final payment and
performance in full of all of the Obligations, the Guarantor shall not
exercise and hereby waives any rights against the Company arising as a
result of payment by the Guarantor hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not 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; the Guarantor will not
claim any setoff, recoupment or counterclaim against the Company in respect
of any liability of the Guarantor to the Company; and the 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 Company for money borrowed or credit received now or
hereafter owed to the Guarantor is hereby subordinated to the prior payment
in full of all of the Obligations. The Guarantor agrees that, after the
occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, sue for or otherwise attempt to
collect any such indebtedness of the Company to the Guarantor until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the 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 the
Guarantor as trustee for the Lenders and the Administrative Agent and be
paid over to the Administrative Agent, for the benefit of the Lenders and
the Administrative Agent, on account of the Obligations without affecting
in any manner the liability of the Guarantor under the other provisions of
this Guaranty.
6.3. Provisions Supplemental. The provisions of this (S)6 shall be
supplemental to and not in derogation of any rights and remedies of the
Lenders and the Administrative Agent under any separate subordination
agreement which the Administrative Agent may at any time and from time to
time enter into with the Guarantor for the benefit of the Lenders and the
Administrative Agent.
-5-
7. Setoff. Regardless of the adequacy of any collateral security or other
means of obtaining payment of any of the Obligations, each of the Administrative
Agent and the Lenders is hereby authorized at any time and from time to time,
without notice to the Guarantor (any such notice being expressly waived by the
Guarantor) and to the fullest extent permitted by law, to set off and apply such
deposits and other sums against the obligations of the Guarantor 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.
8. Further Assurances. The 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 consider necessary or
desirable to give full effect to this Guaranty and to perfect and preserve the
rights and powers of the Lenders and the Administrative Agent hereunder. The
Guarantor acknowledges and confirms that the Guarantor itself has established
its own adequate means of obtaining from the Company on a continuing basis all
information desired by the Guarantor concerning the financial condition of the
Company and that the Guarantor will look to the Company and not to the
Administrative Agent or any Lender in order for the Guarantor to keep adequately
informed of changes in the Company's financial condition.
9. Termination; Reinstatement. This Guaranty shall remain in full force
and effect until the Administrative Agent is given written notice of the
Guarantor's intention to discontinue this Guaranty, notwithstanding any
intermediate or temporary payment or settlement of the whole or any part of the
Obligations. No such notice shall be effective unless received and acknowledged
by an officer of the Administrative Agent at the address of the Administrative
Agent for notices set forth in (S)16.6 of the Credit Agreement. No such notice
shall affect any rights of the Administrative Agent or any Lender hereunder,
including without limitation the rights set forth in (S)(S)4 and 6, with respect
to any Obligations incurred or accrued prior to the receipt of such notice or
any Obligations incurred or accrued pursuant to any contract or commitment in
existence prior to such receipt. This Guaranty shall continue to be effective or
be reinstated, notwithstanding any such notice, 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 Company, or otherwise, all as though such
payment had not been made or value received.
10. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of
-6-
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 the Credit Agreement, the
Note, 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 entity or other
person, and such other entity or 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 (S)15 of the Credit Agreement. The Guarantor may
not assign any of its obligations hereunder. Notwithstanding the foregoing, the
Guarantor may assign its Obligations to the surviving entity in its merger with
another domestic Subsidiary in accordance with (S)9.5 of the Credit Agreement,
provided that no Event of Default exists and is continuing under the Credit
Agreement.
11. Joinder Agreement and Affirmation. To the extent requested by the
Administrative Agent, the Guarantor will cause each Subsidiary (excluding any
foreign Subsidiaries) assigned any of the Guarantor's Obligations in accordance
with (S)10, to execute and deliver to the Administrative Agent, for the benefit
of the Administrative Agent and the Lenders, (a) a Joinder Agreement and
Affirmation in the form of Exhibit A attached hereto, and (b) any other
instruments and documents as the Administrative Agent may reasonably require,
together with legal opinions in form and substance reasonably satisfactory to
the Administrative Agent to be delivered to the Administrative Agent and the
Lenders opining as to authorization, validity and enforceability of such
Guaranty.
12. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Administrative
Agent with the consent of the Required Lenders. No failure on the part of the
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.
13. Notices. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Administrative Agent, at the address for
-7-
notices to the Administrative Agent set forth in (S)16.6 of the Credit
Agreement, or at such address as either party may designate in writing to the
other.
14. Governing Law; Consent to Jurisdiction. THIS GUARANTY SHALL, PURSUANT
TO NEW YORK GENERAL OBLIGATIONS LAW (S)5-1401, BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The Guarantor agrees that any
suit for the enforcement of this Guaranty may be brought in the courts of the
State of New York 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 the Guarantor by mail at the address specified by reference
in (S)12. The 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.
15. Waiver of Jury Trial. THE GUARANTOR AND EACH OF THE BENEFICIARIES
HEREBY WAIVE THEIR RIGHT 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.
Except as prohibited by law, the Guarantor hereby waives any right which it may
have to claim or recover in any litigation referred to in the preceding sentence
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. The Guarantor (i) 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 (ii) 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 (S)14.
16. Miscellaneous. This Guaranty constitutes the entire agreement of the
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 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
-8-
in this Guaranty shall be equally applicable to the singular and plural forms of
the terms defined.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
[SUBSIDIARY]
By: _______________________________
Name:
Title:
Address:
___________________________________
___________________________________
___________________________________
Telex: ____________________________
Exhibit A
FORM OF
JOINDER AGREEMENT AND AFFIRMATION
This Joinder Agreement and Affirmation (this "Joinder Agreement") is
executed and delivered as of ________ ___, 20__, by [NEW SUBSIDIARY], a
[_______] corporation (the "New Subsidiary"), pursuant to (S)11 of the Guaranty,
dated as of _______ ___. 20__, as amended (as so amended, and as may be further
amended and in effect from time to time, the "Guaranty"), by [________] in favor
of FLEET NATIONAL BANK, a national banking association, as Administrative Agent
for itself and the other Lenders which are or may become parties to a Revolving
Credit Agreement, dated as of June 14, 2002 (as amended and in effect from time
to time, the Credit Agreement), by and among Barnes Group Inc., a Delaware
corporation, the Lenders, the Administrative Agent and the Documentation Agents
and (ii) each of the Lenders. All capitalized terms used in this Joinder
Agreement and not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement.
(S)1. Joinder to Guaranty. The New Subsidiary hereby agrees to become a
guarantor of 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 the Obligations and, by executing and delivering this
Joinder Agreement, does hereby join and become a party to the Guaranty as a
"Guarantor" (as defined in the Guaranty), assuming all of the obligations and
liabilities of a "Guarantor" (as defined in the Guaranty) thereunder. The New
Subsidiary hereby agrees to comply with, and be bound by, all of the terms and
conditions of the Guaranty in all respects as an original guarantor thereunder,
as if the New Subsidiary was an original signatory thereto, including without
limitation, guaranteeing all Obligations arising or incurred after the Closing
Date.
(S)2. Effectiveness. This Joinder Agreement shall become effective upon the
receipt by the Administrative Agent of facsimile copies of original counterparts
(to be followed promptly by original counterparts) or original counterparts of
this Joinder Agreement, duly authorized, executed and delivered by the New
Subsidiary.
(S)3. GOVERNING LAW. THIS JOINDER AGREEMENT SHALL, PURSUANT TO NEW YORK
GENERAL OBLIGATIONS LAW (S)5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
(S)4. Representations and Covenants. The New Subsidiary hereby represents
and warrants to the Administrative Agent and each of the Lenders that
-2-
its chief executive office and principal place of business is at the location
set forth beneath its signature hereto.
(S)5. Miscellaneous. The undersigned agrees that this Joinder Agreement
shall be deemed to be, and is hereby made a part of the applicable Loan
Documents as if set forth therein in full. This Joinder Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which counterparts taken together shall be deemed to
constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be
duly executed as of the date first written above.
[NEW SUBSIDIARY]
By: _______________________________
Name:
Title:
Address:
___________________________________
___________________________________
___________________________________
Telex: ____________________________
Agreed and Accepted to as of this __
day of _________, 20__:
FLEET NATIONAL BANK
By:_________________________________
Name:
Title:
Exhibit F
FORM OF
INSTRUMENT OF ACCESSION
Dated as of _____ __, 20__
Reference is hereby made to the REVOLVING CREDIT AGREEMENT, dated as of
June 14, 2002 (as heretofore and from time to time amended and in effect, the
"Credit Agreement"), by and among BARNES GROUP INC., a Delaware corporation (the
"Borrower"), FLEET NATIONAL BANK, a national banking association, and the other
lending institutions listed on Schedule 1 thereto (the "Lenders"), FLEET
NATIONAL BANK as administrative agent for itself and the Lenders (the
"Administrative Agent") and HSBC BANK USA, KEYBANK NATIONAL ASSOCIATION, MELLON
BANK, N.A. and WEBSTER BANK as co-documentation agents (the "Documentation
Agents"). Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.
Pursuant to the terms of (S)2.3.1 and (S)15.9 of the Credit Agreement, the
Borrower, the Administrative Agent and [_________] (the "Acceding Bank") hereby
agree as follows:
1. Subject to the terms and conditions of this Instrument of Accession, the
Acceding Bank hereby agrees to assume, without recourse to the Lenders or the
Administrative Agent, on the Effective Date (as defined below), a Commitment of
$[________] in accordance with the terms and conditions set forth in the Credit
Agreement. Upon such assumption, the Total Commitment shall be automatically
increased by the amount of such assumption. The Acceding Bank hereby agrees to
be bound by, and hereby requests the agreement of the Borrower and the
Administrative Agent that such Acceding Bank shall be entitled to the benefits
of, all of the terms, conditions and provisions of the Credit Agreement as if
such Acceding Bank had been one of the lending institutions originally executing
the Credit Agreement as a "Lender"; provided that nothing herein shall be
construed as making any Acceding Bank liable to the Borrower or the other
Lenders in respect of any acts or omissions of any party to the Credit Agreement
or in respect of any other event occurring prior to the Effective Date (as
defined below) of this Instrument of Accession.
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2. The Acceding Bank (a) represents and warrants that (i) it is duly and
legally authorized to enter into this Instrument of Accession, (ii) the
execution, delivery and performance of this Instrument of Accession do not
conflict with any provision of law or of the charter or by-laws of such Acceding
Bank, or of any agreement binding on such Acceding Bank, (iii) all acts,
conditions and things required to be done and performed and to have occurred
prior to the execution, delivery and performance of this Instrument of
Accession, and to render the same the legal, valid and binding obligation of
such Acceding Bank, enforceable against it in accordance with its terms, have
been done and performed and have occurred in due and strict compliance with all
applicable laws; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to (S)7.4 and (S)8.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Instrument of Accession; (c) agrees that it will,
independently and without reliance upon the Lenders or the Administrative Agent
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (d) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (e) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (f) acknowledges
that it has made arrangements with the Administrative Agent satisfactory to the
Acceding Bank with respect to its pro rata share of Letter of Credit Fees in
respect of outstanding Letters of Credit.
3. The Acceding Bank hereby requests that the Borrower issue a new
Revolving Credit Note payable to the order of [________] in the principal amount
of $[________]. In the event that any Acceding Bank is also a Lender party to
the Credit Agreement immediately prior to the Effective Date of this Instrument
of Accession, such Acceding Bank agrees to deliver to the Borrower, as soon as
reasonably practicable after the Effective Date (as defined below), the prior
Revolving Credit Note held by it prior to the issuance of the new Revolving
Credit Note, marked "Cancelled".
4. The effective date for this Instrument of Accession shall be ________
__, 20__ (the "Effective Date"). Following the execution of this Instrument of
Accession by the Borrower and the Acceding Bank, it will be delivered to the
Administrative Agent for acceptance. Upon acceptance by the Administrative
Agent, Schedule 1 to the Credit Agreement shall
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thereupon be replaced as of the Effective Date by the Schedule 1 annexed hereto.
The Administrative Agent shall thereafter notify the other Lenders of the
revised Schedule 1 and the arrangements proposed to ensure that the outstanding
amount of the Loans made by each Lender will correspond to its respective
Commitment Percentage after giving effect to the accession contemplated hereby.
5. Upon such acceptance, from and after the Effective Date, the Borrower
shall make all payments in respect of each Acceding Bank's Commitment (including
payments of principal, interest, fees and other amounts) to the Administrative
Agent for the account of such Acceding Bank.
6. THIS INSTRUMENT OF ACCESSION SHALL, PURSUANT TO NEW YORK GENERAL
OBLIGATIONS LAW (S)5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
7. This Instrument of Accession may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Instrument of Accession to be executed on its behalf by its
officer thereunto duly authorized, to take effect as of the date first above
written.
BARNES GROUP INC.
By: ____________________________
Name:
Title:
FLEET NATIONAL BANK, in its
capacity as Administrative Agent
By: ____________________________
Name:
Title:
[THE ACCEDING BANK]
By: ____________________________
Name:
Title: