EXHIBIT 4
CREDIT AGREEMENT
dated as of
August 21, 2001
between
BE AEROSPACE, INC.
The LENDERS Party Hereto
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Bookrunner
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$150,000,000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................22
SECTION 1.03. Terms Generally................................................23
SECTION 1.04. Accounting Terms and Determinations............................23
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments................................................24
SECTION 2.02. Loans and Borrowings...........................................26
SECTION 2.03. Requests for Borrowings........................................26
SECTION 2.04. Letters of Credit..............................................28
SECTION 2.05. Funding of Borrowings..........................................32
SECTION 2.06. Interest Elections.............................................33
SECTION 2.07. Termination and Reduction of the Commitments...................35
SECTION 2.08. Repayment of Loans; Evidence of Debt...........................35
SECTION 2.09. Prepayment of Loans............................................37
SECTION 2.10. Fees. ........................................................39
SECTION 2.11. Interest.......................................................41
SECTION 2.12. Alternate Rate of Interest.....................................42
SECTION 2.13. Increased Costs................................................42
SECTION 2.14. Break Funding Payments.........................................43
SECTION 2.15. Taxes. 44
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . .46
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.................48
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers...........................................49
SECTION 3.02. Authorization; Enforceability..................................49
SECTION 3.03. Governmental Approvals; No Conflicts...........................50
SECTION 3.04. Financial Condition; No Material Adverse Change................50
SECTION 3.05. Properties.....................................................51
SECTION 3.06. Litigation and Environmental Matters...........................51
SECTION 3.07. Compliance with Laws...........................................53
SECTION 3.08. Investment and Holding Company Status..........................53
SECTION 3.09. Taxes ........................................................53
SECTION 3.10. ERISA ........................................................54
SECTION 3.11. Disclosure.....................................................54
SECTION 3.12. Use of Credit..................................................54
SECTION 3.13. Material Agreements and Liens..................................55
SECTION 3.14. Subsidiaries and Investments...................................55
SECTION 3.15. Capitalization.................................................56
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.................................................56
SECTION 4.02. Each Credit Event..............................................58
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................59
SECTION 5.02. Notices of Material Events.....................................61
SECTION 5.03. Existence; Conduct of Business; Etc............................62
SECTION 5.04. Insurance......................................................63
SECTION 5.05. Use of Proceeds and Letters of Credit..........................63
SECTION 5.06. Certain Obligations Respecting Subsidiaries....................63
SECTION 5.07. Environmental Matters..........................................65
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness...................................................66
SECTION 6.02. Liens ........................................................67
SECTION 6.03. Fundamental Changes............................................69
SECTION 6.04. Lines of Business..............................................69
SECTION 6.05. Investments....................................................70
SECTION 6.06. Restricted Payments............................................71
SECTION 6.07. Transactions with Affiliates...................................71
SECTION 6.08. Certain Financial Covenants....................................72
SECTION 6.09. Modifications of Certain Documents.............................74
SECTION 6.10. Redemption of Senior Subordinated Indebtedness.................74
ARTICLE VII
EVENTS OF DEFAULT..............................................74
ARTICLE VIII
THE ADMINISTRATIVE AGENT.......................................78
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices........................................................80
SECTION 9.02. Waivers; Amendments............................................81
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................83
SECTION 9.04. Successors and Assigns.........................................85
SECTION 9.05. Survival.......................................................88
SECTION 9.06. Counterparts; Integration; Effectiveness.......................89
SECTION 9.07. Severability...................................................89
SECTION 9.08. Right of Setoff................................................89
SECTION 9.09. Governing Law; Jurisdiction; Etc...............................90
SECTION 9.10. WAIVER OF JURY TRIAL...........................................90
SECTION 9.11. Headings.......................................................91
SECTION 9.12. Treatment of Certain Information; Confidentiality..............91
SCHEDULE I - Commitments
SCHEDULE II - Hazardous Materials
SCHEDULE III - Material Agreements and Liens
SCHEDULE IV - Subsidiaries and Investments
SCHEDULE V - Approvals and Compliance
SCHEDULE VI - Taxes
SCHEDULE VII - Transactions with Affiliates
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Opinion of Counsel to the Borrower
EXHIBIT D - Form of Opinion of In-House Counsel to the Borrower
EXHIBIT E - Form of Opinion of Special New York Counsel to Chase
CREDIT AGREEMENT dated as of August 21, 2001, between BE
AEROSPACE, INC., the LENDERS party hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the
Lenders (as so defined) extend credit (by means of loans and letters of credit)
to it in an aggregate principal or face amount not exceeding $150,000,000 (which
amount may, in the circumstances hereinafter provided, be increased to
$300,000,000) at any one time outstanding. The Lenders are prepared to extend
such credit upon the terms and conditions hereof, and, accordingly, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means any transaction, or any series of related
transactions, by which the Borrower and/or any of its Subsidiaries (a) acquires
any ongoing business or all or substantially all of the assets of any Person,
whether through purchase of assets, merger or otherwise, (b) directly or
indirectly acquires control of at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors or (c) directly or indirectly acquires control of a majority ownership
interest in any partnership, joint venture or similar arrangement. The terms
"Acquire" and "Acquired" used as a verb shall have a correlative meaning.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Adjusted Net Worth" means, as at any date, the sum
(determined on a consolidated basis without duplication in accordance with GAAP)
of (a) total stockholders' equity of the Borrower and its Subsidiaries plus (b)
the aggregate amount of Restricted Payments made since May 26, 2001 in respect
of the purchase, redemption, retirement or other acquisition of any shares of
any class of stock of the Borrower permitted under Section 6.06 plus (c) the
fair market value of any shares of capital stock of the Borrower (determined as
of the date such shares are issued) issued after May 26, 2001 which are utilized
in any business combination accounted for using pooling of interest accounting
plus (d) the aggregate after-tax amount (calculated using the then effective
corporate Federal tax rate, regardless of the after-tax amount determined in
accordance with GAAP) of any non-recurring non-cash write-offs of intangible
assets since May 26, 2001, of which the portion thereof not effected under
Statement of Financial Accounting Standards No. 142 shall not exceed $50,000,000
plus (e) the amount of any purchased research and development and related
acquisition costs of a target company to the extent such costs are or have been
expensed after May 26, 2001 plus (f) the aggregate amount of any nonrecurring
costs associated with any Acquisition and incurred at the time thereof plus (g)
the aggregate amount of foreign currency translation losses (or minus the
aggregate amount of foreign currency translation gains) carried on the balance
sheet of the Borrower and its Subsidiaries at said date plus (h) any write-off
of the note and receivable due from Thomson-CSF Sextant, Inc. related to the
Borrower's sale of the In-Flight Entertainment line of business in an amount not
to exceed $15,000,000.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
Person that owns directly or indirectly securities having 5% or more of the
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Borrower or any of its
Subsidiaries and (b) none of the Subsidiaries of the Borrower shall be
Affiliates.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate for such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Applicable Percentage" means, (a) with respect to any
Revolving Credit Lender for purposes of Section 2.04 or in respect of any
indemnity claim under Section 9.03(c) arising out of an action or omission of
the Issuing Lender under this Agreement, the percentage of the total Revolving
Credit Commitments represented by such Revolving Credit Lender's Revolving
Credit Commitment and (b) with respect to any Lender for purposes of Section
2.04 or in respect of any indemnity claim under Section 9.03(c) arising out of
an action or omission of the Administrative Agent under this Agreement, the
percentage of the total Commitments or Loans of all Classes hereunder
represented by aggregate amount of such Lender's Commitment or Loans of all
Classes hereunder. If the Revolving Credit Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Credit Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, for any Type of
Revolving Credit Loans, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurodollar Spread or "Commitment Fee Rate",
respectively, based upon the Leverage Ratio as of the most recent determination
date:
===================================== ========================== ========================== ========================
Leverage Ratio: ABR Eurodollar Commitment
---------------
Spread Spread Fee Rate
------------------------------------- -------------------------- -------------------------- ------------------------
Category 1 0.25% 1.25% 0.300%
----------
Less than 4.00 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Category 2 0.50% 1.50% 0.375%
----------
Less than 4.50 to 1, but greater
than or equal to
4.00 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Category 3 1.00% 2.00% 0.500%
----------
Less than 5.00 to 1, but greater
than or equal to
4.50 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Category 4 1.50% 2.50% 0.500%
----------
Greater than or equal to 5.00 to 1
===================================== ========================== ========================== ========================
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year based upon the
Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date three Business Days after delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 4 (A)
at any time that an Event of Default has occurred and is continuing and (B) if
the Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a), (b) or (f), during the period
from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
Notwithstanding the foregoing, the "Applicable Rate" for any
Series of Incremental Loans shall be the respective rates as shall be agreed
upon at the time Incremental Loan Commitments of such Series are established;
provided that, if the Applicable Rate for either Type of any Series of
Incremental Loans shall be greater than .50% above the Applicable Rate for such
Type of Revolving Credit Loans for any Category of Leverage Ratio set forth
above, the Applicable Rate for such Type of Revolving Credit Loans shall be
automatically adjusted upwards on the date upon which the Incremental Loan
Commitments of such Series are established pursuant to Section 2.01(b) so that
the Applicable Rate for such Type of such Series of Incremental Loans is .50%
above such Applicable Rate for such Type of Revolving Credit Loans.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978,
as amended from time to time.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means BE Aerospace, Inc., a Delaware corporation.
--------
"Borrowing" means (a) all ABR Loans made, converted or
continued on the same date or (b) all Eurodollar Loans that have the same
Interest Period.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed and (b) if such day relates to a borrowing of,
a payment or prepayment of principal of or interest on, a continuation or
conversion of or into, or the Interest Period for, a Eurodollar Borrowing, or to
a notice by the Borrower with respect to any such borrowing, payment,
prepayment, continuation, conversion, or Interest Period, that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Calculation Period" means, as at any date, the period of four
consecutive complete fiscal quarters of the Borrower ending on or most recently
ended prior to such date for which financial statements have been delivered
pursuant to Sections 3.04(a), 5.01(a), 5.01(b) or 5.01(f).
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" means, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"CFC" means any entity that is a controlled foreign
corporation under Section 957 of the Code (or any successor provision thereof).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Lender (or, for purposes of Section 2.13(b), by any lending office
of such Lender or by such Lender's or the Issuing Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Chase" means The Chase Manhattan Bank.
-----
"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, the Loans comprising such Borrowing or
the Loans that a Lender holding such Commitment is obligated to make, are
Revolving Credit Loans or Incremental Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral Account" has the meaning assigned to such term in
Section 4(a) of the Security Agreement.
"Commitments" means the Revolving Credit Commitments and the
Incremental Loan Commitments (if any), as applicable.
"Commitment Termination Date" means August 21, 2006; provided
that if such day is not a Business Day, the Commitment Termination Date shall be
the immediately preceding Business Day.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disposition" means any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired and
including any real property sold as part of a sale-leaseback transaction) by the
Borrower or any of its Subsidiaries to any Person excluding any sale,
assignment, transfer or other disposition of inventory in the ordinary course of
business and on ordinary business terms; provided that the term "Disposition"
shall not include (i) any Equity Issuance (as such term is defined in this
Section 1.01 without giving effect to the proviso therein), (ii) any sale,
assignment, transfer or other disposition of Property by any Subsidiary of the
Borrower to the Borrower or to any other Subsidiary of the Borrower, in each
case for consideration that is not in excess of the fair market value of such
Property as determined in good faith by the chief financial officer of the
Borrower, (iii) any sale, assignment, transfer or other disposition of Property
by the Borrower or any Subsidiary of the Borrower to a Minority-Owned Entity,
subject to the proviso in Section 6.05(h) or (iv) any sale, transfer or other
disposition of any shares of stock of Advanced Thermal Sciences Corporation in
connection with an initial public offering of such shares of stock. The creation
of any Lien on any Property permitted under Section 6.02 shall not constitute a
"Disposition" of such Property. The term "Dispose" shall have a correlative
meaning.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
that is incorporated under the law of any State of the United States of America.
"EBITDA" means, for any period, net operating earnings for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), calculated before depreciation and
amortization expense, non-recurring non-cash write-offs of assets (to the extent
deducted in computing net operating earnings), non-recurring costs associated
with any Acquisition and incurred at the time thereof, Interest Expense, taxes,
extraordinary and unusual items and all other non-cash charges for such period.
For purposes of determining the Interest Coverage Ratio for any Calculation
Period, or the Leverage Ratio as at any date, EBITDA shall be determined on a
pro forma basis giving effect to any Acquisition or Disposition in the manner
provided in the definition of the terms "Interest Coverage Ratio" and "Leverage
Ratio" in this Section 1.01.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Claim" means, with respect to any Person, (a)
any written notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
includes, without limitation, any written claim by any governmental authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and any written claim by
any third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from the presence of Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Laws" means any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, Releases or threatened Releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Issuance" means (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the date hereof of (i) any capital
stock, (ii) any warrants or options exercisable in respect of capital stock
(other than any warrants or options issued to directors, officers, employees,
agents, consultants or advisors of the Borrower or any of its Subsidiaries and
any capital stock of the Borrower issued upon the exercise of such warrants or
options) or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the issuing or selling
Person or (b) the receipt by the Borrower or any of its Subsidiaries after May
26, 2001 of any capital contribution (whether or not evidenced by any equity
security issued by the recipient of such contribution); provided that Equity
Issuance shall not include (w) any sale, transfer or other disposition of any
shares of stock of Advanced Thermal Sciences Corporation in connection with an
initial public offering of such shares of stock, (x) any such issuance or sale
by any Subsidiary of the Borrower to the Borrower or any Wholly Owned Subsidiary
of the Borrower, (y) any capital contribution by the Borrower or any Wholly
Owned Subsidiary of the Borrower to any Subsidiary of the Borrower or (z) any
such issuance or sale by the Borrower in connection with a permitted Acquisition
under Section 6.03(c).
"Equity Rights" means, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders' or
voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock
of any class, or partnership or other ownership interests of any type in, such
Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its overall gross or overall net
income or overall receipts by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits Taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any Taxes that would not have
been imposed but for the activities of the recipient in the jurisdiction
imposing such Tax other than the execution or delivery of the Loan Documents or
otherwise as a result of participating in the transactions contemplated by the
Loan Documents and (d) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.17(b)), any Tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 2.15(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such Tax pursuant to Section 2.15.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fiscal Date" means the last day of each fiscal quarterly
period of the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Funded Debt" means, for any Person: (a) all Indebtedness of
such Person that should be reflected on a balance sheet of such Person in
accordance with GAAP, (b) all Indebtedness of any other Person that should be
reflected on a balance sheet of such other Person in accordance with GAAP and
that is secured by a Lien on the Property of, is supported by a letter of credit
issued for account of, or is Guaranteed by, such Person and (c) in respect of
the Borrower, the amount of any Letters of Credit.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GE Lease Agreement" means the Master Lease Agreement dated as
of October 20, 1997 between the Borrower and General Electric Capital
Corporation, for itself and as Agent for Certain Participants, as amended.
"Governmental Authority" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"Hazardous Material" means, collectively, (a) any petroleum or
petroleum products, flammable explosives, radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde foam insulation, and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls (PCB's), (b) any chemicals or other materials or
substances which are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
"Incremental Loan" has the meaning assigned to such term in
Section 2.01(b).
"Incremental Loan Commitment" means, with respect to each
Incremental Loan Lender, and for any Series thereof, the commitment of such
Incremental Loan Lender to make Incremental Loans of such Series, as such
commitment may be (a) reduced from time to time pursuant to Section 2.07 or
2.09(b) and (b) reduced or increased from time to time pursuant to assignments
by or to such Incremental Loan Lender pursuant to Section 9.04. The aggregate
amount of the Incremental Loan Commitments of all Series shall not exceed
$150,000,000.
"Incremental Loan Lenders" means, in respect of any Series of
Incremental Loans, (a) initially, the Lenders (or such other financial
institutions) whose offers to make Incremental Loans of such Series shall have
been accepted by the Borrower in accordance with the provisions of Section
2.01(b) and (b) thereafter, the Lenders (or such other financial institutions)
from time to time holding Incremental Loans of such Series and/or Incremental
Loan Commitments of such Series after giving effect to any assignments thereof
permitted by Section 9.04.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Information Memorandum" means the Confidential Information
Memorandum dated July, 2001 distributed to the Lenders in connection with the
syndication of the Commitments hereunder.
"Interest Coverage Ratio" means, as at any date the ratio of
(i) EBITDA for the Calculation Period ending on or most recently ended prior to
such date to (ii) Interest Expense for such Calculation Period; provided that,
from and after the date of any Acquisition or Disposition until four full fiscal
quarters of the Borrower have elapsed since the date of such Acquisition or
Disposition, the Interest Coverage Ratio shall be calculated on a pro forma
basis (reflecting, inter alia, in the case of any Acquisition, any amount
attributable to any operating expense that will be eliminated or cost reduction
that will be realized (in each case, net of any operating expense or other cost
increase) in connection with such Acquisition, as determined in good faith by
the chief financial officer of the Borrower in accordance with GAAP and the
rules, regulations and guidelines of the Securities and Exchange Commission, as
if such elimination of operating expense or the realization of such cost
reductions were achieved at the beginning of such four-quarter period) as though
such Acquisition or Disposition had occurred, and any Funded Debt incurred,
assumed or repaid by the Borrower or any of its Subsidiaries in connection with,
or in anticipation of, such Acquisition or Disposition had been incurred,
assumed or repaid (as applicable), on the first day of such Calculation Period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Interest Rate Protection
Agreements relating to interest during such period (whether or not actually paid
or received during such period) minus (c) interest income during such period.
"Interest Payment Date" means (a) with respect to any ABR
Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last
day of each Interest Period therefor and, in the case of any Interest Period of
more than three months' duration, each day prior to the last day of such
Interest Period that occurs at three-month intervals after the first day of such
Interest Period.
"Interest Period" means, for any Eurodollar Loan or Borrowing,
the period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as specified in the applicable Borrowing Request or
Interest Election Request; provided, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day, and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Borrowing comprising Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loans.
Notwithstanding the foregoing, if any Interest Period for any Revolving Credit
Borrowing would otherwise end after the Commitment Termination Date, such
Interest Period shall end on the Commitment Termination Date.
"Interest Rate Protection Agreement" means, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
For purposes hereof, the "credit exposure" at any time of any Person under an
Interest Rate Protection Agreement to which such Person is a party shall be
determined at such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as prescribed from time to time by
the Administrative Agent, taking into account potential interest rate movements
and the respective termination provisions and notional principal amount and term
of such Interest Rate Protection Agreement.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of, or capital contribution to, any other Person or any
agreement to make any such acquisition or capital contribution (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such short sale);
(b) the making of any deposit with, or advance, loan or other extension of
credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person, but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days representing the
purchase price of inventory or supplies sold by such Person in the ordinary
course of business); (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Interest Rate
Protection Agreement.
"Issuing Lender" means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.04(j).
"LC Disbursement" means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
"Lender Affiliate" means, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" means, collectively, (a) the Persons listed on
Schedule I, (b) the Incremental Loan Lenders (if any) and (c) any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Leverage Ratio" means, as at any date, the ratio of Total
Adjusted Funded Debt at such date to EBITDA for the relevant Calculation Period;
provided that, from and after the date of any Acquisition or Disposition until
four full fiscal quarters of the Borrower shall have elapsed since the date of
such Acquisition or Disposition, the Leverage Ratio shall be calculated on a pro
forma basis (reflecting, inter alia, in the case of any Acquisition, any amount
attributable to any operating expense that will be eliminated or cost reduction
that will be realized (in each case, net of any operating expense or other cost
increase) in connection with such Acquisition, as determined in good faith by
the chief financial officer of the Borrower in accordance with GAAP and the
rules, regulations and guidelines of the Securities and Exchange Commission, as
if such elimination of operating expense or the realization of such cost
reductions were achieved at the beginning of such four-quarter period) as though
such Acquisition or Disposition had occurred, any Funded Debt incurred, assumed
or repaid by the Borrower or any of its Subsidiaries in connection with, or in
anticipation of, such Acquisition or Disposition had been incurred, assumed or
repaid (as applicable), on the first day of such Calculation Period.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Loan Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Loan Documents" means, collectively, this Agreement, the
Letter of Credit Documents and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its obligations under any of
the Loan Documents to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or the LC Exposure or other amounts
payable in connection therewith.
"Material Subsidiary" shall mean at any date any Subsidiary of
the Borrower whose total assets equal or exceed 2% of the total assets of the
Borrower and its Subsidiaries on a consolidated basis as at the most recent
Fiscal Date; provided that, notwithstanding the above, each of B/E Aerospace
Services, Inc. and Royal Inventum B.V. shall at all times constitute a Material
Subsidiary of the Borrower so long as it is a Subsidiary of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
----- -
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
----------------------
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
and
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (A) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith and (B) contractually
required repayments of Indebtedness to the extent secured by a Lien on
such Property and any income and transfer taxes payable by the Borrower
or any of its Subsidiaries in respect of such Casualty Event.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments, and the fair market value of any
non-cash consideration, received by the Borrower and its Subsidiaries directly
or indirectly in connection with such Disposition; provided that (a) Net Cash
Payments shall be net of (i) the amount of any legal, accounting and other
professional fees, title and recording tax expenses, commissions and other fees
and expenses paid by the Borrower and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Borrower and its Subsidiaries as a result of such
Disposition (but only to the extent that such estimated taxes are in fact paid
to the relevant Federal, state or local governmental authority by the relevant
due date for payment of such taxes (or the date such payments must be made in
order to avoid interest or penalties with respect thereto) or the Borrower or
any of its Subsidiaries uses any applicable tax benefit available to it as set
forth on its balance sheet to reduce such estimated taxes payable by such date),
(b) Net Cash Payments shall not include any cash payments of less than $100,000
from any one Disposition or a series of related Dispositions, and (c) Net Cash
Payments shall be net of any repayments by the Borrower or any of its
Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is secured
by a Lien on the Property that is the subject of such Disposition and (ii) the
transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any excise or property taxes, charges or similar levies
arising from any payment made under any Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Investments" means any Investment in (i) direct
obligations of the United States of America or any agency thereof, or
obligations guaranteed by the United States of America, or of any agency
thereof; (ii) commercial paper rated at least A-1 by S&P or P-1 by Moody's;
(iii) time deposits with, including certificates of deposit issued by, any
office located in the United States of America of any bank or trust company
which is organized under the laws of the United States of America or any state
thereof and has capital, surplus and undivided profits aggregating at least
$1,000,000,000; (iv) shares of any money market or mutual fund not less than 80%
of the assets of which are invested solely in securities or obligations of the
type described in clauses (i) through (iii) above and (v) repurchase agreements
with respect to securities described in clause (i) above entered into with an
office of a bank or trust company meeting the criteria specified in clause (iii)
above, provided in each case that such Investment matures within one year from
the date of acquisition thereof by the Borrower or a Subsidiary of the Borrower.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Proposed Sale/Leasebacks" means (i) the sale/leaseback with
LaSalle National Leasing Corporation with respect to pallot poll machinery
equipment in an amount of approximately $2,800,000 and (ii) the sale/leaseback
with GE Capital with respect to a Challenger re-completion kit and aircraft
capital improvements in an amount of approximately $3,900,000.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Recapture Period" shall mean each period (a) commencing on
the later of (i) the Effective Date and (ii) the day immediately following the
last day of the immediately preceding Recapture Period, and (b) ending on the
date on which the Borrower and/or its Subsidiaries receives Net Available
Proceeds which, together with all Net Available Proceeds received since the
first day of such Recapture Period, equal or exceeds in the aggregate
$1,000,000.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Materials through ambient air, soil, surface water,
groundwater, wetlands, land or subsurface strata. The terms "Release" and
"Released" used as a verb shall have a correlative meaning.
"Required Lenders" means, at any time, Lenders having Loans,
LC Exposure and unused Commitments representing at least a majority of the sum
of the total Loans, LC Exposure and unused Commitments at such time. References
herein to the "Required Revolving Credit Lenders", and "Required Incremental
Loan Lenders" of any Series, shall refer to the Lenders of such Class holding at
least a majority of the sum of the total Loans, LC Exposure (if applicable) and
unused Commitments of such Class at such time.
"Restricted Payment" means, with respect to any Person, (a)
dividends (in cash, Property or obligations) on, or other payments or
distributions on account of, or the setting apart of money for a sinking or
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock, including, without limitation,
preferred stock, of such Person or of any warrants (other than of shares of
common stock, warrants or options of such Person as payment for the exercise
price of options or warrants to purchase common stock of such Person having a
fair market value equal to such exercise price), options or other rights to
acquire the same (or to make any payments to any other Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market or equity value of such Person or any of its Subsidiaries), but
excluding dividends payable solely in shares of common stock or in options,
warrants or other rights to purchase such common stock of such Person or (b) any
payment (whether made by such Person or any of its Subsidiaries) on account of
the purchase, redemption, prepayment, defeasance or other acquisition or
retirement of value of any Indebtedness (such Indebtedness, "Retired
Indebtedness") that is subordinated in right of payment to the prior payment of
the Loans, except any such payment made from the proceeds of (x) the issuance of
any equity securities or (y) any additional unsecured Indebtedness that does not
rank senior in right of payment to, and does not mature or have any mandatory
prepayment, which does not include required prepayments as a result of a change
of control or asset sale, prior to the maturity of, such Retired Indebtedness.
"Revolving Credit Availability Period" means the period from
and including the Effective Date to but excluding the earlier of the Commitment
Termination Date and the date of termination of the Revolving Credit
Commitments.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment of such Lender to make Revolving Credit Loans and to
acquire participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 or 2.09(b) and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Credit Commitment is set forth on
Schedule I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Revolving Credit Commitment, as applicable. The initial
aggregate amount of the Lenders' Revolving Credit Commitments is $150,000,000.
"Revolving Credit Exposure" means, with respect to any
Revolving Credit Lender at any time, the sum of the outstanding principal amount
of such Lender's Revolving Credit Loans and its LC Exposure at such time.
"Revolving Credit Lender" means (a) initially, a Lender that
has a Revolving Credit Commitment set forth opposite its name on Schedule I and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments, after giving effect to any assignments thereof
permitted by Section 9.04.
"Revolving Credit Loan" means a Loan made pursuant to Section
2.01(a) that utilizes the Revolving Credit Commitment.
"S&P" means Standard & Poor's Ratings Services, a Division of
the McGraw-Hill Companies, Inc.
"Security Agreement" means a Security Agreement substantially
in the form of Exhibit B between the Borrower and the Administrative Agent, as
the same shall be modified and supplemented and in effect from time to time.
"Security Documents" means, collectively, the Security
Agreement, any security document executed and delivered pursuant to Section
5.06(a), all Uniform Commercial Code financing statements required by the
Security Agreement or any such security document and any other agreement or
instrument executed by the Borrower that creates or purports to create a Lien in
favor of the Administrative Agent for the benefit of the Lenders.
"Senior Subordinated Indentures" means, collectively, the
Senior Subordinated 1998 Indentures and the Senior Subordinated 2001 Indenture.
"Senior Subordinated 1998 Indentures" means, collectively, (a)
the Indenture dated as of February 13, 1998 between the Borrower and The Bank of
New York as Trustee, and (b) the Indenture dated as of November 2, 1998 between
the Borrower and The Bank of New York, as Trustee, as such Indentures shall be
modified and supplemented and in effect from time to time.
"Senior Subordinated 2001 Indenture" means the Indenture dated
as of April 17, 2001 between the Borrower and The Bank of New York, as Trustee,
as the same shall be modified and supplemented and in effect from time to time.
"Series" has the meaning assigned to such term in Section
2.01(b).
"Statutory Reserve Rate" means, for the Interest Period for
any Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Administrative Agent is subject for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. "Wholly Owned Subsidiary" means any such corporation, partnership
or other entity of which all of the equity securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are so owned or controlled.
"Synthetic Purchase Agreement" means any swap, derivative or
other agreement or combination of agreements pursuant to which the Borrower or a
Subsidiary is or may become obligated to make (i) any payment in connection with
a purchase by any third party from a Person other than the Borrower or a
Subsidiary of Indebtedness issued pursuant to the Senior Subordinated Indentures
or (ii) any payment (other than on account of a permitted purchase by it of such
Indebtedness) the amount of which is determined by reference to the price or
value at any time of such Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or former directors,
officers or employees of the Borrower or the Subsidiaries (or to their heirs or
estates) shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Adjusted Funded Debt" means, as at any date, the sum,
for the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of all Funded Debt minus the
aggregate amount, if any, of cash and cash equivalents held by the Borrower and
its Subsidiaries as at such date in excess of $35,000,000.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement and the other Loan Documents, the borrowing of
Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate or the Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Credit Loan" or "Incremental Loan") or by Type (e.g., a
"Base Rate Loan", or a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Credit Loan" or a "Base Rate Revolving Credit Loan"); each
Series of Incremental Loans shall be deemed a separate Class of Loans hereunder.
In similar fashion, (i) Borrowings may be classified and referred to by Class,
by Type and by Class and Type, and (ii) Commitments may be classified and
referred to by Class; each Series of Incremental Loan Borrowings and Incremental
Loan Commitments shall be deemed a separate Borrowing and Commitment hereunder.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms and Determinations.
-----------------------------------
(a) Accounting Generally. Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall (unless otherwise
disclosed to the Lenders in writing at the time of delivery thereof in the
manner described in subsection (b) below) be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Lenders hereunder (which, prior to the delivery of the first financial
statements under Section 8.01, shall mean the audited financial statements as at
February 24, 2001 referred to in Section 3.04). All calculations made for the
purposes of determining compliance with this Agreement shall (except as
otherwise expressly provided herein) be made by application of generally
accepted accounting principles applied on a basis consistent with those used in
the preparation of the latest annual or quarterly financial statements furnished
to the Lenders pursuant to Section 5.01 (or, prior to the delivery of the first
financial statements under Section 5.01, used in the preparation of the audited
financial statements as at February 24, 2001, referred to in Section 3.04)
unless
(i) the Borrower shall have objected to determining such
compliance on such basis at the time of delivery of such financial
statements or
(ii) the Required Lenders shall so object in writing within
30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 5.01, shall
mean the audited financial statements as at February 28, 2001 referred to in
Section 3.04).
(b) Statements of Accounting Variations. The Borrower shall
deliver to the Lenders at the same time as the delivery of any annual or
quarterly financial statement under Section 5.01 (i) a description in reasonable
detail of any material variation between the application of accounting
principles employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next preceding annual
or quarterly financial statements as to which no objection has been made in
accordance with the last sentence of subsection (a) above and (ii) reasonable
estimates of the difference between such statements arising as a consequence
thereof.
(c) Changes in Fiscal Periods. To enable the ready and
consistent determination of compliance with the covenants set forth in Article
VI, the fiscal year of the Borrower shall end on the last Saturday in February
of each year, and the last days of the first three fiscal quarters shall fall on
the last Saturday in each of May, August and November of each year,
respectively, provided that the Borrower may change its fiscal year to end on
December 31 in each year, and each of the first three fiscal quarters to end on
the last day of March, June and September in each year, so long as the Borrower
shall give the Lenders notice thereof at least 30 days prior to the date upon
which such change is to become effective and shall deliver the pro forma
financial statements referred to in Section 5.01(h) within 90 days after such
change shall become effective.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
---------------
(a) Revolving Credit Loans. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Credit Loans
to the Borrower from time to time during the Revolving Credit Availability
Period in an aggregate principal amount that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Credit
Commitment or (b) the total Revolving Credit Exposures exceeding the total
Revolving Credit Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Credit Loans.
(b) Incremental Loans. In addition to Borrowings of Revolving
Credit Loans pursuant to paragraph (a) above, at any time and from time to time
prior to the Commitment Termination Date, the Borrower may request that one or
more of the Persons (which may include the Lenders) offer to enter into
commitments to make term loans (each such loan being herein called an
"Incremental Loan") under this paragraph (b), it being understood that if such
offer is to be made by any Person that is not already a Lender hereunder, the
Administrative Agent shall have consented to such Person being a Lender
hereunder to the extent such consent would be required pursuant to Section
9.04(b) in the event of an assignment to such Person. In the event that one or
more of such Persons offer, in their sole discretion, to enter into such
commitments, and such Persons and the Borrower agree as to the amount of such
commitments that shall be allocated to the respective Persons making such offers
and the fees (if any) to be payable by the Borrower in connection therewith and
the amortization and maturity date to be applicable thereto, the Borrower, such
Persons and the Administrative Agent shall execute and deliver an appropriate
agreement with respect thereto, and such Persons shall become obligated to make
Incremental Loans under this Agreement in an amount equal to the amount of their
respective Incremental Loan Commitments as specified in such agreement. The
Incremental Loans to be made pursuant to any such agreement between the Borrower
and one or more Lenders in response to any such request by the Borrower shall be
deemed to be a separate "Series" of Incremental Loans for all purposes of this
Agreement. Anything herein to the contrary notwithstanding, (i) the minimum
aggregate principal amount of Incremental Loan Commitments entered into pursuant
to any such request (and, accordingly, the minimum aggregate principal amount of
any Series of Incremental Loans) shall be $25,000,000, (ii) the aggregate
principal amount of all Incremental Loan Commitments and Incremental Loans shall
not exceed $150,000,000 and (iii) the final maturity for the Incremental Loans
of any Series shall not be earlier than the Commitment Termination Date or later
than the earliest regularly scheduled maturity or mandatory prepayment for any
Indebtedness incurred pursuant to Section 6.01(g).
Following the acceptance by the Borrower of the offers made by
any one or more Incremental Loan Lenders to make any Series of Incremental Loans
pursuant to the foregoing provisions of this paragraph (b), and the execution
and delivery of an agreement with respect thereto as described in such foregoing
provisions, each Incremental Loan Lender in respect of such Series of
Incremental Loans severally agrees, on the terms and conditions of this
Agreement, to make such Incremental Loans to the Borrower in Dollars during the
period from and including the availability period for such Loans as agreed to
between the Borrower and such Incremental Loan Lenders in an aggregate principal
amount up to but not exceeding the amount of the Incremental Loan Commitment of
such Incremental Loan Lender in respect of such Series as in effect from time to
time. Thereafter, subject to the terms and conditions of this Agreement, the
Borrower may convert Incremental Loans of such Series of one Type into
Incremental Loans of such Series of another Type (as provided in Section 2.06)
or continue Incremental Loans of such Series of one Type as Incremental Loans of
such Series of the same Type (as provided in Section 2.06). Incremental Loans of
any Series that are prepaid or repaid may not be reborrowed as Incremental Loans
of the same Series.
SECTION 2.02. Loans and Borrowings.
--------------------
(a) Obligations of Lenders. Each Loan shall be made as part of
a Borrowing consisting of Loans of the same Type made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Type of Loans. Subject to Section 2.12, each Borrowing
shall be constituted entirely of ABR Loans or of Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurodollar Borrowing shall be in an aggregate amount of $1,000,000 or a larger
multiple of $1,000,000. Each ABR Borrowing shall be in an aggregate amount equal
to $1,000,000 or a larger multiple of $1,000,000; provided that (i) a Revolving
Credit ABR Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Revolving Credit Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(f) and (ii) an ABR Incremental Loan Borrowing of any Series may be in an
aggregate amount equal to the entire unused balance of the Incremental Loan
Commitments of such Series. Borrowings of more than one Type may be outstanding
at the same time; provided that there shall not at any time be more than a total
of 10 Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request (or
to elect to convert to or continue as a Eurodollar Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Commitment
Termination Date.
SECTION 2.03. Requests for Borrowings.
-----------------------
(a) Notice by the Borrower. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (i)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (ii) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that any such
notice of an Revolving Credit ABR Borrowing to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.04(f) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower.
(b) Content of Borrowing Requests.
Each telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Credit Borrowing or an Incremental Loan Borrowing (including, if
applicable, the respective Series of Incremental Loans to which such
Borrowing relates);
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the requested Borrowing shall be made instead as a Eurodollar
Borrowing with a one month Interest Period.
SECTION 2.04. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Revolving Credit Loans provided for in Section
2.01(a), the Borrower may request the Issuing Lender to issue, at any time and
from time to time during the Revolving Credit Availability Period, Letters of
Credit for its own account in such form as is acceptable to the Issuing Lender
in its reasonable determination. Letters of Credit issued hereunder shall
constitute utilization of the Revolving Credit Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Lender) to the Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (d) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Lender, the Borrower also shall submit a
letter of credit application on the Issuing Lender's standard form in connection
with any request for a Letter of Credit. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) Limitations on Amounts. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the aggregate LC Exposure of the Issuing Lender
(determined for these purposes without giving effect to the participations
therein of the Lenders pursuant to paragraph (e) of this Section) shall not
exceed $20,000,000 and (ii) the total Revolving Credit Exposures shall not
exceed the total Revolving Credit Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date twelve months
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, twelve months after the then-current expiration
date of such Letter of Credit, so long as such renewal or extension occurs
within three months of such then-current expiration date) and (ii) the date that
is five Business Days prior to the Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Revolving Credit Lenders, the Issuing Lender hereby grants to each Revolving
Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing
Lender, a participation in such Letter of Credit equal to such Revolving Credit
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments.
In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for account of the Issuing Lender, such Revolving
Credit Lender's Applicable Percentage of each LC Disbursement made by the
Issuing Lender promptly upon the request of the Issuing Lender at any time from
the time of such LC Disbursement until such LC Disbursement is reimbursed by the
Borrower or at any time after any reimbursement payment is required to be
refunded to the Borrower for any reason. Such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each such payment shall
be made in the same manner as provided in Section 2.05 with respect to Loans
made by such Revolving Credit Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Lender the amounts so received by it
from the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to the next following paragraph, the
Administrative Agent shall distribute such payment to the Issuing Lender or, to
the extent that the Revolving Credit Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Lender, then to such Revolving Credit Lenders
and the Issuing Lender as their interests may appear. Any payment made by a
Revolving Credit Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time, provided that, if such LC Disbursement is not less than
$500,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with a Revolving Credit ABR Borrowing in an equivalent amount and, to the extent
so financed, the Borrower's obligation to make such payment shall be discharged
and replaced by the resulting Revolving Credit ABR Borrowing.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof and
such Revolving Credit Lender's Applicable Percentage thereof.
(g) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Lender under a Letter of Credit
against presentation of a draft or other document that does not comply strictly
with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Lender or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter
of Credit without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the
foregoing).
(h) Disbursement Procedures. The Issuing Lender shall, within
a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. The
Issuing Lender shall promptly after such examination notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing Lender
and the Revolving Credit Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Revolving Credit ABR
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (f) of this Section, then Section 2.11(c) shall
apply. Interest accrued pursuant to this paragraph shall be for account of the
Issuing Lender, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (f) of this Section to reimburse the Issuing
Lender shall be for account of such Revolving Credit Lender to the extent of
such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may
be replaced at any time by written agreement between the Borrower, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.10(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Revolving Credit Lenders (or, if the
maturity of the Loans has been accelerated, Lenders with LC Exposure
representing more than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, or (ii) the Borrower shall be
required to provide cover for LC Exposure pursuant to Section 2.09(b), the
Borrower shall immediately deposit into the Collateral Account an amount in cash
equal to, in the case of an Event of Default, the LC Exposure as of such date
plus any accrued and unpaid interest thereon and, in the case of cover pursuant
to Section 2.09(b), the amount required under Section 2.09(b); provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (f) or (g) of Article VII. Such
deposit shall be held by the Administrative Agent in the Collateral Account as
collateral in the first instance for the LC Exposure under this Agreement and
thereafter for the payment of the "Secured Obligations" under and as defined in
the Security Agreement, and for these purposes the Borrower hereby grants a
security interest to the Administrative Agent for the benefit of the Lenders in
the Collateral Account and in any financial assets (as defined in the Uniform
Commercial Code) or other property held therein.
SECTION 2.05. Funding of Borrowings.
---------------------
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that Revolving Credit ABR Borrowings made to finance the reimbursement
of an LC Disbursement as provided in Section 2.04(f) shall be remitted by the
Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections.
------------------
(a) Elections by the Borrower. The Loans constituting each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have the Interest
Period specified in such Borrowing Request. Thereafter, the Borrower may elect
to convert such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar
Borrowing, may elect the Interest Period therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Content of Interest Election Requests.
Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies (including, if applicable, the respective Series of Incremental
Loans to which such Interest Election Request relates) and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails
to deliver a timely and complete Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to a Eurodollar Borrowing with a one
month Interest Period. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent, at
the request of the Required Lenders, so notifies the Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Borrowing may be converted
to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period therefor.
SECTION 2.07. Termination and Reduction of the Commitments.
--------------------------------------------
(a) Scheduled Termination.
Unless previously terminated, the Commitments shall terminate on the Commitment
Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at
any time terminate, or from time to time reduce, the Commitments of any Class
(including any Incremental Loan Commitments of any Class); provided that (i)
each reduction of the Commitments of such Class pursuant to this Section shall
be in an amount that is $10,000,000 or a larger multiple of $5,000,000 and (ii)
the Borrower shall not terminate or reduce the Revolving Credit Commitments if,
after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.09, the total Revolving Credit Exposures would exceed the total
Revolving Credit Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of Commitments shall be permanent
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for account of the
Revolving Credit Lenders the outstanding principal amount of the Revolving
Credit Loans on the Commitment Termination Date.
(b) Incremental Loans. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of the Incremental
Loan Lenders of any Series the principal of the Incremental Loans of such Series
in installments on such dates and in such amounts as shall be agreed upon
between the Borrower and such Incremental Loan Lenders at the time the
Incremental Loan Commitments of such Series are established; provided that in no
event shall the final maturity of any Incremental Loan of any Series be earlier
than the Commitment Termination Date.
(c) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first). Each payment of a Borrowing shall be applied ratably to the Loans
included in such Borrowing.
(d) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice records evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(e) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof (and, in the case of
Incremental Loans, the respective Series thereof) and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for account of
the Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the records
maintained pursuant to paragraph (d) or (e) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein,
absent manifest error; provided that the failure of any Lender or the
Administrative Agent to maintain such records or any finding that an entry is
incorrect shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans made
by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.09. Prepayment of Loans.
-------------------
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of this Section. Each prepayment of Incremental
Loans shall be applied to all Series of the Incremental Loans ratably in
accordance with the respective outstanding principal amounts of such Series and
to the installments thereof ratably in accordance with the respective amounts
thereof.
(b) Mandatory Prepayments. The Borrower will prepay the
Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)),
and/or the Commitments shall be subject to automatic reduction, as follows:
(i) Casualty Events. Upon the date 60 days following the
receipt by the Borrower of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting
any property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be,
shall have determined not to repair or replace the property affected by
such Casualty Event), the Borrower shall prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.04(k)), and/or
the Commitments shall be subject to automatic reduction, in an
aggregate amount, if any, equal to 75% of the Net Available Proceeds of
such Casualty Event not theretofore applied to the repair or
replacement of such property, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in
clause (iii) of this paragraph, provided that the Borrower shall not be
required to make any prepayment pursuant to this clause (i) until such
time as the aggregate Net Available Proceeds of all Casualty Events not
so applied to the repair or replacement of property shall exceed
$1,000,000.
Notwithstanding the foregoing, the Borrower shall not be
required to make any prepayment pursuant to this clause (i) to the
extent that (A) the Borrower advises the Administrative Agent within 60
days following the receipt by the Borrower of such Net Available
Proceeds that it intends to reinvest such Net Available Proceeds into
the business of the Borrower and its Subsidiaries, (B) such Net
Available Proceeds are held by the Borrower in a segregated investment
or other account until so reinvested, and (C) such Net Available
Proceeds are in fact so reinvested within 270 days after receipt
thereof by the Borrower (it being understood that, in the event that
Net Available Proceeds related to more than one Casualty Event are held
by the Borrower, such Net Available Proceeds shall be deemed to be
utilized in the same order in which the Borrower received such Net
Available Proceeds and, accordingly, any such Net Available Proceeds so
held for more than 270 days shall be forthwith applied to the
prepayment of Loans as provided above).
Nothing in this paragraph shall be deemed to limit any
obligation of the Borrower or any of its Subsidiaries pursuant to any
of the Security Documents to remit to a collateral or similar account
maintained by the Administrative Agent pursuant to any of the Security
Documents the proceeds of insurance, condemnation award or other
compensation received in respect of any Casualty Event.
(ii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders pursuant to
Section 6.03 to any Disposition not otherwise permitted hereunder, in
the event that the Net Available Proceeds of any Disposition (herein,
the "Current Disposition"), and of all prior Dispositions as to which a
prepayment has not yet been made under this paragraph, shall exceed
$1,000,000 then, no later than five Business Days prior to the
occurrence of the Current Disposition, the Borrower will deliver to the
Lenders a statement, certified by the chief financial officer of the
Borrower, in form and detail satisfactory to the Administrative Agent,
of the amount of the Net Available Proceeds of the Current Disposition
and of all such prior Dispositions and will prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.04(k)), and/or
the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 75% of the Net Available Proceeds of the
Current Disposition and such prior Dispositions, such prepayment and/or
reduction to be effected in each case in the manner and to the extent
specified in clause (iii) of this paragraph, provided that,
notwithstanding the foregoing, the Borrower shall not be required to
make a prepayment under this clause (ii) to the extent that
(A) the Borrower advises the Administrative Agent at
the time of the relevant Disposition that it intends to use
such Net Available Proceeds to finance one or more
Acquisitions pursuant to Section 6.03, or otherwise to
reinvest the proceeds thereof into the business of the
Borrower and its Subsidiaries,
(B) such Net Available Proceeds are held by the
Borrower in a segregated investment or other account until so
used to finance one or more Acquisitions or to make such
reinvestment as contemplated above, and
(C) such Net Available Proceeds are in fact so
applied to such Acquisition(s) or reinvestment within 270 days
of such Disposition (it being understood that, in the event
Net Available Proceeds from more than one Disposition are held
by the Borrower, such Net Available Proceeds shall be deemed
to be utilized in the same order in which such Dispositions
occurred and, accordingly, any such Net Available Proceeds so
held for more than 270 days shall be forthwith applied to the
prepayment of Loans as provided above).
(iii) Application. Prepayments and/or reductions of
Commitments pursuant to this paragraph shall be apportioned between the
Revolving Credit Commitments (and Revolving Credit Exposure), and
Incremental Loan Commitments (and Incremental Loans) of each Series,
ratably in accordance with the respective then-outstanding aggregate
principal amounts of the Commitments (or Exposure or Loans), whichever
is greater, with the amounts so apportioned to be applied to the
prepayment of the respective Loans of each such Class (and to provide
cover for LC Exposure), provided that to the extent any such required
reduction of the Commitments of any Class shall exceed the
then-outstanding aggregate principal amount of the Revolving Credit
Exposure or outstanding Loans of such Class, such excess shall be
applied ratably to the prepayment of Loans (and to provide cover for LC
Exposure) of each other Class. Each prepayment of the Incremental Loans
of any Series shall be aplied to the installments thereof ratably in
accordance with the respective amounts thereof.
(c) Notices, Etc. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.11 and shall be made in the manner specified in Section
2.08(c).
SECTION 2.10. Fees.
----
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a commitment fee, which shall
accrue at the Applicable Rate on the average daily unused amount of the
Commitment of such Lender during the period from and including the date hereof
to but excluding the earlier of the date such Commitment terminates and the
Commitment Termination Date. Accrued commitment fees shall be payable on each
Quarterly Date and on the earlier of the date the Commitments terminate and the
Commitment Termination Date, commencing on the first such date to occur after
the date hereof. All commitment fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing commitment
fees, the Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Loans and LC Exposure of such Lender.
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent for account of each Revolving Credit Lender a
participation fee with respect to its participations in Letters of Credit, which
shall accrue at a rate per annum equal to the Applicable Rate applicable to
interest on Revolving Credit Eurodollar Loans on the average daily amount of
such Revolving Credit Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Revolving Credit Lender's Commitment terminates and the date on which such
Revolving Credit Lender ceases to have any LC Exposure, and (ii) to the
Administrative Agent for account of the Issuing Lender all commissions, charges,
costs and expenses in the amounts customarily charged by the Issuing Lender from
time to time in like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating thereto, as well as the
Issuing Lender's standard fees with respect to the issuance, amendment, renewal
or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees specified above accrued through and
including each Quarterly Date shall be payable on the third Business Day
following such Quarterly Date, commencing on the first such date to occur after
the Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Credit Commitments terminate and any such fees accruing
after the date on which the Revolving Credit Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Lender pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees specified above shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
(or to the Issuing Lender, in the case of fees payable to it) for distribution,
in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest.
--------
(a) ABR Loans. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount shall,
to the maximum extent permitted under applicable law, bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the Commitment Termination Date), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Borrowing
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) if such Borrowing is of a particular Class of Loans
(including of a particular Series of Incremental Loans), the
Administrative Agent is advised by the Required Revolving Credit
Lenders or the Required Incremental Loan Lenders of such Series, as the
case may be, that the Adjusted LIBO Rate for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their respective Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Borrowing (unless prepaid) shall be continued as, or converted to, an
ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
-------------------------
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Lender;
or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder, whether of principal, interest or otherwise (in any
such case, other than Indemnified Taxes or Other Taxes, which shall be governed
exclusively by Section 2.15), then the Borrower will pay to such Lender or the
Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or the Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding
company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or
the Issuing Lender setting forth the amount or amounts necessary to compensate
such Lender or the Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Lender, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or the Issuing Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or the Issuing Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than three months prior to the date
that such Lender or the Issuing Lender, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or the Issuing Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the three-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable under Section 2.09(c) and is
revoked in accordance herewith), or (d) the assignment as a result of a request
by the Borrower pursuant to Section 2.17(b) of any Eurodollar Loan other than on
the last day of an Interest Period therefor, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event.
In the case of a Eurodollar Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of (i) the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan for the period from the date of such payment, conversion, failure or
assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest rate
that would be bid by such Lender (or an affiliate of such Lender) for Dollar
deposits from other banks in the eurodollar market at the commencement of such
period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.15. Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent, each Lender and the Issuing Lender, within
10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time such Foreign
Lender becomes a party to this Agreement or time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(f) Application of Credits. If the Borrower is required to pay
amounts pursuant to the provisions of this Section 2.15, and if thereafter the
Administrative Agent, Lender or Issuing Lender (as the case may be) shall
receive or be granted a credit against or remission or other relief for
Indemnified Taxes or Other Taxes payable by the Administrative Agent, Lender or
Issuing Lender (as the case may be) and solely in respect of the amounts so paid
by the Borrower, the Administrative Agent, Lender or Issuing Lender (as the case
may be) shall to the extent that it can do so without prejudice to the retention
of the amount of such credit, remission or other relief, pay to the Borrower 30
days after the date on which the Administrative Agent, Lender or Issuing Lender
(as the case may be) actually realizes the benefit of such credit, remission or
other relief an amount which it reasonably determines to be attributable to
amounts paid by Borrower pursuant to this Section 2.15 less any sum which it is
required by law to deduct therefrom; provided that the Administrative Agent,
Lender or Issuing Lender (as the case may be) may, in its sole discretion,
determine the order of utilization of all charges, deductions, credits and
expenses. Nothing in this Section 2.15(f) shall be construed as requiring the
Administrative Agent, Lender or Issuing Lender (as the case may be) to conduct
its business or to arrange or alter in any respect its tax or financial affairs
so that it is entitled to receive such credit, remission or other relief, other
than performing any ministerial acts necessary to be entitled to receive such
credit, remission or other relief.
(g) Assessments; Contests; Etc. In the event that the
Administrative Agent, Lender or Issuing Lender (as the case may be) receives
written communication from any tax authority with respect to an assessment or
proposed assessment of any Indemnified Taxes or Other Taxes, the Administrative
Agent, Lender or Issuing Lender (as the case may be) shall promptly notify the
Borrower in writing and provide a copy of such communication to the Borrower. If
Administrative Agent, Lender or Issuing Lender (as the case may be) becomes
subject to any Indemnified Taxes or Other Taxes for which the Borrower has an
indemnity obligation pursuant to this Section 2.15, such Person shall cooperate
with the Borrower and assist the Borrower to reduce or recover amounts with
respect to such Indemnified Taxes or Other Taxes including (in such person's
sole discretion) contesting such amounts in good faith and notifying the
Borrower of any administrative or judicial proceeding with respect to such
Taxes; provided that (i) nothing contained in this Section 2.15(g) shall require
any of the Administrative Agent, Lender or Issuing Lender (as the case may be)
to reveal any tax returns or any other information deemed to be confidential by
the Administrative Agent, Lender or Issuing Lender (as the case may be) and (ii)
all expenses relating to any such contest shall be borne by the Borrower.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
-----------------------------------------------------------
(a) Payments by the Borrower. The Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or under Section 2.13, 2.14 or 2.15,
or otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except as otherwise expressly provided in the relevant Loan
Document and except payments to be made directly to the Issuing Lender as
expressly provided herein and payments pursuant to Sections 2.13, 2.14, 2.15 and
9.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder or
under any other Loan Document (except to the extent otherwise provided therein)
shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Borrowing of Loans of a particular Class (including of
a particular Series of Incremental Loans) shall be made from the relevant
Lenders, each payment of commitment fee under Section 2.10 in respect of
Commitments of a particular Class (including of a particular Series of
Incremental Loans) shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
(including of a particular Series of Incremental Loans) under Section 2.07 shall
be applied to the respective Commitments of such Class of the relevant Lenders,
pro rata according to the amounts of their respective Commitments of such Class;
(ii) each Borrowing of Loans of a particular Class shall be allocated pro rata
among the relevant Lenders according to the amounts of their respective
Commitments of such Class (in the case of the making of Loans) or their
respective Loans of such Class that are to be included in such Borrowing (in the
case of conversions and continuations of Loans); (iii) each payment or
prepayment of principal of Loans of a particular Class (including of a
particular Series of Incremental Loans) by the Borrower shall be made for
account of the relevant Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans of such Class held by them; and (iv) each
payment of interest on Loans of a particular Class (including of a particular
Series of Incremental Loans) by the Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in
LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC
Disbursements and accrued interest thereon then due than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans and participations
in LC Disbursements of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Loans and participations in LC Disbursements; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or the
Issuing Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Lender, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or the Issuing Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(e), 2.05(b) or 2.16(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.13, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.15, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.15, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, the Issuing Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and
its Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could have
a Material Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Borrower has
all necessary corporate power, authority and legal right to execute, deliver and
perform its obligations under each of the Loan Documents; the execution,
delivery and performance by the Borrower of each of the Loan Documents have been
duly authorized by all necessary corporate action on its part (including,
without limitation, any required shareholder approvals); and this Agreement has
been duly and validly executed and delivered by the Borrower and constitutes,
and the other Loan Documents to which it is a party when executed and delivered
will constitute, its legal, valid and binding obligation, enforceable against
the Borrower in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights and the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 3.03. Governmental Approvals; No Conflicts. No
authorizations, approvals or consents of, and no filings or registrations with,
any governmental or regulatory authority or agency, or any securities exchange,
are necessary for the execution, delivery or performance by the Borrower of the
Loan Documents to which it is a party or for the legality, validity or
enforceability hereof or thereof, except for filings and recordings in respect
of the Liens created pursuant to the Security Documents. None of the execution
and delivery of this Agreement and the other Loan Documents, the consummation of
the transactions herein and therein contemplated or compliance with the terms
and provisions hereof and thereof will conflict with or result in a breach of,
or require any consent under, the charter or by-laws of the Borrower, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which the Borrower or any of its Subsidiaries is a party (including, without
limitation, the Senior Subordinated Indentures) or by which any of them or any
of their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries pursuant to
the terms of any such agreement or instrument.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Statements. The Borrower has heretofore
furnished to each of the Lenders (i) the consolidated balance sheet of the
Borrower and its Subsidiaries as at February 24, 2001 and the related
consolidated statements of operations, stockholders' equity and cash flows of
the Borrower and its Subsidiaries for the fiscal year ended on said date, with
the opinion thereon of Deloitte & Touche, and (ii) the consolidated balance
sheet of the Borrower and its Subsidiaries as at May 26, 2001 and the related
consolidated statements of earnings, stockholders' equity and cash flows of the
Borrower and its Subsidiaries for the fiscal quarter ended on such date. All
such financial statements present fairly, in all material respects, the
financial position of the Borrower and its Subsidiaries as at, and the results
of operations for the fiscal year and fiscal quarter, ended on said date, all in
accordance with generally accepted accounting principles and practices applied
on a consistent basis (subject, in the case of such financial statements as at
May 26, 2001, to normal year-end audit adjustments). Neither the Borrower nor
any of its Subsidiaries has on the date hereof any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets as at said dates
or in Part A of Schedule III.
(b) No Material Adverse Change. Since February 24, 2001, there
has been no material adverse change in the financial condition, operations,
business or prospects of the Borrower and its Subsidiaries from that set forth
in said financial statements as at said date.
SECTION 3.05. Properties. The Borrower and each of its
Subsidiaries owns and has good and marketable title (subject only to Liens
permitted by Section 6.02) to the Properties shown to be owned in the most
recent financial statements referred to in Section 3.04(a) (other than
Properties disposed of in the ordinary course of business or otherwise permitted
to be disposed of pursuant to Section 6.03). The Borrower and each of its
Subsidiaries owns and has good and marketable title to, and enjoys peaceful and
undisturbed possession of, all Properties (subject only to Liens permitted by
Section 6.02) that are necessary for the operation and conduct of its
businesses.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) Actions, Suits and Proceedings. Except as disclosed to the
Lenders in writing prior to the date hereof, there are no legal or arbitral
proceedings, or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of the Borrower)
threatened against the Borrower or any of its Subsidiaries which, if adversely
determined, could have a Material Adverse Effect.
(b) Environmental Matters. Except as set forth in Schedule II,
each of the Borrower and its Subsidiaries has obtained all environmental, health
and safety permits, licenses and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. All of the permits,
licenses and authorizations that have been obtained are in full force and effect
and each of the Borrower and its Subsidiaries is in compliance with the terms
and conditions thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the extent
failure to comply therewith would not have a Material Adverse Effect.
In addition, except as set forth in Schedule II, and except as
would not result in aggregate liability or costs to the Borrower and its
Subsidiaries of more than $2,000,000 in the case of any single event or
condition, or of more than $10,000,000 in the case of all events or conditions:
(i) To the Borrower's knowledge after due inquiry, no written
notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any
alleged failure by the Borrower or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of
the business of the Borrower or any of its Subsidiaries or with respect
to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous Materials
generated by the Borrower or any of its Subsidiaries.
(ii) Neither the Borrower nor any of its Subsidiaries owns,
operates or leases a treatment, storage or disposal facility requiring
a permit under the Resource Conservation and Recovery Act of 1976, as
amended, or under any comparable state or local statute; and
(A) to the Borrower's knowledge after due inquiry, no
PCB Transformers (as defined in the Toxic Substances Control
Act, 15 U.S.C. ss.1601, et seq., as amended, and the
regulations relating thereto) are present at any site or
facility owned, operated or leased by the Borrower or any of
its Subsidiaries;
(B) to the Borrower's knowledge after due inquiry, no
asbestos or asbestos-containing materials is present at any
site or facility owned, operated or leased by the Borrower or
any of its Subsidiaries;
(C) to the Borrower's knowledge after due inquiry,
there are no underground storage tanks or surface impoundments
for Hazardous Materials, active or abandoned, at any site or
facility owned, operated or leased by the Borrower or any of
its Subsidiaries; and
(D) to the Borrower's knowledge after due inquiry, no
Hazardous Materials have been Released by the Borrower or any
of its Subsidiaries at, on or under any site or facility now
owned, operated or leased by the Borrower or any of its
Subsidiaries in a reportable quantity established by any
Environmental Law.
(iii) To the Borrower's knowledge after due inquiry, neither
the Borrower nor any of its Subsidiaries has transported or arranged
for the transportation of any Hazardous Material to any location that
is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the NPL
by the Environmental Protection Agency, or listed in the Comprehensive
Environmental Response and Liability Information System, as provided
for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar state or
local list or that is the subject of Federal, state or local
enforcement actions or other investigations that may lead to
Environmental Claims against the Borrower or any of its Subsidiaries.
(iv) No Liens are presently recorded with the appropriate land
records under or pursuant to any Environmental Laws on any site or
facility owned, operated or leased by the Borrower or any of its
Subsidiaries, and to the Borrower's knowledge no government action has
been taken or is in process that could subject any such site or
facility to such Liens. Neither the Borrower nor any of its
Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any site or facility
owned by it in any deed to the real property on which such site or
facility is located.
(v) There have been no environmental investigations, written
studies, audits, tests, reviews or other analyses conducted by or that
are in the possession of the Borrower or any of its Subsidiaries in
relation to any site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries which have not been
made available to the Lenders.
SECTION 3.07. Compliance with Laws. Except as set forth in
Schedule V, each of the Borrower and its Subsidiaries is in compliance with all
applicable laws, rules, regulations and orders of, and all applicable
restrictions imposed by, all governmental authorities or bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
Property (including Environmental Laws), except such noncompliance as would not,
in the aggregate, have a Material Adverse Effect on the business, properties,
assets, operations, condition (financial or otherwise), or prospects of the
Borrower and its Subsidiaries, taken as a whole.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. Neither the Borrower nor any of its
Subsidiaries is a "holding company", or an "affiliate" of a "holding company" or
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.09. Taxes. The Borrower and its Domestic
Subsidiaries are members of an affiliated group of corporations filing
consolidated returns for Federal income tax purposes, of which the Borrower is
the "common parent" (within the meaning of Section 1504 of the Code) of such
group. The Borrower and its Domestic Subsidiaries have filed all Federal income
tax returns and all other material tax returns that are required to be filed by
them and have paid all taxes shown to be due pursuant to such returns or
pursuant to any assessment received by the Borrower or any of its Domestic
Subsidiaries. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes and other governmental charges are, in
the opinion of the Borrower, adequate. Except as set forth in Schedule VI, the
Borrower has not given or been requested to give a waiver of the statute of
limitations relating to the payment of Federal, state, local and foreign taxes
or other impositions.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. As of the date hereof, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not exceed by more than $1,000,000 the fair market value of the
assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not exceed by more
than $1,000,000 the fair market value of the assets of all such underfunded
Plans.
SECTION 3.11. Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Borrower to the Administrative Agent or any Lender prior to the Effective Date
in connection with the negotiation, preparation or delivery of this Agreement
and the other Loan Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole (together with the Information
Memorandum which the Lenders acknowledge contains projections based on certain
assumptions therein stated) do not contain any untrue statement of material fact
or omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished on or after the Effective Date by
the Borrower and its Subsidiaries to the Administrative Agent and the Lenders in
connection with this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable estimates,
on the date as of which such information is stated or certified. There is no
fact known to the Borrower that could have a Material Adverse Effect that has
not been disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
SECTION 3.12. Use of Credit. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock, and no part of the
proceeds of any extension of credit hereunder will be used to buy or carry any
Margin Stock.
SECTION 3.13. Material Agreements and Liens.
-----------------------------
(a) Indebtedness. Part A of Schedule III is a complete and
correct list, as of the date hereof, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the
Borrower or any of its Subsidiaries the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $1,000,000, and the aggregate
principal or face amount outstanding or that may become outstanding under each
such arrangement is correctly described in Part A of said Schedule III.
(b) Liens. Part B of Schedule III is a complete and correct
list, as of the date hereof, of each Lien securing Indebtedness the aggregate
principal or face amount of which equals or exceeds $1,000,000 of any Person and
covering any Property of the Borrower or any of its Subsidiaries, and the
aggregate amount of such Indebtedness secured (or which may be secured) by each
such Lien and the Property covered by each such Lien is correctly described in
Part B of said Schedule III.
SECTION 3.14. Subsidiaries and Investments.
----------------------------
(a) Subsidiaries. Set forth in Part A of Schedule IV is a
complete and correct list, as of the date hereof, of all of the Subsidiaries of
the Borrower, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary, (iii) the nature of the ownership interests held by each such
Person and the percentage of ownership of such Subsidiary represented by such
ownership interests and (iv) the total book value of the assets of each such
Subsidiary as of May 26, 2001 (or, in the case of Subsidiaries acquired after
May 26, 2001, such other date as specified in Part A of Schedule IV). Except as
disclosed in Part A of Schedule IV, (x) each of the Borrower and its
Subsidiaries owns, free and clear of Liens (other than Liens created pursuant to
the Security Documents), and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Part A of Schedule
IV, (y) all of the issued and outstanding capital stock of each such Person
organized as a corporation is validly issued, fully paid and nonassessable and
(z) there are no outstanding Equity Rights with respect to such Person.
(b) Investments. Set forth in Part B of Schedule IV is a
complete and correct list, as of the date hereof, of all Investments (other than
Investments disclosed in Part A of said Schedule IV) of $1,000,000 or more held
by the Borrower or any of its Subsidiaries in any Person and, for each such
Investment, (x) the identity of the Person or Persons in which such Investment
has been made, (y) the nature of such Investment and (z) the amount of such
Investment. Except as disclosed in Part B of Schedule IV, each of the Borrower
and its Subsidiaries owns, free and clear of all Liens (other than Liens created
pursuant to the Security Documents), all such Investments.
(c) No Restrictive Covenants. Except as set forth in Part A
of Schedule III, none of the Subsidiaries of the Borrower is subject to any
indenture, agreement, instrument or other arrangement of the type described in
Section 5.06(c).
SECTION 3.15. Capitalization. The authorized capital stock, as
of the date hereof, of the Borrower consists of an aggregate of 51,000,000
shares consisting of (i) 50,000,000 shares of common stock, par value $0.01 per
share, of which 32,118,788 shares were, as at May 26, 2001 duly and validly
issued and outstanding, each of which shares is fully paid and nonassessable and
(ii) 1,000,000 shares of preferred stock, par value $0.01 per share, of which no
shares were outstanding as at May 26, 2001. The Borrower is registered with the
Securities and Exchange Commission under the Securities Exchange Act, and its
shares of common stock are publicly owned and traded on the NASDAQ National
Market System. As of the date hereof, (x) except for options to purchase
5,770,735 shares of the common stock of the Borrower, there are no outstanding
Equity Rights with respect to the Borrower and (y) there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Lender to issue Letters of Credit hereunder
shall not become effective until the date on which the Administrative Agent
shall have received each of the following documents, each of which shall be
satisfactory to the Administrative Agent (and to the extent specified below, to
each Lender) in form and substance (or such condition shall have been waived in
accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinions of Counsel to the Borrower. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of (i) Shearman & Sterling, counsel for the
Borrower, substantially in the form of Exhibit C, and covering such
other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably request and (ii)
of Jeff E. Moriarty, General Counsel to the Borrower, substantially in
the form of Exhibit D (and the Borrower hereby instructs such counsel
to deliver such opinions to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to Chase, substantially in the form of Exhibit
E (and Chase hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating
to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President or a senior
financial officer of the Borrower, confirming compliance with the
conditions set forth in the lettered clauses of the first sentence of
Section 4.02.
(f) Security Agreement. The Security Agreement, duly executed
and delivered by the Borrower and the Administrative Agent and the
certificates identified in Annex 3 thereto, in each case accompanied by
undated stock powers executed in blank. In addition, the Borrower shall
have taken such other action (including delivering to the
Administrative Agent, for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to perfect the
security interests created pursuant to the Security Agreement.
(g) Other Documents. Such other documents as the Administra-
tive Agent or any Lender or special New York counsel to Chase may reasonably
request.
The obligation of each Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Chase, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lender to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) on or prior to 3:00 p.m., New York City time, on
August 21, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make any Loan, and of the Issuing Lender to issue, amend, renew or extend any
Letter of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) the representations and warranties of the Borrower set
forth in this Agreement and in the other Loan Documents shall be true
and correct on and as of the date of such Loan or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable;
(b) at the time of and immediately after giving effect to such
Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be
continuing; and
(c) the incurrence of such additional Indebtedness shall be
permitted under the Subordinated Indentures (and, upon request from the
Administrative Agent, a senior financial officer of the Borrower shall
deliver to the Administrative Agent a certificate setting forth
calculations in sufficient detail to demonstrate compliance with this
clause (c)).
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
The Borrower will furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 60 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Borrower, consolidated statements of earnings,
stockholders' equity and cash flows of the Borrower and its
Subsidiaries, for such period and for the period from the beginning of
the respective fiscal year to the end of such period, setting forth in
each case in comparative form the corresponding consolidated figures
for the corresponding period in the preceding fiscal year, and the
related consolidated balance sheet of the Borrower and its
Subsidiaries, as at the end of such period, setting forth in
comparative form the corresponding consolidated figures for the last
day of the preceding fiscal year, accompanied by a certificate of a
senior financial officer of the Borrower, which certificate shall state
that said consolidated financial statements present fairly, in all
material respects, the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries, in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, consolidated
statements of operations and stockholders' equity of the Borrower and
its Subsidiaries, and consolidated statements of cash flows of the
Borrower and its Subsidiaries, for such fiscal year and the related
consolidated balance sheets of the Borrower and its Subsidiaries as at
the end of such fiscal year, setting forth in each case in comparative
form the corresponding consolidated figures for the preceding fiscal
year, and accompanied by an opinion thereon of independent certified
public accountants of recognized national standing, which opinion shall
state that said consolidated financial statements present fairly, in
all material respects, the consolidated financial condition and results
of operations of the Borrower and its Subsidiaries as at the end of,
and for, such fiscal year in accordance with generally accepted
accounting principles, and a report of such accountants stating that,
in making the examination necessary for their opinion, nothing came to
their attention, except as specifically stated, that caused them to
believe that the Borrower had failed to comply with Sections 6.06 and
6.08, or any other provisions hereof, insofar as they relate to
accounting matters;
(c) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, statements of
information concerning net sales, operating earnings, depreciation and
amortization of each division of the Borrower and its Subsidiaries
(including, without limitation, the Seating Products Group, the
Interior Systems Group, the Business Jet Group and the Flight
Structures Group) for such period setting forth in each case in
comparative form the corresponding figures for the preceding fiscal
year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which the
Borrower shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(e) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) Within 20 Business Days after the date of any material
Acquisition or Disposition and at the time of delivery of the financial
statements for the first four Fiscal Dates thereafter, pro forma
consolidated statements of earnings of the Borrower and its
Subsidiaries for the relevant Calculation Period and related pro forma
consolidated balance sheet items necessary for the pro forma
calculation of compliance with the covenants in this Agreement of the
Borrower and its Subsidiaries as of the last day of each fiscal quarter
of the Borrower occurring during such Calculation Period, prepared as
though such material Acquisition or Disposition had occurred, and any
Funded Debt incurred, assumed or repaid by the Borrower or any of its
Subsidiaries in connection with such Acquisition or Disposition had
been incurred, assumed or repaid, on the first day of such Calculation
Period; provided, that, solely for purposes of this Section 5.01(f),
the term "material" shall, in the case of any Acquisition, refer to a
transaction that can reasonably be expected to result in an increase by
10% or more of the aggregate consolidated revenues of the Borrower and
its Subsidiaries and, in the case of any Disposition, refer to a
transaction that can reasonably be expected to result in a decrease by
10% or more of the aggregate consolidated revenues of the Borrower and
its Subsidiaries;
(g) with the delivery of the financial statements pursuant to
Sections 5.01(a) and 5.01(b), a statement of a senior financial officer
of the Borrower (A) listing each Disposition by the Borrower and its
Subsidiaries that occurred during the quarterly fiscal period ending on
the date of such financial statements if the Net Available Proceeds
thereof exceeded $1,000,000 and (B) setting forth in reasonable detail
the Net Available Proceeds of each such Disposition and the aggregate
Net Available Proceeds since the first day of the then current
Recapture Period;
(h) promptly but in any event within 90 days following the
change in the fiscal year of the Borrower contemplated by Section
1.04(c), pro forma consolidated statements of operations and
stockholders' equity of the Borrower and its Subsidiaries, and pro
forma consolidated statements of cash flows of the Borrower and its
Subsidiaries, for such each fiscal quarter ending on the changed
quarter-end dates necessary in order to determine compliance with the
requirements of Section 6.08; and
(i) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender or the Administrative Agent may
reasonably request.
The Borrower will furnish to each Lender, at the time it
furnishes each set of financial statements pursuant to paragraph (a), (b) or (f)
above, a certificate of a senior financial officer of the Borrower (i) to the
effect that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail and
describing the action that the Borrower has taken or proposes to take with
respect thereto) and (ii) setting forth in reasonable detail (x) the
computations necessary to determine whether the Borrower is in compliance with
Sections 6.01(e), 6.01(h), 6.05(f), 6.05(h), 6.06 and 6.08, and (y) the Interest
Coverage Ratio and the Leverage Ratio as of the end of the respective quarterly
fiscal period, fiscal year or Calculation Period.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Affiliates or
Subsidiaries that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $5,000,000;
(d) the assertion of any Environmental Claim by any Person
against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations,
other than any Environmental Claim or alleged violation that, if
adversely determined, would not (either individually or in the
aggregate) have a Material Adverse Effect; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a senior financial officer of the Borrower setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business; Etc.
The Borrower will, and will cause each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section shall prohibit any transaction expressly
permitted under Section 6.03);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could have a Material
Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
SECTION 5.04. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, keep insured by financially sound and reputable
insurers all Property of a character usually insured by corporations engaged in
the same or similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against by such corporations and
carry such other insurance as is usually carried by such corporations.
SECTION 5.05. Use of Proceeds and Letters of Credit. The
Borrower will use the proceeds of the Loans hereunder solely (i) to finance
ongoing working capital and other capital requirements of the Borrower and (ii)
to finance Acquisitions; provided that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds; and
provided further that no more than $100,000,000 of the Revolving Credit
Commitments may be used for the purposes set forth in clause (ii) above.
SECTION 5.06. Certain Obligations Respecting Subsidiaries.
-------------------------------------------
(a) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that the Borrower and each of its Subsidiaries at all
times owns (subject only to the Lien of the Security Documents) at least the
same percentage of the issued and outstanding shares of each class of stock or
partnership or other ownership interest of each of its Subsidiaries as is owned
on the date hereof (or, with respect to any Subsidiary acquired or organized
after the date hereof, as of the date of such acquisition or organization);
provided that nothing contained in this Section 5.06(a) shall prevent the
Borrower from selling shares of Advanced Thermal Sciences Corporation pursuant
to an initial public offering of such shares.
Without limiting the generality of the foregoing, none of the
Borrower nor any of its Subsidiaries shall sell, transfer, pledge or otherwise
dispose of any shares of stock or partnership or other ownership interest in any
Subsidiary owned by them, nor permit any Subsidiary to issue any shares of stock
of any class or partnership or other ownership interest whatsoever to any Person
(other than to the Borrower or the immediate parent of such Subsidiary which is
a Wholly Owned Subsidiary of the Borrower). In the event that (a) any such
additional shares of stock or partnership or other ownership interest shall be
issued by any such Subsidiary or (b) the Borrower shall directly or indirectly
create any new Material Subsidiary or Acquire any additional Material Subsidiary
and shall thereby become the direct owner of the shares of capital stock or
partnership or other ownership interest of such new or additional Material
Subsidiary, the Borrower agrees forthwith to deliver to the Administrative Agent
pursuant to security documents satisfactory to the Lenders, any shares,
certificates of ownership, membership interests or other evidence of ownership,
or other securities received as a result therefrom (together with undated stock
or other powers executed in blank) and shall give, execute, deliver, file and/or
record any financing statement, notice, instrument, document, agreement or other
papers that may be necessary or desirable (in the judgment of the Administrative
Agent) to create, preserve or validate the security interest created therein,
including, without limitation, causing any or all of the Collateral (as defined
in the Security Agreement) to be transferred of record into the name of the
Administrative Agent; provided that if any such direct Material Subsidiary of
the Borrower is a CFC, the Borrower need not pledge to the Administrative Agent
more than 65% of the capital stock, partnership or other ownership interest in
such Material Subsidiary.
(b) Guarantees by Subsidiaries. In the event that any one or
more of the Subsidiaries of the Borrower shall Guarantee Indebtedness of the
Borrower in an aggregate principal amount (as to all such Guarantees) in excess
of $25,000,000, then the Borrower will cause such Subsidiary to Guarantee the
"Secured Obligations" under and as defined in the Security Agreement pursuant to
an agreement in form and substance satisfactory to the Administrative Agent and
to deliver to the Administrative Agent such proof of corporate and other action,
and opinions of counsel, in connection therewith as the Administrative Agent
shall reasonably request.
(c) No Restrictive Agreements. The Borrower will not permit
any of its Subsidiaries to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances or Investments or the sale, assignment, transfer
or other disposition of Property.
(d) Transfer of Assets from Subsidiaries.
------------------------------------
(i) The Borrower will cause each of B/E Oxygen Systems
Company, a California corporation, SMR Technologies, Inc.,
an Ohio corporation and Alson Industries, Inc., a California
corporation to:
(A) not later than 60 days after the Effective Date,
transfer (whether through merger or otherwise) all of the
tangible Property owned by such Subsidiary to the Borrower
pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent; and
(B) not later than 120 days after the Effective Date,
transfer (whether through merger or otherwise) all of the
intangible Property owed by such Subsidiary to the Borrower
pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent;
(ii) In connection with the foregoing clause (i), the Borrower
will and will cause each such Subsidiary to,
(A) take such action (including delivering shares of
stock, executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary or desirable (in
the judgment of the Administrative Agent) to create and
perfect valid and enforceable Liens (subject only to Liens
permitted by Section 6.02) on all of such transferred assets
in favor of the Administrative Agent for the benefit of the
Secured Parties as provided in the Security Agreement; and
(B) deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by the
Borrower pursuant to Section 4.01 on the Effective Date or as
the Administrative Agent shall have requested.
(iii) Upon the completion of the transfer of all of the
tangible and intangible Property from any such Subsidiary to the
Borrower and the execution and delivery of such documents as required
by paragraph (ii) above, the Administrative Agent and each Lender
agrees that the Administrative Agent shall release any Lien covering
ownership interests of such Subsidiary pledged by the Borrower to the
Administrative Agent for the benefit of the Secured Parties pursuant to
the Security Agreement.
SECTION 5.07. Environmental Matters.
---------------------
(a) Compliance Generally. The Borrower will, and will cause
each of its Subsidiaries to, comply with all Environmental Laws applicable to
the Borrower and each of its Subsidiaries, except to the extent that failure to
comply with such laws would not have a Material Adverse Effect, and shall
obtain, at or prior to the time required by applicable Environmental Laws, all
environmental, health and safety permits, licenses and other authorizations
necessary for its operations and maintain such authorizations in full force and
effect.
(b) Clean-up of Hazardous Materials. If the Borrower discovers
evidence of the presence of any Hazardous Materials in any amount that is
required to be reported under Environmental Law, the Borrower will promptly
clean-up such Hazardous Materials or take such other remedial action as is (a)
required by law or (b) deemed necessary by the Borrower in its reasonable
determination, such determination to be based in part on the advice of
independent environmental consultants acceptable to the Borrower and the
Administrative Agent.
(c) Notices of Environmental Claims. The Borrower shall
promptly furnish to the Administrative Agent all written notices of any
Environmental Claims received by the Borrower or any of its Subsidiaries with
respect to any alleged violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations issued thereunder in connection
with the ownership, operation or use of any site or facility or the operation of
their businesses or the presence or Release of Hazardous Substances, which
Environmental Claim if determined adversely to the Borrower would have a
Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, nor will
it permit any of its Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding or committed on the date hereof
and, if equal to or in excess of $1,000,000, listed in Part A of
Schedule III and any extension, renewal or replacement thereof;
(c) Indebtedness of Subsidiaries of the Borrower to the
Borrower;
(d) Indebtedness of the Borrower to its Subsidiaries and
Indebtedness of Subsidiaries of the Borrower to other Subsidiaries
of the Borrower;
(e) Indebtedness of the Borrower and its Subsidiaries secured
by Liens permitted under Sections 6.02(i), 6.02(j) and 6.02(k);
(f) Guarantees by any Subsidiary of the Borrower of
Indebtedness of the Borrower or any Subsidiary of the Borrower;
(g) unsecured Indebtedness of the Borrower that has no
regularly scheduled maturity or mandatory prepayments on or before the
Commitment Termination Date (or, if any Incremental Loans are
not include required prepayments (including, without limitation, as a
result of a change of control or asset sale) on terms less favorable to
the Lenders than the Senior Subordinated Indentures, and that is
subordinated in right of payment to the Loans at least to the extent
provided in the Senior Subordinated Indentures;
(h) additional unsecured Indebtedness of the Borrower and its
Subsidiaries up to but not exceeding in the aggregate $50,000,000 at
any one time outstanding; provided that any (i) such Indebtedness of
any such individual Subsidiary (other than any Domestic Subsidiary) may
not exceed $10,000,000 in the aggregate at any one time outstanding and
(ii) such Indebtedness of any such individual Domestic Subsidiary may
not exceed $2,000,000 in the aggregate at any one time outstanding; and
(i) additional indebtedness of B/E Aerospace Holdings (UK)
Limited in an amount not to exceed (pound)5,000,000 under the Loan
Agreement dated as of February 24, 1993 with Barclays Bank PLC, as
amended or refinanced.
SECTION 6.02. Liens. The Borrower will not, nor will it permit
any of its Domestic Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except:
(a) Liens created pursuant to the Security Documents;
(b) Liens outstanding on the date hereof and listed in
Part B of Schedule III;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the
Borrower or the affected Domestic Subsidiaries, as the case may be, in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
and Liens securing judgments but only to the extent, for an amount and
for a period not resulting in an Event of Default under clause (h) of
Article VII;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Domestic Subsidiaries;
(h) Liens on Property of any corporation which becomes a
Domestic Subsidiary of the Borrower after the date hereof; provided
that such Liens are in existence at the time such corporation becomes a
Domestic Subsidiary of the Borrower and were not created in
anticipation thereof;
(i) subject to the restrictions contained in the Security
Documents, Liens upon real and/or tangible personal Property and/or
software and license rights with respect to software (including,
without limitation, software and license rights with respect to
software under the GE Lease Agreement) acquired after the date hereof
(by purchase, construction or otherwise) by the Borrower or any of its
Domestic Subsidiaries other than in connection with any Acquisition by
the Borrower or any of its Domestic Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof, or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that no such Lien shall extend
to or cover any Property of the Borrower or such Domestic Subsidiary
other than the Property so acquired and improvements thereon; and
provided, further, that the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 100% of the fair market value (as
determined in good faith by a senior financial officer of the Borrower)
of such Property at the time it was acquired (by purchase, construction
or otherwise);
(j) any Liens arising as a result of (i) the sale of real
property owned by the Borrower or any Subsidiary of the Borrower which
property is, immediately following such sale, leased back to the
respective seller thereof and (ii) the consummation of the Proposed
Sale/Leasebacks;
(k) additional Liens upon real and/or tangible personal
Property of the Borrower or any of its Domestic Subsidiaries created
after the date hereof; provided that the aggregate Indebtedness secured
thereby and incurred on and after the date hereof shall not exceed
$30,000,000 in the aggregate at any one time outstanding; and
(l) any extension, renewal or replacement of the foregoing;
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
SECTION 6.03. Fundamental Changes. The Borrower will not, nor
will it permit any of its Subsidiaries to, enter into any transaction of merger
or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution) or Dispose of all or substantially all of
its Property. The Borrower will not, nor will it permit any of its Subsidiaries
to, to make any Acquisition except for Investments permitted under Section 6.05.
Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into: (i) the Borrower if the Borrower shall be
the continuing or surviving corporation or (ii) any other such
Subsidiary; provided that if any such transaction shall be between a
Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary
shall be the continuing or surviving corporation;
(b) any Subsidiary of the Borrower may Dispose of assets to
the Borrower or any other Subsidiary of the Borrower;
(c) subject to Section 6.04, the Borrower or any Subsidiary of
the Borrower may make any Acquisition; provided that immediately prior
to and after giving effect to any such Acquisition, (i) no Default
shall have occurred and be continuing and (ii) not more than
$100,000,000 of the proceeds of the Revolving Credit Loans then
outstanding shall have been applied, directly by the Borrower or
indirectly through a Subsidiary, for the purposes specified in clause
(ii) of Section 5.05; and
(d) the Borrower or any Subsidiary of the Borrower may make
any Acquisition from any Subsidiary of the Borrower in each case for
consideration that is not in excess of the fair market value of the
Property acquired in such Acquisition as determined in good faith by
the chief financial officer of the Borrower.
SECTION 6.04. Lines of Business. Neither the Borrower nor any
of its Subsidiaries shall engage to any substantial extent in any line or lines
of business activity other than the business of designing, manufacturing,
distributing, selling, leasing and servicing products used in commercial
aircraft, business jets, buses and trains and servicing and acting as a broker
in the sales and leases of such products together with any other business
reasonably related to the foregoing.
SECTION 6.05. Investments. The Borrower will not, nor will
it permit any of its Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and
identified in Schedule IV Part B;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower in Subsidiaries of the
Borrower in the ordinary course of business; provided that the
aggregate amount of Customer Obligations (as defined in paragraph (h)
below) that are not fully secured (whether by a perfected Lien on, or
an indefeasible title retention to, the products so sold or leased, or
otherwise) plus the aggregate fair market value of all Property
(whether now owned or hereafter acquired) of the Borrower or any of its
Subsidiaries (as determined in good faith by the chief financial
officer of the Borrower) sold, assigned, transferred or otherwise
disposed of on or after May 26, 2001 to any Minority-Owned Entities (as
defined in paragraph (h) below) plus the aggregate book value (at the
time of its transfer) of all Property (not including cash and not
including any Property that is subject to a Lien in favor of the
Administrative Agent for the benefit of the Lenders) transferred by the
Borrower to any one or more Subsidiaries since May 26, 2001 shall not
exceed in the aggregate at any one time outstanding the greater of (x)
$50,000,000 and (y) 5% of Adjusted Net Worth as of the most recent
Fiscal Date for which financial statements have been provided
hereunder;
(e) Investments by Subsidiaries of the Borrower in other
Subsidiaries of the Borrower and in the Borrower;
(f) Interest Rate Protection Agreements entered into in the
ordinary course of the Borrower's financial planning and not for
speculative purposes;
(g) Investments permitted by clause (c) of the last sentence
of Section 6.03; and
(h) Investments of the Borrower and its Subsidiaries (i) in
corporations, companies, limited liability companies, partnerships and
other entities in each case that are not, or do not thereby become,
Subsidiaries of the Borrower ("Minority-Owned Entities") or (ii)
representing obligations of customers owing to the Borrower and its
Subsidiaries in respect of the deferred purchase price of products or
services sold or the leasing of products to customers ("Customer
Obligations"), in each case in the ordinary course of business of the
Borrower and its Subsidiaries as provided for in Section 6.04 hereof
and on such terms as the management of the Borrower may determine in
its reasonable business judgment, provided that the aggregate amount of
such Customer Obligations that are not fully secured (whether by a
perfected Lien on, or an indefeasible title retention to, the products
so sold or leased, or otherwise) plus the aggregate fair market value
of all Property (whether now owned or hereafter acquired) of the
Borrower or any of its Subsidiaries (as determined in good faith by the
chief financial officer of the Borrower) sold, assigned, transferred or
otherwise disposed of on or after May 26, 2001 to any such
Minority-Owned Entities plus the aggregate book value (at the time of
its transfer) of all Property (not including cash and not including
Property that is subject to a Lien in favor of the Administrative Agent
for the benefit of the Lenders) transferred by the Borrower to any one
or more Subsidiaries since May 26, 2001 shall not exceed in the
aggregate at any one time outstanding the greater of (x) $50,000,000
and (y) 5% of Adjusted Net Worth as of the most recent Fiscal Date for
which financial statements have been provided hereunder.
SECTION 6.06. Restricted Payments. The Borrower will not, nor
will it permit any of its Subsidiaries to, declare or make any Restricted
Payment at any time; provided that (i) so long as no Default shall have occurred
and be continuing or result therefrom, the Borrower may make Restricted Payments
in an amount up to but not exceeding (A) $25,000,000 in the aggregate plus (B)
the aggregate proceeds of the sale, assignment, transfer or other disposition of
any shares of stock of Advanced Thermal Sciences Corporation in connection with
an initial public offering of such shares of stock plus (C) in any fiscal year
of the Borrower, an aggregate amount up to but not exceeding 25% of the net
earnings of the Borrower for the immediately preceding fiscal year ("Available
Net Earnings"), provided that any portion of Available Net Earnings not used for
Restricted Payments in any fiscal year (the "Carry-Over Amount") may be used for
Restricted Payments in the immediately succeeding fiscal year only, for which
purpose Restricted Payments in any fiscal year shall be deemed to have been made
first from Available Net Earnings, and only thereafter from any Carry-Over
Amount, such Restricted Payments set forth in clauses (i)(A) and (B) hereof not
to exceed $75,000,000 in the aggregate, and (ii) any Subsidiary of the Borrower
may make Restricted Payments to the Borrower or any other Subsidiary of the
Borrower from time to time.
SECTION 6.07. Transactions with Affiliates. Except as set
forth in Schedule VII or as expressly permitted by this Agreement, the Borrower
will not, nor will it permit any of its Subsidiaries to, directly or indirectly:
(a) make any Investment in an Affiliate; (b) transfer, sell, lease, assign or
otherwise dispose of any Property to an Affiliate; (c) merge into or consolidate
with or purchase or acquire Property from an Affiliate; or (d) enter into any
other transaction directly or indirectly with or for the benefit of an Affiliate
(including, without limitation, guarantees and assumptions of obligations of an
Affiliate); provided that (x) any Affiliate who is an individual may serve as a
director, officer or employee of the Borrower or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity and (y)
the Borrower and its Subsidiaries may enter into transactions (other than
extensions of credit by the Borrower or any of its Subsidiaries to an Affiliate)
providing for the leasing of Property, the rendering or receipt of services or
the purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Borrower and its Subsidiaries as the
monetary or business consideration which would obtain in a comparable
transaction with a Person not an Affiliate.
SECTION 6.08. Certain Financial Covenants.
---------------------------
(a) Leverage Ratio. The Borrower will not permit the
Leverage Ratio to exceed the following respective ratios at any time during the
following respective periods:
(A) (B)
Pre Change in Fiscal Post Change in Fiscal Ratio
Year Period Year Period
From (but not including) the From (but not including) the 5.25 to 1
Effective Date through the Effective Date through the Fiscal
Fiscal Date in February 2003 Date in December 2002
From (but not including) the From (but not including) the 4.90 to 1
Fiscal Date in February 2003 Fiscal Date in December 2002
through the Fiscal Date in through the Fiscal Date in
February 2004 December 2003
From (but not including) the From (but not including) the 4.25 to 1
Fiscal Date in February 2004 Fiscal Date in December 2003
through the Fiscal Date in through the Fiscal Date in
February 2005 December 2004
Thereafter Thereafter 4.00 to 1
For purposes hereof, the periods set forth in column (A) above shall be
applicable until such time as the Borrower shall have delivered the pro forma
financial statements referred to in Section 5.01(h) following a change in the
Borrower's fiscal year as contemplated in Section 1.04(c), in which event the
periods set forth in column (B) above shall be applicable.
(b) Interest Coverage Ratio. The Borrower will not permit
the Interest Coverage Ratio to be less than the following respective ratios at
any time during the following respective periods:
(A) (B)
Pre Change in Fiscal Post Change in Fiscal Ratio
Year Period Year Period
From (but not including) the From (but not including) the 2.00 to 1
Effective Date through the Effective Date through the Fiscal
Fiscal Date in February 2003 Date in December 2002
From (but not including) the From (but not including) the 2.25 to 1
Fiscal Date in February 2003 Fiscal Date in December 2002
through the Fiscal Date in through the Fiscal Date in
February 2004 December 2003
From (but not including) the From (but not including) the 2.50 to 1
Fiscal Date in February 2004 Fiscal Date in December 2003
through the Fiscal Date in through the Fiscal Date in
February 2005 December 2004
From (but not including) the From (but not including) the 2.75 to 1
Fiscal Date in February 2005 Fiscal Date in December 2004
through the Fiscal Date in through the Fiscal Date in
February 2006 December 2005
Thereafter Thereafter 3.00 to 1
For purposes hereof, the periods set forth in column (A) above shall be
applicable until such time as the Borrower shall have delivered the pro forma
financial statements referred to in Section 5.01(h) following a change in the
Borrower's fiscal year as contemplated in Section 1.04(c), in which event the
periods set forth in column (B) above shall be applicable.
(c) Adjusted Net Worth. The Borrower will not at any date
permit Adjusted Net Worth to be less than the sum of (a) $150,000,000 plus (b)
50% of the aggregate amount of Net Available Proceeds of Equity Issuances since
May 26, 2001 plus (c) 50% of the sum of consolidated net earnings of the
Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) for each fiscal quarter of the Borrower
ending after May 26, 2001; provided that consolidated net earnings for any
fiscal quarter in which there is a consolidated net loss shall be deemed to be
zero.
SECTION 6.09. Modifications of Certain Documents. The Borrower
will not consent to (i) any modification, supplement or waiver of any of the
provisions of the Senior Subordinated Indentures or (ii) to the creation of any
class of preferred stock that has a mandatory redemption date prior to the
Commitment Termination Date; provided that any Senior Subordinated Indenture may
be amended in connection with, and to facilitate, the purchase, redemption,
prepayment, defeasance or other retirement in full of the Indebtedness issued
pursuant thereto, which purchase, redemption, prepayment, defeasance or other
retirement is permitted hereunder.
SECTION 6.10. Redemption of Senior Subordinated Indebtedness.
----------------------------------------------
(a) Redemptions Generally. Except as permitted by Section
6.06, the Borrower will not prepay, redeem, effect a defeasance or covenant
defeasance or otherwise retire any of the Indebtedness issued pursuant to the
Senior Subordinated Indentures.
(b) Synthetic Redemptions. The Borrower will not, and will not
permit any Subsidiary to, enter into or be party to, or make any payment under,
any Synthetic Purchase Agreement unless (i) in the case of any Synthetic
Purchase Agreement related to any Indebtedness issued pursuant to the Senior
Subordinated Indentures, the payments required to be made by the Borrower or its
Subsidiaries thereunder are limited to the amount permitted under Section 6.06
and (ii) in the case of any Synthetic Purchase Agreement, the obligations of the
Borrower and the Subsidiaries thereunder are subordinated to the obligations
under the Loan Documents on terms satisfactory to the Administrative Agent.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) The Borrower shall (i) default in the payment of any
principal of any Loan or any reimbursement obligation in respect of any
LC Disbursement when due (whether at stated maturity or upon mandatory
or optional prepayment) or (ii) default in the payment of any interest
on any Loan, any fee or any other amount payable by it hereunder or
under any other Loan Document when due (whether at stated maturity or
upon mandatory or optional prepayment or otherwise) and such default
shall have continued unremedied for three or more Business Days; or
(b) The Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $5,000,000 or more, or in the payment
when due of any amount aggregating $5,000,000 or more under any
Interest Rate Protection Agreement; or any event specified in any note,
agreement, indenture or other document evidencing or relating to any
such Indebtedness or any event specified in any Interest Rate
Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity
or to have the interest rate thereon reset to a level so that
securities evidencing such Indebtedness trade at a level specified in
relation to the par value thereof or, in the case of an Interest Rate
Protection Agreement, to permit the payments owing under such Interest
Rate Protection Agreement to be liquidated in an amount aggregating
$5,000,000 or more; or
(c) Any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by the Borrower, or any
certificate furnished to any Lender or the Administrative Agent
pursuant to the provisions hereof or thereof shall prove to have been
false or misleading in any material respect as of the time made or
furnished; or
(d) The Borrower shall default in the performance of any of
its obligations under any of Sections 5.02(a), 5.06(d), 6.02, 6.03,
6.05, 6.06 or 6.08 or the Borrower shall default in the performance of
any of its obligations under Section 5.03 of the Security Agreement; or
the Borrower shall default in the performance of any of its other
obligations in this Agreement or any other Loan Document and such
default shall continue unremedied for a period of thirty days after
notice thereof to the Borrower by the Administrative Agent or any
Lender (through the Administrative Agent); or
(e) The Borrower or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) The Borrower or any of its Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of
all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code or
(vi) take any corporate action for the purpose of effecting any of the
foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition
or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the Borrower or
such Subsidiary or of all or any substantial part of its Property, or
(iii) similar relief in respect of the Borrower or such Subsidiary
under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding
or case shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an
order for relief against the Borrower or such Subsidiary shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or in excess of $20,000,000 in the aggregate
(regardless of insurance coverage) shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Borrower or any of its Subsidiaries and the same shall not
be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 30 days from
the date of entry thereof and the Borrower or the relevant Subsidiary
shall not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 5.02(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, the Borrower or any ERISA Affiliate shall incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any combination
of the foregoing) or in the opinion of the Required Lenders shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC (or any combination of the foregoing) which would constitute,
in the determination of the Required Lenders, a Material Adverse
Effect; or
(j) A reasonable basis shall exist for the assertion against
the Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) claims or
liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Borrower or any of
its Subsidiaries or Affiliates, or relating to any site or facility
owned, operated or leased by the Borrower or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by
the Borrower or any of its Subsidiaries but after deducting any portion
thereof which is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor), in the judgment of the
Required Lenders are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof is,
singly or in the aggregate, reasonably likely to have a Material
Adverse Effect; or
(k) Any "person" or "group" (as such terms are defined in
Sections 13(d) and 14(d) of the Securities Exchange Act (other than
Amin or Robert Khoury, their lineal descendants or trusts established
by such Persons for their respective lineal descendants)) is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 30% or more of the aggregate
voting rights of the outstanding capital stock of the Borrower (on a
fully diluted basis); or during any consecutive 25-month period,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower (together with any new directors whose
election by the stockholders of the Borrower was approved by a vote of
66-2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors of the Borrower then in office; or
(l) Except for expiration in accordance with its terms, any of
the Security Documents shall be terminated or shall cease to be in full
force and effect or the Borrower shall so assert, for whatever reason;
then, and in every such event (other than an event with respect to the Borrower
described in clause (f) or (g) of this Article VII), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (f) or (g) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein and in the other Loan Documents,
the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Revolving Credit Lenders or
the Required Incremental Loan Lenders or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders, the Issuing Lender and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (2) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 1400 Corporate Center Way,
Wellington, FL 33414, Attention of Jeffrey P. Holtzman
(Telecopy No. (561) 791-3966; Telephone No. (561) 791-5000);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Frank Giacalone, Loan and Agency Services Group
(Telecopy No. (212) 552-5650; Telephone No.(212) 552-5949),
with a copy to The Chase Manhattan Bank, 270 Park Avenue,
New York, New York 10017, Attention of Vilma Francis
(Telecopy No. (212) 270-4016; Telephone No. (212) 270-5484);
(c) if to the Issuing Lender, to it at 4 Metrotech Center,
8th Floor, Brooklyn, New York 11245,
Attention of Rebecca McNally
(Telecopy No.(718) 552-6537; Telephone No.(718)242-3468); and
(d) if to a Lender, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent, the Issuing Lender or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Lender and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Lender may have had notice
or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the
written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected
thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected
thereby,
(iv) change Section 2.16(d) without the consent of each
Lender affected thereby, or
(v) change any of the provisions of this Section or the
percentage in the definition of the term "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender; and provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Issuing Lender hereunder without the prior
written consent of the Administrative Agent or the Issuing Lender, as
the case may be.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of Revolving Credit Loans shall be effective
against the Lenders of any Class unless the Required Lenders of such Class shall
have concurred with such waiver or modification, and no waiver or modification
of any provision of this Agreement or any other Loan Document that could
reasonably be expected to adversely affect the Lenders of any Class shall be
effective against the Lenders of such Class unless the Required Lenders of such
Class shall have concurred with such waiver or modification.
(c) Amendments to Security Documents. No Security Document nor
any provision thereof may be waived, amended or modified, nor may the Liens
thereof be spread to secure any additional obligations (including any increase
in Loans hereunder) except pursuant to an agreement or agreements in writing
entered into by the Borrower, and by the Administrative Agent with the consent
of the Required Lenders; provided that, (i) without the written consent of each
Lender, no such agreement shall release the Borrower from its obligations under
the Security Documents and (ii) without the written consent of each Lender, no
such agreement shall release all or substantially all of the collateral security
or otherwise terminate all or substantially all of the Liens under the Security
Documents, alter the relative priorities of the obligations entitled to the
Liens created under the Security Documents with respect to all or substantially
all of the collateral security provided thereby, except that
(A) no such consent shall be required, and the Administrative
Agent is hereby authorized (and so agrees with the Borrower), (i) to
release any Lien covering property that is the subject of either a
disposition of property permitted hereunder or a disposition to which
the Required Lenders have consented, and (ii) to terminate the Security
Agreement if (w) at the time of such release, no Incremental Loans are
outstanding, (x) the long term senior, unsecured debt of the Borrower
is rated at least Baa2 by Moody's and is rated at least BBB by S&P, (y)
no Default has occurred and is continuing and (z) the Borrower shall
have delivered to the Administrative Agent a certificate signed by a
senior financial officer of the Borrower stating that the conditions
set forth in clauses (w), (x) and (y) above have been satisfied,
(B) no such consent shall be required with respect to, and the
Administrative Agent is hereby authorized to enter into, any amendment
that would implement collateral security for the Incremental Loans
hereunder;
(C) no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent without the prior
written consent of the Administrative Agent; and
(D) no such consent shall be required in order to allow the
Administrative Agent to release the Lien covering the ownership
interests which are subject to the requirements of Section 5.06(d).
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket
expenses incurred by the Issuing Lender in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Lender or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent, the
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof and (iv) and all costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent, the Issuing Lender and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any Environmental Law as a result of the past, present
or future operations of the Borrower or any of its Subsidiaries (or any
predecessor in interest to the Borrower or any of its Subsidiaries), or the
past, present or future condition of any site or facility owned, operated or
leased by the Borrower or any of its Subsidiaries (or any such predecessor in
interest), or any Release or threatened Release of any Hazardous Materials from
any such site or facility, including any such Release or threatened Release
which shall occur during any period when the Administrative Agent or any Lender
shall be in possession of any such site or facility following the exercise by
the Administrative Agent or any Lender of any of its rights and remedies
hereunder or under any of the Security Documents but only to the extent that
such Release or threatened Release is directly or indirectly attributable to
facts, circumstances or Releases of Hazardous Materials existing prior to the
date of such possession or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Administrative Agent or
the Issuing Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Issuing Lender, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent or the Issuing Lender in its
capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall
be payable promptly after written demand therefor.
--------
SECTION 9.04. Successors and Assigns.
----------------------
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Lender and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that
(i) except in the case of an assignment to a Lender or a
Lender Affiliate, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or a portion of a Commitment
or any Lender's obligations in respect of its LC Exposure, the Issuing
Lender) must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or a
Lender Affiliate or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 (or, in the case of an assignment of by an Incremental Loan
Lender of a portion of its Incremental Loan Commitment, $1,000,000)
unless each of the Borrower and the Administrative Agent otherwise
consent,
(iii) 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 in respect of Revolving Credit
Commitments and Revolving Credit Loans and/or Incremental Loan
Commitments and Incremental Loans, as the case may be,
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (a), (b),
(f) or (g) of Article VII has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
Notwithstanding anything to the contrary contained herein (but
for the avoidance of doubt an "SPV", as defined below, shall, for purposes of
Section 2.15 be considered an assignee of such Lender), any Lender (a "Granting
Lender") may grant to a special purpose vehicle (an "SPV") of such Granting
Lender, identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to Section 2.01; provided that (i)
nothing herein shall constitute a commitment by any SPV to make any Loan, (ii)
if an SPV elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof and (iii) the Borrower may bring any
proceeding against either the Granting Lender or the SPV in order to enforce any
rights of the Borrower under any of the Loan Documents. The making of a Loan by
an SPV hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by the Granting Lender. Each party hereto
hereby agrees that no SPV shall be liable for any payment under this Agreement
for which a Lender would otherwise be liable, for so long as, and to the extent,
the related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, it will not institute against, or join any other person
in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof arising out of any claim against such SPV
under this Agreement. In addition, notwithstanding anything to the contrary
contained in this Section, any SPV may with notice to, but without the prior
written consent of, the Borrower or the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any
Loans to its Granting Lender or to any financial institutions (consented to by
the Borrower and the Administrative Agent) providing liquidity and/or credit
support (if any) with respect to commercial paper issued by such SPV to fund
such Loans and such SPV may disclose, on a confidential basis, confidential
information with respect to the Borrower and its Subsidiaries to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
liquidity enhancement to such SPV. This paragraph may not be amended without the
consent of any SPV at the time holding Loans under this Agreement.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent,
the Issuing Lender 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 notification to the contrary. The
Register shall be available for inspection by the Borrower, the Issuing Lender
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent or the Issuing Lender, sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement and the
other Loan Documents 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, the Issuing Lender
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and the other Loan Documents and
to approve any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) Limitations on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.13 or 2.15 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.15(e) as though it were a
Lender.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(h) No Assignments to the Borrower or Affiliates. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan or LC Exposure held by it hereunder to the
Borrower or any of its Affiliates or Subsidiaries without the prior consent of
each Lender.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Lender or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements entered into by the Borrower with respect to fees
payable to the Administrative Agent constitute the entire contract between and
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page to this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, 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 and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
--------------------------------
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12.Treatment of Certain Information; Confidentiality
-------------------------------------------------
(a) Treatment of Certain Information. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the
Borrower and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision
hereof.
(b) Confidentiality. Each of the Administrative Agent, the
Issuing Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) 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), (ii) to the extent requested by any regulatory authority, (iii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party to this Agreement at the time of
such disclosure, (v) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this paragraph, to (A) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (B) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower
and its obligations, (vii) with the consent of the Borrower or (viii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of this paragraph or (B) becomes available to the Administrative Agent,
the Issuing Lender or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this paragraph, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent,
the Issuing Lender or any Lender on a nonconfidential basis prior to disclosure
by the Borrower. 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BE AEROSPACE, INC.
By_________________________
Name:
Title:
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By_________________________
Name:
Title:
BANK OF AMERICA, N.A.
By_________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By_________________________
Name:
Title:
By_________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By_________________________
Name:
Title:
MERRILL LYNCH CAPITAL CORPORATION
By_________________________
Name:
Title:
THE BANK OF NEW YORK
By_________________________
Name:
Title:
CREDIT LYONNAIS
NEW YORK BRANCH
By_________________________
Name:
Title: