AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 20, 2003
among
C&D TECHNOLOGIES, INC.
as the Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
JP MORGAN CHASE BANK,
as Co-Agent,
and
THE OTHER LENDERS PARTY HERETO
Arranged By:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...............................1
1.01 Defined Terms....................................................1
1.02 Other Interpretive Provisions...................................20
1.03 Accounting Terms................................................20
1.04 Rounding........................................................21
1.05 References to Agreements and Laws...............................21
1.06 Times of Day....................................................21
1.07 Letter of Credit Amounts........................................21
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS........................21
2.01 Revolving Loans.................................................21
2.02 Borrowings, Conversions and Continuations of Loans..............22
2.03 Letters of Credit...............................................23
2.04 Swing Line Loans................................................30
2.05 Prepayments.....................................................32
2.06 Termination or Reduction of Aggregate Revolving Commitments.....33
2.07 Repayment of Loans..............................................33
2.08 Interest........................................................34
2.09 Fees............................................................34
2.10 Computation of Interest and Fees................................35
2.11 Evidence of Debt................................................35
2.12 Payments Generally..............................................35
2.13 Sharing of Payments.............................................37
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY......................38
3.01 Taxes...........................................................38
3.02 Illegality......................................................39
3.03 Inability to Determine Rates....................................39
3.04 Increased Cost and Reduced Return; Capital Adequacy.............39
3.05 Funding Losses..................................................40
3.06 Matters Applicable to all Requests for Compensation.............40
3.07 Survival........................................................41
ARTICLE IV GUARANTY.....................................................41
4.01 The Guaranty....................................................41
4.02 Obligations Unconditional.......................................41
4.03 Reinstatement...................................................42
4.04 Certain Additional Waivers......................................42
4.05 Remedies........................................................42
4.06 Rights of Contribution..........................................43
4.07 Guarantee of Payment; Continuing Guarantee......................43
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.....................43
5.01 Conditions of Initial Credit Extension..........................43
5.02 Conditions to all Credit Extensions.............................45
ARTICLE VI REPRESENTATIONS AND WARRANTIES...............................45
6.01 Existence, Qualification and Power..............................45
6.02 Authorization; No Contravention.................................46
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6.03 Governmental Authorization; Other Consents......................46
6.04 Binding Effect..................................................46
6.05 Financial Statements; No Material Adverse Effect................46
6.06 Litigation......................................................47
6.07 No Default......................................................47
6.08 Ownership of Property; Liens....................................47
6.09 Environmental Compliance........................................47
6.10 Insurance.......................................................48
6.11 Taxes...........................................................48
6.12 ERISA Compliance................................................48
6.13 Subsidiaries....................................................49
6.14 Margin Regulations; Investment Company Act;
Public Utility Holding Company Act..............................49
6.15 Disclosure......................................................49
6.16 Compliance with Laws............................................50
6.17 Intellectual Property; Licenses, Etc............................50
6.18 Broker's Fees...................................................50
6.19 Labor Matters...................................................50
6.20 Tax Shelter Regulations.........................................50
ARTICLE VII AFFIRMATIVE COVENANTS.......................................51
7.01 Financial Statements............................................51
7.02 Certificates; Other Information.................................51
7.03 Notices.........................................................53
7.04 Payment of Obligations..........................................54
7.05 Preservation of Existence, Etc..................................54
7.06 Maintenance of Properties.......................................54
7.07 Maintenance of Insurance........................................54
7.08 Compliance with Laws............................................55
7.09 Books and Records...............................................55
7.10 Inspection Rights...............................................55
7.11 Use of Proceeds.................................................55
7.12 Additional Subsidiaries.........................................55
7.13 ERISA Compliance................................................56
7.14 Pledged Assets..................................................56
ARTICLE VIII NEGATIVE COVENANTS.........................................56
8.01 Liens...........................................................56
8.02 Investments.....................................................58
8.03 Indebtedness....................................................59
8.04 Fundamental Changes.............................................60
8.05 Dispositions....................................................60
8.06 Restricted Payments.............................................61
8.07 Change in Nature of Business....................................61
8.08 Transactions with Affiliates and Insiders.......................61
8.09 Burdensome Agreements...........................................61
8.10 [Reserved]......................................................62
8.11 Financial Covenants.............................................62
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8.12 Prepayment of Other Indebtedness, Etc...........................62
8.13 Organization Documents; Fiscal Year; Legal Name,
State of Formation and Form of Entity...........................62
8.14 Ownership of Subsidiaries.......................................63
8.15 Sale and Leaseback Transactions.................................63
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES...............................63
9.01 Events of Default...............................................63
9.02 Remedies Upon Event of Default..................................65
9.03 Application of Funds............................................66
ARTICLE X ADMINISTRATIVE AGENT..........................................67
10.01 Appointment and Authorization of Administrative Agent...........67
10.02 Delegation of Duties............................................67
10.03 Liability of Administrative Agent...............................67
10.04 Reliance by Administrative Agent................................68
10.05 Notice of Default...............................................68
10.06 Credit Decision; Disclosure of Information
by Administrative Agent.........................................68
10.07 Indemnification of Administrative Agent.........................69
10.08 Administrative Agent in its Individual Capacity.................69
10.09 Successor Administrative Agent..................................70
10.10 Administrative Agent May File Proofs of Claim...................70
10.11 Collateral and Guaranty Matters.................................71
10.12 Other Agents; Arrangers and Managers............................71
ARTICLE XI MISCELLANEOUS................................................72
11.01 Amendments, Etc.................................................72
11.02 Notices and Other Communications; Facsimile Copies..............73
11.03 No Waiver; Cumulative Remedies..................................74
11.04 Attorney Costs, Expenses and Taxes..............................74
11.05 Indemnification by the Borrower.................................75
11.06 Payments Set Aside..............................................75
11.07 Successors and Assigns..........................................76
11.08 Confidentiality.................................................78
11.09 Set-off.........................................................79
11.10 Interest Rate Limitation........................................79
11.11 Counterparts....................................................79
11.12 Integration.....................................................79
11.13 Survival of Representations and Warranties......................80
11.14 Severability....................................................80
11.15 Tax Forms.......................................................80
11.16 Replacement of Lenders..........................................82
11.17 Governing Law...................................................82
11.18 Waiver of Right to Trial by Jury................................82
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SCHEDULES
2.01 Commitments and Pro Rata Shares
2.03 Existing Letters of Credit
6.13 Subsidiaries
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B Form of Swing Line Loan Notice
C-1 Form of Revolving Note
C-2 Form of Swing Line Note
D Form of Compliance Certificate
E Form of Assignment and Assumption
F Form of Joinder Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of November
20, 2003 among C&D TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"),
the Guarantors (defined herein), the Lenders (defined herein) and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Pursuant to that Amended and Restated Credit Agreement (as amended,
modified and supplemented, the "Existing Credit Agreement") dated as of March 1,
1999 among the Borrower, the Subsidiaries of the Borrower identified therein,
the lenders identified therein and Bank of America, N.A., as administrative
agent, the lenders party thereto agreed to provide $220 million in credit
facilities to the Borrower. The Borrower has requested that the credit
facilities provided pursuant to the Existing Credit Agreement be amended and
restated on the terms and conditions set forth herein. The Lenders have agreed
to the Borrower's request and this Agreement is given in amendment to,
restatement of and substitution for the Existing Credit Agreement.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 5% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in effect
on the Closing Date is ONE HUNDRED MILLION DOLLARS ($100,000,000). The amount of
the Aggregate Revolving Commitments may from time to time after the Closing Date
be increased pursuant to Section 2.01(c) and reduced pursuant to Section 2.06.
"Agreement" means this Credit Agreement, as amended, modified, supplemented
and extended from time to time.
"Applicable Rate" means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(b):
Pricing Consolidated Total Letter of Credit Fee
Tier Leverage Ratio Commitment Fee and Eurodollar Loans Base Rate Loans
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
I Less than or equal to 1.0:1.0 0.250% 1.00% 0.00%
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
II Less than or equal to 1.5:1.0 0.250% 1.25% 0.00%
but greater than 1.0:1.0
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
III Less than or equal to 2.0:1.0 0.300% 1.50% 0.00%
but greater than 1.5:1.0
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
IV Less than or equal to 2.5:1.0 0.375% 1.75% 0.25%
but greater than 2.0:1.0
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
V Greater than 2.5:1.0 0.500% 2.00% 0.50%
- ------------ ------------------------------- -------------------- ------------------------- ---------------------
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Total Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Tier V shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and shall
continue to apply until the first Business Day immediately following the date
such Compliance Certificate is actually delivered. The Applicable Rate in effect
from the Closing Date through the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 7.02(b) for the
fiscal quarter ending October 31, 2003 shall be determined based upon Pricing
Tier I.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
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"Attorney Costs" means and includes all fees, expenses and disbursements of
any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease, the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease, (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment, and (d) in
the case of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the
obligations of the lessee for rental payments during the term of such lease).
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended January 31, 2003,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries for such fiscal year,
including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments, the
period from and including the Closing Date to the earliest of (a) the Maturity
Date, (b) the date of termination of the Aggregate Revolving Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of
each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the "prime rate" announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required to close under the Laws of, or
are in fact closed in, the state where the Administrative Agent's Office is
located and, if such day relates to any Eurodollar Rate Loan, means any such day
on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
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"Businesses" means, at any time, a collective reference to the businesses
operated by the Borrower and its Subsidiaries at such time.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations, (e) Investments,
classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d), and (f)
demand deposits, time deposits and certificates of deposit, with a Dollar
equivalent not in excess of $30,000,000 in the aggregate, denominated in any of
the British Pound, German Mark, Italian Lira, Spanish Peseta, Euro, Irish Punt,
Dutch Guilder, Swiss Franc, French Franc, Canadian Dollar, Mexican Peso, Chinese
Renminbi, Malaysian Ringgit, Australian Dollar, Singapore Dollar or Brazilian
Real of any commercial bank of recognized standing reasonably acceptable to the
Administrative Agent.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all Capital Stock that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of forty percent
(40%) of the Capital Stock of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on a
fully diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or
4
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office
as, a member of that board or equivalent governing body occurs as a result
of an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on
behalf of the board of directors).
"Closing Date" means the date hereof.
"Collateral" means a collective reference to all real and personal Property
with respect to which Liens in favor of the Administrative Agent for the benefit
of itself and the Lenders are purported to be granted pursuant to and in
accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Pledge Agreement
and such other security documents as may be executed and delivered by the Loan
Parties pursuant to the terms of Section 7.14.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated Capital Expenditures" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, all capital expenditures, as
determined in accordance with GAAP; provided, however, that Consolidated Capital
Expenditures shall not include (a) expenditures made with proceeds of any
Involuntary Disposition to the extent such expenditures are used to purchase
Property that is useful in the business of the Borrower and its Subsidiaries or
(b) Permitted Acquisitions.
"Consolidated EBITDA" means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b)
the provision for federal, state, local and foreign income taxes payable by the
Borrower and its Subsidiaries for such period, (c) the amount of depreciation
and amortization expense for such period and (d) non-cash charges incurred in
connection with asset impairment and the write-down of goodwill relating to
plant closings and the disposition of assets, all as determined in accordance
with GAAP.
"Consolidated Fixed Charges" means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the cash
portion of Consolidated Interest Charges for such period plus (ii) Consolidated
Scheduled Funded Debt Payments for such period plus (iii) Restricted Payments
made during such period, all as determined in accordance with GAAP.
"Consolidated Fixed Charges Coverage Ratio" means, as of any date of
determination, the ratio of (i) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended to (ii) Consolidated Fixed Charges for the
period of the four fiscal quarters most recently ended.
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"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Charges" means, for any period for the Borrower and
its Subsidiaries on a consolidated basis, all interest expense of the Borrower
and its Subsidiaries for such period determined in accordance with GAAP
(including, without limitation, the portion of rent expense of the Borrower and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP).
"Consolidated Net Income" means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries for such period as determined in accordance with GAAP, but
excluding for purposes of the Consolidated Fixed Charges Coverage Ratio and the
Consolidated Total Leverage Ratio any extraordinary gains or losses (other than
any extraordinary loss related to the write-down of goodwill) and related tax
effects thereon.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
such date determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means, for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness, as determined in
accordance with GAAP. For purposes of this definition, "scheduled payments of
principal" (a) shall be determined without giving effect to any reduction of
such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period, (b) shall be deemed to
include the Attributable Indebtedness in respect of capital leases, Synthetic
Leases and Sale and Leaseback Transactions and (c) shall not include any
voluntary prepayments or mandatory prepayments required pursuant to Section
2.05.
"Consolidated Total Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b) a
L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
6
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any Property
by the Borrower or any Subsidiary (including the Capital Stock of any
Subsidiary), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (a) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business of the
Borrower and its Subsidiaries, (b) the sale, lease, license, transfer or other
disposition of machinery and equipment no longer used or useful in the conduct
of business of the Borrower and its Subsidiaries, (c) any sale, lease, license,
transfer or other disposition of Property by the Borrower or any Subsidiary to
any Loan Party, (d) any Involuntary Disposition by the Borrower or any
Subsidiary, (e) any sale, lease, license, transfer or other disposition of
Property by any Foreign Subsidiary to another Foreign Subsidiary and (f) any
disposition of any "margin stock" within the meaning of Regulation U.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all federal, state, local, foreign and
other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
7
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal
Revenue Code for purposes of provisions relating to Section 412 of the Internal
Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Base Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum (rounded upward to the next 1/100th of
1%) determined by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan
being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank eurodollar market at
their request at approximately 4:00 p.m. (London time) two Business Days
prior to the first day of such Interest Period.
"Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to
be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate for
such Eurodollar Loan for such Interest Period by (b) one minus the Eurodollar
Reserve Percentage for such Eurodollar Loan for such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
8
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Credit Agreement" has the meaning set forth in the Recitals to
this Agreement.
"Existing Letters of Credit" means the letters of credit outstanding on the
Closing Date and identified on Schedule 2.03.
"Facilities" means, at any time, a collective reference to the facilities
and real properties owned, leased or operated by the Borrower or any Subsidiary.
"Federal Funds Rate" means, 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 on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement dated as of September 11, 2003
among the Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term
(including the Obligations) and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;
(b) all purchase money indebtedness or transactions;
9
(c) the principal portion of all obligations under conditional sale or
other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business);
(d) the maximum amount available to be drawn under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(e) all obligations in respect of the deferred purchase price of
Property or services (other than trade accounts payable in the ordinary
course of business);
(f) Attributable Indebtedness in respect of capital leases, Synthetic
Leases, Sale and Leaseback Transactions and Securitization Transactions;
(g) all preferred stock or other equity interests providing for
mandatory redemptions, sinking fund or like payments prior to the Maturity
Date;
(h) all Funded Indebtedness of others secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed;
(i) all Guarantees with respect to Funded Indebtedness of the types
specified in clauses (a) through (h) above of another Person; and
(j) all Funded Indebtedness of the types referred to in clauses (a)
through (i) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or joint venturer, unless such Funded
Indebtedness is expressly made non-recourse to such Person.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently applied
and as in effect from time to time.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
10
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV.
"Guarantors" means each Person identified as a "Guarantor" on the signature
pages hereto and each other Person that joins as a Guarantor pursuant to Section
7.12, together with their successors and permitted assigns.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning set forth in Section 2.03(c)(i).
"Immaterial Subsidiary" means any Subsidiary that, as of any date of
determination, has total assets with an aggregate fair market value of less than
$100,000.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such
Person is a general partner or joint venturer unless such Indebtedness is
expressly made non-recourse to such Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Eurodollar Rate Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan and any Swing Line Loan, the
last Business Day of each March, June, September and December and the Maturity
Date.
11
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Interim Financial Statements" means the unaudited consolidated financial
statements of the Borrower and its Subsidiaries dated July 31, 2003 and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal quarter ended on that date.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of the
Borrower or any Subsidiary. The Shanghai Disposition shall be deemed an
Involuntary Disposition for purposes of this Agreement.
"IP Rights" has the meaning set forth in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"ISP98" has the meaning set forth in Section 2.03(h).
"Joinder Agreement" means a joinder agreement substantially in the form of
Exhibit F executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
12
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Base Rate Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts (to the extent not refinanced by a borrowing of Base Rate
Loans), including all L/C Borrowings. For all purposes of this Agreement, if on
any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP98, such Letter of Credit shall be deemed to be "outstanding" in the
amount so remaining available to be drawn.
"Lender" means each Person identified as a "Lender" on the signature pages
hereto and its successors and assigns and, as the context requires, includes the
L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a letter of credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Revolving Commitments and $15,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Lien" means any mortgage, pledge, hypothecation, collateral assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit
Application, each Joinder Agreement, the Collateral Documents, each Request for
Credit Extension, each Compliance Certificate, the Fee Letter and each other
13
document, instrument or agreement from time to time executed by the Borrower or
any Subsidiary or any Responsible Officer thereof and delivered in connection
with this Agreement.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means a material adverse effect on (a) the
condition (financial or otherwise), operations, business, assets, liabilities or
prospects of the Borrower and its Subsidiaries taken as a whole that could
reasonably be expected to result in a Default or (b) the ability of the
Administrative Agent and the Lenders to exercise their rights and remedies under
the Loan Documents in the event of a Default.
"Maturity Date" means November 20, 2006.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" or "Notes" means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding. The foregoing shall also include any Swap Contract and any
Treasury Management Agreement between any Loan Party and any Lender or Affiliate
of a Lender.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
14
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Participant" has the meaning specified in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means Investments consisting of an Acquisition by
the Borrower or any Subsidiary, provided that (i) the Property acquired (or the
Property of the Person acquired) in such Acquisition is used or useful in the
same or a similar line of business as the Borrower and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) the Administrative Agent shall have received all items in respect
of the Capital Stock or Property acquired in such Acquisition required to be
delivered by the terms of Section 7.12 and/or Section 7.14, (iii) in the case of
an Acquisition of the Capital Stock of another Person, the board of directors
(or other comparable governing body) of such other Person shall have duly
approved such Acquisition, (iv) the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon
giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would
be in compliance with the financial covenants set forth in Section 8.11 as of
the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b), (v) the representations and
warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vi) if such
transaction involves the purchase of an interest in a partnership between the
Borrower (or a Subsidiary) as a general partner and entities unaffiliated with
the Borrower or such Subsidiary as the other partners, such transaction shall be
effected by having such equity interest acquired by a corporate holding company
directly or indirectly wholly-owned by the Borrower newly formed for the sole
purpose of effecting such transaction, (vii) the aggregate cash consideration
(including any assumption of Indebtedness) paid by the Borrower or any
Subsidiary for any Acquisition (or any series of related Acquisitions) shall not
exceed $25,000,000 and (viii) the aggregate cash consideration (including any
assumption of Indebtedness) paid by the Borrower or any Subsidiary for all such
Acquisitions occurring in any fiscal year shall not exceed $50,000,000 plus the
unused amount available for Acquisitions under this clause (viii) for the
immediately preceding fiscal year (excluding any carry forward available from
any prior fiscal year and provided that with respect to any fiscal year,
Acquisitions made during such fiscal year shall be deemed to be made first with
respect to the applicable limitation for such fiscal year and then with respect
to any carry-forward from the immediately preceding fiscal year).
"Permitted Investments" means, at any time, Investments by the Borrower and
its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of the
Borrower and its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
15
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pledge Agreement" means the pledge agreement dated as of the Closing Date
executed in favor of the Administrative Agent by each of the Loan Parties, as
amended, modified and supplemented from time to time.
"Pro Forma Basis" means, for purposes of calculating the financial
covenants in Section 8.11 (including for purposes of determining the Applicable
Rate), that any Transaction shall be deemed to have occurred as of the first day
of the most recent four fiscal quarter period preceding the date of such
Transaction for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Involuntary Disposition, (i) income statement and cash flow
statement items (whether positive or negative) attributable to the Property
disposed of shall be excluded to the extent relating to any period occurring
prior to the date of such Transaction and (ii) Indebtedness which is retired
shall be excluded and deemed to have been retired as of the first day of the
applicable period and (b) with respect to any Acquisition, (i) income statement
items attributable to the Person or Property acquired shall be included to the
extent relating to any period applicable in such calculations to the extent (A)
such items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any
defined terms set forth in Section 1.1 and (B) such items are supported by
financial statements or other information reasonably satisfactory to the
Administrative Agent and (ii) any Indebtedness incurred or assumed by the
Borrower or any Subsidiary (including the Person or Property acquired) in
connection with such Transaction and any Indebtedness of the Person or Property
acquired which is not retired in connection with such Transaction (A) shall be
deemed to have been incurred as of the first day of the applicable period and
(B) if such Indebtedness has a floating or formula rate, shall have an implied
rate of interest for the applicable period for purposes of this definition
determined by utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination. As used herein,
"Transaction" means (i) any Disposition, (ii) any Involuntary Disposition, (iii)
any Acquisition, (iv) any Restricted Payment and (v) the incurrence of any
Subordinated Indebtedness.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b) after giving effect to the applicable transaction on a
Pro Forma Basis.
"Pro Rata Share" means, as to each Lender, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Property" means any interest of any kind in any property or asset, whether
real, personal or mixed, or tangible or intangible.
16
"Quoted Rate" means, with respect to any Quoted Rate Swingline Loan, the
fixed or floating percentage rate per annum, if any, offered by the Swing Line
Lender and accepted by the Borrower in accordance with the provisions hereof;
provided that from the date that any Lender funds a participation interest in
such Quoted Rate Swingline Loan, the Quoted Rate for such Quoted Rate Swingline
Loan shall be a rate equal to the Base Rate plus the Applicable Margin.
"Quoted Rate Swing Line Loan" means any Swing Line Loan that bears interest
at the Quoted Rate.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a) the Revolving Commitments or (b) if the
Revolving Commitments have been terminated, the outstanding Loans, L/C
Obligations, Swing Line Loans and participations therein. The Revolving
Commitment of any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, or treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Capital Stock or of any option, warrant or other right to acquire any
such Capital Stock, or any setting aside of funds or Property for any of the
foregoing.
"Revolving Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
17
"Sale and Leaseback Transaction" means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby the
Borrower or such Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Transaction" means any financing transaction or series of
financing transactions (including factoring arrangements) pursuant to which the
Borrower or any Subsidiary may sell, convey or otherwise transfer, or grant a
security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose
subsidiary or affiliate of any Person.
"Shanghai" means Shanghai C&D Battery Company, LTD, 100, Anjian Lu, Beicai
Chuansha, Pudong New Area, Shanghai, 201204.
"Shanghai Disposition" means any loss of, or any condemnation or other
taking for public use of, the Property currently occupied and owned by Shanghai.
"Subordinated Indebtedness" means any Indebtedness of the Borrower or any
Subsidiary that by its terms is expressly subordinated to the Obligations in a
manner and to an extent satisfactory to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Voting Stock are at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
18
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line Loans
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Note" has the meaning specified in Section 2.11(a).
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 or (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
a balance sheet under GAAP.
"Threshold Amount" means $2,500,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Treasury Management Agreements" means any and all agreements governing the
provision of treasury or cash management services, including, without
limitation, deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.
"Type" means, with respect to any Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, all determined using the interest rate applicable under
Internal Revenue Code Section 412(b)(5)(A) and the other assumptions used for
funding that Pension Plan pursuant to Section 412 of the Internal Revenue Code
for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
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"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Borrower.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the most recent Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by the Borrower
in accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.
(b) Together with each Compliance Certificate, the Borrower will provide a
written summary of any changes in GAAP that materially impact the calculation of
the financial covenants in Section 8.11 contained in such Compliance
Certificate. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
20
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that all calculations of the financial covenants in Section 8.11 (including for
purposes of determining compliance with such financial covenants and determining
the Applicable Rate) shall be made on a Pro Forma Basis.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a Letter
of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by
such Letter of Credit or the Letter of Credit Application therefor, whether or
not such maximum face amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans.
(a) Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a "Revolving Loan") to the
Borrower in Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
21
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Revolving Commitment. Within the limits of each
Lender's Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01, prepay under Section
2.05, and reborrow under this Section 2.01. Revolving Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein, provided, however,
all Borrowings made on the Closing Date shall be made as Base Rate Loans.
(b) The Borrower had a $20 million revolving loan (the "Existing Revolving
Loan") outstanding under the Existing Credit Agreement immediately prior to the
Closing Date bearing interest at the "Eurodollar Rate" (as defined in the
Existing Credit Agreement) for an "Interest Period" (as defined in the Existing
Credit Agreement) that expires on January 12, 2004 (the "Existing Interest
Period"). The parties hereto agree that, notwithstanding anything in this
Agreement or any other Loan Document to the contrary, on the Closing Date the
Existing Revolving Loan (i) shall be rolled into, and deemed made under, this
Agreement and (ii) shall continue to bear interest at the rate of interest
applicable under the Existing Credit Agreement immediately prior to the Closing
Date until the expiration of the Existing Interest Period.
(c) The Borrower may at any time and from time to time, upon prior written
notice by the Borrower to the Administrative Agent, increase the Aggregate
Revolving Commitments by up to THIRTY MILLION DOLLARS ($30,000,000) with
additional Revolving Commitments from any existing Lender or new Revolving
Commitments from any other Person selected by the Borrower and approved by the
Administrative Agent; provided that:
(i) any such increase shall be in a minimum principal amount of $5
million and in integral multiples of $5 million in excess thereof;
(ii) no Default shall be continuing at the time of any such increase;
(iii) no existing Lender shall be under any obligation to increase its
Revolving Commitment and any such decision whether to increase its
Revolving Commitment shall be in such Lender's sole and absolute
discretion; and
(iv) any new Lender shall join this Agreement by executing such
joinder documents reasonably required by the Administrative Agent.
In connection with any such increase in the Aggregate Revolving
Commitments, Schedule 2.01 shall be revised by the Administrative Agent to
reflect the new Revolving Commitments and distributed to the Lenders.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $50,000 in excess thereof. Except as provided
22
in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $50,000
in excess thereof. Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Borrowing, a conversion of
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of Loans
to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Loans are to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. If the Borrower fails to specify a
Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans
in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is
the initial Credit Extension, Section 5.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Borrowing of Revolving Loans, there are Swing
Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing
shall be applied, first, to the payment in full of any such L/C Borrowings,
second, to the payment in full of any such Swing Line Loans, and third, to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders, and the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted immediately to
Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than ten Interest Periods in effect with respect to Revolving
Loans.
2.03 Letters of Credit.
23
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit in Dollars for the account of
the Borrower or any of its Subsidiaries, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account
of the Borrower or any of its Subsidiaries; provided that the L/C Issuer
shall not be obligated to make any L/C Credit Extension with respect to any
Letter of Credit, and no Lender shall be obligated to participate in any
Letter of Credit, if as of the date of and after giving effect to such L/C
Credit Extension, (x) the Total Revolving Outstandings would exceed the
Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed such
Lender's Revolving Commitment or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the
foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit shall
be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions
hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer applicable to borrowers generally; or
(E) such Letter of Credit is in an initial amount less than
$500,000 or is to be denominated in a currency other than Dollars.
24
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue or amend any
Letter of Credit if the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, on or prior to the
Business Day prior to the requested date of issuance or amendment of such
Letter of Credit, that one or more applicable conditions contained in
Article V shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least
three Business Days (or such later date and time as the L/C Issuer may
agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve-month period (commencing with the date of
25
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for any
such renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C
Issuer to permit the renewal of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before
the day that is five (5) Business Days before the Nonrenewal Notice Date
(1) from the Administrative Agent that the Required Lenders have elected
not to permit such renewal or (2) from the Administrative Agent, any Lender
or the Borrower that one or more of the applicable conditions specified in
Section 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of drawing under such Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 12:00
noon on the date of any payment by the L/C Issuer under a Letter of Credit
(each such date, an "Honor Date"), the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of
such drawing. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Pro Rata Share thereof. In such
event, the Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in Section 2.02 for the principal amount of Base Rate Loans, but subject to
the amount of the unutilized portion of the Aggregate Revolving Commitments
and the conditions set forth in Section 5.02 (other than the delivery of a
Loan Notice). Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 2:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.
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(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 5.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 5.02 (other than delivery by the Borrower
of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer
for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
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(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement, any
other Loan Document or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
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any Agent-Related Person or any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person or any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash and deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked, interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of
Credit. Such Letter of Credit fees shall be computed on a quarterly basis in
arrears. Such Letter of Credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If
there is any change in the Applicable Rate during any quarter, the daily maximum
29
amount of each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Documentary and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to the L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit in the amounts and at the times specified in
the Fee Letter. In addition, the Borrower shall pay directly to the L/C Issuer
for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees to make loans (each such loan, a "Swing Line Loan")
to the Borrower in Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Swing Line Lender in its capacity as
a Lender of Revolving Loans, may exceed the amount of such Lender's Revolving
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender's Revolving Commitment. Within
the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan
or a Quoted Rate Swing Line Loan, as the Borrower may elect. Immediately upon
the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum principal amount of $50,000, or a whole
multiple of $50,000 in excess thereof, (ii) the requested borrowing date, which
shall be a Business Day, and (iii) whether such Swing Line Loan shall be a Base
Rate Loan or Quoted Rate Swing Line Loan. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative
Agent of a written Swing Line Loan Notice, appropriately completed and signed by
a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed
Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make
30
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower. Notwithstanding the
foregoing, however, in the event that an "auto borrow" or "zero balance" or
similar arrangement shall then be in place with the Swing Line Lender, the
Borrower shall request Swing Line Loans pursuant to such alternative notice
arrangements, if any, provided thereunder or in connection therewith, and each
Swing Line Loan advance shall be in such minimum amounts, if any, provided by
such arrangement.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
requests and authorizes the Swing Line Lender to so request on its behalf),
that each Lender make a Base Rate Loan in an amount equal to such Lender's
Pro Rata Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to
be a Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject
to the unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 5.02. The Swing Line Lender shall furnish
the Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Pro Rata Share of the amount specified in such Loan
Notice available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent's
Office not later than 1:00 p.m. on the day specified in such Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Borrowing of Revolving Loans in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line
Loan and each Lender's payment to the Administrative Agent for the account
of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right that such Lender may have against the Swing Line
31
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Revolving Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section
5.02. No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's risk participation was funded) in the same funds
as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Revolving Loans that are Base Rate Loans or risk
participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans. The Borrower may, upon notice from the Borrower
to the Administrative Agent, at any time or from time to time voluntarily
prepay Revolving Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans, and (B) on the date of prepayment of
Base Rate Loans; (ii) any such prepayment of Eurodollar Rate Loans shall be
in a principal amount of $2,000,000 or a whole multiple of $50,000 in
excess thereof (or, if less, the entire principal amount thereof then
outstanding); (iii) any such prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $50,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment
32
and the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment
shall be applied to the Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line
Lender (with a copy to the Administrative Agent), at any time or from time
to time, voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $50,000 or a whole multiple of $50,000 in
excess thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Notwithstanding the
foregoing, however, in the event that an "auto borrow" or "zero balance" or
similar arrangement shall then be in place with the Swing Line Lender, the
Borrower may make voluntary prepayments on Swing Line Loans pursuant to
such alternative notice arrangements and in such minimum amounts, if any,
provided thereunder or in connection therewith.
(b) Mandatory Prepayments of Loans. If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments then in
effect, the Borrower shall immediately prepay Revolving Loans and/or the Swing
Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided, however, that the Borrower shall not be required
to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)
unless after the prepayment in full of the Revolving Loans and Swing Line Loans
the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then
in effect.
2.06 Termination or Reduction of Aggregate Revolving Commitments.
The Borrower may, upon notice from the Borrower to the Administrative
Agent, terminate the Aggregate Revolving Commitments or from time to time
permanently reduce the Aggregate Revolving Commitments to an amount not less
than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction and (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments. Any
reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Pro Rata Share. All
commitment fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the Maturity Date.
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2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Revolving
Loan that is a Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the sum of (A) the Eurodollar Rate for such Interest Period plus (B) the
Applicable Rate; (ii) each Revolving Loan that is a Base Rate Loan bear interest
on the outstanding principal amount thereof from the applicable borrowing or
conversion date at a rate per annum equal to the Base Rate plus the Applicable
Rate; (iii) each Swing Line Loan that is a Base Rate Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate; and (iv) each
Swing Line Loan that is a Quoted Rate Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Quoted Rate applicable thereto.
(b) Upon the occurrence and during the continuation of an Event of Default,
the Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein, provided that interest at the Default Rate shall be payable on
demand. Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
2.09 Fees.
In addition to certain fees described in subsections (i) and (j) of Section
2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Pro Rata
Share, a commitment fee equal to the product of (i) the Applicable Rate
times (ii) the actual daily amount by which the Aggregate Revolving
Commitments exceed the sum of (y) the Outstanding Amount of Revolving Loans
and (z) the Outstanding Amount of L/C Obligations. The commitment fee shall
accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article V is not met, and
shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the Maturity Date. The
commitment fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in
effect. For purposes of clarification, Swing Line Loans shall not be
considered outstanding for purposes of determining the unused portion of
the Aggregate Revolving Commitments.
(b) Other Fees.
(i) The Borrower shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned
when paid and shall be non-refundable for any reason whatsoever.
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(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note, which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall (i) in the case of Revolving Loans, be in the form of Exhibit C-1 (a
"Revolving Note"), and (ii) in the case of Swing Line Loans, be in the form of
Exhibit C-2 (a "Swing Line Note"). Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
35
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, ratably among
the parties entitled thereto in accordance with the amounts of costs and
expenses then due to such parties, (ii) second, toward repayment of interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(iii) third, toward repayment of principal and L/C Borrowings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in the applicable Borrowing as of the date of such Borrowing.
If such Lender does not pay such amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the Compensation
Period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any Lender
from its obligation to fulfill its Revolving Commitment or to prejudice any
rights which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (d) shall be conclusive,
absent manifest error.
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(e) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article V are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its
Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it, or the participations in
L/C Obligations or in Swing Line Loans held by it (but not including any
amounts applied by the Swing Line Lender to outstanding Swing Line Loans),
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other
share contemplated hereunder) thereof, such Lender shall immediately (a)
notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans or
such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to
the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered, without further interest thereon.
The Borrower agrees that any Lender so purchasing a participation from
another Lender may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off, but subject to
Section 11.09) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender
were the original owner of the Obligations purchased.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Loan Party to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If any Loan Party
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions, (iii) such Loan Party
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within thirty days after
the date of such payment, such Loan Party shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof or if no receipt is available,
other evidence of payment reasonably satisfactory to the Administrative Agent.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within thirty days after the date the
Lender or the Administrative Agent makes a demand therefor.
(e) If any Loan Party is required to pay any amount to any Lender or the
Administrative Agent pursuant to this Section 3.01, then such Lender shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
38
the jurisdiction of its Lending Office so as to eliminate any such additional
payment which may thereafter accrue, if such change in the reasonable judgment
of such Lender is not otherwise disadvantageous to such Lender.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), convert all Eurodollar Rate Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such conversion, the Borrower shall also pay
accrued interest on the amount so converted and all amounts payable pursuant to
Section 3.05. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Administrative Agent determines that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Base Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to the Lenders of funding such Loan, the Administrative Agent will promptly
notify the Borrower and all Lenders. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein, and all outstanding Eurodollar Rate Loans will, as of
the last day of each Interest Period applicable thereto, be converted to Base
Rate Loans.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender determines that as a result of the introduction of or any
change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of the overall net
income or overall gross income by the United States or any foreign jurisdiction
or any political subdivision of either thereof under the Laws of which such
Lender is organized or has its Lending Office, and (iii) reserve requirements
utilized, as to Eurodollar Rate Loans, in the determination of the Eurodollar
Rate), then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.
39
(b) If any Lender determines that as a result of the introduction of or any
change in or in the interpretation of any Law regarding capital adequacy, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's or such corporation's desired
return on capital), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender or such
corporation for such reduction.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a prepayment or borrowing of, or conversion to, a Base Rate
Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 11.16;
including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01 or
3.04, the Borrower may replace such Lender in accordance with Section 11.16.
40
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract or Treasury
Management Agreement, and the Administrative Agent as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if
any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents, Swap Contracts or Treasury Management Agreements,
the obligations of each Guarantor under this Agreement and the other Loan
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and several,
absolute, irrevocable and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents, Swap
Contracts or Treasury Management Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02 that the obligations of the Guarantors hereunder shall be absolute,
irrevocable and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor for
amounts paid under this Article IV until such time as the Obligations have been
paid in full and the Aggregate Revolving Commitments have expired or terminated.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder,
which shall remain absolute, irrevocable and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations
shall be extended, or such performance or compliance shall be waived;
41
(b) any of the acts mentioned in any of the provisions of any of the
Loan Documents, any Swap Contract or Treasury Management Agreement between
any Loan Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Loan Documents or such Swap
Contracts or Treasury Management Agreements shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations or any of the Loan Documents or any Swap Contract or
Treasury Management Agreement between any Loan Party and any Lender or any
Affiliate of a Lender shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents, any Swap Contract or
Treasury Management Agreement between any Loan Party and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts or Treasury Management Agreements
shall be waived or any other guarantee of any of the Obligations or any
security therefor shall be released, impaired or exchanged in whole or in
part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent or
any Lender or Lenders as security for any of the Obligations shall fail to
attach or be perfected; or
(e) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives acceptance, diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents, any Swap Contract or Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Loan Documents or such Swap
Contracts or Treasury Management Agreements, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06.
4.05 Remedies.
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The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the Commitments
have terminated.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly
executed by a Responsible Officer of the signing Loan Party and, in the
case of this Agreement, by each Lender.
(b) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals or
facsimiles (followed promptly by originals) and in form and substance
satisfactory to the Administrative Agent and its legal counsel:
(i) copies of the Organization Documents of each Loan Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation or organization, where applicable, and certified
by a secretary or assistant secretary of such Loan Party to be true
and correct as of the Closing Date;
(ii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
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authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party; and
(iii) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and is validly existing, in good standing and
qualified to engage in business in its state of organization or
formation, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(c) Opinion of Counsel. Receipt by the Administrative Agent of favorable
opinions of counsel to the Loan Parties, addressed to the Administrative Agent
and each Lender, dated as of the Closing Date, and in form and substance
satisfactory to the Administrative Agent.
(d) Perfection and Priority of Liens. Receipt by the Administrative Agent
of all certificates evidencing any certificated Capital Stock pledged to the
Administrative Agent pursuant to the Pledge Agreement, together with duly
executed in blank, undated stock powers attached thereto.
(e) Financial Statements. The Administrative Agent shall have received:
(i) the Audited Financial Statements;
(ii) the Interim Financial Statements;
(iii) such other information as the Administrative Agent may
reasonably request.
(f) No Material Adverse Change. There shall not have occurred a material
adverse change since January 31, 2003 in the business, assets, liabilities
(actual or contingent), operations, financial condition or prospects of the
Borrower, together with its Subsidiaries, taken as a whole.
(g) Closing Certificate. Receipt by the Administrative Agent of a
certificate signed by a Responsible Officer of the Borrower certifying that the
conditions specified in Section 5.01(f) and Sections 5.02(a), (b) and (c) have
been satisfied.
(h) Fees. Receipt by the Administrative Agent and the Lenders of any fees
required to be paid on or before the Closing Date.
(i) Attorney Costs. Unless waived by the Administrative Agent, the Borrower
shall have paid all Attorney Costs of the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between
the Borrower and the Administrative Agent).
(j) Other. Receipt by the Administrative Agent and the Lenders of such
other documents, instruments, agreements and information as reasonably requested
by the Administrative Agent or any Lender, including, but not limited to,
information regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, environmental matters,
material contracts, debt agreements, property ownership, contingent liabilities,
44
employment agreements, non-compete agreements and management of the Borrower and
its Subsidiaries.
5.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension is
subject to the following conditions precedent:
(a) The representations and warranties of each Loan Party contained in
Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of Section 6.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension.
(c) There shall not have been commenced against the Borrower or any
Subsidiary an involuntary case under any applicable Debtor Relief Law, now
or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs,
and such involuntary case or other case, proceeding or other action shall
remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
5.02(a), (b) and (c) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the
Lenders that:
6.01 Existence, Qualification and Power.
Each Loan Party (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
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6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Person's Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under, (i)
any Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its Property is subject; or (c) violate any Law
(including, without limitation, Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral
Documents.
6.04 Binding Effect.
Each of this Agreement and each other Loan Document has been duly executed
and delivered by each Loan Party that is party thereto. Each of this Agreement
and each other Loan Document constitutes a legal, valid and binding obligation
of each Loan Party that is party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable Debtor Relief Laws or by equitable principles relating to
enforceability.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Borrower and
its Subsidiaries as of the date thereof, including liabilities for taxes,
commitments and Indebtedness.
(b) The Interim Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(c) From January 31, 2003 to and including the Closing Date, there has been
no Disposition by the Borrower or any Subsidiary, or any Involuntary Disposition
(other than the Shanghai Disposition), of any material part of the business or
Property of the Borrower and its Subsidiaries, taken as a whole, and no purchase
or other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
46
each case, which is not reflected in the foregoing financial statements or in
the notes thereto and has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted
under Section 7.01(a) and (b)) and present fairly (on the basis disclosed in the
footnotes to such financial statements) in all material respects the
consolidated financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of the dates thereof and for the periods
covered thereby.
(e) Since January 31, 2003 there has been no event or circumstance that has
had or could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or (b) is reasonably
likely to be determined adversely and, if determined adversely, could reasonably
be expected to have a Material Adverse Effect.
6.07 No Default.
(a) Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each of the Borrower and its Subsidiaries has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Property of the Borrower and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.09 Environmental Compliance.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Facilities and all operations at the Facilities are in
compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Facilities or the
Businesses, and there are no conditions relating to the Facilities or the
Businesses that could give rise to liability under any applicable
Environmental Laws.
(b) None of the Facilities contains, or has previously contained, any
Hazardous Materials at, on or under the Facilities in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(c) Neither the Borrower nor any Subsidiary has received any written
or verbal notice of, or inquiry from any Governmental Authority regarding,
any violation, alleged violation, non-compliance, liability or potential
47
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Facilities or the Businesses, nor does any
Responsible Officer of any Loan Party have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Facilities, or generated, treated, stored or disposed of at, on or
under any of the Facilities or any other location, in each case by or on
behalf the Borrower or any Subsidiary in violation of, or in a manner that
would be reasonably likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Responsible Officers of the Loan
Parties, threatened, under any Environmental Law to which the Borrower or
any Subsidiary is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Borrower, any Subsidiary, the
Facilities or the Businesses.
(f) There has been no release or threat of release of Hazardous
Materials at or from the Facilities, or arising from or related to the
operations (including, without limitation, disposal) of the Borrower or any
Subsidiary in connection with the Facilities or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.10 Insurance.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
6.11 Taxes.
The Borrower and its Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
6.12 ERISA Compliance.
(a) Except as could not reasonably be expected to have a Material Adverse
Effect, (i) each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws and (ii) each Plan that is intended to qualify under Section 401(a)
of the Internal Revenue Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the best knowledge of the Loan Parties, nothing
has occurred which would prevent, or cause the loss of, such qualification. Each
Loan Party and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Internal Revenue Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section
48
412 of the Internal Revenue Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur
which would lead to liability in excess of the Threshold Amount; (ii) the
aggregate Unfunded Pension Liability for all Pension Plans is less than the
Threshold Amount; (iii) no Loan Party or any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) no Loan Party or any ERISA Affiliate has incurred,
or reasonably expects to incur, any material liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) no Loan Party or any ERISA Affiliate has engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary, together with the percentage of outstanding
shares of each class owned (directly or indirectly) by the Borrower or any
Subsidiary. The outstanding Capital Stock of each Subsidiary is validly issued,
fully paid and non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the transactions contemplated by this Agreement (including,
without limitation, the Letters of Credit and the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933 or the Securities Exchange Act of 1934 or regulations issued
pursuant thereto, or Regulation T, U or X of the FRB. If requested by any Lender
or the Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the effect of the foregoing sentences in
conformity with the requirements of FR Form U-1 referred to in Regulation U of
the FRB.
(c) None of the Borrower, any Person Controlling the Borrower or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
6.15 Disclosure.
No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of any Loan Party to the
49
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
6.16 Compliance with Laws.
Each of the Borrower and each Subsidiary is in compliance with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
6.17 Intellectual Property; Licenses, Etc.
The Borrower and its Subsidiaries own, or possess the legal right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses. Except for such claims and infringements that could
not reasonably be expected to have a Material Adverse Effect, no claim has been
asserted and is pending by any Person challenging or questioning the use of any
IP Rights or the validity or effectiveness of any IP Rights, nor does any Loan
Party know of any such claim. Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, to the
knowledge of the Responsible Officers of the Loan Parties, (i) the use of any IP
Rights by the Borrower or any Subsidiary or the granting of a right or a license
in respect of any IP Rights from the Borrower or any Subsidiary does not
infringe on the rights of any Person and (ii) there is no infringement on the IP
Rights of the Borrower or any Subsidiary.
6.18 Broker's Fees.
Neither the Borrower nor any Subsidiary has any obligation to any Person in
respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.
6.19 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any Subsidiary as of the Closing Date
and neither the Borrower nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
6.20 Tax Shelter Regulations.
The Borrower does not intend to treat the Loans and/or Letters of Credit
and related transactions as being a "reportable transaction" (within the meaning
of Treasury Regulation Section 1.6011-4). In the event the Borrower determines
to take any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. If the Borrower so notifies the Administrative
Agent, the Borrower acknowledges that one or more of the Lenders may treat its
Loans and/or its interest in Swing Line Loans and/or Letters of Credit as part
of a transaction that is subject to Treasury Regulation Section 301.6112-1, and
such Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
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ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, the Loan Parties shall and shall
cause each Subsidiary to:
7.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety-five (95)
days after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or
operations, retained earnings, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures as
of the end of and for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of PricewaterhouseCoopers or other independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any
"going concern" or like qualification or exception or any qualification or
exception as to the scope of such audit; and
(b) as soon as available, but in any event within fifty (50) days
after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, retained earnings,
shareholders' equity and cash flows for such fiscal quarter and for the
portion of the Borrower's fiscal year then ended, setting forth in each
case in comparative form the figures as of the end of and for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting
in all material respects the financial condition, results of operations,
shareholders' equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.
As to any information contained in materials furnished pursuant to
Section 7.02(d), the Borrower shall not be separately required to furnish
such information under clause (a) or (b) above, but the foregoing shall not
be in derogation of the obligation of the Borrower to furnish the
information and materials described in subsections (a) and (b) above at the
times specified therein.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent
certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge
51
was obtained of any Default under any of the financial covenants
contained in Section 8.11 or, if any such Default shall exist, stating
the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(c) within forty-five (45) days after the end of each fiscal
year, the annual business plan and budget of the Borrower and its
Subsidiaries containing, among other things, projected financial
statements for each quarter of the next fiscal year;
(d) copies of any final (as distinguished from a preliminary or
discussion draft) detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower
or any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication
sent to the stockholders of the Borrower, and copies of all annual,
regular, periodic and special reports and registration statements
which the Borrower may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934 or to a
holder of any Indebtedness owed by the Borrower or any Subsidiary in
its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request; and
(g) promptly after the Borrower has notified the Administrative
Agent of any intention by the Borrower to treat the Loans and/or
Letters of Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4), a duly completed copy of IRS Form 8886 or any successor
form.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(f) may (to the extent any such documents are included in materials
otherwise filed with the SEC) be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the Borrower
posts such documents, or provides a link thereto on the Borrower's website on
the Internet at the website address listed on Schedule 11.02; or (ii) on which
such documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 7.02(b)
to the Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
52
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
7.03 Notices.
(a) Promptly (and in any event within two Business Days) notify the
Administrative Agent and each Lender of the occurrence of any Default.
(b) Promptly notify the Administrative Agent and each Lender of the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws, if either (i) the claim in such litigation or proceeding
requests damages or other amounts in excess of $5,000,000 (to the extent not
covered by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover) or (i) such litigation or
proceeding, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) Promptly notify the Administrative Agent and each Lender of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including to the same extent the following has resulted or could
reasonably be expected to result in a Material Adverse Effect: (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; or (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority.
(d) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event which would lead to liability in excess of the
Threshold Amount.
(e) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.
(f) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, furnish or cause
to be furnished to the Administrative Agent, at the Loan Parties' expense, a
report of an environmental assessment of reasonable scope, form and depth,
(including, where appropriate, invasive soil or groundwater sampling) by a
consultant reasonably acceptable to the Administrative Agent as to the nature
and extent of the presence of any Materials of Environmental Concern on any
Facilities and as to the compliance by the Borrower or any of its Subsidiaries
with Environmental Laws at such Facilities. If the Loan Parties fail to deliver
such an environmental report within seventy-five (75) days after receipt of such
written request then the Administrative Agent may arrange for same, and the Loan
Parties hereby grant to the Administrative Agent and its representatives access
to the Facilities to reasonably undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable cost of any
assessment arranged for by the Administrative Agent pursuant to this provision
will be payable by the Loan Parties on demand and added to the obligations
secured by the Collateral Documents.
Each notice pursuant to this Section 7.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
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7.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations.
Pay and discharge, as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary; and (b) all lawful claims which, if unpaid,
would by law become a Lien upon its Property unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the Borrower or such
Subsidiary.
7.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and effect its good standing
under the Laws of the jurisdiction of its organization, except to the extent the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(c) Take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(d) Preserve or renew all of its material registered patents, copyrights,
trademarks, trade names and service marks, except to the extent the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted.
(b) Make all necessary repairs thereto and renewals and replacements
thereof, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(c) Use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
not Affiliates of the Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates.
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7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or Property, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.
(b) Maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 Inspection Rights.
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the Lenders
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and upon reasonable advance notice to the Borrower.
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions (a) to finance working capital,
capital expenditures and other general corporate purposes and (b) to refinance
Indebtedness of the Borrower and its Subsidiaries under the Existing Credit
Agreement, provided that in no event shall any of the proceeds of the Credit
Extensions be used in contravention of any Law or of any Loan Document.
7.12 Additional Subsidiaries.
Within thirty (30) days after the acquisition or formation of any
Subsidiary:
(a) notify the Administrative Agent thereof in writing, together with
the (i) jurisdiction of formation, (ii) number of shares of each class of
Capital Stock outstanding, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by the Borrower or any
Subsidiary and (iv) number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause such Person to
(i) become a Guarantor by executing and delivering to the Administrative
Agent a Joinder Agreement or such other document as the Administrative
Agent shall deem appropriate for such purpose, and (ii) deliver to the
Administrative Agent documents of the types referred to in Sections 5.01(b)
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and (d) and favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in
form, content and scope reasonably satisfactory to the Administrative
Agent.
7.13 ERISA Compliance.
Do, and cause each of its ERISA Affiliates to do, each of the following:
(a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.
7.14 Pledged Assets.
Cause the following to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent, for the benefit of itself
and the Lenders, pursuant to the terms and conditions of the Collateral
Documents or such other security documents as the Administrative Agent shall
reasonably request: (a) 100% of the issued and outstanding Capital Stock of each
Domestic Subsidiary (other than any Immaterial Subsidiary); (b) shares of
Capital Stock representing 65% of the total combined voting power of all classes
of Capital Stock entitled to vote of each Foreign Subsidiary (other than any
Immaterial Subsidiary) directly owned by any Loan Party (or such greater
percentage if, due to a change in an applicable Law after the date hereof, the
greater percentage could not reasonably be expected to cause either (i) an
inclusion in the gross income of any Loan Party under Internal Revenue Code
Section 951(a)(1)(B) or (ii) any other material adverse tax consequence to the
Loan Parties or a Foreign Subsidiary); and (c) 100% of all issued and
outstanding shares of Capital Stock of any class of stock that is not entitled
to vote (within the meaning of U.S. Treasury Regulation Section 1.956-2(c)(2))
of each Foreign Subsidiary (other than any Immaterial Subsidiary) directly owned
by any Loan Party.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it
permit any Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its Property
(other than any "margin stock" within the meaning of Regulation U), whether now
owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01 and
any renewals or extensions thereof, provided that the Property covered
thereby is not increased and any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 8.03(b);
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
56
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts
not yet due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment or other types of
insurance and other social security legislation, other than any Lien
imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts,
licenses and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or
other surety bonds relating to such judgments) not in excess of $1,000,000
(except to the extent covered by independent third-party insurance as to
which the insurer has acknowledged in writing its obligation to cover),
unless any such judgment remains undischarged for a period of more than
sixty (60) consecutive days during which execution is not effectively
stayed;
(i) Liens securing Indebtedness permitted under Section 8.03(c);
provided that (i) such Liens do not at any time encumber any Property other
than the Property financed by such Indebtedness, (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the Property being acquired on the date of acquisition and (iii)
such Liens attach to such Property concurrently with or within ninety days
after the acquisition thereof;
(j) leases, licenses or subleases granted to others not interfering in
any material respect with the business of the Borrower or any Subsidiary;
(k) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Agreement;
(l) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(n) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
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(o) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses; and
(p) Liens on the Property of Foreign Subsidiaries securing
Indebtedness of Foreign Subsidiaries under the working capital facilities
referenced in Section 8.03(i).
8.02 Investments.
Make any Investments, except:
(a) cash or Cash Equivalents;
(b) accounts receivable created, acquired or made and trade credit
extended in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(c) Investments consisting of stock, obligations, securities or other
property received in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth in
Schedule 8.02;
(e) Guarantees permitted by Section 8.03;
(f) Permitted Acquisitions;
(g) Investments received as consideration for Dispositions permitted
under Section 8.05;
(h) loans and advances to employees, directors or officers in
connection with the award of convertible bonds or stock under a stock
incentive plan, stock option plan or other equity-based compensation plan
or arrangement in the aggregate not to exceed $1,000,000 (calculated on the
exercise price for any such shares) in the aggregate at any time
outstanding;
(i) loans and advances to employees, directors, officers or agents for
travel or other business expenses in the ordinary course of business;
(j) loans and advances to employees, directors, officers or agents not
to exceed $500,000 in the aggregate at any time outstanding;
(k) advances or loans to customers, manufacturer representatives and
suppliers that do not exceed $1,000,000 in the aggregate at any one time
outstanding;
(l) Investments made prior to the Closing Date in any Subsidiary;
(m) Investments by any Foreign Subsidiary in another Foreign
Subsidiary;
(n) Investments in any Person that is a Loan Party prior to giving
effect to such Investment;
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(o) Investments in Shanghai in an amount not to exceed $10,000,000
after the Closing Date; and
(p) Investments not permitted in the foregoing clauses in an amount
not to exceed $30,000,000 in the aggregate at any time outstanding.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.03 (and renewals, refinancings and extensions thereof on terms
and conditions not materially less favorable to the applicable debtor(s));
(c) purchase money Indebtedness (including obligations in respect of
Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or
any of its Subsidiaries to finance the purchase of fixed assets, provided
that (i) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed, (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing and (iii) the total
amount of all such Indebtedness at any time outstanding together with any
Indebtedness incurred and outstanding pursuant to Section 8.03(g) and
Section 8.03(k) shall not exceed $25,000,000;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
(e) intercompany Indebtedness permitted under Section 8.02;
(f) Guarantees with respect to Indebtedness permitted under this
Section 8.03;
(g) Subordinated Indebtedness incurred to finance Permitted
Acquisitions, provided that (i) the Borrower shall have delivered a Pro
Forma Compliance Certificate to the Administrative Agent demonstrating
that, upon giving effect on a Pro Forma Basis to the incurrence of such
Subordinated Indebtedness, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b), (ii) the total amount of such
Subordinated Indebtedness at any time outstanding together with any
Indebtedness incurred and outstanding pursuant to Section 8.03(c) and
Section 8.03(k) shall not exceed $25,000,000 and (iii) no Default exists or
would exist after giving effect to the incurrence of such Subordinated
Indebtedness;
(h) Indebtedness of Shanghai not to exceed $12,000,000 in the
aggregate at any time outstanding;
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(i) Indebtedness of Foreign Subsidiaries under working capital
facilities in an amount not to exceed $5,000,000 in the aggregate at any
time outstanding;
(j) Indebtedness of C&D Holdings Limited, a company formed under the
laws of the United Kingdom, of up to Twenty Million British Pounds Sterling
((pound)20,000,000) under an unsecured revolving credit facility;
(k) other unsecured Indebtedness, provided that the total amount of
such Indebtedness at any time outstanding together with any Indebtedness
incurred and outstanding pursuant to Section 8.03(c) and Section 8.03(g)
shall not exceed $25,000,000; and
(l) Attributable Indebtedness in respect of Sale and Leaseback
Transactions in an amount not to exceed $15,000,000 in the aggregate at any
time outstanding.
8.04 Fundamental Changes.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the
Borrower may merge or consolidate with any Subsidiary, provided that the
Borrower shall be the continuing or surviving corporation, (b) any Subsidiary
may merge or consolidate with any other Subsidiary, provided that (i) if a
Guarantor is a party thereto, then a Guarantor shall be the continuing or
surviving corporation and (ii) if a Guarantor is not a party thereto and a
Domestic Subsidiary is a party thereto, then a Domestic Subsidiary shall be the
continuing or surviving corporation, (c) any Subsidiary may merge with any
Person that is not a Loan Party in connection with a Disposition permitted under
Section 8.05, (d) the Borrower or any Subsidiary may merge with any Person that
is not a Loan Party in connection with a Permitted Acquisition provided that, if
such transaction involves the Borrower, the Borrower shall be the continuing or
surviving corporation, and (e) any Wholly Owned Subsidiary may dissolve,
liquidate or wind up its affairs at any time provided that such dissolution,
liquidation or winding up, as applicable, could not have a Material Adverse
Effect.
8.05 Dispositions.
Make any Disposition unless:
(a) if such transaction is a Sale and Leaseback Transaction, such
transaction is not prohibited by the terms of Section 8.15;
(b) such transaction does not involve the sale or other disposition of
a minority equity interest in any Subsidiary;
(c) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other
Property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.05;
(d) the consideration paid in connection therewith shall be cash or
Cash Equivalents, shall be received contemporaneous with the consummation
of such Disposition and shall be in an amount not less than the fair market
value of the Property disposed of; and
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(e) with respect to all Dispositions in any fiscal year, (i) the
aggregate net book value of all of the assets sold or otherwise disposed of
by the Borrower and its Subsidiaries shall not exceed fifteen percent (15%)
of consolidated assets for the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP as of the end of the
immediately preceding fiscal year and (ii) all of the assets sold or
otherwise disposed of by the Borrower and its Subsidiaries shall not be
assets that generated more than ten percent (10%) of Consolidated Net
Income for the immediately preceding fiscal year.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may declare and make Restricted Payments (directly
or indirectly) to any Loan Party;
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of the
Person making such dividend or distribution; and
(c) the Borrower may make any other Restricted Payments, provided that
(i) no Default exists or would exist after giving effect to such Restricted
Payment and (ii) upon giving effect on a Pro Forma Basis to such Restricted
Payment, the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 as of the most recent fiscal quarter
end for which the Borrower has delivered financial statements pursuant to
Section 7.01(a) or (b).
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from those
lines of business conducted by the Borrower and its Subsidiaries on the Closing
Date or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a)
transactions between Loan Parties, (b) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section
8.06, (d) reasonable compensation and reimbursement of expenses of officers and
directors and (e) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such
Person's business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length transaction with
a Person other than an officer, director or Affiliate.
8.09 Burdensome Agreements.
Enter into or permit to exist any Contractual Obligation that encumbers or
restricts the ability of the Borrower or any Subsidiary to (a) pay dividends or
make any other distributions to any Loan Party on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
(b) pay any Indebtedness or other obligation owed to any Loan Party, (c) make
loans or advances to any Loan Party, (d) sell, lease or transfer any of its
Property to any Loan Party, (e) grant any Lien on any of its Property to secure
the Obligations pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof or (f) act as a Loan Party pursuant
61
to the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(e) above) for (i) this Agreement and the other Loan Documents, (ii)
any document or instrument governing Indebtedness incurred pursuant to Section
8.03(c), provided that any such restriction contained therein relates only to
the asset or assets acquired in connection therewith, (iii) any Permitted Lien
or any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien, (iv) customary restrictions and conditions contained in
any agreement relating to the sale of any Property permitted under Section 8.05
pending the consummation of such sale and (v) any document or instrument
governing Subordinated Indebtedness.
8.10 [Reserved].
8.11 Financial Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater
than 3.0:1.0.
(b) Consolidated Net Worth. Permit Consolidated Net Worth at any time to be
less than the sum of an amount equal to $221,500,000 increased on a cumulative
basis as of the end of each fiscal quarter of the Borrower, commencing with the
fiscal quarter ending October 31, 2003 by an amount equal to 50% of Consolidated
Net Income (to the extent positive) for the fiscal quarter then ended plus 100%
of the proceeds of all equity issuances after the Closing Date minus 50% of any
charges incurred after the Closing Date for the write down of goodwill
associated with the Power Electronics division.
(c) Consolidated Fixed Charges Coverage Ratio. Permit the Consolidated
Fixed Charges Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 2.0:1.0.
8.12 Prepayment of Other Indebtedness, Etc.
(a) Amend or modify any of the terms of any Indebtedness of the Borrower or
any Subsidiary (other than Indebtedness arising under the Loan Documents) if
such amendment or modification would add or change any terms in a manner adverse
to the Borrower or any Subsidiary (including any amendment or modification that
would shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto).
(b) Amend or modify any of the subordination provisions of any Subordinated
Indebtedness.
(c) Make (or give any notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange of such Indebtedness other than Indebtedness
arising under the Loan Documents.
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation
and Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner adverse
to the Lenders.
(b) Change its fiscal year without the prior written consent of the
Required Lenders (which consent shall not be unreasonably withheld or delayed).
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(c) Without providing thirty (30) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
8.14 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary, (i)
permit any Person (other than the Borrower or any Wholly Owned Subsidiary) to
own any Capital Stock of any Subsidiary, except to qualify directors where
required by applicable law or to satisfy other requirements of applicable law
with respect to the ownership of Capital Stock of Foreign Subsidiaries, (ii)
permit any Subsidiary to issue or have outstanding any shares of preferred
Capital Stock or (iii) create, incur, assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary, except for Permitted Liens.
8.15 Sale and Leaseback Transactions.
Enter into any Sale and Leaseback Transaction unless the Attributable
Indebtedness in respect of such Sale and Leaseback Transaction is permitted by
Section 8.03(l).
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any
Loan, or (ii) within three days after the same becomes due, any amount of
principal of any L/C Obligation or any interest on any Loan or on any L/C
Obligation, or any commitment fee or other fee due hereunder, or (iii)
within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants.
(i) Any Loan Party fails to perform or observe any term, covenant
or agreement contained in any of Section 7.01, 7.02, 7.03, 7.10 or
7.12 and such failure continues for ten days after the earlier of a
Responsible Officer obtaining actual knowledge thereof or notice
thereof is given to the Borrower by the Administrative Agent; or
(ii) Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.05(a), 7.11 or
Article VIII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for thirty days after the earlier of (i) a
Responsible Person of any Loan Party becoming aware of such failure or (ii)
notice thereof to any Loan Party by the Administrative Agent; or
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(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document, or
in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made or
delivered; or
(e) Cross-Default. (i) The Borrower or any Subsidiary fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the
Threshold Amount; (ii) the Borrower or any Subsidiary fails to observe or
perform any other agreement or condition relating to any such Indebtedness
or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or
cash collateral in respect thereof to be demanded; or (iii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof is
greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for sixty
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its Property is
instituted without the consent of such Person and continues undismissed or
unstayed for sixty calendar days, or an order for relief is entered in any
such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against
all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within thirty days after its issue or
levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary
(i) one or more final judgments or orders for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
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either case, (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, or (B) there is a period of forty-five consecutive
days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect or ceases to give the Administrative Agent,
for the benefit of itself and the Lenders, any material part of the Liens
purported to be created thereby; or any Loan Party or any other Person
contests in any manner the validity or enforceability of any Loan Document;
or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or
(k) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without any act of
the Administrative Agent or any Lender.
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9.03 Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent in
its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, fees, premiums
and scheduled periodic payments, and any interest accrued thereon, due
under any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted by
Section 8.03(d), ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) in proportion to the respective amounts
described in this clause Third held by them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, breakage, termination or
other payments, and any interest accrued thereon, due under any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
and amounts due under any Treasury Management Agreement between any Loan
Party and any Lender, or any Affiliate of a Lender, and to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit, ratably among the Lenders (and, in the
case of such Swap Contracts and Treasury Management Agreements, Affiliates
of Lenders) in proportion to the respective amounts described in this
clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
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ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
10.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
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to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
10.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
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 any Loan Document unless (i) it shall first receive such advice
or concurrence of the Required Lenders (or such greater number of Lenders as may
be expressly required hereby in any instance) as it deems appropriate or (ii) if
it so requests, it shall first be indemnified to its 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 (other than any liability or
expense resulting solely from its gross negligence or willful misconduct).
Notwithstanding anything in this Agreement or any other Loan Document to the
contrary, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 5.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default."
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default as may be directed by the Required Lenders (or such greater number of
Lenders as may be expressly required hereby in any instance) in accordance with
Article IX; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the
Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
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the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that (a) no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders (or such greater number
of Lenders as may be expressly required hereby in any instance) shall be deemed
to constitute gross negligence or willful misconduct for purposes of this
Section and (b) no Lender shall be liable for the payment to any Agent-Related
Person of any Indemnified Liabilities that were not incurred by the
Administrative Agent in its capacity as such or by another Agent-Related Person
in its capacity as such. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower; provided, however, that no Lender shall be liable for the payment to
the Administrative Agent of any portion of such costs and expenses to the extent
determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted solely from the Administrative Agent's own gross
negligence or willful misconduct. The undertaking in this Section shall survive
termination of the Revolving Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
10.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
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hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Lenders and the Loan Parties; provided that any such
resignation by Bank of America shall also constitute its resignation as L/C
Issuer and Swing Line Lender. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be subject to the consent of the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, L/C Issuer
and Swing Line Lender and the respective terms "Administrative Agent", "L/C
Issuer" and "Swing Line Lender" shall mean such successor administrative agent,
Letter of Credit issuer and swing line lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring L/C Issuer's and Swing Line Lender's rights, powers
and duties as such shall be terminated, without any other or further act or deed
on the part of such retiring L/C Issuer or Swing Line Lender or any other
Lender, other than the obligation of the successor L/C Issuer to issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article X and Sections 11.04 and 11.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date thirty days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
10.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Lenders hereby authorize the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower), to the extent permitted by applicable Laws:
(a) to file and present evidence to prove a claim (on behalf of all of
the Lenders in lieu of separate claims filed by each Lender) for the whole
amount of the principal and interest owing and unpaid in respect of the
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Loans, all L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and
11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Revolving Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, (ii) that is transferred or to be transferred as
part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as
approved in accordance with Section 11.01; and
(b) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of Property, or to
release any Guarantor from its obligations under the Guaranty, pursuant to
this Section 10.11.
10.12 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
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other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Revolving Commitment of any Lender (or reinstate
any Revolving Commitment terminated pursuant to Section 9.02) without the
written consent of such Lender (it being understood and agreed that a waiver of
any condition precedent set forth in Section 5.02 or of any Default or a
mandatory reduction in Revolving Commitments is not considered an extension or
increase in Revolving Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal (excluding mandatory prepayments), interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default Rate" or
to waive any obligation of the Borrower to pay interest at the Default Rate;
(d) change Section 2.13 or Section 9.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender directly affected thereby;
(e) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent or take any action hereunder, in
each case without the written consent of each Lender directly affected thereby;
(f) except in connection with a Disposition permitted under Section 8.05,
release all or substantially all of the Collateral without the written consent
of each Lender directly affected thereby; or
(g) release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, all or substantially all of the Guarantors, from its or their
obligations under the Loan Documents without the written consent of each Lender
directly affected thereby;
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and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Revolving Commitment of such Lender may not be increased or
extended without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule
11.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent, the L/C Issuer and the Swing Line
Lender pursuant to Article II shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
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(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a manually
signed original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile document or
signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
and costs and expenses in connection with the use of Intralinks, Inc. or other
similar information transmission systems in connection with this Agreement, and
(b) to pay or reimburse the Administrative Agent and each Lender for all costs
and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
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or any Lender and the cost of independent public accountants and other outside
experts retained by the Administrative Agent or any Lender. All amounts due
under this Section 11.04 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination of the
Revolving Commitments and repayment of all other Obligations.
11.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated, the
Borrower agrees to indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
trustees, advisors, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Revolving Commitment, Loan or Letter
of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower, any Subsidiary or any other Loan Party, or
any Environmental Liability related in any way to the Borrower, any Subsidiary
or any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, provided,
however, the Borrower may have a claim against an Indemnitee, and an Indemnitee
may be liable to the Borrower, to the extent, but only to the extent, of any
such damages suffered by the Borrower which the Borrower proves were caused by
such Indemnitee's willful misconduct or gross negligence. Notwithstanding any
provision in this Agreement or any other Loan Document to the contrary, no
Indemnitee shall have any liability for any indirect, punitive or consequential
damages relating to this Agreement or any other Loan Document or arising out of
its activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Revolving Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
11.06 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
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(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent (to the extent such amount had been remitted to such Lender), plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
11.07 Successors and Assigns.
(a) The provisions of this Agreement and the other Loan Documents shall be
binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby or thereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder or thereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of its Revolving Commitment and the
Loans (including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Revolving Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Revolving
Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Revolving
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans; and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500. Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
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assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent's Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Revolving Commitments of, and
principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Revolving Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign, or grant a security
interest in, all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Revolving Commitment and Loans pursuant
to subsection (b) above, Bank of America may, (i) upon thirty days' notice to
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days'
notice to the Borrower, resign as Swing Line Lender. In the event of any such
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resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled,
with the consent of the Required Lenders, to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights
and obligations of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c).
11.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Revolving Commitments, and the Credit Extensions. For the
purposes of this Section, "Information" means all information received from any
Loan Party relating to any Loan Party or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
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either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby.
11.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender
and any Affiliate of a Lender is authorized at any time and from time to time,
without prior notice to the Borrower or any other Loan Party, any such notice
being waived by the Borrower (on its own behalf and on behalf of each Loan
Party) to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent
or such Lender shall have made demand under this Agreement or any other Loan
Document. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
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11.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.14 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Internal Revenue Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Internal Revenue Code (or upon
accepting an assignment of an interest herein), two duly signed completed
copies of either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or such other evidence satisfactory to
the Borrower and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax,
including any exemption pursuant to Section 881(c) of the Internal Revenue
Code. Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Administrative Agent such additional duly completed
and signed copies of one of such forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities)
as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower
and the Administrative Agent of any available exemption from or reduction
of, United States withholding taxes in respect of all payments to be made
to such Foreign Lender by the Borrower pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction,
and (C) take such steps as shall not be materially disadvantageous to it,
in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
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Administrative Agent on the date when such Foreign Lender ceases to act for
its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination
of the Administrative Agent (in the reasonable exercise of its discretion),
(A) two duly signed completed copies of the forms or statements required to
be provided by such Lender as set forth above, to establish the portion of
any such sums paid or payable with respect to which such Lender acts for
its own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required under
the Internal Revenue Code, to establish that such Lender is not acting for
its own account with respect to a portion of any such sums payable to such
Lender.
(iii) The Borrower shall not be required to pay any additional amount
to any Foreign Lender under Section 3.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS
Form W-8IMY pursuant to this Section 11.15(a) or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 11.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 11.15(a) on the date such Lender became a Lender or ceased to act
for its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 11.15(a) shall relieve the Borrower of
its obligation to pay any amounts pursuant to Section 3.01 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 the
interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence
at a subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of
the Loan Documents with respect to which the Borrower is not required to
pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Internal
Revenue Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Internal Revenue Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent, unless such failure to properly
withhold or backup withhold, as the case may be, was solely the result of the
Administrative Agent's gross negligence or willful misconduct. The obligation of
the Lenders under this Section shall survive the termination of the Revolving
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
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11.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the Borrower shall
have the right to replace a Lender as a party to this Agreement, the Borrower
may, upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Revolving Commitment and outstanding
Loans (with the assignment fee to be paid by the Borrower in such instance)
pursuant to Section 11.07(b) to one or more other Lenders or Eligible Assignees
procured by the Borrower; provided, however, that if the Borrower elects to
exercise such right with respect to any Lender pursuant to Section 3.06(b), it
shall be obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in
full all principal, interest, fees and other amounts owing to such Lender
through the date of replacement (including any amounts payable pursuant to
Section 3.01, Section 3.04 and Section 3.05), (y) provide appropriate assurances
and indemnities (which may include letters of credit) to the L/C Issuer and the
Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing
Line Loans then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Revolving Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
the LAW OF THE STATE OF NEW YORK applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT ALL PARTIES HERETO SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK, NEW YORK, OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER,
THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY
HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
11.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
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ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
BORROWER: C&D TECHNOLOGIES, INC.,
a Delaware corporation
By:/s/ Stephen E. Markert, Jr.
------------------------------------------
Name: Stephen E. Markert, Jr.
Title: Chief Financial Officer
GUARANTORS: C&D CHARTER HOLDINGS, INC.,
a Delaware corporation
By:/s/ Robert Marley
-----------------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer
C&D INTERNATIONAL INVESTMENT HOLDINGS, INC.,
a Delaware corporation
By:/s/ Robert Marley
------------------------------------------
Name: Robert T. Marley
Title: Vice President and Treasurer
[Signature Pages Continue]
ADMINISTRATIVE
AGENT: Bank of America, N.A.,
as Administrative Agent
By:/s/ Michael Brashler
------------------------------------------
Name: Michael Brashler
Title: Senior Agency Officer
LENDERS: Bank of America, N.A.,
as a Lender, L/C Issuer and Swing Line
Lender
By:/s/ R. M. Searson
------------------------------------------
Name: Robert M. Searson
Title: Senior Vice President
JPMORGAN CHASE BANK
By:/s/Thomas F. Conroy, Jr.
------------------------------------------
Name: Thomas F. Conroy, Jr
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By:/s/ Roger Pillsbury
-----------------------------------------
Name: Roger Pillsbury
Title: Senior Vice President
FLEET NATIONAL BANK
By:/s/ Henry F. Bullitt
-----------------------------------------
Name: Henry F. Bullitt
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By:/s/ Melanie Snyder
-----------------------------------------
Name: Melanie Snyder
Title: Associate
THE BANK OF NEW YORK
By:/s/ Susan M. Graham
-----------------------------------------
Name: Susan M. Graham
Title: Vice President
[SIGNATURE PAGES CONTINUE]
MANUFACTURERS & TRADERS TRUST COMPANY
By:/s/ Joshua C. Becker
-----------------------------------------
Name: Joshua C. Becker
Title: Officer
PNC BANK, NATIONAL ASSOCIATION
By:/s/ Robert J. Giannone
-----------------------------------------
Name: Robert J. Giannone
Title: Vice President
CITIZENS BANK
By:/s/ Mark W. Torie
-----------------------------------------
Name: Mark W. Torie
Title: Vice President
COMERICA BANK
By:/s/ Richard C. Hampson
-----------------------------------------
Name: Richard C. Hampson
Title: Vice President