Exhibit 4.1
CREDIT AGREEMENT
dated as of
November 30, 2007
Among
ESCO TECHNOLOGIES INC.,
as Borrower,
THE LENDING INSTITUTIONS NAMED HEREIN,
as Lenders,
and
NATIONAL CITY BANK,
as an LC Issuer, Swing Line Lender and as the
Lead Arranger, Administrative Agent and Syndication Agent
$330,000,000 Revolving Facility
ARTICLE I. DEFINITIONS AND TERMS..................................1
Section 1.01 Certain Defined Terms.. .........................1
Section 1.02 Computation of Time Periods...........................25
Section 1.03 Accounting Terms......................................25
Section 1.04 Terms Generally.......................................25
Section 1.05 Currency Equivalents..................................26
ARTICLE II. THE TERMS OF THE CREDIT FACILITY......................26
Section 2.01 Establishment of the Credit Facility..................26
Section 2.02 Revolving Facility....................................26
Section 2.03 [Intentionally Omitted.]..............................27
Section 2.04 Swing Line Facility...................................27
Section 2.05 Letters of Credit.....................................28
Section 2.06 Notice of Borrowing...................................32
Section 2.07 Funding Obligations; Disbursement of Funds............33
Section 2.08 Evidence of Obligations.. ............................34
Section 2.09 Interest; Default Rate................................35
Section 2.10 Conversion and Continuation of Loans..................36
Section 2.11 Fees..................................................37
Section 2.12 Termination and Reduction of Revolving Commitments....38
Section 2.13 Voluntary and Mandatory Prepayments of Loans..........38
Section 2.14 Method and Place of Payment...........................41
ARTICLE III. INCREASED COSTS, ILLEGALITY AND TAXES.................42
Section 3.01 Increased Costs, Illegality, etc......................42
Section 3.02 Breakage Compensation.................................44
Section 3.03 Net Payments..........................................44
Section 3.04 Increased Costs to LC Issuers.........................46
Section 3.05 Change of Lending Office; Replacement of Lenders......46
ARTICLE IV. CONDITIONS PRECEDENT..................................47
Section 4.01 Conditions Precedent at Closing Date..................47
Section 4.02 Conditions Precedent to All Credit Events.............50
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................50
Section 5.01 Corporate Status......................................51
Section 5.02 Corporate Power and Authority.........................51
Section 5.03 No Violation..........................................51
Section 5.04 Governmental Approvals................................51
Section 5.05 Litigation............................................51
Section 5.06 Use of Proceeds; Margin Regulations...................52
Section 5.07 Financial Statements..................................52
Section 5.08 Solvency..............................................53
Section 5.09 No Material Adverse Change............................53
Section 5.10 Tax Returns and Payments..............................53
Section 5.11 Title to Properties, etc..............................53
Section 5.12 Lawful Operations, etc................................54
Section 5.13 Environmental Matters.................................54
Section 5.14 Compliance with ERISA.................................54
Section 5.15 Intellectual Property, etc............................55
Section 5.16 Investment Company Act, etc...........................55
Section 5.17 Insurance.............................................55
Section 5.18 Burdensome Contracts; Labor Relations.................55
Section 5.19 Security Interests....................................55
Section 5.20 True and Complete Disclosure..........................56
Section 5.21 Defaults..............................................56
Section 5.22 Capitalization........................................56
Section 5.23 Representation and Warranties in Purchase Agreement
Documentation......... .......56
Section 5.24 Anti-Terrorism Law Compliance.........................57
ARTICLE VI. AFFIRMATIVE COVENANTS.................................57
Section 6.01 Reporting Requirements................................57
Section 6.02 Books, Records and Inspections........................60
Section 6.03 Insurance.............................................60
Section 6.04 Payment of Taxes and Claims...........................60
Section 6.05 Corporate Franchises..................................61
Section 6.06 Good Repair...........................................61
Section 6.07 Compliance with Statutes, etc.........................61
Section 6.08 Compliance with Environmental Laws.. .................61
Section 6.09 Certain Subsidiaries to Join in Subsidiary Guaranty...62
Section 6.10 Additional Security; Further Assurances...............62
Section 6.11 Most Favored Covenant Status..........................62
Section 6.12 Senior Debt...........................................63
Section 6.13 Amendment, Modification or Termination of Material
Contracts................. ....63
Section 6.14 Performance of Material Contracts.....................63
ARTICLE VII. NEGATIVE COVENANTS....................................63
Section 7.01 Changes in Business....... ...........................63
Section 7.02 Consolidation, Merger, Acquisitions, Asset Sales, etc..63
Section 7.03 Liens.................................................64
Section 7.04 Indebtedness..........................................65
Section 7.05 Investments and Guaranty Obligations..................65
Section 7.06 Restricted Payments...................................66
Section 7.07 Financial Covenants...................................67
Section 7.08 Limitation on Certain Restrictive Agreements..........67
Section 7.09 Transactions with Affiliates..........................67
Section 7.10 Plan Terminations, Minimum Funding, etc...............68
Section 7.11 Hedge Agreements......................................68
Section 7.12 Amendments to Acquisition Documentation...............68
Section 7.13 Anti-Terrorism Laws...................................68
ARTICLE VIII. EVENTS OF DEFAULT.....................................69
Section 8.01 Events of Default.....................................69
Section 8.02 Remedies..............................................70
Section 8.03 Application of Certain Payments and Proceeds..........71
ARTICLE IX. THE ADMINISTRATIVE AGENT..............................71
Section 9.01 Appointment...........................................71
Section 9.02 Delegation of Duties..................................72
Section 9.03 Exculpatory Provisions................................72
Section 9.04 Reliance by Administrative Agent......................72
Section 9.05 Notice of Default.....................................73
Section 9.06 Non-Reliance..........................................73
Section 9.07 No Reliance on Administrative Agent's Customer
Identification Program...... ......73
Section 9.08 USA Patriot Act.......................................74
Section 9.09 Indemnification.......................................74
Section 9.10 The Administrative Agent in Individual Capacity.......74
Section 9.11 Successor Administrative Agent........................74
Section 9.12 Other Agents..........................................75
ARTICLE X. GUARANTY..............................................75
Section 10.01 Guaranty by the Borrower..............................75
Section 10.02 Additional Undertaking................................75
Section 10.03 Guaranty Unconditional..... ..........................76
Section 10.04 Borrower Obligations to Remain in Effect; Restoration.76
Section 10.05 Waiver of Acceptance, etc. ...........................77
Section 10.06 Subrogation...........................................77
Section 10.07 Effect of Stay........................................77
ARTICLE XI. MISCELLANEOUS.........................................77
Section 11.01 Payment of Expenses etc...............................77
Section 11.02 Indemnification.......................................77
Section 11.03 Right of Setoff.......................................78
Section 11.04 Equalization..........................................78
Section 11.05 Notices...............................................79
Section 11.06 Successors and Assigns................................80
Section 11.07 No Waiver; Remedies Cumulative........................82
Section 11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver
of Jury Trial....... ....82
Section 11.09 Counterparts..........................................83
Section 11.10 Integration...........................................83
Section 11.11 Headings Descriptive..................................84
Section 11.12 Amendment or Waiver...................................84
Section 11.13 Survival of Indemnities...............................86
Section 11.14 Domicile of Loans.....................................86
Section 11.15 Confidentiality.......................................87
Section 11.16 Limitations on Liability of the LC Issuers............87
Section 11.17 General Limitation of Liability.......................88
Section 11.18 No Duty...............................................88
Section 11.19 Lenders and Agent Not Fiduciary to Borrower, etc......88
Section 11.20 Survival of Representations and Warranties.. .........88
Section 11.21 Severability..........................................88
Section 11.22 Independence of Covenants.............................89
Section 11.23 Interest Rate Limitation..............................89
Section 11.24 Judgment Currency.....................................89
Section 11.25 USA Patriot Act.......................................89
EXHIBITS
Exhibit A-1 Form of Revolving Facility Note
Exhibit A-2 Form of Swing Line Note
Exhibit B-1 Form of Notice of Borrowing
Exhibit B-2 Form of Notice of Continuation or Conversion
Exhibit B-3 Form of LC Request
Exhibit C-1 Form of Subsidiary Guaranty
Exhibit C-2 Form of Pledge Agreement
Exhibit D Form of Assignment Agreement
Exhibit E Form of Compliance Certificate
Exhibit F Form of Closing Certificate
Exhibit G Form of Solvency Certificate
THIS CREDIT AGREEMENT is entered into as of November 30, 2007, among the
following: (i) ESCO TECHNOLOGIES INC., a Missouri corporation (the "Borrower");
(ii) the lenders from time to time party hereto (each a "Lender" and
collectively, the "Lenders"); and (iii) NATIONAL CITY BANK, as the lead
arranger, sole bookrunner and administrative agent (the "Administrative Agent"),
as the Swing Line Lender (as hereinafter defined), an LC Issuer (as hereafter
defined) and as the syndication agent (the "Syndication Agent").
RECITALS:
(1)......The Borrower has requested that the Lenders, the Swing Line Lender
and each LC Issuer extend credit to the Borrower to finance the acquisition of
Doble Engineering Company, a Massachusetts corporation ("Doble"), to provide
working capital, to finance capital expenditures, stock repurchases and other
general corporate purposes, including the payment of fees and expenses.
(2)......Subject to and upon the terms and conditions set forth herein, the
Lenders, the Swing Line Lender and each LC Issuer are willing to extend credit
and make available to the Borrower the credit facility provided for herein for
the foregoing purposes.
AGREEMENT:
In consideration of the premises and the mutual covenants contained herein,
the parties hereto agree as follows:
ARTICLE I.........
DEFINITIONS AND TERMS
Section 1.01......Certain Defined Terms. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (i) the
acquisition of all or substantially all of the assets of any Person, or any
business or division of any Person, (ii) the acquisition or ownership of in
excess of 50% of the Equity Interest of any Person, or (iii) the
acquisition of another Person by a merger, consolidation, amalgamation or
any other combination with such Person.
"Acquisition Agreements" means, collectively, the Purchase Agreement
and each Permitted Acquisition Agreement.
"Acquisition Documentation" means, collectively, the Purchase
Agreement Documentation and all Permitted Acquisition Documentation.
"Adjusted Eurodollar Rate" means with respect to each Interest Period
for a Eurodollar Loan, (i) the rate per annum equal to the offered rate
appearing on the applicable electronic page of Reuters (or on the
appropriate page of any successor to or substitute for such service, or, if
such rate is not available, on the appropriate page of any generally
recognized financial information service, as selected by the Administrative
Agent from time to time) that displays an average British Bankers
Association Interest Settlement Rate at approximately 11:00 A.M. (London
time) two Business Days prior to the commencement of such Interest Period,
for deposits in Dollars with a maturity comparable to such Interest Period,
divided (and rounded to the nearest 1/100th of 1%) by (ii) a percentage
equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves and without benefit of credits for
proration, exceptions or offsets that may be available from time to time)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D); provided, however, that if the
rate referred to in clause (i) above is not available at any such time for
any reason, then the rate referred to in clause (i) shall instead be the
interest rate per annum, as determined by the Administrative Agent, to be
the average (rounded to the nearest 1/100th of 1%) of the rates per annum
at which deposits in Dollars in an amount equal to the amount of such
Eurodollar Loan are offered to major banks in the London interbank market
at approximately 11:00 A.M. (London time), two Business Days prior to the
commencement of such Interest Period, for contracts that would be entered
into at the commencement of such Interest Period for the same duration as
such Interest Period.
"Adjusted Foreign Currency Rate" means with respect to each Interest
Period for any Foreign Currency Loan, (i) the rate per annum equal to the
offered rate appearing on the applicable electronic page of Reuters (or on
the appropriate page of any successor to or substitute for such service,
or, if such rate is not available, on the appropriate page of any generally
recognized financial information service, as selected by the Administrative
Agent from time to time) that displays an average British Bankers
Acceptance Interest Settlement Rate at approximately 11:00 A.M. (London
time) two Business Days prior to the commencement of such Interest Period
for deposits in the applicable Designated Foreign Currency with a maturity
comparable to such Interest Period, divided (and rounded to the nearest
1/100th of 1%) by (ii) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves and
without benefit of credits for proration, exceptions or offsets that may be
available from time to time) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D);
provided, however, that if the rate referred to in clause (i) above is not
available at any such time for any reason, then the rate referred to in
clause (i) shall instead be the interest rate per annum, as determined by
the Administrative Agent, to be the average (rounded to the nearest 1/100th
of 1%) of the rates per annum at which deposits in an amount equal to the
amount of such Foreign Currency Loan in the applicable Designated Foreign
Currency are offered to major banks in the London interbank market at
approximately 11:00 A.M. (London time), two Business Days prior to the
commencement of such Interest Period, for contracts that would be entered
into at the commencement of such Interest Period for the same duration as
such Interest Period.
"Administrative Agent" has the meaning provided in the first paragraph
of this Agreement and includes any successor to the Administrative Agent
appointed pursuant to Section 9.11.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person, or, in the case of any Lender
that is an investment fund, the investment advisor thereof and any
investment fund having the same investment advisor. A Person shall be
deemed to control a second Person if such first Person possesses, directly
or indirectly, the power (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors or managers of such
second Person or (ii) to direct or cause the direction of the management
and policies of such second Person, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the foregoing,
neither the Administrative Agent nor any Lender shall in any event be
considered an Affiliate of the Borrower or any of its Subsidiaries.
"Aggregate Credit Facility Exposure" means, at any time, the sum of
(i) the Aggregate Revolving Facility Exposure at such time; (ii) the
principal amount of Swing Loans outstanding at such time; and (iii)
aggregate principal amount of the Incremental Loans, if any, constituting
Term Loans outstanding at such time.
"Aggregate Revolving Facility Exposure" means, at any time, the sum of
(i) the Dollar Equivalent of the principal amounts of all Revolving Loans
made by all Lenders and outstanding at such time and (ii) the Dollar
Equivalent of the aggregate amount of the LC Outstandings at such time.
"Agreement" means this Credit Agreement, as the same may from time to
time be amended, restated, supplemented or otherwise modified.
"Anti-Terrorism Law" means the USA Patriot Act or any other law
pertaining to the prevention of future acts of terrorism, in each case as
such law may be amended from time to time.
"Applicable Facility Fee Rate" means:
(i)......On the Closing Date and thereafter until changed in
accordance with the provisions set forth in this definition, the Applicable
Facility Fee Rate shall be determined in accordance with the matrix set
forth below on the basis of the Borrower's Leverage Ratio as of September
30, 2007 (on a combined pro forma basis, giving effect to the Acquisition
of Doble and the transaction contemplated hereby, as certified by the Chief
Financial Officer or the Treasurer of the Borrower and computed in a manner
acceptable to the Administrative Agent), which on the Closing Date is 25.0
basis points;
(ii).....Commencing with the fiscal quarter of the Borrower ended on
December 31, 2007, and continuing with each fiscal quarter thereafter, the
Administrative Agent shall determine the Applicable Facility Fee Rate in
accordance with the following matrix, based on the Leverage Ratio:
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Leverage Ratio Applicable Facility Fee Rate
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Greater than or equal to 3.00 to 1.00 25.0 bps
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Greater than or equal to 2.50 to 1.00, but less 25.0 bps
than 3.00 to 1.00
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Greater than or equal to 2.00 to 1.00, but less 20.0 bps
than 2.50 to 1.00
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Greater than or equal to 1.50 to 1.00, but less 17.5 bps
than 2.00 to 1.00
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Less than 1.50 to 1.00 15.0 bps
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(iii)....Changes in the Applicable Facility Fee Rate based upon
changes in the Leverage Ratio shall become effective on the first Business
Day of the month following the receipt by the Administrative Agent pursuant
to Section 6.01(a) or Section 6.01(b), as the case may be, of the financial
statements of the Borrower for the Testing Period most recently ended,
accompanied by a Compliance Certificate required pursuant to Section
6.01(c) or, in the case of the fourth quarter, the Compliance Certificate
required pursuant to Section 6.01(c), demonstrating the computation of the
Leverage Ratio; provided, however, that in the event that the annual
financial statements delivered pursuant to Section 6.01(a) indicate a
greater Applicable Facility Fee Rate than indicated by the quarterly
Compliance Certificate delivered pursuant to Section 6.01(c) for the fourth
quarter of any fiscal year, then the Applicable Facility Fee Rate shall be
calculated with retroactive effect to the date changed (or maintained)
pursuant hereto as the basis of such quarterly financial statements and the
Borrower shall promptly remit such difference to the Administrative Agent.
Notwithstanding the foregoing, during any period when (A) the Borrower has
failed to timely deliver its consolidated financial statements referred to
in Section 6.01(a) or Section 6.01(b), accompanied by a Compliance
Certificate required pursuant to Section 6.01(c), or, in the case of the
fourth quarter, the Compliance Certificate required pursuant to Section
6.01(c) or (B) an Event of Default has occurred and is continuing, the
Applicable Facility Fee Rate shall be the highest number of basis points
indicated therefor in the above matrix, regardless of the Leverage Ratio at
such time. The above matrix does not modify or waive, in any respect, the
rights of the Administrative Agent and the Lenders to charge any default
rate of interest or any of the other rights and remedies of the
Administrative Agent and the Lenders hereunder.
(iv).....In the event that any financial statement or certificate, as
applicable, delivered pursuant to Section 6.01(a), (b) or (c) is shown to
be inaccurate (regardless of whether this Agreement or the Commitments are
in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable
Facility Fee Rate for any period (an "Applicable Period") than the
Applicable Facility Fee Rate actually applied for such Applicable Period,
then (i) the Borrower shall immediately deliver to the Administrative Agent
a corrected certificate for such Applicable Period, (ii) the Applicable
Facility Fee Rate shall be determined as if such corrected, higher
Applicable Facility Fee Rate were applicable for such Applicable Period,
and (iii) the Borrower shall immediately pay to the Administrative Agent
the accrued additional Facility Fee owing as a result of such higher
Applicable Facility Fee Rate for such Applicable Period.
"Applicable Lending Office" means, with respect to each Lender, the
office designated by such Lender to the Administrative Agent as such
Lender's lending office for all purposes of this Agreement. A lender may
have a different Applicable Lending Office for Base Rate Loans, Eurodollar
Loans and Foreign Currency Loans.
"Applicable Margin" means:
(i)......On the Closing Date and thereafter, until changed in
accordance with the following provisions, the Applicable Margin shall be
determined in accordance with the matrix set forth below on the basis of
the Borrower's Leverage Ratio as of September 30, 2007 (on a combined pro
forma basis, giving effect to the Acquisition of Doble and the transaction
contemplated hereby, as certified by the Chief Financial Officer or the
Treasurer of the Borrower and computed in a manner acceptable to the
Administrative Agent), which on the Closing Date is 0.0 basis points for
Base Rate Loans and 100.00 basis points for Fixed Rate Loans;
(ii).....Commencing with the fiscal quarter of the Borrower ended on
December 31, 2007, and continuing with each fiscal quarter thereafter, the
Administrative Agent shall determine the Applicable Margin in accordance
with the following matrix, based on the Leverage Ratio:
- -------------------------------------------------------------------------------
Applicable Margin
Leverage Ratio Applicable Margin for Fixed Rate
for Base Rate Loans Loans
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Greater than or equal to 3.00 to 1.00 0.0 bps 100.0 bps
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Greater than or equal to 2.50 to 1.00, 0.0 bps 75.0 bps
but less than 3.00 to 1.00
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Greater than or equal to 2.00 to 1.00, 0.0 bps 67.5 bps
but less than 2.50 to 1.00
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Greater than or equal to 1.50 to 1.00, 0.0 bps 57.5 bps
but less than 2.00 to 1.00
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Less than 1.50 to 1.00 0.0 bps 47.5 bps
- -------------------------------------------------------------------------------
(iii)....Changes in the Applicable Margin based upon changes in the
Leverage Ratio shall become effective on the first Business Day of the
month following the receipt by the Administrative Agent pursuant to Section
6.01(a) or Section 6.01(b) of the financial statements of the Borrower for
the Testing Period most recently ended, accompanied by a Compliance
Certificate in accordance with Section 6.01(c) or, in the case of the
fourth quarter, the Compliance Certificate required pursuant to Section
6.01(c), demonstrating the computation of the Leverage Ratio; provided,
however, that in the event that the annual financial statements delivered
pursuant to Section 6.01(a) indicate a greater Applicable Margin than
indicated by the Compliance Certificate delivered pursuant to Section
6.01(c) for the fourth quarter of any fiscal year, then the Applicable
Margin shall be calculated with retroactive effect to the date changed (or
maintained) pursuant hereto as the basis of such quarterly financial
statements and the Borrower shall promptly remit such difference to the
Administrative Agent. Notwithstanding the foregoing provisions, during any
period when (A) the Borrower has failed to timely deliver its consolidated
financial statements referred to in Section 6.01(a) or Section 6.01(b),
accompanied by a Compliance Certificate in accordance with Section 6.01(c),
or, in the case of the fourth quarter, the Compliance Certificate required
pursuant to Section 6.01(c) or (B) an Event of Default has occurred and is
continuing, the Applicable Margin shall be the highest number of basis
points indicated therefor in the above matrix, regardless of the Leverage
Ratio at such time. The above matrix does not modify or waive, in any
respect, the rights of the Administrative Agent and the Lenders to charge
any default rate of interest or any of the other rights and remedies of the
Administrative Agent and the Lenders hereunder.
(iv).....In the event that any financial statement or certificate, as
applicable, delivered pursuant to Section 6.01(a), (b) or (c) is shown to
be inaccurate (regardless of whether this Agreement or the Commitments are
in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Margin
for any period (an "Affected Period") than the Applicable Margin actually
applied for such Affected Period, then (i) the Borrower shall immediately
deliver to the Administrative Agent a corrected certificate for such
Affected Period, (ii) the Applicable Margin shall be determined as if such
corrected, higher Applicable Margin were applicable for such Affected
Period, and (iii) the Borrower shall immediately pay to the Administrative
Agent the accrued additional interest owing as a result of such higher
Applicable Margin for such Affected Period.
"Approved Bank" has the meaning provided in subpart (ii) of the
definition of "Cash Equivalents."
"Approved Fund" means a fund that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit and that is administered or managed by a Lender or an Affiliate of a
Lender.
"Asset Sale" means the sale, lease, transfer or other disposition
(including by means of Sale and Lease-Back Transactions, and by means of
mergers, consolidations, amalgamations and liquidations of a corporation,
partnership or limited liability company of the interests therein of the
Borrower or any Subsidiary) by the Borrower or any Subsidiary to any Person
of any of the Borrower's or such Subsidiary's respective assets, provided
that the term Asset Sale specifically excludes (i) any sales, transfers or
other dispositions of inventory, or obsolete, worn-out or excess furniture,
fixtures, equipment or other property, real or personal, tangible or
intangible, in each case in the ordinary course of business, and (ii) the
actual or constructive total loss of any property or the use thereof
resulting from any Event of Loss.
"Assignment Agreement" means an Assignment Agreement substantially in
the form of Exhibit D hereto.
"Authorized Officer" means (i) with respect to the Borrower, any of
the following officers: the Chairman, the President, the Chief Executive
Officer, the Chief Financial Officer, the Treasurer, the Treasury Manager,
the General Counsel or the Controller, and (ii) with respect to any
Subsidiary of the Borrower, the President, any Vice President, the Chief
Financial Officer or the Treasurer of such Subsidiary, or, in the case of
any of the foregoing, such other Person as is authorized in writing to act
on behalf of the Borrower or such Subsidiary and is acceptable to the
Administrative Agent. Unless otherwise qualified, all references herein to
an Authorized Officer shall refer to an Authorized Officer of the Borrower.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto, as
hereafter amended.
"Base Rate" means, for any day, a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall at all
times be equal to the greater of (i) the rate of interest established by
National City Bank, from time to time, as its "prime rate," whether or not
publicly announced, which interest rate may or may not be the lowest rate
charged by it for commercial loans or other extensions of credit; or (ii)
the Federal Funds Effective Rate in effect from time to time, determined
one Business Day in arrears, plus 1/2 of 1% per annum.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate in effect from time to time.
"Benefited Creditors" means, with respect to the Borrower Guaranteed
Obligations pursuant to Article X, each of the Administrative Agent, the
Lenders, each LC Issuer and the Swing Line Lender and each Designated Hedge
Creditor, and the respective successors and assigns of each of the
foregoing.
"Borrower" has the meaning specified in the first paragraph of this
Agreement.
"Borrower Guaranteed Obligations" has the meaning provided in Section
10.01.
"Borrowing" means a Revolving Borrowing or the incurrence of a Swing
Loan, and includes the incurrence of any Incremental Loan.
"Business Day" means (i) any day other than Saturday, Sunday or any
other day on which commercial banks in Cleveland, Ohio are authorized or
required by law to close and (ii) with respect to any matters relating to
(A) Eurodollar Loans, any day on which dealings in U.S. Dollars are carried
on in the London interbank market, and (B) Foreign Currency Loans, any day
on which commercial banks are open for international business (including
the clearing of currency transfers in the relevant Designated Foreign
Currency) in the principal financial center of the home country of the
applicable Designated Foreign Currency.
"Capital Distribution" means a payment made, liability incurred or
other consideration given for the purchase, acquisition, repurchase,
redemption or retirement of any Equity Interest of the Borrower or any of
its Subsidiaries or as a dividend, return of capital or other distribution
in respect of any such Person's Equity Interest.
"Capital Lease" as applied to any Person means any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, should be accounted for as a capital lease on the
balance sheet of that Person.
"Capitalized Lease Obligations" means all obligations under Capital
Leases of the Borrower or any of its Subsidiaries, without duplication, in
each case taken at the amount thereof accounted for as liabilities
identified as "capital lease obligations" (or any similar words) on a
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP.
"Cash Dividend" means a Capital Distribution of the Borrower payable
in cash to the shareholders of the Borrower with respect to any class or
series of Equity Interest of the Borrower.
"Cash Equivalents" means any of the following:
(i) securities issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States
of America is pledged in support thereof) having maturities of not
more than one year from the date of acquisition;
(ii) U.S. dollar denominated time deposits, certificates of
deposit and bankers' acceptances of (x) any Lender, (y) any domestic
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (z) any bank (or the parent company of such
bank) whose short-term commercial paper rating from S&P is at least
A-1, A-2 or the equivalent thereof or from Moody's is at least P-1,
P-2 or the equivalent thereof (any such bank, an "Approved Bank"), in
each case with maturities of not more than 180 days from the date of
acquisition;
(iii) commercial paper issued by any Lender or Approved Bank or
by the parent company of any Lender or Approved Bank and commercial
paper issued by, or guaranteed by, any industrial or financial company
with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long-term
unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case
maturing within 180 days after the date of acquisition;
(iv) fully collateralized repurchase agreements entered into with
any Lender or Approved Bank having a term of not more than 30 days and
covering securities described in clause (i) above;
(v) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in
clauses (i) through (iv) above;
(vi) investments in money market funds access to which is
provided as part of "sweep" accounts maintained with a Lender or an
Approved Bank;
(vii) investments in industrial development revenue bonds that
(A) "re-set" interest rates not less frequently than quarterly, (B)
are entitled to the benefit of a remarketing arrangement with an
established broker dealer, and (C) are supported by a direct pay
letter of credit covering principal and accrued interest that is
issued by an Approved Bank; and
(viii) investments in pooled funds or investment accounts
consisting of investments of the nature described in the foregoing
clause (vii).
"Cash Proceeds" means, with respect to (i) any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset
Sale, other than the portion of such deferred payment constituting
interest, but only as and when so received) received by the Borrower or any
Subsidiary from such Asset Sale, and (ii) any Event of Loss, the aggregate
cash payments, including all insurance proceeds and proceeds of any award
for condemnation or taking, received in connection with such Event of Loss.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. 9601 et seq.
"Change in Control" means
(i) the acquisition of, or, if earlier, the shareholder or director
approval of the acquisition of, ownership or voting control, directly or
indirectly, beneficially or of record, on or after the Closing Date, by any
Person or group (within the meaning of Rule 13d-3 of the SEC under the 1934
Act, as then in effect), of shares representing more than 30% of the
aggregate ordinary Voting Power represented by the issued and outstanding
capital stock of the Borrower;
(ii) the occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were
neither
(A) nominated by the Board of Directors of the Borrower nor
(B) appointed by directors so nominated; or
(iii) the occurrence of a change in control, or other similar
provision, under or with respect to any Material Indebtedness Agreement.
"Charges" has the meaning provided in Section 11.23.
"CIP Regulations" has the meaning provided in Section 9.07.
"Claims" has the meaning set forth in the definition of "Environmental
Claims."
"Closing Date" means November 30, 2007.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code as in effect at the Closing
Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" means the "Pledged Collateral" as defined in the Pledge
Agreement, together with any other collateral covered by any Security
Document.
"Commitment" means with respect to each Lender, its Revolving
Commitment, if any, and any "Commitment" to make Incremental Loans by such
Lender in accordance with the provisions of Section 11.12(e).
"Commitment Letter" has the meaning provided in Section 11.10.
"Commodities Hedge Agreement" means a commodities contract purchased
by the Borrower or any of its Subsidiaries in the ordinary course of
business, and not for speculative purposes, with respect to raw materials
necessary to the manufacturing or production of goods in connection with
the business of the Borrower and its Subsidiaries.
"Compliance Certificate" has the meaning provided in Section 6.01(c).
"Confidential Information" has the meaning provided in Section
11.15(b).
"Consideration" means, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance
of securities or notes, the assumption or incurring of liabilities (direct
or contingent), the payment of consulting fees (excluding any fees payable
to any investment banker in connection with such Acquisition) or fees for a
covenant not to compete and any other consideration paid for the purchase.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as
liabilities) made by the Borrower and its Subsidiaries to acquire or lease
(pursuant to a Capital Lease) fixed or capital assets, or additions to
equipment (including replacements, capitalized repairs and improvements
during such period).
"Consolidated Depreciation and Amortization Expense" means, for any
period, all depreciation and amortization expenses of the Borrower and its
Subsidiaries, all as determined for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period, plus
(i) the sum of the amounts for such period included in
determining such Consolidated Net Income of
(A) Consolidated Interest Expense,
(B) Consolidated Income Tax Expense,
(C) Consolidated Depreciation and Amortization Expense, and
(D) extraordinary, non-recurring non-cash losses and
charges, less
(ii) gains on sales of assets and other extraordinary gains and
other non-recurring non-cash gains, all as determined for the Borrower
and its Subsidiaries on a consolidated basis in accordance with GAAP;
provided, however, that Consolidated EBITDA for any Testing Period
shall (y) include the EBITDA for any Person or business unit that has
been acquired by the Borrower or any of its Subsidiaries for any
portion of such Testing Period prior to the date of acquisition, so
long as such EBITDA has been verified by appropriate audited financial
statements or other financial statements acceptable to the
Administrative Agent and (z) exclude the EBITDA for any Person or
business unit that has been disposed of by the Borrower or any of its
Subsidiaries, for the portion of such Testing Period prior to the date
of disposition.
"Consolidated Income Tax Expense" means, for any period, all
provisions for taxes based on the net income of the Borrower or any of its
Subsidiaries (including, without limitation, any additions to such taxes,
and any penalties and interest with respect thereto), all as determined for
the Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period, total interest
expense (including, without limitation, that which is capitalized and that
which is attributable to Capital Leases or Synthetic Leases) of the
Borrower and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries.
"Consolidated Net Income" means for any period, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
GAAP.
"Consolidated Net Worth" means at any time, all amounts that, in
conformity with GAAP, would be included under the caption "total
stockholders' equity" (or any like caption) on a consolidated balance sheet
of the Borrower at such time.
"Consolidated Tangible Assets" means all assets of the Borrower and
its Subsidiaries less goodwill and less intangible assets, all on a
consolidated basis and determined in conformity with GAAP.
"Consolidated Total Debt" means the sum (without duplication) of all
Indebtedness of the Borrower and of its Subsidiaries, all as determined on
a consolidated basis.
"Continue," "Continuation" and "Continued" each refers to a
continuation of a Fixed Rate Loan for an additional Interest Period as
provided in Section 2.10.
"Convert," "Conversion" and "Converted" each refers to a conversion of
Loans of one Type into Loans of another Type.
"Credit Event" means the making of any Borrowing, any Conversion or
Continuation, or any LC Issuance.
"Credit Facility" means the credit facility established under this
Agreement pursuant to which
(i) the Lenders shall make Revolving Loans to the Borrower, and shall
participate in LC Issuances, under the Revolving Facility pursuant to the
Revolving Commitment of each such Lender,
(ii) the Swing Line Lender shall make Swing Loans to the Borrower
under the Swing Line Facility pursuant to the Swing Line Commitment, and
(iii) each LC Issuer shall issue Letters of Credit for the account of the
LC Obligors in accordance with the terms of this Agreement, and includes
any Incremental Loans established in accordance with the provisions of
Section 11.12(e).
"Credit Facility Exposure" means, for any Lender at any time, the
Dollar Equivalent of the sum of
(i) such Lender's Revolving Facility Exposure at such time,
(ii) in the case of the Swing Line Lender, the principal amount of
Swing Loans outstanding at such time, and
(iii) the outstanding aggregate principal amount of the Incremental
Loans, if any, constituting Term Loans made by such Lender, if any.
"Credit Party" means the Borrower or any Domestic Subsidiary.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Default Rate" means, for any day,
(i) with respect to any Loan, a rate per annum equal to 2% per annum
above the interest rate that is or would be applicable from time to time to
such Loan pursuant to Section 2.09(a)(i), and
(ii) with respect to any other amount, a rate per annum equal to 2%
per annum above the rate that would be applicable to Revolving Loans that
are Base Rate Loans pursuant to Section 2.09(a)(i).
"Designated Foreign Currency" means Euros, Canadian Dollars, British
pounds, Australian dollars, or any other currency (other than Dollars)
approved in writing by the Lenders and that is freely traded and
exchangeable into Dollars.
"Designated Hedge Agreement" means any Hedge Agreement (other than a
Commodities Hedge Agreement) to which the Borrower or any of its
Subsidiaries is a party and as to which a Lender or any of its Affiliates
is a counterparty that, pursuant to a written instrument signed by the
Administrative Agent, has been designated as a Designated Hedge Agreement
so that the Borrower's or such Subsidiary's counterparty's credit exposure
thereunder will be entitled to share in the benefits of the Subsidiary
Guaranty and the Security Documents to the extent the Subsidiary Guaranty
and such Security Documents provide guarantees or security for creditors of
the Borrower or any Subsidiary under Designated Hedge Agreements.
"Designated Hedge Creditor" means each Lender or Affiliate of a Lender
that participates as a counterparty to any Credit Party pursuant to any
Designated Hedge Agreement with such Lender or Affiliate of such Lender.
"Doble" has the meaning provided in the Recitals.
"Dollars," "U.S. Dollars" and the sign "$" each means lawful money of
the United States.
"Dollar Equivalent" means,
(i) with respect to any amount denominated in Dollars, such amount and
(ii) with respect to a Foreign Currency Loan to be made, the Dollar
equivalent of the amount of such Foreign Currency Loan, determined by the
Administrative Agent on the basis of its spot rate at approximately 11:00
A.M. London time on the date two Business Days before the date such Foreign
Currency Loan is to be made, for the purchase of the relevant Designated
Foreign Currency with Dollars for delivery on the date such Foreign
Currency Loan is to be made,
(iii) with respect to any Letter of Credit to be issued in any
Designated Foreign Currency, the Dollar equivalent of the Stated Amount of
such Letter of Credit, determined by the applicable LC Issuer on the basis
of its spot rate at approximately 11:00 A.M. London time on the date two
Business Days before the issuance of such Letter of Credit, for the
purchase of the relevant Designated Foreign Currency with Dollars for
delivery on such date of issuance, and
(iv) with respect to any other amount not denominated in Dollars, and
with respect to Foreign Currency Loans and Letters of Credit issued in any
Designated Foreign Currency at any other time, the Dollar equivalent of
such amount, Foreign Currency Loan or Letter of Credit, as the case may be,
determined by the Administrative Agent on the basis of its spot rate at
approximately 11:00 A.M. London time on the date for which the Dollar
equivalent amount of such amount, Foreign Currency Loan or Letter of
Credit, as the case may be, is being determined, for the purchase of the
relevant Designated Foreign Currency with Dollars for delivery on such
date.
"Domestic Credit Party" means the Borrower or any Domestic Subsidiary.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America, any State thereof, or the District of
Columbia.
"EBITDA" means, with respect to any Person for any period, the net
income for such Person for such period plus the sum of the amounts for such
period included in determining such net income in respect of (i) interest
expense, (ii) income tax expense, and (iii) depreciation and amortization
expense, in each case as determined in accordance with GAAP.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a Lender,
(iii) an Approved Fund, and (iv) any other Person (other than a natural
Person) approved by (A) the Administrative Agent, (B) each LC Issuer, and
(C) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided,
however, that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Claims" means any and all global, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any
way to any Environmental Law or any permit issued under any such law
(hereafter "Claims"), including, without limitation, (i) any and all Claims
by any Governmental Authority for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable
Environmental Law, and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the storage, treatment or Release (as
defined in CERCLA) of any Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of
common law now or hereafter in effect and in each case as amended, and any
binding and enforceable judicial or global interpretation thereof,
including any judicial or global order, consent, decree or judgment issued
to or rendered against the Borrower or any of its Subsidiaries relating to
the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401
et seq.; the Safe Drinking Water Act, 42 U.S.C. 300f et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. 2701 et seq.; the Emergency Planning and
the Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., the
Hazardous Material Transportation Act, 49 U.S.C. 5101 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (to the extent
it regulates occupational exposure to Hazardous Materials); and any state
and local or foreign counterparts or equivalents, in each case as amended
from time to time.
"Equity Interest" means with respect to any Person, any and all
shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or non-voting) of
equity of such Person, including, if such Person is a partnership,
partnership interests (whether general or limited) or any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, such partnership, but
in no event will Equity Interest include any debt securities convertible or
exchangeable into equity unless and until actually converted or exchanged.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect
at the Closing Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" means each Person (as defined in Section 3(9) of
ERISA), which together with the Borrower or a Subsidiary of the Borrower,
would be deemed to be a "single employer" (i) within the meaning of Section
414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) or 4001(b)(i) of
ERISA or (ii) as a result of the Borrower or a Subsidiary of the Borrower
being or having been a general partner of such Person.
"Eurodollar Loan" means each Loan bearing interest at a rate based
upon the Adjusted Eurodollar Rate.
"Event of Default" has the meaning provided in Section 8.01.
"Event of Loss" means, with respect to any property, (i) the actual or
constructive total loss of such property or the use thereof, resulting from
destruction, damage beyond repair, or the rendition of such property
permanently unfit for normal use from any casualty or similar occurrence
whatsoever, (ii) the destruction or damage of a portion of such property
from any casualty or similar occurrence whatsoever under circumstances in
which such damage cannot reasonably be expected to be repaired, or such
property cannot reasonably be expected to be restored to its condition
immediately prior to such destruction or damage, within 90 days after the
occurrence of such destruction or damage, (iii) the condemnation,
confiscation or seizure of, or requisition of title to or use of, any
property, or (iv) in the case of any property located upon a leasehold, the
termination or expiration of such leasehold.
"Existing Letter of Credit" means each of the letters of credit set
forth on Schedule 3 hereto, provided that the issuer of such letters of
credit is or becomes a Lender hereunder and whereupon each such letter of
credit shall be deemed a Letter of Credit hereunder for all purposes of
this Agreement and the parties hereto agree that the terms of this
Agreement shall apply to such Letters of Credit, superseding any other
agreement theretofore applicable to them to the extent inconsistent with
the terms hereof.
"Facility Fee" has the meaning provided in Section 2.11(a).
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average
of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing selected by
the Administrative Agent.
"Fee Letter" means the Fee Letter dated as of October 17, 2007 between
the Borrower and the Administrative Agent.
"Fees" means all amounts payable pursuant to, or referred to in,
Section 2.11.
"Financial Projections" has the meaning provided in Section 5.07(b).
"Fixed Rate Loan" means any Eurodollar Loan or Foreign Currency Loan.
"Foreign Currency Exposure" means, at any time, the portion of the
Aggregate Revolving Facility Exposure at such time that is denominated in
any Designated Foreign Currency.
"Foreign Currency Loan" means each Revolving Loan denominated in a
Designated Foreign Currency and bearing interest at a rate based upon the
Adjusted Foreign Currency Rate.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, global tribunal, central bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or global powers or functions of or pertaining to government.
"Guaranty Obligations" means as to any Person (without duplication)
any obligation of such Person guaranteeing any Indebtedness ("primary
Indebtedness") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary Indebtedness or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds for the purchase or
payment of any such primary Indebtedness or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary Indebtedness of the ability of the primary obligor to make
payment of such primary Indebtedness, or (iv) otherwise to assure or hold
harmless the owner of such primary Indebtedness against loss in respect
thereof, provided, however, that the definition of Guaranty Obligation
shall not include (i) endorsements of instruments for deposit or collection
in the ordinary course of business, and (ii) any obligations of such Person
guaranteeing the performance of any other Person with respect to
obligations that do not constitute Indebtedness. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary Indebtedness in respect of which such
Guaranty Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder).
"Hazardous Materials" means (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls, and radon gas; and (ii) any chemicals, materials
or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "restricted
hazardous materials," "extremely hazardous wastes," "restrictive hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar meaning and regulatory effect, under any
applicable Environmental Law.
"Hedge Agreement" means (i) any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other
similar interest rate management agreement or arrangement, (ii) any
currency swap or option agreement, foreign exchange contract, forward
currency purchase agreement or similar currency management agreement or
arrangement or (iii) any Commodities Hedge Agreement.
"Incremental Loans" has the meaning provided in the provisions of
Section 11.12(e).
"Indebtedness" of any Person means without duplication (i) all
indebtedness of such Person for borrowed money; (ii) all bonds, notes,
debentures and similar debt securities of such Person; (iii) the deferred
purchase price of capital assets or services that in accordance with GAAP
would be shown on the liability side of the balance sheet of such Person;
(iv) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all drafts drawn thereunder; (v) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances; (vi) all indebtedness of a second Person secured by any Lien
on any property owned by such first Person, whether or not such
indebtedness has been assumed; (vii) all Capitalized Lease Obligations of
such Person; (viii) the present value, determined on the basis of the
implicit interest rate, of all basic rental obligations under all Synthetic
Leases of such Person; (ix) all obligations of such Person with respect to
asset securitization financing; (x) all obligations of such Person under a
"take or pay" contractual arrangement or other similar obligations; (xi)
all net obligations of such Person under Hedge Agreements; (xii) the full
outstanding balance of trade receivables, notes or other instruments sold
with full recourse (and the portion thereof subject to potential recourse,
if sold with limited recourse), other than in any such case any thereof
sold solely for purposes of collection of delinquent accounts; and (xiii)
all Guaranty Obligations of such Person; provided, however, that
(y) neither trade payables, deferred revenue, taxes nor other similar
accrued expenses, in each case arising in the ordinary course of business,
shall constitute Indebtedness; and (z) the Indebtedness of any Person shall
in any event include (without duplication) the Indebtedness of any other
entity (including any general partnership in which such Person is a general
partner) to the extent such Person is liable thereon as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide expressly that
such Person is not liable thereon.
"Indemnitees" has the meaning provided in Section 11.02.
"Insolvency Event" means, with respect to any Person, (i) the
commencement of a voluntary case by such Person under the Bankruptcy Code
or the seeking of relief by such Person under any bankruptcy or insolvency
or analogous law in any jurisdiction outside of the United States; (ii) the
commencement of an involuntary case against such Person under the
Bankruptcy Code and the petition is not controverted within 10 days, or is
not dismissed within 60 days, after commencement of the case; (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of such Person; (iv)
such Person commences (including by way of applying for or consenting to
the appointment of, or the taking of possession by, a rehabilitator,
receiver, custodian, trustee, conservator or liquidator (collectively, a
"conservator") of such Person or all or any substantial portion of its
property) any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency,
liquidation, rehabilitation, conservatorship or similar law of any
jurisdiction whether now or hereafter in effect relating to such Person;
(v) any such proceeding of the type set forth in clause (iv) above is
commenced against such Person to the extent such proceeding is consented to
by such Person or remains undismissed for a period of 60 days; (vi) such
Person is adjudicated insolvent or bankrupt; (vii) any order of relief or
other order approving any such case or proceeding is entered; (viii) such
Person suffers any appointment of any conservator or the like for it or any
substantial part of its property that continues undischarged or unstayed
for a period of 60 days; (ix) such Person makes a general assignment for
the benefit of creditors or generally does not pay its debts as such debts
become due; or (x) any corporate (or similar organizational) action is
taken by such Person for the purpose of effecting any of the foregoing.
"Interest Coverage Ratio" means, for any Testing Period, the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense.
"Interest Period" means, with respect to each Fixed Rate Loan, a
period of one, two, three or six months, as selected by the Borrower;
provided, however, that (i) the initial Interest Period for any Borrowing
of such Fixed Rate Loan shall commence on the date of such Borrowing (the
date of a Borrowing resulting from a Conversion or Continuation shall be
the date of such Conversion or Continuation) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires; (ii) if any Interest
Period begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month; (iii) if
any Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day;
provided, however, that if any Interest Period would otherwise expire on a
day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day; (iv) no Interest Period for any
Fixed Rate Loan may be selected that would end after the Revolving Facility
Termination Date or the termination date applicable to any Incremental
Loans, as the case may be; and (v) if, upon the expiration of any Interest
Period, the Borrower has failed to (or may not) elect a new Interest Period
to be applicable to the respective Borrowing of Fixed Rate Loans as
provided above, the Borrower shall be deemed to have elected to Convert
such Borrowing to Base Rate Loans effective as of the expiration date of
such current Interest Period or, in the case of any Foreign Currency Loan,
the Borrower shall be required to repay the same in full.
"Investment" means (i) any direct or indirect purchase or other
acquisition by a Person of any Equity Interest of any other Person;
(ii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand) or extension of credit to, guarantee or
assumption of debt or purchase or other acquisition of any other
Indebtedness of, any Person by any other Person; or (iii) the purchase,
acquisition or investment of or in any stocks, bonds, mutual funds, notes,
debentures or other securities, or any deposit account, certificate of
deposit or other investment of any kind.
"Judgment Amount" has the meaning provided in Section 11.24.
"LC Commitment Amount" means $25,000,000 or the Dollar Equivalent
thereof in Designated Foreign Currency.
"LC Documents" means, with respect to any Letter of Credit, any
documents executed in connection with such Letter of Credit, including the
Letter of Credit itself.
"LC Fee" means any of the fees payable pursuant to Section 2.11(b) or
Section 2.11(c) in respect of Letters of Credit.
"LC Issuance" means the issuance of any Letter of Credit by any LC
Issuer for the account of an LC Obligor in accordance with the terms of
this Agreement, and shall include any amendment thereto that increases the
Stated Amount thereof or extends the expiry date of such Letter of Credit.
"LC Issuer" means National City Bank or any of its Affiliates, or such
other Lender that is requested by the Borrower and agrees to be an LC
Issuer hereunder and is approved by the Administrative Agent, it being
understood that the issuer of the Existing Letters of Credit is approved by
the Administrative Agent provided that such issuer is or becomes a Lender
hereunder.
"LC Obligor" means, with respect to each LC Issuance, the Borrower or
the Subsidiary Guarantor for whose account such Letter of Credit is issued.
"LC Outstandings" means, at any time, the sum, without duplication, of
(i) the Dollar Equivalent of the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the Dollar Equivalent of the aggregate amount of
all Unpaid Drawings with respect to Letters of Credit.
"LC Participant" has the meaning provided in Section 2.05(g)(i).
"LC Participation" has the meaning provided in Section 2.05(g).
"LC Request" has the meaning provided in Section 2.05(b).
"Leaseholds" of any Person means all the right, title and interest of
such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Lender" and "Lenders" have the meaning provided in the first
paragraph of this Agreement and includes any other Person that becomes a
party hereto pursuant to an Assignment Agreement, other than any such
Person that ceases to be a party hereto pursuant to an Assignment
Agreement. Unless the context otherwise requires, the term "Lenders"
includes the Swing Line Lender.
"Lender Register" has the meaning provided in Section 2.08(b).
"Letter of Credit" means any Standby Letter of Credit issued by any LC
Issuer under this Agreement pursuant to Section 2.05 for the account of any
LC Obligor and includes any Existing Letter of Credit deemed issued
pursuant to this Agreement.
"Leverage Ratio" means, for any Testing Period, the ratio of (i)
Consolidated Total Debt to (ii) Consolidated EBITDA.
"Lien" means any mortgage, pledge, security interest, hypothecation,
encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement or any lease in the nature thereof).
"Loan" means any Revolving Loan, Incremental Loan or Swing Loan.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranty, the Security Documents, the Post-Closing Agreement, the Fee
Letter and each Letter of Credit and each other LC Document.
"Loan Policy" has the meaning provided in Section 6.10(c).
"Loss" has the meaning provided in Section 11.24.
"Margin Stock" has the meaning provided in Regulation U.
"Material Adverse Effect" means any or all of the following: (i) any
material adverse effect on the business, operations, property, assets,
liabilities, financial or other condition or prospects of the Borrower or
the Borrower and its Subsidiaries, taken as a whole; (ii) any material
adverse effect on the ability of the Borrower or any other Credit Party to
perform its obligations under any of the Loan Documents to which it is a
party; (iii) any material adverse effect on the ability of the Borrower and
its Subsidiaries, taken as a whole, to pay their liabilities and
obligations as they mature or become due; or (iv) any material adverse
effect on the validity, effectiveness or enforceability, as against any
Credit Party, of any of the Loan Documents to which it is a party.
"Material Contract" means with respect to any Person, each contract,
agreement or instrument a default or breach of which could reasonably be
expected to have a Material Adverse Effect.
"Material Domestic Subsidiary" means any Domestic Subsidiary that
constitutes a Material Subsidiary.
"Material Foreign Subsidiary" means any Foreign Subsidiary that
constitutes a Material Subsidiary.
"Material Indebtedness" means, as to the Borrower or any of its
Subsidiaries, any particular Indebtedness of the Borrower or such
Subsidiary (including any Guaranty Obligations) in excess of the aggregate
principal amount of $5,000,000 (or the Dollar Equivalent thereof).
"Material Indebtedness Agreement" means any agreement governing or
evidencing any Material Indebtedness.
"Material Subsidiary" means any Subsidiary that has assets with an
aggregate book value which at any time exceeds 2.5% of Consolidated
Tangible Assets at such time, provided however that in no event shall
Subsidiaries that are not Material Subsidiaries have, in the aggregate,
tangible assets in excess of 10% of Consolidated Tangible Assets at any
time, and the Borrower shall include such Subsidiaries as Material
Subsidiaries notwithstanding the foregoing.
"Maximum Foreign Currency Exposure Amount" means the Dollar Equivalent
of $50,000,000 as such amount may be reduced pursuant to Section 2.12.
"Maximum Rate" has the meaning provided in Section 11.23.
"Minimum Borrowing Amount" means (i) with respect to any Base Rate
Loan, $1,000,000 (or the Dollar Equivalent thereof in any Designated
Foreign Currency), with minimum increments thereafter of $100,000 (or the
Dollar Equivalent thereof in any Designated Foreign Currency), (ii) with
respect to any Eurodollar Loan or Foreign Currency Loan, $5,000,000 (or the
Dollar Equivalent thereof in any Designated Foreign Currency), with minimum
increments thereafter of $1,000,000 (or the Dollar Equivalent thereof in
any Designated Foreign Currency), and (iii) with respect to Swing Loans,
$100,000, with minimum increments thereafter of $50,000.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Multi-Employer Plan" means a multi-employer plan, as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary of the
Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan, other than a
Multi-Employer Plan, to which the Borrower or any Subsidiary of the
Borrower or any ERISA Affiliate, and one or more employers other than the
Borrower or a Subsidiary of the Borrower or an ERISA Affiliate, is making
or accruing an obligation to make contributions or, in the event that any
such plan has been terminated, to which the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate made or accrued an obligation to make
contributions during any of the five plan years preceding the date of
termination of such plan.
"Net Cash Proceeds" means, with respect to (i) any Asset Sale, the
Cash Proceeds resulting therefrom net of (A) reasonable and customary
expenses of sale incurred in connection with such Asset Sale, and other
reasonable and customary fees and expenses incurred, and all state and
local taxes paid or reasonably estimated to be payable by such person as a
consequence of such Asset Sale and the payment of principal, premium and
interest of Indebtedness (other than the Obligations) secured by the asset
which is the subject of the Asset Sale and required to be, and which is,
repaid under the terms thereof as a result of such Asset Sale, and (B)
incremental federal, state and local income taxes paid or payable as a
result thereof; and (ii) any Event of Loss, the Cash Proceeds resulting
therefrom net of (A) reasonable and customary expenses incurred in
connection with such Event of Loss, and local taxes paid or reasonably
estimated to be payable by such person as a consequence of such Event of
Loss and the payment of principal, premium and interest of Indebtedness
(other than the Obligations) secured by the asset which is the subject of
the Event of Loss and required to be, and which is, repaid under the terms
thereof as a result of such Event of Loss, and (B) incremental federal,
state and local income taxes paid or payable as a result thereof.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Note" means a Revolving Facility Note, a Term Note or a Swing Line
Note, as applicable.
"Notice of Borrowing" has the meaning provided in Section 2.06(b).
"Notice of Continuation or Conversion" has the meaning provided in
Section 2.10(b).
"Notice of Swing Loan Refunding" has the meaning provided in Section
2.04(b).
"Notice Office" means the office of the Administrative Agent at
National City Center, 629 Euclid Avenue, Cleveland, Ohio 44114, Attention:
Agency Services Group (facsimile: (216) 222-0212), or such other office as
the Administrative Agent may designate in writing to the Borrower from time
to time.
"Obligations" means all amounts, indemnities and reimbursement
obligations, direct or indirect, contingent or absolute, of every type or
description, and at any time existing, owing by the Borrower or any other
Credit Party to the Administrative Agent, any Lender, the Swing Line Lender
or any LC Issuer pursuant to the terms of this Agreement or any other Loan
Document (including, but not limited to, interest and fees that accrue
after the commencement by or against any Credit Party of any insolvency
proceeding, regardless of whether allowed or allowable in such proceeding
or subject to an automatic stay under Section 362(a) of the Bankruptcy
Code).
"Operating Lease" as applied to any Person means any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is not accounted for as a Capital Lease on the
balance sheet of that Person.
"Organizational Documents" means, with respect to any Person (other
than an individual), such Person's Articles (Certificate) of Incorporation,
or equivalent formation documents, and Regulations (Bylaws), or equivalent
governing documents, and, in the case of any partnership, includes any
partnership agreement and any amendments to any of the foregoing.
"Original Due Date" has the meaning provided in Section 11.24.
"Payment Office" means the office of the Administrative Agent at
National City Center, 629 Euclid Avenue, Cleveland, Ohio 44114, Attention:
Agency Services Group (facsimile: (216) 222-0012), or such other office(s),
as the Administrative Agent may designate to the Borrower in writing from
time to time.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" means any Acquisition as to which all of the
following conditions are satisfied:
(i) such Acquisition involves a line or lines of business that is
or are complementary to the lines of business in which the Borrower
and its Subsidiaries, considered as an entirety, are engaged on the
Closing Date;
(ii) if the Leverage Ratio, either before or after giving pro
forma effect to such Acquisition, is greater than 2.75 to 1.00, then
the aggregate Consideration for such Acquisition shall not exceed
$30,000,000;
(iii) no Default or Event of Default shall exist prior to or
immediately after giving effect to such Acquisition;
(iv) such Acquisition shall be consensual and have been approved
by the board of directors (or similar governing body) of the Person
that is the subject of the Acquisition prior to its consummation;
(v) the Borrower would, after giving effect to such Acquisition,
on a pro forma basis (as determined in accordance with subpart (vi)
below), be in compliance with the financial covenants contained in
Section 7.07; and
(vi) at least five Business Days prior to the consummation of any
such Acquisition, the Borrower shall have delivered to the
Administrative Agent and the Lenders (A) a certificate of an
Authorized Officer demonstrating, in reasonable detail, the
computation of the financial covenants referred to in Section 7.07 on
a pro forma basis, such pro forma ratios being determined as if (y)
such Acquisition had been completed at the beginning of the most
recent Testing Period for which financial information for the Borrower
and the business or Person to be acquired, is available, and (z) any
such Indebtedness, or other Indebtedness incurred to finance such
Acquisition, had been outstanding for such entire Testing Period, and
(B) historical financial statements relating to the business or Person
to be acquired and such other information as the Administrative Agent
may reasonably request.
"Permitted Acquisition Agreement" means each stock purchase agreement,
asset purchase agreement or other agreement entered into by the Borrower or
any of its Subsidiaries in connection with any Permitted Acquisition, in
each case as amended, supplemented or otherwise modified from time to time
in accordance with Section 7.02(c).
"Permitted Acquisition Documentation" means, collectively, each
Permitted Acquisition Agreement and all schedules, exhibits and annexes
thereto and all side letters and agreements (including without limitation
all non-competition agreements) affecting the terms thereof or entered into
in connection therewith, in each case as amended, supplemented or otherwise
modified from time to time in accordance with Section 7.02(c).
"Permitted Creditor Investment" means any securities (whether debt or
equity) received by the Borrower or any of its Subsidiaries in connection
with the bankruptcy or reorganization of any customer or supplier of the
Borrower or any such Subsidiary and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business.
"Permitted Foreign Subsidiary Loans and Investments" means (i) loans
and investments by a Credit Party to or in a Foreign Subsidiary made on or
after the Closing Date in the ordinary course of business, so long as the
aggregate amount of all such loans and investments by all Credit Parties
does not, at any time, exceed (A) $20,000,000, minus (B) the Dollar
Equivalent of the amount of Indebtedness of Foreign Subsidiaries guaranteed
by the Credit Parties pursuant to subpart (ii) of this definition; and
(ii) loans to a Foreign Subsidiary by any Person (other than the Borrower
or any of its Subsidiaries), and any guaranty of such loans by a Credit
Party, so long as the aggregate principal amount of all such loans does not
at any time exceed $20,000,000.
"Permitted Lien" means any Lien permitted by Section 7.03.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any Multi-Employer Plan or Single-Employer Plan.
"Pledge Agreement" means a Pledge Agreement substantially in the form
of Exhibit C-2 hereto or otherwise in form and substance reasonably
satisfactory to the Administrative Agent.
"Post-Closing Agreement" means the Post-Closing Agreement dated the
date hereof between the Borrower and the Administrative Agent.
"Prepayment" has the meaning provided in Section 2.13(e).
"primary Indebtedness" has the meaning provided in the definition of
"Guaranty Obligations."
"primary obligor" has the meaning provided in the definition of
"Guaranty Obligations."
"Prohibited Transaction" means a transaction with respect to a Plan
that is prohibited under Section 4975 of the Code or Section 406 of ERISA
and not exempt under Section 4975 of the Code or Section 408 of ERISA.
"Purchase Agreement" means Stock Purchase and Sale Agreement, dated as
November 6, 2007, by and among ESCO Technologies Holding Inc., a Delaware
corporation, the Borrower, Doble and the stockholders of Doble.
"Purchase Agreement Documentation" means, collectively, the Purchase
Agreement and all schedules, exhibits and annexes thereto and all side
letters and agreements (including without limitation all non-competition
agreements) affecting the terms thereof or entered into in connection
therewith, in each case as amended, supplemented or otherwise modified from
time to time in accordance with Section 7.12.
"Purchase Date" has the meaning provided in Section 2.04(c).
"Quoted Rate" means, with respect to any Swing Loan, the interest rate
quoted to the Borrower by the Swing Line Lender and agreed to by the
Borrower as being the interest rate applicable to such Swing Loan.
"RCRA" means the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. 6901 et seq.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of
such Person and of such Person's Affiliates.
"Reportable Event" means an event described in Section 4043 of ERISA
or the regulations thereunder with respect to a Plan, other than those
events as to which the notice requirement is waived under subsection .22,
.23, .25, .27, .28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67
of PBGC Regulation Section 4043.
"Repurchase" means any redemption, purchase or other acquisition or
retirement for value of any Equity Interests.
"Required Lenders" means Lenders whose Credit Facility Exposure and
Unused Revolving Commitments constitute more than 50% of the sum of the
Aggregate Credit Facility Exposure and the Unused Total Revolving
Commitment.
"Restricted Payment" means any Capital Distribution.
"Revolving Borrowing" means the incurrence of Revolving Loans
consisting of one Type of Revolving Loan by the Borrower from all of the
Lenders having Revolving Commitments in respect thereof on a pro rata basis
on a given date (or resulting from Conversions or Continuations on a given
date) in the same currency, having in the case of any Fixed Rate Loans the
same Interest Period.
"Revolving Commitment" means, with respect to each Lender, the amount
set forth opposite such Lender's name in Schedule 1 hereto as its
"Revolving Commitment," or by an amendment to this Agreement pursuant to
Section 11.12(e), or in the case of any Lender that becomes a party hereto
pursuant to an Assignment Agreement, the amount set forth in such
Assignment Agreement, as such commitment may be reduced from time to time
pursuant to Section 2.12(c) or adjusted from time to time as a result of
assignments to or from such Lender pursuant to Section 11.06.
"Revolving Facility" means the credit facility established under
Section 2.02 pursuant to the Revolving Commitment of each Lender, including
any increase thereto with respect to any Incremental Loans established
pursuant to Section 11.12(e).
"Revolving Facility Availability Period" means the period from the
Closing Date until the Revolving Facility Termination Date.
"Revolving Facility Exposure" means, for any Lender at any time, the
Dollar Equivalent of the sum of (i) the principal amount of Revolving Loans
made by such Lender and outstanding at such time, and (ii) such Lender's
share of the LC Outstandings at such time.
"Revolving Facility Note" means a promissory note substantially in the
form of Exhibit A-1 hereto.
"Revolving Facility Percentage" means, at any time for any Lender, the
percentage obtained by dividing such Lender's Revolving Commitment by the
Total Revolving Commitment, provided, however, that if the Total Revolving
Commitment has been terminated, the Revolving Facility Percentage for each
Lender shall be determined by dividing such Lender's Revolving Commitment
immediately prior to such termination by the Total Revolving Commitment
immediately prior to such termination. The Revolving Facility Percentage of
each Lender as of the Closing Date is set forth on Schedule 1 hereto.
"Revolving Facility Termination Date" means the earlier of (i)
November 30, 2012, or (ii) the date that the Commitments have been
terminated pursuant to Section 8.02.
"Revolving Loan" means, with respect to each Lender, any loan made by
such Lender pursuant to Section 2.02 or by an amendment to this Agreement
pursuant to the provisions of Section 11.12(e).
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of the
Borrower of any property (except for temporary leases for a term, including
any renewal thereof, of not more than one year and except for leases
between the Borrower and a Subsidiary or between Subsidiaries), which
property has been or is to be sold or transferred by the Borrower or such
Subsidiary to such Person.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
"SEC" means the United States Securities and Exchange Commission.
"SEC Regulation D" means Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time
to time.
"Secured Creditors" has the meaning provided in the Pledge Agreement.
"Security Documents" means the Pledge Agreement, any UCC financing
statement and any document pursuant to which any Lien is granted or
perfected by any Credit Party to the Administrative Agent as security for
any of the Obligations.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions or, in the event that any such plan has been terminated, to
which the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
made or accrued an obligation to make contributions during any of the five
plan years preceding the date of termination of such plan.
"Standard Permitted Lien" means any of the following: (i) Liens for
taxes not yet delinquent or Liens for taxes, assessments or governmental
charges being contested in good faith and by appropriate proceedings for
which adequate reserves in accordance with GAAP have been established; (ii)
Liens in respect of property or assets imposed by law that were incurred in
the ordinary course of business, such as carriers', suppliers',
warehousemen's, materialmen's and mechanics' Liens and other similar Liens
arising in the ordinary course of business, that do not in the aggregate
materially detract from the value of such property or assets or materially
impair the use thereof in the operation of the business of the Borrower or
any of its Subsidiaries and do not secure any Indebtedness; (iii) Liens
created by this Agreement or the other Loan Documents; (iv) Liens arising
from judgments, decrees or attachments in circumstances not constituting an
Event of Default under Section 8.01(g); (v) Liens (other than any Lien
imposed by ERISA) incurred or deposits made in the ordinary course of
business in connection with workers compensation, unemployment insurance
and other types of social security, and mechanic's Liens, carrier's Liens,
and other Liens to secure the performance of tenders, statutory
obligations, contract bids, government contracts, surety, appeal, customs,
performance and return-of-money bonds and other similar obligations,
incurred in the ordinary course of business (exclusive of obligations in
respect of the payment for borrowed money), whether pursuant to statutory
requirements, common law or consensual arrangements; (vi) leases or
subleases granted in the ordinary course of business to others not
interfering in any material respect with the business of the Borrower or
any of its Subsidiaries and any interest or title of a lessor under any
lease not in violation of this Agreement; (vii) easements, rights-of-way,
zoning or other restrictions, charges, encumbrances, defects in title,
prior rights of other persons, and obligations contained in similar
instruments, in each case that do not secure Indebtedness and do not
involve, and are not likely to involve at any future time, either
individually or in the aggregate, (A) a substantial and prolonged
interruption or disruption of the business activities of the Borrower and
its Subsidiaries considered as an entirety, or (B) a Material Adverse
Effect; (viii) Liens arising from the rights of lessors under leases
(including financing statements regarding property subject to lease) not in
violation of the requirements of this Agreement, provided that such Liens
are only in respect of the property subject to, and secure only, the
respective lease (and any other lease with the same or an affiliated
lessor); and (ix) rights of consignors of goods, whether or not perfected
by the filing of a financing statement under the UCC.
"Standby Letter of Credit" means any standby letter of credit issued
for the purpose of supporting workers compensation, liability insurance,
releases of contract retention obligations, contract performance guarantee
requirements and other bonding obligations or for other lawful purposes.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions or
other requirements for drawing could then be met).
"Subsidiary" of any Person means (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary
Voting Power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes
of such corporation shall have or might have Voting Power by reason of the
happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries, and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries, owns more than 50% of
the Equity Interests of such Person at the time or in which such Person,
one or more other Subsidiaries of such Person or such Person and one or
more Subsidiaries of such Person, directly or indirectly, has the power to
direct the policies, management and affairs thereof. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower and includes Doble and its Subsidiaries.
"Subsidiary Guarantor" means (i) any Material Domestic Subsidiary or
(ii) any Domestic Subsidiary that owns a Material Foreign Subsidiary, in
either case that is or hereafter becomes or is required to become a party
to the Subsidiary Guaranty. Schedule 2 hereto lists each Subsidiary
Guarantor and each other Subsidiary as of the Closing Date.
"Subsidiary Guaranty" has the meaning provided in Section 4.01(iii).
"Swing Line Commitment" means (i) for the period commencing on the
Closing Date through December 7, 2007, $330,000,000, and (ii) thereafter,
$10,000,000.
"Swing Line Facility" means the credit facility established under
Section 2.04 pursuant to the Swing Line Commitment of the Swing Line
Lender.
"Swing Line Lender" means National City Bank.
"Swing Line Note" means a promissory note substantially in the form of
Exhibit A-2 hereto.
"Swing Line Participation Amount" has the meaning provided in Section
2.04(c).
"Swing Loan" means any loan made by the Swing Line Lender under the
Swing Line Facility pursuant to Section 2.04.
"Swing Loan Maturity Date" means, with respect to any Swing Loan, the
earlier of (i) the last Business Day of each month, and (ii) the Revolving
Facility Termination Date.
"Swing Loan Participation" has the meaning provided in Section
2.04(c).
"Syndication Agent" has the meaning provided in the first paragraph of
this Agreement.
"Synthetic Lease" means any lease (i) that is accounted for by the
lessee as an Operating Lease, and (ii) under which the lessee is intended
to be the "owner" of the leased property for federal income tax purposes.
"Tangible Net Worth" means all assets of the Borrower and its
Subsidiaries less goodwill, less intangible assets and less total
liabilities, all on a consolidated basis and determined in conformity with
GAAP.
"Taxes" has the meaning provided in Section 3.03(a).
"Term Loan" means any Incremental Loan made as a term loan pursuant to
the provisions Section 11.12(e).
"Testing Period" means a single period consisting of the four
consecutive fiscal quarters of the Borrower then last ended (whether or not
such quarters are all within the same fiscal year), except that if a
particular provision of this Agreement indicates that a Testing Period
shall be of a different specified duration, such Testing Period shall
consist of the particular fiscal quarter or quarters then last ended that
are so indicated in such provision.
"Total Credit Facility Amount" means the Total Revolving Commitment
and any Incremented Loans made pursuant to the provisions of Section
11.12(e). As of the Closing Date, the Dollar Equivalent of the Total Credit
Facility Amount is $330,000,000.
"Total Revolving Commitment" means the sum of the Revolving
Commitments of the Lenders as the same may be decreased pursuant to Section
2.12(c) hereof. As of the Closing Date, the amount of the Total Revolving
Commitment is $330,000,000.
"Type" means any type of Loan determined with respect to the interest
option and currency denomination applicable thereto, which in each case
shall be a Base Rate Loan, a Eurodollar Loan or a Foreign Currency Loan.
"UCC" means the Uniform Commercial Code as in effect from time to
time. Unless otherwise specified, the UCC shall refer to the UCC as in
effect in the State of New York.
"Unfunded Benefit Liabilities" of any Plan means the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"United States" and "U.S." each means United States of America.
"Unpaid Drawing" means, with respect to any Letter of Credit, the
aggregate Dollar or Dollar Equivalent amount, as applicable, of the draws
made on such Letter of Credit that have not been reimbursed by the Borrower
or the applicable LC Obligor or converted to a Revolving Loan pursuant to
Section 2.05(f)(i), and, in each case, all interest that accrues thereon
pursuant to this Agreement.
"Unused Revolving Commitment" means, for any Lender at any time, the
excess of (i) such Lender's Revolving Commitment at such time over (ii)
such Lender's Revolving Facility Exposure at such time.
"Unused Total Revolving Commitment" means, at any time, the excess of
(i) the Total Revolving Commitment at such time over (ii) the Aggregate
Revolving Facility Exposure at such time.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT Act) Act of 2001.
"Voting Power" means, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person, and the holding of a designated percentage of Voting Power of a
Person means the ownership of shares of capital stock, partnership
interests, membership interests or other interests of such Person
sufficient to control exclusively the election of that percentage of the
members of the board of directors or similar governing body of such Person.
Section 1.02 Computation of Time Periods. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each means "to but
excluding" and the word "through" means "through and including."
Section 1.03 Accounting Terms. Except as otherwise specifically provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time.
Section 1.04 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,
restated, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person's
successors and 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 Sections, Schedules and Exhibits shall be construed to refer to Sections of,
and Schedules and Exhibits to, this Agreement, (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all Real Property, tangible and intangible assets and properties,
including cash, securities, accounts and contract rights, and interests in any
of the foregoing, and (f) any reference to a statute, rule or regulation is to
that statute, rule or regulation as now enacted or as the same may from time to
time be amended, re-enacted or expressly replaced.
Section 1.05 Currency Equivalents. Except as otherwise specified herein, all
references herein or in any other Loan Document to a dollar amount shall mean
such amount in U.S. Dollars or, if the context so requires, the Dollar
Equivalent of such amount in any Designated Foreign Currency. The Dollar
Equivalent of any amount shall be determined in accordance with the definition
of "Dollar Equivalent"; provided, however, that notwithstanding the foregoing or
anything elsewhere in this Agreement to the contrary, in calculating the Dollar
Equivalent of any amount for purposes of determining (i) the Borrower's
obligation to prepay Loans or cash collateralize Letters of Credit pursuant to
Section 2.13(c), or (ii) the Borrower's ability to request additional Loans or
Letters of Credit pursuant to the Commitments, the Administrative Agent may, in
the case of either of the foregoing, in its discretion, calculate the Dollar
Equivalent of such amount on any Business Day selected by the Administrative
Agent.
ARTICLE II.
THE TERMS OF THE CREDIT FACILITY
Section 2.01 Establishment of the Credit Facility. On the Closing Date, and
subject to and upon the terms and conditions set forth in this Agreement and the
other Loan Documents, the Administrative Agent, the Lenders, the Swing Line
Lender and each LC Issuer agree to establish the Credit Facility for the benefit
of the Borrower; provided, however, that at no time will (i) the Aggregate
Credit Facility Exposure exceed the Total Credit Facility Amount, or (ii) the
Credit Facility Exposure of any Lender exceed the aggregate amount of such
Lender's Commitment.
Section 2.02 Revolving Facility. During the Revolving Facility Availability
Period, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make a Revolving Loan or Revolving Loans to the Borrower from
time to time pursuant to such Lender's Revolving Commitment, which Revolving
Loans (i) may, except as set forth herein, at the option of the Borrower, be
incurred and maintained as, or Converted into, Revolving Loans that are Base
Rate Loans, Eurodollar Loans or Foreign Currency Loans, in each case denominated
in Dollars or a Designated Foreign Currency, provided that all Revolving Loans
made as part of the same Revolving Borrowing shall consist of Revolving Loans of
the same Type; (ii) may be repaid or prepaid and reborrowed in accordance with
the provisions hereof; and (iii) shall not be made if, after giving effect to
any such Revolving Loan, (A) the Revolving Facility Exposure of any Lender would
exceed such Lender's Revolving Commitment, (B) the Aggregate Revolving Facility
Exposure plus the principal amount of Swing Loans would exceed the Total
Revolving Commitment, (C) in the case of Revolving Loans to be made as Foreign
Currency Loans, the Foreign Currency Exposure would exceed the Maximum Foreign
Currency Exposure Amount, or (D) the Borrower would be required to prepay Loans
or cash collateralize Letters of Credit pursuant to Section 2.13(c). The
Revolving Loans to be made by each Lender will be made by such Lender on a pro
rata basis based upon such Lender's Revolving Facility Percentage of each
Revolving Borrowing, in each case in accordance with Section 2.07 hereof.
Section 2.03 [Intentionally Omitted.]
Section 2.04 Swing Line Facility.
(a) Swing Loans. During the Revolving Facility Availability Period, the Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement, to
make a Swing Loan or Swing Loans to the Borrower from time to time, which Swing
Loans (i) shall be payable on the Swing Loan Maturity Date applicable to each
such Swing Loan; (ii) shall be made only in U.S. Dollars; (iii) may be repaid or
prepaid and reborrowed in accordance with the provisions hereof; (iv) may only
be made if after giving effect thereto (A) the aggregate principal amount of
Swing Loans outstanding does not exceed the Swing Line Commitment, and (B) the
Aggregate Revolving Facility Exposure plus the principal amount of Swing Loans
would not exceed the Total Revolving Commitment; (v) shall not be made if, after
giving effect thereto, the Borrower would be required to prepay Loans or cash
collateralize Letters of Credit pursuant to Section 2.13(c) hereof; and
(vi) shall not be made if the proceeds thereof would be used to repay, in whole
or in part, any outstanding Swing Loan.
(b) Swing Loan Refunding. The Swing Line Lender may at any time, in its sole and
absolute discretion, direct that the Swing Loans owing to it be refunded by
delivering a notice to such effect to the Administrative Agent, specifying the
aggregate principal amount thereof (a "Notice of Swing Loan Refunding").
Promptly upon receipt of a Notice of Swing Loan Refunding, the Administrative
Agent shall give notice of the contents thereof to the Lenders with Revolving
Commitments and, unless an Event of Default specified in Section 8.01(h) in
respect of the Borrower has occurred, the Borrower. Each such Notice of Swing
Loan Refunding shall be deemed to constitute delivery by the Borrower of a
Notice of Borrowing requesting Revolving Loans consisting of Base Rate Loans in
the amount of the Swing Loans to which it relates. Each Lender with a Revolving
Commitment (including the Swing Line Lender) hereby unconditionally agrees
(notwithstanding that any of the conditions specified in Section 4.02 or
elsewhere in this Agreement shall not have been satisfied, but subject to the
provisions of paragraph (d) below) to make a Revolving Loan to the Borrower in
the amount of such Lender's Revolving Facility Percentage of the aggregate
amount of the Swing Loans to which such Notice of Swing Loan Refunding relates.
Each such Lender shall make the amount of such Revolving Loan available to the
Administrative Agent in immediately available funds at the Payment Office not
later than 2:00 P.M. (local time at the Payment Office), if such notice is
received by such Lender prior to 11:00 A.M. (local time at its Domestic Lending
Office), or not later than 2:00 P.M. (local time at the Payment Office) on the
next Business Day, if such notice is received by such Lender after such time.
The proceeds of such Revolving Loans shall be made immediately available to the
Swing Line Lender and applied by it to repay the principal amount of the Swing
Loans to which such Notice of Swing Loan Refunding relates.
(c) Swing Loan Participation. If prior to the time a Revolving Loan would
otherwise have been made as provided above as a consequence of a Notice of Swing
Loan Refunding, any of the events specified in Section 8.01(h) shall have
occurred in respect of the Borrower or one or more of the Lenders with Revolving
Commitments shall determine that it is legally prohibited from making a
Revolving Loan under such circumstances, each Lender (other than the Swing Line
Lender), or each Lender (other than such Swing Line Lender) so prohibited, as
the case may be, shall, on the date such Revolving Loan would have been made by
it (the "Purchase Date"), purchase an undivided participating interest (a "Swing
Loan Participation") in the outstanding Swing Loans to which such Notice of
Swing Loan Refunding relates, in an amount (the "Swing Loan Participation
Amount") equal to such Lender's Revolving Facility Percentage of such
outstanding Swing Loans. On the Purchase Date, each such Lender or each such
Lender so prohibited, as the case may be, shall pay to the Swing Line Lender, in
immediately available funds, such Lender's Swing Loan Participation Amount, and
promptly upon receipt thereof the Swing Line Lender shall, if requested by such
other Lender, deliver to such Lender a participation certificate, dated the date
of the Swing Line Lender's receipt of the funds from, and evidencing such
Lender's Swing Loan Participation in, such Swing Loans and its Swing Loan
Participation Amount in respect thereof. If any amount required to be paid by a
Lender to the Swing Line Lender pursuant to the above provisions in respect of
any Swing Loan Participation is not paid on the date such payment is due, such
Lender shall pay to the Swing Line Lender on demand interest on the amount not
so paid at the overnight Federal Funds Effective Rate from the due date until
such amount is paid in full. Whenever, at any time after the Swing Line Lender
has received from any other Lender such Lender's Swing Loan Participation
Amount, the Swing Line Lender receives any payment from or on behalf of the
Borrower on account of the related Swing Loans, the Swing Line Lender will
promptly distribute to such Lender its ratable share of such amount based on its
Revolving Facility Percentage of such amount on such date on account of its
Swing Loan Participation (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded); provided, however, that if such payment
received by the Swing Line Lender is required to be returned, such Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(d) Obligations Unconditional. Each Lender's obligation to make Revolving Loans
pursuant to Section 2.04(b) and/or to purchase Swing Loan Participations in
connection with a Notice of Swing Loan Refunding shall be subject to the
conditions that (i) such Lender shall have received a Notice of Swing Loan
Refunding complying with the provisions hereof and (ii) at the time the Swing
Loans that are the subject of such Notice of Swing Loan Refunding were made, the
Swing Line Lender making the same had no actual written notice from another
Lender that an Event of Default had occurred and was continuing, but otherwise
shall be absolute and unconditional, shall be solely for the benefit of the
Swing Line Lender that gives such Notice of Swing Loan Refunding, and shall not
be affected by any circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may have
against any other Lender, any Credit Party, or any other Person, or any Credit
Party may have against any Lender or other Person, as the case may be, for any
reason whatsoever; (B) the occurrence or continuance of a Default or Event of
Default; (C) any event or circumstance involving a Material Adverse Effect;
(D) any breach of any Loan Document by any party thereto; or (E) any other
circumstance, happening or event, whether or not similar to any of the
foregoing.
Section 2.05 Letters of Credit.
(a) LC Issuances. During the Revolving Facility Availability Period, the
Borrower may request an LC Issuer at any time and from time to time to issue,
for the account of the Borrower or any Subsidiary Guarantor, and subject to and
upon the terms and conditions herein set forth, each LC Issuer agrees to issue
from time to time Letters of Credit denominated and payable in Dollars or any
Designated Foreign Currency and in each case in such form as may be approved by
such LC Issuer and the Administrative Agent; provided, however, that
notwithstanding the foregoing, no LC Issuance shall be made if, after giving
effect thereto, (i) the LC Outstandings would exceed the LC Commitment Amount,
(ii) the Revolving Facility Exposure of any Lender would exceed such Lender's
Revolving Commitment, (iii) the Aggregate Revolving Facility Exposure plus the
principal amount of Swing Loans outstanding would exceed the Total Revolving
Commitment, (iv) the Foreign Currency Exposure would exceed the Maximum Foreign
Currency Exposure Amount, or (v) the Borrower would be required to prepay Loans
or cash collateralize Letters of Credit pursuant to Section 2.13(c) hereof.
Subject to Section 2.05(c) below, each Letter of Credit shall have an expiry
date (including any renewal periods) occurring not later than the earlier of (y)
one year from the date of issuance thereof, or (z) 30 Business Days prior to the
Revolving Facility Termination Date.
(b) LC Requests. Whenever the Borrower desires that a Letter of Credit be issued
for its account or the account of any eligible LC Obligor, the Borrower shall
give the Administrative Agent and the applicable LC Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice,
shall be substantially in the form of Exhibit B-3 (each such request, a "LC
Request"), or transmit by electronic communication (if arrangements for doing so
have been approved by the applicable LC Issuer), prior to 11:00 A.M. (local time
at the Notice Office) at least three Business Days (or such shorter period as
may be acceptable to the relevant LC Issuer) prior to the proposed date of
issuance (which shall be a Business Day), which LC Request shall include such
supporting documents that such LC Issuer customarily requires in connection
therewith (including, in the case of a Letter of Credit for an account party
other than the Borrower, an application for, and if applicable a reimbursement
agreement with respect to, such Letter of Credit). In the event of any
inconsistency between any of the terms or provisions of any LC Document and the
terms and provisions of this Agreement respecting Letters of Credit, the terms
and provisions of this Agreement shall control.
(c) Auto-Renewal Letters of Credit. If an LC Obligor so requests in any
applicable LC Request, each LC Issuer shall agree to issue a Letter of Credit
that has automatic renewal provisions; provided, however, that any Letter of
Credit that has automatic renewal provisions must permit such LC Issuer to
prevent any such renewal at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day in each such twelve-month period to
be agreed upon at the time such Letter of Credit is issued. Once any such Letter
of Credit that has automatic renewal provisions has been issued, the Lenders
shall be deemed to have authorized (but may not require) such LC Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date not
later than 30 Business Days prior to the Revolving Facility Termination Date;
provided, however, that such LC Issuer shall not permit any such renewal if (i)
such LC Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof, or (ii)
it has received notice (which may be by telephone or in writing) on or before
the day that is two Business Days before the date that such LC Issuer is
permitted to send a notice of non-renewal from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied.
(d) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the
applicable LC Issuer and the applicable LC Obligor, when a Letter of Credit is
issued, the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) shall apply to each Standby Letter
of Credit.
(e) Notice of LC Issuance. Each LC Issuer shall, on the date of each LC Issuance
by it, give the Administrative Agent, each applicable Lender and the Borrower
written notice of such LC Issuance, accompanied by a copy to the Administrative
Agent of the Letter of Credit or Letters of Credit issued by it. Each LC Issuer
shall provide to the Administrative Agent a quarterly (or monthly if requested
by any applicable Lender) summary describing each Letter of Credit issued by
such LC Issuer and then outstanding and an identification for the relevant
period of the daily aggregate LC Outstandings represented by Letters of Credit
issued by such LC Issuer.
(f) Reimbursement Obligations.
(i) The Borrower hereby agrees to reimburse (or cause any LC Obligor for whose
account a Letter of Credit was issued to reimburse) each LC Issuer, by making
payment directly to such LC Issuer in immediately available funds at the payment
office of such LC Issuer, for any Unpaid Drawing with respect to any Letter of
Credit immediately after, and in any event on the date on which, such LC Issuer
notifies the Borrower (or any such other LC Obligor for whose account such
Letter of Credit was issued) of such payment or disbursement (which notice to
the Borrower (or such other LC Obligor) shall be delivered reasonably promptly
after any such payment or disbursement), such payment to be made in Dollars or
in the applicable Designated Foreign Currency in which such Letter of Credit is
denominated, with interest on the amount so paid or disbursed by such LC Issuer,
to the extent not reimbursed prior to 1:00 P.M. (local time at the payment
office of the applicable LC Issuer) on the date of such payment or disbursement,
from and including the date paid or disbursed to but not including the date such
LC Issuer is reimbursed therefor at a rate per annum that shall be the rate then
applicable to Revolving Loans pursuant to Section 2.09(a)(i) that are Base Rate
Loans or, if not reimbursed on the date of such payment or disbursement, at the
Default Rate, any such interest also to be payable on demand. If by 11:00 A.M.
on the Business Day immediately following notice to it of its obligation to make
reimbursement in respect of an Unpaid Drawing, the Borrower or the relevant LC
Obligor has not made such reimbursement out of its available cash on hand or, in
the case of the Borrower, a contemporaneous Borrowing hereunder (if such
Borrowing is otherwise available to the Borrower), (x) the Borrower will in each
case be deemed to have given a Notice of Borrowing for Revolving Loans that are
Base Rate Loans in an aggregate Dollar Equivalent principal amount sufficient to
reimburse such Unpaid Drawing (and the Administrative Agent shall promptly give
notice to the Lenders of such deemed Notice of Borrowing), (y) the Lenders
shall, unless they are legally prohibited from doing so, make the Revolving
Loans contemplated by such deemed Notice of Borrowing (which Revolving Loans
shall be considered made under Section 2.02), and (z) the proceeds of such
Revolving Loans shall be disbursed directly to the applicable LC Issuer to the
extent necessary to effect such reimbursement and repayment of the Unpaid
Drawing, with any excess proceeds to be made available to the Borrower in
accordance with the applicable provisions of this Agreement.
(ii) Obligations Absolute. Each LC Obligor's obligation under this Section to
reimburse each LC Issuer with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that such LC Obligor may have or have had against such
LC Issuer, the Administrative Agent or any Lender, including, without
limitation, any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of
such drawing; provided, however, that no LC Obligor shall be obligated to
reimburse an LC Issuer for any wrongful payment made by such LC Issuer
under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such LC Issuer.
(g) LC Participations.
(i) Immediately upon each LC Issuance, the LC Issuer of such Letter of Credit
shall be deemed to have sold and transferred to each Lender with a
Revolving Commitment, and each such Lender (each an "LC Participant") shall
be deemed irrevocably and unconditionally to have purchased and received
from such LC Issuer, without recourse or warranty, an undivided interest
and participation (an "LC Participation"), to the extent of such Lender's
Revolving Facility Percentage of the Stated Amount of such Letter of Credit
in effect at such time of issuance, in such Letter of Credit, each
substitute Letter of Credit, each drawing made thereunder, the obligations
of any LC Obligor under this Agreement with respect thereto (although LC
Fees relating thereto shall be payable directly to the Administrative Agent
for the account of the Lenders as provided in Section 2.11 and the LC
Participants shall have no right to receive any portion of any fees of the
nature contemplated by Section 2.11(c) or Section 2.11(e)), the obligations
of any LC Obligor under any LC Documents pertaining thereto, and any
security for, or guaranty pertaining to, any of the foregoing.
(ii) In determining whether to pay under any Letter of Credit, an LC Issuer
shall not have any obligation relative to the LC Participants other than to
determine that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear to comply on their face
with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by an LC Issuer under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such LC Issuer any resulting liability.
(iii) If an LC Issuer makes any payment under any Letter of Credit and the
applicable LC Obligor shall not have reimbursed such amount in full to such
LC Issuer pursuant to Section 2.05(f), such LC Issuer shall promptly notify
the Administrative Agent, and the Administrative Agent shall promptly
notify each LC Participant of such failure, and each LC Participant shall
promptly and unconditionally pay to the Administrative Agent for the
account of such LC Issuer, the amount of such LC Participant's Revolving
Facility Percentage of such payment in Dollars or in the applicable
Designated Foreign Currency in which such Letter of Credit is denominated
and in same-day funds; provided, however, that no LC Participant shall be
obligated to pay to the Administrative Agent its Revolving Facility
Percentage of such unreimbursed amount for any wrongful payment made by
such LC Issuer under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such LC
Issuer. If the Administrative Agent so notifies any LC Participant required
to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time
at its Notice Office) on any Business Day, such LC Participant shall make
available to the Administrative Agent for the account of the relevant LC
Issuer such LC Participant's Revolving Facility Percentage of the amount of
such payment on such Business Day in same-day funds. If and to the extent
such LC Participant shall not have so made its Revolving Facility
Percentage of the amount of such payment available to the Administrative
Agent for the account of the relevant LC Issuer, such LC Participant agrees
to pay to the Administrative Agent for the account of such LC Issuer,
forthwith on demand, such amount, together with interest thereon, for each
day from such date until the date such amount is paid to the Administrative
Agent for the account of such LC Issuer at the Federal Funds Effective
Rate. The failure of any LC Participant to make available to the
Administrative Agent for the account of the relevant LC Issuer its
Revolving Facility Percentage of any payment under any Letter of Credit
shall not relieve any other LC Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such LC
Issuer its Revolving Facility Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no LC Participant
shall be responsible for the failure of any other LC Participant to make
available to the Administrative Agent for the account of such LC Issuer
such other LC Participant's Revolving Facility Percentage of any such
payment.
(iv) Whenever an LC Issuer receives a payment of a reimbursement obligation as
to which the Administrative Agent has received for the account of such LC
Issuer any payments from the LC Participants pursuant to subpart (iii)
above, such LC Issuer shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each LC Participant that has
paid its Revolving Facility Percentage thereof, in same-day funds, an
amount equal to such LC Participant's Revolving Facility Percentage of the
principal amount thereof and interest thereon accruing after the purchase
of the respective LC Participations, as and to the extent so received.
(v) The obligations of the LC Participants to make payments to the
Administrative Agent for the account of each LC Issuer with respect to
Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever
and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;
(B) the existence of any claim, set-off defense or other right that any LC
Obligor may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, any LC Issuer,
any Lender, or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the applicable
LC Obligor and the beneficiary named in any such Letter of Credit), other
than any claim that the applicable LC Obligor may have against any
applicable LC Issuer for gross negligence or willful misconduct of such LC
Issuer in making payment under any applicable Letter of Credit;
(C) any draft, certificate or other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or
(E) the occurrence of any Default or Event of Default.
(vi) To the extent any LC Issuer is not indemnified by the Borrower or any LC
Obligor, the LC Participants will reimburse and indemnify such LC Issuer,
in proportion to their respective Revolving Facility Percentages, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever
kind or nature that may be imposed on, asserted against or incurred by such
LC Issuer in performing its respective duties in any way related to or
arising out of LC Issuances by it; provided, however, that no LC
Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements resulting from such LC Issuer's gross negligence
or willful misconduct.
Section 2.06 Notice of Borrowing.
(a) Time of Notice. Each Borrowing of a Loan (other than a Continuation or
Conversion) shall be made upon notice in the form provided for below which
shall be provided by the Borrower to the Administrative Agent at its Notice
Office not later than (i) in the case of each Borrowing of a Fixed Rate
Loan, 11:00 A.M. (local time at its Notice Office) at least three Business
Days' prior to the date of such Borrowing, (ii) in the case of each
Borrowing of a Base Rate Loan, prior to 11:00 A.M. (local time at its
Notice Office) on the proposed date of such Borrowing, and (iii) in the
case of any Borrowing under the Swing Line Facility, prior to 1:00 P.M.
(local time at its Notice Office) on the proposed date of such Borrowing.
(b) Notice of Borrowing. Each request for a Borrowing (other than a
Continuation or Conversion) shall be made by an Authorized Officer of the
Borrower by delivering written notice of such request substantially in the
form of Exhibit B-1 hereto (each such notice, a "Notice of Borrowing") or
by telephone (to be confirmed immediately in writing by delivery by an
Authorized Officer of the Borrower of a Notice of Borrowing), and in any
event each such request shall be irrevocable and shall specify (i) the
aggregate principal amount of the Loans to be made pursuant to such
Borrowing, (ii) the date of the Borrowing (which shall be a Business Day),
(iii) the Type of Loans such Borrowing will consist of, and (iv) if
applicable, the initial Interest Period, the Swing Loan Maturity Date
(which shall be less than 30 days) and Designated Foreign Currency
applicable thereto. Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent may act prior to receipt of written
confirmation without liability upon the basis of such telephonic notice
believed by the Administrative Agent in good faith to be from an Authorized
Officer of the Borrower entitled to give telephonic notices under this
Agreement on behalf of the Borrower. In each such case, the Administrative
Agent's record of the terms of such telephonic notice shall be conclusive
absent manifest error.
(c) Minimum Borrowing Amount. The aggregate principal amount of each Borrowing
by the Borrower shall not be less than the Minimum Borrowing Amount.
(d) Maximum Borrowings. More than one Borrowing may be incurred by the Borrower
on any day; provided, however, that (i) if there are two or more Borrowings
on a single day by the Borrower that consist of Fixed Rate Loans, each such
Borrowing shall have a different initial Interest Period, and (ii) at no
time shall there be more than eight (8) Borrowings of Fixed Rate Loans
outstanding hereunder.
Section 2.07 Funding Obligations; Disbursement of Funds.
(a) Several Nature of Funding Obligations. The Commitments of each Lender
hereunder and the obligation of each Lender to make Loans, acquire and fund
Swing Loan Participations, and LC Participations, as the case may be, are
several and not joint obligations. No Lender shall be responsible for any
default by any other Lender in its obligation to make Loans or fund any
participation hereunder and each Lender shall be obligated to make the
Loans provided to be made by it and fund its participations required to be
funded by it hereunder, regardless of the failure of any other Lender to
fulfill any of its Commitments hereunder. Nothing herein and no subsequent
termination of the Commitments pursuant to Section 2.12 shall be deemed to
relieve any Lender from its obligation to fulfill its commitments hereunder
and in existence from time to time or to prejudice any rights that the
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
(b) Borrowings Pro Rata. Except with respect to the making of Swing Loans by
the Swing Line Lender, all Loans hereunder shall be made as follows: all
Revolving Loans made, and LC Participations acquired by each Lender, shall
be made or acquired, as the case may be, on a pro rata basis based upon
each Lender's Revolving Facility Percentage of the amount of such Revolving
Borrowing or Letter of Credit in effect on the date the applicable
Revolving Borrowing is to be made or the Letter of Credit is to be issued.
(c) Notice to Lenders. The Administrative Agent shall promptly give each
Lender, as applicable, written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing, or Conversion or
Continuation thereof, and LC Issuance, and of such Lender's proportionate
share thereof or participation therein and of the other matters covered by
the Notice of Borrowing, Notice of Continuation or Conversion, or LC
Request, as the case may be, relating thereto.
(d) Funding of Loans.
(i) Loans Generally. No later than 2:00 P.M. (local time at the Payment
Office) on the date specified in each Notice of Borrowing, each Lender
will make available its amount, if any, of each Borrowing requested to
be made on such date to the Administrative Agent at the Payment Office
in Dollars or the applicable Designated Foreign Currency and in
immediately available funds and the Administrative Agent promptly will
make available to the Borrower by depositing to its account at the
Payment Office the aggregate of the amounts so made available in the
type of funds received.
(ii) Swing Loans. No later than 2:00 P.M. (local time at the Payment
Office) on the date specified in each Notice of Borrowing, the Swing
Line Lender will make available to the Borrower by depositing to its
account at the Payment Office (or such other account as the Borrower
shall specify) the aggregate of Swing Loans requested in such Notice
of Borrowing.
(e) Advance Funding. Unless the Administrative Agent shall have been notified
by any Lender prior to the date of Borrowing that such Lender does not
intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent
may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender and the Administrative
Agent has made the same available to the Borrower, the Administrative Agent
shall be entitled to recover such corresponding amount plus an
administrative fee of $200 from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from such Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a rate per annum equal to (i) if paid by such
Lender, the overnight Federal Funds Effective Rate or (ii) if paid by the
Borrower, the then applicable rate of interest, calculated in accordance
with Section 2.09, for the respective Loans (but without any requirement to
pay any amounts in respect thereof pursuant to Section 3.02).
Section 2.08 Evidence of Obligations.
(a) Loan Accounts of Lenders. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the Obligations 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.
(b) Loan Accounts of Administrative Agent; Lender Register. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of
each Loan and Borrowing made hereunder, the Type thereof, the currency in
which such Loan is denominated, the Interest Period and applicable interest
rate and, in the case of a Swing Loan, the Swing Loan Maturity Date
applicable thereto, (ii) the amount and other details with respect to each
Letter of Credit issued hereunder, (iii) the amount of any principal due
and payable or to become due and payable from the Borrower to each Lender
hereunder, (iv) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof,
and (v) the other details relating to the Loans, Letters of Credit and
other Obligations. In addition, the Administrative Agent shall maintain a
register (the "Lender Register") on or in which it will record the names
and addresses of the Lenders, and the Commitments from time to time of each
of the Lenders. The Administrative Agent will make the Lender Register
available to any Lender or the Borrower upon its request.
(c) Effect of Loan Accounts, etc. The entries made in the accounts maintained
pursuant to Section 2.08(b) shall be prima facie evidence of the existence
and amounts of the Obligations recorded therein; provided, that the failure
of the Administrative Agent to maintain such accounts or any error (other
than manifest error) therein shall not in any manner affect the obligation
of any Credit Party to repay or prepay the Loans or the other Obligations
in accordance with the terms of this Agreement.
(d) Notes. Upon request of any Lender or the Swing Line Lender, the Borrower
will execute and deliver to such Lender or the Swing Line Lender, as the
case may be, (i) a Revolving Facility Note with blanks appropriately
completed in conformity herewith to evidence the Borrower's obligation to
pay the principal of, and interest on, the Revolving Loans made to it by
such Lender, and (ii) a Swing Line Note with blanks appropriately completed
in conformity herewith to evidence the Borrower's obligation to pay the
principal of, and interest on, the Swing Loans made to it by the Swing Line
Lender; provided, however, that the decision of any Lender or the Swing
Line Lender to not request a Note shall in no way detract from the
Borrower's obligation to repay the Loans and other amounts owing by the
Borrower to such Lender or the Swing Line Lender.
Section 2.09 Interest; Default Rate.
(a) Interest on Revolving Loans. The outstanding principal amount of each
Revolving Loan made by each Lender shall bear interest at a fluctuating
rate per annum that shall at all times be equal to (i) during such periods
as such Revolving Loan is a Base Rate Loan, the Base Rate plus the
Applicable Margin in effect from time to time, (ii) during such periods as
such Revolving Loan is a Eurodollar Loan, the relevant Adjusted Eurodollar
Rate for such Eurodollar Loan for the applicable Interest Period plus the
Applicable Margin in effect from time to time, and (iii) during such
periods as a Revolving Loan is a Foreign Currency Loan, the relevant
Adjusted Foreign Currency Rate for such Foreign Currency Loan for the
applicable Interest Period plus the Applicable Margin in effect from time
to time.
(b) [Intentionally Omitted.]
(c) Interest on Swing Loans. The outstanding principal amount of each Swing
Loan shall bear interest from the date of the Borrowing at a rate per annum
that shall be equal to the Quoted Rate applicable thereto.
(d) Default Interest. Notwithstanding the above provisions, if an Event of
Default is in existence, upon written notice by the Administrative Agent
(which notice the Administrative Agent shall give at the direction of the
Required Lenders), (i) all outstanding amounts of principal and, to the
extent permitted by law, all overdue interest, in respect of each Loan
shall bear interest, payable on demand, at a rate per annum equal to the
Default Rate, and (ii) the LC Fees shall be increased by an additional 2%
per annum in excess of the LC Fees otherwise applicable thereto. In
addition, if any amount (other than amounts as to which the foregoing
subparts (i) and (ii) are applicable) payable by the Borrower under the
Loan Documents is not paid when due, upon written notice by the
Administrative Agent (which notice the Administrative Agent shall give at
the direction of the Required Lenders), such amount shall bear interest,
payable on demand, at a rate per annum equal to the Default Rate.
(e) Accrual and Payment of Interest. Interest shall accrue from and including
the date of any Borrowing to but excluding the date of any prepayment or
repayment thereof and shall be payable by the Borrower: (i) in respect of
each Base Rate Loan, quarterly in arrears on the last Business Day of each
March, June, September and December, (ii) in respect of each Fixed Rate
Loan, on the last day of each Interest Period applicable thereto and, in
the case of an Interest Period in excess of three months, on the dates that
are successively three months after the commencement of such Interest
Period, (iii) in respect of any Swing Loan, quarterly in arrears on the
last Business Day of each March, June, September and December, and (iv) in
respect of all Loans, other than Revolving Loans accruing interest at a
Base Rate, on any repayment, prepayment or Conversion (on the amount
repaid, prepaid or Converted), at maturity (whether by acceleration or
otherwise), and, after such maturity or, in the case of any interest
payable pursuant to Section 2.09(c), on demand.
(f) Computations of Interest. All computations of interest on Fixed Rate Loans
and Swing Loans hereunder shall be made on the actual number of days
elapsed over a year of 360 days. All computations of interest on Base Rate
Loans and Unpaid Drawings hereunder shall be made on the actual number of
days elapsed over a year of 365 or 366 days, as applicable.
(g) Information as to Interest Rates. The Administrative Agent, upon
determining the interest rate for any Borrowing, shall promptly notify the
Borrower and the Lenders thereof. Any changes in the Applicable Margin
shall be determined by the Administrative Agent in accordance with the
provisions set forth in the definition of "Applicable Margin" and the
Administrative Agent will promptly provide notice of such determinations to
the Borrower and the Lenders. Any such determination by the Administrative
Agent shall be conclusive and binding absent manifest error.
Section 2.10 Conversion and Continuation of Loans.
(a) Conversion and Continuation of Revolving Loans. The Borrower shall have the
right, subject to the terms and conditions of this Agreement, to (i)
Convert all or a portion of the outstanding principal amount of Loans of
one Type made to it into a Borrowing or Borrowings of another Type of Loans
that can be made to it pursuant to this Agreement and (ii) Continue a
Borrowing of Eurodollar Loans or Foreign Currency Loans, as the case may
be, at the end of the applicable Interest Period as a new Borrowing of
Eurodollar Loans or Foreign Currency Loans (in the same Designated Foreign
Currency as the original Foreign Currency Loan) with a new Interest Period;
provided, however, that (A) no Foreign Currency Loan may be Converted into
a Base Rate Loan, Eurodollar Loan or a Foreign Currency Loan that is
denominated in a different Designated Foreign Currency, (B) any Conversion
of Eurodollar Loans into Base Rate Loans shall be made on, and only on, the
last day of an Interest Period for such Eurodollar Loans, (C) at the
election of the Required Lenders, no Eurodollar Loan may be Continued as a
Eurodollar Loan if an Event of Default shall have occurred and be
continuing at such time (and shall be deemed to have been Converted to a
Base Rate Loan at the end of the applicable Interest Period, and (D) at the
election of the Required Lenders, no Foreign Currency Loan shall be
Continued as a Foreign Currency Loan if an Event of Default shall have
occurred and be continuing at such time (and shall be deemed to have been
converted into a Base Rate Loan denominated in Dollars).
(b) Notice of Continuation and Conversion. Each Continuation or Conversion of a
Loan shall be made upon notice in the form provided for below provided by
the Borrower to the Administrative Agent at its Notice Office not later
than (i) in the case of each Continuation of or Conversion into a Fixed
Rate Loan, prior to 11:00 A.M. (local time at its Notice Office) at least
three Business Days' prior to the date of such Continuation or Conversion,
and (ii) in the case of each Conversion to a Base Rate Loan, prior to 11:00
A.M. (local time at its Notice Office) on the proposed date of such
Conversion. Each such request shall be made by an Authorized Officer of the
Borrower delivering written notice of such request substantially in the
form of Exhibit B-2 hereto (each such notice, a "Notice of Continuation or
Conversion") or by telephone (to be confirmed immediately in writing by
delivery by an Authorized Officer of the Borrower of a Notice of
Continuation or Conversion), and in any event each such request shall be
irrevocable and shall specify (A) the Borrowings to be Continued or
Converted, (B) the date of the Continuation or Conversion (which shall be a
Business Day), and (C) the Interest Period or, in the case of a
Continuation, the new Interest Period. Without in any way limiting the
obligation of the Borrower to confirm in writing any telephonic notice
permitted to be given hereunder, the Administrative Agent may act prior to
receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent in good faith to be
from an Authorized Officer of the Borrower entitled to give telephonic
notices under this Agreement on behalf of the Borrower. In each such case,
the Administrative Agent's record of the terms of such telephonic notice
shall be conclusive absent manifest error.
Section 2.11 Fees.
(a) Facility Fees. The Borrower agrees to pay to the Administrative Agent, for
the ratable benefit of each Lender based upon each such Lender's Revolving
Facility Percentage, as consideration for the Revolving Commitments of the
Lenders, facility fees (the "Facility Fees") for the period from the
Closing Date to, but not including, the Revolving Facility Termination
Date, computed for each day at a rate per annum equal to (i) the Applicable
Facility Fee Rate in effect on such day times (ii) the Total Revolving
Commitment in effect on such day. Accrued Facility Fees shall be due and
payable in arrears on the last Business Day of each March, June, September
and December and on the Revolving Facility Termination Date.
(b) LC Fees. The Borrower agrees to pay to the Administrative Agent, for the
ratable benefit of each Lender with a Revolving Commitment based upon each
such Lender's Revolving Facility Percentage, a fee in respect of each
Letter of Credit issued hereunder that is a Standby Letter of Credit for
the period from the date of issuance of such Letter of Credit until the
expiration date thereof (including any extensions of such expiration date
that may be made at the election of the account party or the beneficiary),
computed for each day at a rate per annum equal to (A) the Applicable
Margin for Revolving Loans that are Eurodollar Loans in effect on such day
times (B) the Stated Amount of such Letter of Credit on such day. The
foregoing fees shall be payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the Revolving
Facility Termination Date.
(c) Fronting Fees. The Borrower agrees to pay directly to each LC Issuer, for
its own account, a fee in respect of each Letter of Credit issued by it,
computed at the rate of 1/8th of 1% per annum on the Stated Amount thereof
for the period from the date of issuance (or increase, renewal or
extension) to the expiration date thereof (including any extensions of such
expiration date which may be made at the election of the beneficiary
thereof). The foregoing fees shall be payable annually in advance on the
date of issuance and each anniversary thereof and on the Revolving Facility
Termination Date.
(d) Additional Charges of LC Issuer. The Borrower agrees to pay directly to
each LC Issuer upon each LC Issuance, drawing under, or amendment,
extension, renewal or transfer of, a Letter of Credit issued by it such
amount as shall at the time of such LC Issuance, drawing under, amendment,
extension, renewal or transfer be the processing charge that such LC Issuer
is customarily charging for issuances of, drawings under or amendments,
extensions, renewals or transfers of, letters of credit issued by it. (e)
Administrative Agent Fees. The Borrower shall pay to the Administrative
Agent, on the Closing Date and thereafter, for its own account, the fees
set forth in the Fee Letter.
(f) Computations and Determination of Fees. Any changes in the Facility
Commitment Fee Rate shall be determined by the Administrative Agent in
accordance with the provisions set forth in the definition of "Applicable
Facility Fee Rate" and the Administrative Agent will promptly provide
notice of such determination to the Borrower and the Lenders. Any such
determination by the Administrative Agent shall be conclusive and binding
absent manifest error. All computations of Facility Fees, LC Fees and other
Fees hereunder shall be made on the actual number of days elapsed over a
year of 360 days.
Section 2.12 Termination and Reduction of Revolving Commitments.
(a) Mandatory Termination of Revolving Commitments. All of the Revolving
Commitments shall terminate on the Revolving Facility Termination Date.
(b) Mandatory Reduction of Revolving Commitments. On the date that any
prepayment is to be made pursuant to Section 2.13(c) (v), (vi), (vii) or
(viii), then on such date the Total Revolving Commitment shall be
permanently reduced on such date in an amount equal to the amount of such
required prepayment and any such reduction shall apply to proportionately
(based on each Lender's Revolving Facility Percentage) and permanently
reduce the Revolving Commitment of each Lender; provided, that,
notwithstanding the foregoing, this Section 2.12(b) shall not require the
Total Revolving Commitment to be reduced to less than $250,000,000 solely
by operation of this provision.
(c) Voluntary Termination of the Total Revolving Commitment. Upon at least
three Business Days' prior irrevocable written notice (or telephonic notice
confirmed in writing) to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right to terminate in whole the
Total Revolving Commitment, provided that (i) all outstanding Revolving
Loans and Unpaid Drawings are contemporaneously prepaid in accordance with
Section 2.13 and (ii) either there are no outstanding Letters of Credit or
the Borrower shall contemporaneously cause all outstanding Letters of
Credit to be surrendered for cancellation (any such Letters of Credit to be
replaced by letters of credit issued by other financial institutions
acceptable to each LC Issuer and the Revolving Lenders), provided further,
that a notice of termination of the Total Revolving Commitment may state
that such notice is conditioned on 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.
(d) Partial Reduction of Total Revolving Commitment. Upon at least three
Business Days' prior irrevocable written notice (or telephonic notice
confirmed in writing) to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right to partially and
permanently reduce the Unused Total Revolving Commitment; provided,
however, that (i) any such reduction shall apply to proportionately (based
on each Lender's Revolving Facility Percentage) and permanently reduce the
Revolving Commitment of each Lender, (ii) such reduction shall apply to
proportionately and permanently reduce the LC Commitment Amount and the
Maximum Foreign Currency Exposure Amount, but only to the extent that the
Unused Total Revolving Commitment would be reduced below any such limits,
(iii) no such reduction shall be permitted if the Borrower would be
required to make a mandatory prepayment of Loans or cash collateralize
Letters of Credit pursuant to Section 2.13, and (iv) any partial reduction
shall be in the amount of at least $5,000,000 (or, if greater, in integral
multiples of $1,000,000).
Section 2.13 Voluntary and Mandatory Prepayments of Loans.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay any of
the Loans owing by it, in whole or in part, without premium or penalty,
except as specified in subparts (d) and (e) below, from time to time. The
Borrower shall give the Administrative Agent at the Notice Office written
or telephonic notice (in the case of telephonic notice, promptly confirmed
in writing if so requested by the Administrative Agent) of its intent to
prepay the Loans, the amount of such prepayment and (in the case of Fixed
Rate Loans) the specific Borrowing(s) pursuant to which the prepayment is
to be made, which notice shall be received by the Administrative Agent by
(y) 11:00 A.M. (local time at the Notice Office) three Business Days prior
to the date of such prepayment, in the case of any prepayment of Fixed Rate
Loans, or (z) 11:00 A.M. (local time at the Notice Office) one Business Day
prior to the date of such prepayment, in the case of any prepayment of Base
Rate Loans, and which notice shall promptly be transmitted by the
Administrative Agent to each of the affected Lenders, provided that:
(i) each partial prepayment shall be in an aggregate principal amount of
at least (A) in the case of any prepayment of a Fixed Rate Loan,
$5,000,000 (or, if less, the full amount of such Borrowing) or the
Dollar Equivalent thereof, or an integral multiple of $1,000,000 or
the Dollar Equivalent thereof in excess thereof, (B) in the case of
any prepayment of a Base Rate Loan, $1,000,000 (or, if less, the full
amount of such Borrowing) or the Dollar Equivalent thereof, or an
integral multiple of $100,000 or the Dollar Equivalent thereof in
excess thereof, and (C) in the case of any prepayment of a Swing Loan,
in the full amount thereof; and
(ii) no partial prepayment of any Loans made pursuant to a Borrowing shall
reduce the aggregate principal amount of such Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount applicable thereto.
(b) [Intentionally Omitted.]
(c) Mandatory Payments. The Loans shall be subject to mandatory repayment or
prepayment (in the case of any partial prepayment conforming to the
requirements as to the amounts of partial prepayments set forth in Section
2.13(a) above), and the LC Outstandings shall be subject to cash
collateralization requirements, in accordance with the following
provisions:
(i) Revolving Facility Termination Date. The entire principal amount of
all outstanding Revolving Loans shall be repaid in full on the
Revolving Facility Termination Date.
(ii) Loans Exceed the Commitments. If on any date (after giving effect to
any other payments on such date) (A) the Aggregate Credit Facility
Exposure exceeds the Total Credit Facility Amount, (B) the Revolving
Facility Exposure of any Lender exceeds such Lender's Revolving
Commitment, (C) the Aggregate Revolving Facility Exposure plus the
principal amount of Swing Loans exceeds the Total Revolving
Commitment, (D) the Foreign Currency Exposure exceeds the Maximum
Foreign Currency Exposure Amount, or (E) the aggregate principal
amount of Swing Loans outstanding exceeds the Swing Line Commitment,
then, in the case of each of the foregoing, the Borrower shall, on
such day, prepay on such date the principal amount of Loans and, after
Loans have been paid in full, Unpaid Drawings, in an aggregate amount
at least equal to such excess.
(iii) LC Outstandings Exceed LC Commitment If on any date the LC
Outstandings exceed the LC Commitment Amount, then the applicable LC
Obligor or the Borrower shall, on such day, pay to the Administrative
Agent an amount in cash equal to such excess and the Administrative
Agent shall hold such payment as security for the reimbursement
obligations of the applicable LC Obligors hereunder in respect of
Letters of Credit pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the
Administrative Agent, each LC Issuer and the Borrower (which shall
permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent, each LC Issuer and the Borrower until the
proceeds are applied to any Unpaid Drawings or to any other
Obligations in accordance with any such cash collateral agreement).
(iv) [Intentionally Omitted.]
(v) Certain Proceeds of Asset Sales. If during any fiscal year of the
Borrower, the Borrower and its Subsidiaries have received cumulative
Net Cash Proceeds during such fiscal year from one or more Asset Sales
of at least $10,000,000, not later than the third Business Day
following the date of receipt of any Cash Proceeds in excess of such
amount, an amount equal to 100% of the Net Cash Proceeds then received
in excess of such amount from any Asset Sale shall be applied as a
mandatory prepayment of the Loans in accordance with Section 2.13(d)
below.
(vi) Certain Proceeds of Equity Sales. Not later than the Business Day
following the date of the receipt by any Credit Party or any of its
Subsidiaries of the cash proceeds (net of underwriting discounts and
commissions, placement agent fees and other customary fees and costs
associated therewith) from any sale or issuance by the Borrower or any
of its Subsidiaries of its own equity securities as the case may be,
after the Closing Date (other than (A) any sale or issuance to
management, employees (or key employees) or directors pursuant to
stock option or similar plans for the benefit of management, employees
(or key employees) or directors generally or (B) the issuance or sale
of any equity Interests by any Subsidiary of the Borrower to the
Borrower or any other Subsidiary of the Borrower), the Borrower will
make a prepayment of the Loans in an amount equal to 50% of such net
proceeds in accordance with Section 2.13(d) below.
(vii) Certain Proceeds of Indebtedness. Not later than the Business Day
following the date of the receipt by any Credit Party of the cash
proceeds (net of underwriting discounts and commissions, placement
agent fees and other customary fees and costs associated therewith)
from any sale or issuance of any Indebtedness (other than any
Indebtedness incurred pursuant to Sections 7.04(a) through 7.04(h))
after the Closing Date, the Borrower will make a prepayment of the
Loans in an amount equal to 100% of such net proceeds in accordance
with Section 2.13(d) below.
(viii) Certain Proceeds of an Event of Loss. If during any fiscal year of
the Borrower, any Credit Party has received cumulative Cash Proceeds
during such fiscal year from one or more Events of Loss of at least
$5,000,000, not later than the third Business Day following the date
of receipt of any Cash Proceeds in excess of such amount, the Borrower
will make a prepayment of the Loans with an amount equal to 100% of
the Net Cash Proceeds then received in excess of such amount from any
Event of Loss in accordance with Section 2.13(d) below.
Notwithstanding the foregoing, in the event any property suffers an
Event of Loss and (A) the Cash Proceeds received in any fiscal year as
a result of such Event of Loss are less than $40,000,000, (B) no
Default or Event of Default has occurred and is continuing, and (C)
the Borrower notifies the Administrative Agent and the Lenders in
writing that it intends to rebuild or restore the affected property,
that such rebuilding or restoration can be accomplished within 12
months out of such Cash Proceeds and other funds available to the
Borrower, then no such prepayment of the Loans shall be required if
the Borrower immediately deposits such Cash Proceeds in a cash
collateral deposit account over which the Administrative Agent shall
have sole dominion and control, and which shall constitute part of the
Collateral under the Security Documents and may be applied as provided
in Section 8.03 if an Event of Default occurs and is continuing. So
long as no Default or Event of Default has occurred and is continuing,
the Administrative Agent is authorized to disburse amounts from such
cash collateral deposit account to or at the direction of the Borrower
for application to the costs of rebuilding or restoration of the
affected property. Any amounts not so applied to the costs of
rebuilding or restoration or as provided in Section 8.03 shall be
applied to the prepayment of the Loans as provided above.
(d) Applications of Certain Prepayment Proceeds. Each prepayment required to be
made pursuant to Sections 2.13(c)(v), (vi), (vii) or (viii) above shall be
applied as a mandatory prepayment of principal of first, the outstanding
Swing Loans, and second, the outstanding Revolving Loans, and the Total
Revolving Commitment shall be permanently reduced on the date of any such
prepayment by an amount equal to such prepayment to the extent required by,
and in accordance with, Section 2.12(b).
(e) Particular Loans to be Prepaid. With respect to each repayment or
prepayment of Loans made or required by this Section, the Borrower shall
designate the Types of Loans that are to be repaid or prepaid and the
specific Borrowing(s) pursuant to which such repayment or prepayment is to
be made; provided, however, that (i) the Borrower shall first so designate
all Loans that are Base Rate Loans and Fixed Rate Loans with Interest
Periods ending on the date of repayment or prepayment prior to designating
any other Fixed Rate Loans for repayment or prepayment, and (ii) if the
outstanding principal amount of Fixed Rate Loans made pursuant to a
Borrowing is reduced below the applicable Minimum Borrowing Amount as a
result of any such repayment or prepayment, then all the Loans outstanding
pursuant to such Borrowing shall, in the case of Eurodollar Loans, be
Converted into Base Rate Loans and, in the case of Foreign Currency Loans,
be repaid in full. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a
view, but no obligation, to minimize breakage costs owing under Article
III.
(f) [Intentionally Omitted.]
(g) Breakage and Other Compensation. Any prepayment made pursuant to this
Section 2.13 shall be accompanied by any amounts payable in respect thereof
under Article III hereof.
Section 2.14 Method and Place of Payment.
(a) Generally. All payments made by the Borrower hereunder (including any
payments made with respect to the Borrower Guaranteed Obligations under
Article X) under any Note or any other Loan Document, shall be made without
setoff, counterclaim or other defense.
(b) Application of Payments. Except as specifically set forth elsewhere in this
Agreement and subject to Section 8.03, (i) all payments and prepayments of
Revolving Loans and Unpaid Drawings with respect to Letters of Credit shall
be applied by the Administrative Agent on a pro rata basis based upon each
Lender's Revolving Facility Percentage of the amount of such prepayment,
and (ii) all payments or prepayments of Swing Loans shall be applied by the
Administrative Agent to pay or prepay such Swing Loans.
(c) Payment of Obligations. Except as specifically set forth elsewhere in this
Agreement, all payments under this Agreement with respect to any of the
Obligations shall be made to the Administrative Agent on the date when due
and shall be made at the Payment Office in immediately available funds and,
except as set forth in the next sentence, shall be made in Dollars. With
respect to any Foreign Currency Loan, all payments (including prepayments)
to any Lender of the principal of or interest on such Foreign Currency Loan
shall be made in the same Designated Foreign Currency as the original Loan
and with respect to any Letter of Credit issued in a Designated Foreign
Currency, all Unpaid Drawings with respect to each such Letter of Credit
shall be made in the same Designated Foreign Currency in which each such
Letter of Credit was issued.
(d) Timing of Payments. Any payments under this Agreement that are made later
than 11:00 A.M. (local time at the Payment Office) shall be deemed to have
been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business
Day, the due date thereof shall be extended to the next succeeding Business
Day and, with respect to payments of principal, interest shall be payable
during such extension at the applicable rate in effect immediately prior to
such extension.
(e) Distribution to Lenders. Upon the Administrative Agent's receipt of
payments hereunder, the Administrative Agent shall immediately distribute
to each Lender or the applicable LC Issuer, as the case may be, its ratable
share, if any, of the amount of principal, interest, and Fees received by
it for the account of such Lender. Payments received by the Administrative
Agent in Dollars shall be delivered to the Lenders or the applicable LC
Issuer, as the case may be, in Dollars in immediately available funds.
Payments received by the Administrative Agent in any Designated Foreign
Currency shall be delivered to the Lenders or the applicable LC Issuer, as
the case may be, in such Designated Foreign Currency in same-day funds;
provided, however, that if at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all amounts of
principal, Unpaid Drawings, interest and Fees then due hereunder then,
except as specifically set forth elsewhere in this Agreement and subject to
Section 8.03, such funds shall be applied, first, towards payment of
interest and Fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and Fees then due to
such parties, and second, towards payment of principal and Unpaid Drawings
then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and Unpaid Drawings then due to
such parties.
ARTICLE III.
INCREASED COSTS, ILLEGALITY AND TAXES
Section 3.01 Increased Costs, Illegality, etc.
(a) In the event that (y) in the case of clause (i) below, the Administrative
Agent or (z) in the case of clauses (ii) and (iii) below, any Lender, shall
have determined on a reasonable basis (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties
hereto):
(i) on any date for determining the interest rate applicable to any Fixed
Rate Loan for any Interest Period that, by reason of any changes
arising after the Closing Date, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided
for in this Agreement for such Fixed Rate Loan; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable by it hereunder in an
amount that such Lender deems material with respect to any Fixed Rate
Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in
the rate of taxes or similar charges) because of (x) any change since
the Closing Date in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law),
or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events,
excluding reserves already includable in the interest rate applicable
to such Fixed Rate Loan pursuant to this Agreement) or (y) other
circumstances adversely affecting the London interbank market or the
position of such Lender in any such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan
has become unlawful by compliance by such Lender in good faith with
any change since the Closing Date in any law, governmental rule,
regulation, guideline or order, or the interpretation or application
thereof, or would conflict with any thereof not having the force of
law but with which such Lender customarily complies, or has become
impracticable as a result of a contingency occurring after the Closing
Date that materially adversely affects the London interbank market;
then, and in each such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (1) on or promptly following such date or time
and (2) within ten (10) Business Days of the date on which such event no longer
exists give notice (by telephone confirmed in writing) to the Borrower and to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, the affected Type of Fixed Rate Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or Notice
of Continuation or Conversion given by the Borrower with respect to such Type of
Fixed Rate Loans that have not yet been incurred, Converted or Continued shall
be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing
other than a Borrowing of Foreign Currency Loans, shall, at the option of the
Borrower, be deemed converted into a Notice of Borrowing for Base Rate Loans to
be made on the date of Borrowing contained in such Notice of Borrowing, (y) in
the case of clause (ii) above, the Borrower shall pay to such Lender, upon
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (a written notice
as to the additional amounts owed to such Lender, showing the basis for the
calculation thereof, which basis must be reasonable, submitted to the Borrower
by such Lender shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 3.01(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the circumstances
described in Section 3.01(a)(ii) or (iii), the Borrower may (and in
the case of a Fixed Rate Loan affected pursuant to Section
3.01(a)(iii) the Borrower shall) either (i) if the affected Fixed Rate
Loan is then being made pursuant to a Borrowing, by giving the
Administrative Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the Borrower was notified by a Lender
pursuant to Section 3.01(a)(ii) or (iii), cancel said Borrowing, or,
in the case of any Borrowing other than a Borrowing of Foreign
Currency Loans, convert the related Notice of Borrowing into one
requesting a Borrowing of Base Rate Loans or require the affected
Lender to make its requested Loan as a Base Rate Loan, or (ii) if the
affected Fixed Rate Loan is then outstanding, upon at least one
Business Day's notice to the Administrative Agent, require the
affected Lender to Convert each such Fixed Rate Loan into a Base Rate
Loan or, in the case of a Foreign Currency Loan, prepay in full such
Foreign Currency Loan; provided, however, that if more than one Lender
is affected at any time, then all affected Lenders must be treated the
same pursuant to this Section 3.01(b).
(c) If any Lender shall have determined that after the Closing Date, the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank
or comparable agency charged by law with the interpretation or
administration thereof, or compliance by such Lender or its parent
corporation with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank, or comparable agency, in each case made subsequent to
the Closing Date, has or would have the effect of reducing by an
amount reasonably deemed by such Lender to be material to the rate of
return on such Lender's or its parent corporation's capital or assets
as a consequence of such Lender's commitments or obligations hereunder
to a level below that which such Lender or its parent corporation
could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or its parent
corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by such Lender (with a copy
to the Administrative Agent), the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or
its parent corporation for such reduction. Each Lender, upon
determining in good faith that any additional amounts will be payable
pursuant to this Section 3.01(c), will give prompt written notice
thereof to the Borrower, which notice shall set forth, in reasonable
detail, the basis of the calculation of such additional amounts, which
basis must be reasonable, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 3.01(c) upon the
subsequent receipt of such notice.
Section 3.02 Breakage Compensation. The Borrower shall compensate each Lender
(including the Swing Line Lender), upon its written request (which request shall
set forth the detailed basis for requesting and the method of calculating such
compensation), for all reasonable losses, costs, expenses and liabilities
(including, without limitation, any loss, cost, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Fixed Rate Loans or Swing Loans and costs associated
with foreign currency hedging obligations incurred by such Lender in connection
with any Fixed Rate Loan) which such Lender may sustain in connection with any
of the following: (i) if for any reason (other than a default by such Lender or
the Administrative Agent) a Borrowing of Fixed Rate Loans or Swing Loans does
not occur on a date specified therefor in a Notice of Borrowing or a Notice of
Continuation or Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 3.01(a)); (ii) if any repayment, prepayment,
Conversion or Continuation of any Fixed Rate Loan occurs on a date that is not
the last day of an Interest Period applicable thereto or any Swing Loan is paid
prior to the Swing Loan Maturity Date applicable thereto; (iii) if any
prepayment of any of its Fixed Rate Loans is not made on any date specified in a
notice of prepayment given by the Borrower; (iv) as a result of an assignment by
a Lender of any Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto pursuant to a request by the Borrower pursuant to
Section 3.05(b); or (v) as a consequence of (y) any other default by the
Borrower to repay or prepay any Fixed Rate Loans when required by the terms of
this Agreement or (z) an election made pursuant to Section 3.05(b). The written
request 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 request within 10 days after receipt
thereof.
Section 3.03 Net Payments.
(a) Except as provided for in Section 3.03(b), all payments made by the Borrower
hereunder, under any Note or any other Loan Document, including all payments
made by the Borrower pursuant to its guaranty obligations under Article X, will
be made free and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in this Section 3.03(a), any tax imposed on
or measured by the net income or net profits of a Lender and franchise taxes
imposed on it pursuant to the laws of the jurisdiction under which such Lender
is organized or the jurisdiction in which the principal office or Applicable
Lending Office of such Lender, as applicable, is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies imposts, duties, fees, assessments or
other charges (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If any
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of
such Taxes and such additional amounts (including additional amounts to
compensate for withholding on amounts paid pursuant to this Section 3.03) as may
be necessary so that every payment by it of all amounts due hereunder, under any
Note or under any other Loan Document, after withholding or deduction for or on
account of any Taxes will not be less than the amount provided for herein or in
such Note or in such other Loan Document. The Borrower will indemnify and hold
harmless the Administrative Agent and each Lender, and reimburse the
Administrative Agent or such Lender upon its written request, for the amount of
any Taxes imposed on and paid by such Lender. If any amounts are payable in
respect of Taxes pursuant to this Section 3.03(a), the Borrower agrees to
reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income, profits or franchise of such Lender
pursuant to the laws of the jurisdiction in which such Lender is organized or in
which the principal office or Applicable Lending Office of such Lender is
located, as the case may be, or under the laws of any political subdivision or
taxing authority therein, and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
reimbursement of taxes, which request shall be accompanied by a statement from
such Lender setting forth, in reasonable detail, the computations used in
determining such amounts. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes, or any withholding or
deduction on account thereof, is due pursuant to applicable law certified copies
of tax receipts, or other evidence satisfactory to the respective Lender,
evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Code) for federal income tax purposes and that is
entitled to claim an exemption from or reduction in United States withholding
tax with respect to a payment by Borrower agrees to provide to the Borrower and
the Administrative Agent on or prior to the Closing Date, or in the case of a
Lender that is an assignee or transferee of an interest under this Agreement
pursuant to Section 11.06 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer and such Lender is in
compliance with the provisions of this Section), on the date of such assignment
or transfer to such Lender, and from time to time thereafter if required by the
Borrower or the Administrative Agent two accurate and complete original signed
copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY (or
successor, substitute or other appropriate forms and, in the case of Form
W-8IMY, complete with accompanying Forms W-8BEN with respect to beneficial
owners of the payment) certifying to such Lender's entitlement to exemption from
or a reduced rate of withholding of United States withholding tax with respect
to payments to be made under this Agreement, any Note or any other Loan
Document, along with any other appropriate documentation establishing such
exemption or reduction (such as statements certifying qualification for
exemption with respect to portfolio interest). In addition, each Lender agrees
that from time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of the applicable Internal
Revenue Service form establishing such exemption or reduction (such as
statements certifying qualification for exemption with respect to portfolio
interest) and any related documentation as may be required in order to confirm
or establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax if the Lender continues to be so
entitled. No Lender shall be required by this Section 3.03(b) to deliver a form
or certificate that it is not legally entitled to deliver. The Borrower shall
not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on
account of or indemnify with respect to United States withholding taxes to the
extent that such taxes arise solely due to a Lender's failure to deliver forms
that it was legally entitled to but failed to deliver under this Section
3.03(b). The Borrower agrees to pay additional amounts and indemnify each Lender
in the manner set forth in Section 3.03(a) in respect of any Taxes deducted or
withheld by it as a result of any changes after the Closing Date in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in
the interpretation thereof, relating to the deducting or withholding of income
or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it has finally and
irrevocably received or been granted a refund in respect of any Taxes as to
which indemnification has been paid by the Borrower pursuant to this Section
3.03, it shall promptly remit such refund (including any interest received in
respect thereof), net of all out-of-pocket costs and expenses to the Borrower;
provided, however, that the Borrower agrees to promptly return any such refund
(plus interest) to such Lender in the event such Lender is required to repay
such refund to the relevant taxing authority. Any such Lender shall provide the
Borrower with a copy of any notice of assessment from the relevant taxing
authority (redacting any unrelated confidential information contained therein)
requiring repayment of such refund. Nothing contained herein shall impose an
obligation on any Lender to apply for any such refund.
Section 3.04 Increased Costs to LC Issuers. If after the Closing Date, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any LC Issuer or any Lender with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency (in each case made subsequent to
the Closing Date) shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such LC Issuer or such Lender's participation therein, or (ii)
impose on such LC Issuer or any Lender any other conditions affecting this
Agreement, any Letter of Credit or such Lender's participation therein; and the
result of any of the foregoing is to increase the cost to such LC Issuer or such
Lender of issuing, maintaining or participating in any Letter of Credit, or to
reduce the amount of any sum received or receivable by such LC Issuer or such
Lender hereunder (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in the rate
of taxes or similar charges), then, upon demand to the Borrower by such LC
Issuer or such Lender (a copy of which notice shall be sent by such LC Issuer or
such Lender to the Administrative Agent), the Borrower shall pay to such LC
Issuer or such Lender such additional amount or amounts as will compensate any
such LC Issuer or such Lender for such increased cost or reduction. A
certificate submitted to the Borrower by any LC Issuer or any Lender, as the
case may be (a copy of which certificate shall be sent by such LC Issuer or such
Lender to the Administrative Agent), setting forth, in reasonable detail, the
basis for the determination of such additional amount or amounts necessary to
compensate any LC Issuer or such Lender as aforesaid shall be conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 3.04.
Section 3.05 Change of Lending Office; Replacement of Lenders.
(a) Each Lender agrees that, upon the occurrence of any event giving rise to the
operation of Sections 3.01(a)(ii) or (iii), 3.01(c), 3.03 or 3.04 requiring the
payment of additional amounts to the Lender, such Lender will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another Applicable Lending Office for any Loans or
Commitments affected by such event; provided, however, that such designation is
made on such terms that such Lender and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
(b) If (i) any Lender requests any compensation, reimbursement or other payment
under Sections 3.01(a)(ii) or (iii), 3.01(c) or 3.04 with respect to such
Lender, (ii) the Borrower is required to pay any additional amount to any Lender
or Governmental Authority pursuant to Section 3.03 or (iii) in connection with
any proposed amendment, modification, termination, waiver or consent with
respect to any provisions hereof as contemplated by Section 11.12, the consent
of the Required Lenders shall have been obtained but the consent of a Lender
whose consent is required shall not have been obtained (each a "Non-Consenting
Lender") 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 the restrictions contained in
Section 11.06(c)), all its interests, rights and obligations under this
Agreement to an Eligible Assignee that shall assume such obligations; provided,
however, that (1) the Borrower shall have received the prior written consent of
the Administrative Agent, which consent shall not be unreasonably withheld or
delayed, (2) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, 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, including any breakage compensation under Section
3.02 hereof), (3) in the case of any such assignment resulting from a claim for
compensation, reimbursement or other payments required to be made under Section
3.01(a)(ii) or (iii), Section 3.01(c) or Section 3.04 with respect to such
Lender, or resulting from any required payments to any Lender or Governmental
Authority pursuant to Section 3.03, such assignment will result in a reduction
in such compensation, reimbursement or payments and (4) in the case of an
assignment from a Non-Consenting Lender to an Eligible Assignee, such Eligible
Assignee shall consent at the time of such assignment to each matter in respect
of which such Non-Consenting Lender did not consent. 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.
(c) Nothing in this Section 3.05 shall affect or postpone any of the obligations
of the Borrower or the right of any Lender provided in Sections 3.01, 3.03 or
3.04.
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent at Closing Date. The obligation of the Lenders
to make Loans, and of any LC Issuer to issue Letters of Credit, is subject to
the satisfaction of each of the following conditions on or prior to the Closing
Date:
(i) Credit Agreement. This Agreement shall have been executed by the
Borrower, the Administrative Agent, each LC Issuer and each of the
Lenders.
(ii) Notes. The Borrower shall have executed and delivered to the
Administrative Agent the appropriate Note or Notes for the account of
each Lender that has requested the same.
(iii) Subsidiary Guaranty. The Subsidiary Guarantors shall have duly
executed and delivered a Guaranty of Payment (the "Subsidiary
Guaranty"), substantially in the form attached hereto as Exhibit C-1.
(iv) Pledge Agreement. The Borrower and each Subsidiary Guarantor shall
have duly executed and delivered the Pledge Agreement (the "Pledge
Agreement"), substantially in the form attached hereto as Exhibit C-2,
and shall have delivered the Equity Interests required to be pledged
thereunder together with appropriate executed stock transfer powers.
(v) Fees and Fee Letters. The Borrower shall have (A) executed and
delivered to the Administrative Agent the Fee Letter and therein shall
have paid to the Administrative Agent, for its own account, the fees
required to be paid by it on the Closing Date, and (B) paid or caused
to be paid all reasonable fees and expenses of the Administrative
Agent and of special counsel to the Administrative Agent that have
been invoiced on or prior to the Closing Date in connection with the
preparation, execution and delivery of this Agreement and the other
Loan Documents and the consummation of the transactions contemplated
hereby and thereby.
(vi) Corporate Resolutions and Approvals. The Administrative Agent shall
have received certified copies of the resolutions of the Board of
Directors or managing member, as the case may be, of each Credit Party
approving the Loan Documents to which such Credit Party is or may
become a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
the execution, delivery and performance by the Credit Party of the
Loan Documents to which it is or may become a party.
(vii) Incumbency Certificates. The Administrative Agent shall have received
a certificate of the Secretary or an Assistant Secretary of the
Borrower and of each Subsidiary Guarantor certifying the names and
true signatures of the officers of the Borrower or such Subsidiary
Guarantor, as the case may be, authorized to sign the Loan Documents
to which the Borrower or such Subsidiary Guarantor is a party and any
other documents to which the Borrower or any such other Subsidiary
Guarantor is a party that may be executed and delivered in connection
herewith.
(viii) Opinions of Counsel. The Administrative Agent shall have received
such opinions of counsel from counsel to the Borrower and the
Subsidiary Guarantors as the Administrative Agent shall request, each
of which shall be addressed to the Administrative Agent and each of
the Lenders and dated the Closing Date and in form and substance
satisfactory to the Administrative Agent.
(ix) Recordation of Security Documents, Delivery of Collateral, Taxes, etc.
The Security Documents (or proper notices or UCC financing statements
in respect thereof) shall have been duly recorded, published and filed
in such manner and in such places as is required by law to establish,
perfect, preserve and protect the rights, Liens and security interests
of the parties thereto and their respective successors and assigns,
all Collateral items required to be physically delivered to the
Administrative Agent thereunder shall have been so delivered,
accompanied by any appropriate instruments of transfer, and all taxes,
fees and other charges then due and payable in connection with the
execution, delivery, recording, publishing and filing of such
instruments and the issuance of the Obligations and the delivery of
the Notes shall have been paid in full.
(x) Evidence of Insurance. The Administrative Agent shall have received
certificates of insurance and other evidence, satisfactory to it, of
compliance with the insurance requirements of this Agreement and the
Security Documents.
(xi) Search Reports. The Administrative Agent shall have received the
results of UCC and other search reports from one or more commercial
search firms acceptable to the Administrative Agent, listing all of
the effective financing statements filed against the Borrower or any
Domestic Subsidiary, together with copies of such financing
statements.
(xii) Corporate Charter and Good Standing Certificates. The Administrative
Agent shall have received: (A) an original certified copy of the
Certificate or Articles of Incorporation or equivalent formation
document of each Credit Party and any and all amendments and
restatements thereof, certified as of a recent date by the relevant
Secretary of State; (B) an original good standing certificate from the
Secretary of State of the state of incorporation, dated as of a recent
date, listing all charter documents affecting such Credit Party and
certifying as to the good standing of such Credit Party; and (C)
original certificates of good standing from each other jurisdiction in
which each Credit Party is authorized or qualified to do business.
(xiii) Closing Certificate. The Administrative Agent shall have received a
certificate substantially in the form of Exhibit F hereto, dated the
Closing Date, of an Authorized Officer of the Borrower to the effect
that, at and as of the Closing Date and both before and after giving
effect to the initial Borrowings hereunder and the application of the
proceeds thereof: (A) no Default or Event of Default has occurred or
is continuing; and (B) all representations and warranties of the
Credit Parties contained herein or in the other Loan Documents are
true and correct in all material respects as of the Closing Date.
(xiv) Payment of Outstanding Indebtedness and Release of Liens. The
Administrative Agent shall have received evidence that all
Indebtedness, other than Indebtedness permitted by Section 7.04,
together with all interest, all payment premiums and all other amounts
due and payable with respect thereto, shall be paid in full and the
commitments in respect of such Indebtedness shall be permanently
terminated and all Liens, other than Permitted Liens, shall be
released. The Administrative Agent shall have received all payoff and
release letters, Uniform Commercial Code Form UCC-3 termination
statements or other instruments or agreements as may be suitable or
appropriate in connection with the release of any such Liens.
(xv) Solvency Certificate. The Administrative Agent shall have received a
solvency certificate substantially in the form attached hereto as
Exhibit G, dated as of the Closing Date, and executed by the Chief
Financial Officer of the Borrower.
(xvi) Material Adverse Effect. As of the Closing Date, no condition or
event shall have occurred since September 30, 2006 that has resulted
in, or could reasonably be expected to result in, a Material Adverse
Effect. As of the Closing Date, no condition or event shall have
occurred since December 31, 2006 with respect to Doble that has
resulted in, or could reasonably be expected to result in, a material
adverse effect on the business, operations, property, assets,
liabilities, financial or other condition or prospects of Doble and
its Subsidiaries, taken as a whole or on the ability of Doble and its
Subsidiaries, taken as a whole, to pay their liabilities and
obligations as they mature or become due.
(xvii) Absence of Litigation. No legal or regulatory prohibitions shall
exist which prevent any Credit Party or Lender from entering into the
Loan Documents. There shall not be any action, suit, investigation or
proceeding pending or, to the knowledge of any Credit Party,
threatened, in any court or before any arbitrator that could
reasonably be expected to have a Material Adverse Effect.
(xviii) Material Environmental Liabilities. As of the Closing Date, no
condition or event shall have occurred or exists which could
reasonably be expected to result in, an Environmental Claim for
liabilities in excess of $2,000,000.
(xix) Approvals, etc. The Administrative Agent shall have be reasonably
satisfied that all necessary consents, permits, licenses and approvals
(governmental or otherwise) required for the execution, delivery and
performance by each Credit Party of the Loan Documents have been duly
obtained and are in full force and effect.
(xx) Consolidated EBITDA. The Administrative Agent shall have received
evidence that (i) Consolidated EBITDA of the Borrower for the
twelve-month period ending September 30, 2007 is not less than
$63,000,000; and (ii) projected Consolidated EBITDA of Doble on a pro
forma basis computed in a manner satisfactory to the Administrative
Agent for the twelve-month period ending December 31, 2007 is not less
than $27,000,000. On the Closing Date, no more than $275,000,000 of
Revolving Loans may be requested.
(xxi) Purchase Agreement Documentation. The Administrative Agent shall have
received (i) a certified true and complete copy of the Purchase
Agreement (including all amendments, supplements, schedules and
exhibits thereto) and all other Purchase Agreement Documentation; (ii)
a certificate by an Authorized Officer of the Borrower that the
representations and warranties in the Purchase Agreement Documentation
are true and correct in all material respects and the acquisition of
Doble shall have been consummated in compliance with all applicable
laws and in accordance with the terms of the Purchase Agreement, all
applicable consents and approvals shall have been obtained and be in
full force and effect, and all conditions precedent to the
consummation of such acquisition shall have been satisfied (or waived
with the consent of the Administrative Agent, or to the extent the
waiver of such condition would not be adverse to the interests of the
Administrative Agent and the Lenders, the Borrower).
(xxii) Proceedings and Documents. All corporate and other proceedings and
all documents incidental to the transactions contemplated hereby shall
be satisfactory in substance and form to the Administrative Agent and
the Lenders and the Administrative Agent and its special counsel and
the Lenders shall have received all such counterpart originals or
certified or other copies of such documents as the Administrative
Agent or its special counsel or any Lender may reasonably request.
(xxiii) Post-Closing Agreement. The Borrower shall have executed and
delivered to the Administrative Agent the Post-Closing Agreement, in
form and substance acceptable to the Administrative Agent.
(xxiv) Miscellaneous. The Credit Parties shall have provided to the
Administrative Agent and the Lenders such other items and shall have
satisfied such other conditions as may be reasonably required by the
Administrative Agent or the Lenders.
Section 4.02 Conditions Precedent to All Credit Events. The obligations of the
Lenders, the Swing Line Lender and each LC Issuer to make or participate in each
Credit Event is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) Notice. The Administrative Agent (and in the case of subpart (iii)
below, the applicable LC Issuer) shall have received, as applicable,
(i) a Notice of Borrowing meeting the requirements of Section 2.06(b)
with respect to any Borrowing (other than a Continuation or
Conversion), (ii) a Notice of Continuation or Conversion meeting the
requirements of Section 2.10(b) with respect to a Continuation or
Conversion, or (iii) an LC Request meeting the requirements of Section
2.05(b) with respect to each LC Issuance.
(b) No Default; Representations and Warranties. At the time of each Credit
Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and
warranties of the Credit Parties contained herein or in the other Loan
Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been
made on and as of the date of such Credit Event, except to the extent
that such representations and warranties expressly relate to an
earlier specified date, in which case such representations and
warranties shall have been true and correct in all material respects
as of the date when made.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent,
the Swing Line Lender, each LC Issuer and each of the Lenders that all of
the applicable conditions specified in Section 4.01 and Section 4.02 have
been satisfied as of the times referred to in such Sections.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Lenders and each LC Issuer
to enter into this Agreement and to make the Loans and to issue and to
participate in the Letters of Credit provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the
Administrative Agent, the Lenders and each LC Issuer, all of which shall survive
the execution and delivery of this Agreement and each Credit Event:
Section 5.01 Corporate Status. The Borrower and each of its Subsidiaries (i) is
a duly organized or formed and validly existing corporation, partnership or
limited liability company, as the case may be, in good standing or in full force
and effect under the laws of the jurisdiction of its formation and has the
corporate, partnership or limited liability company power and authority, as
applicable, to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage, and (ii) has duly qualified and
is authorized to do business in all jurisdictions where it is required to be so
qualified or authorized except where the failure to be so qualified would not
have a Material Adverse Effect. Schedule 5.01 hereto lists, as of the Closing
Date, each Subsidiary of the Borrower (and the direct and indirect ownership
interest of the Borrower therein).
Section 5.02 Corporate Power and Authority. Each Credit Party has the corporate
or other organizational power and authority to execute, deliver and carry out
the terms and provisions of the Loan Documents to which it is party and has
taken all necessary corporate or other organizational action to authorize the
execution, delivery and performance of the Loan Documents to which it is party.
Each Credit Party has duly executed and delivered each Loan Document to which it
is party and each Loan Document to which it is party constitutes the legal,
valid and binding agreement and obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
Section 5.03 No Violation. Neither the execution, delivery and performance by
any Credit Party of the Loan Documents to which it is party nor compliance with
the terms and provisions thereof (i) will contravene any provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any Governmental
Authority applicable to such Credit Party or its properties and assets,
(ii) will conflict with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(other than the Liens created pursuant to the Security Documents) upon any of
the property or assets of such Credit Party pursuant to the terms of any
promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or
loan agreement, or any other agreement or other instrument, to which such Credit
Party is a party or by which it or any of its property or assets are bound or to
which it may be subject, or (iii) will violate any provision of the
Organizational Documents of such Credit Party.
Section 5.04 Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority is required to authorize or is required
as a condition to (i) the execution, delivery and performance by any Credit
Party of any Loan Document to which it is a party or any of its obligations
thereunder, or (ii) the legality, validity, binding effect or enforceability of
any Loan Document to which any Credit Party is a party, except the filing and
recording of financing statements and other documents necessary in order to
perfect the Liens created by the Security Documents.
Section 5.05 Litigation. There are no actions, suits or proceedings pending or,
to the knowledge of the Borrower, threatened with respect to the Borrower or any
of its Subsidiaries (i) that have had, or could reasonably be expected to have,
a Material Adverse Effect, or (ii) that question the validity or enforceability
of any of the Loan Documents, or of any action to be taken by the Borrower or
any of the other Credit Parties pursuant to any of the Loan Documents.
Section 5.06 Use of Proceeds; Margin Regulations.
(a) The proceeds of all Loans and LC Issuances shall be utilized to consummate
the acquisition of Doble, provide funds for Permitted Acquisitions, finance
stock repurchases and capital expenditures, and provide working capital and
funds for general corporate purposes, in each case, not inconsistent with the
terms of this Agreement.
(b) No part of the proceeds of any Credit Event will be used directly or
indirectly to purchase or carry Margin Stock, or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock, in violation of any of
the provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System. Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock. At no time would more
than 25% of the value of the assets of the Borrower or of the Borrower and its
consolidated Subsidiaries that are subject to any "arrangement" (as such term is
used in Section 221.2(g) of such Regulation U) hereunder be represented by
Margin Stock.
Section 5.07 Financial Statements.
(a) The Borrower has furnished to the Administrative Agent and the Lenders
complete and correct copies of (x) (i) the audited consolidated balance sheets
of the Borrower and its consolidated Subsidiaries for the fiscal year ended
September 30, 2006 and the related audited consolidated statements of income,
shareholders' equity, and cash flows of the Borrower and its consolidated
Subsidiaries for the fiscal year of the Borrower then ended, accompanied by the
report thereon of KPMG LLP, and (ii) the condensed consolidated balance sheets
of the Borrower and its consolidated Subsidiaries for the fiscal quarters ended
December 31, 2006, March 30, 2007, and June 30, 2007 and the related condensed
consolidated statements of income and of cash flows of the Borrower and its
consolidated Subsidiaries for each of the fiscal periods then ended, and (y) (i)
the audited consolidated balance sheets of Doble and its consolidated
Subsidiaries for the fiscal year ended December 31, 2006 and the related audited
consolidated statements of income, shareholders' equity, and cash flows of Doble
and its consolidated Subsidiaries for the fiscal year of Doble then ended,
accompanied by the report thereon of Grant Thorton LLP; and (ii) the condensed
consolidated balance sheets of Doble and its consolidated Subsidiaries for the
fiscal quarters ended March 30, 2007 and June 30, 2007 and the related condensed
consolidated statements of income and of cash flows of Doble and its
consolidated Subsidiaries for each of the fiscal periods then ended. All such
financial statements have been prepared in accordance with GAAP, consistently
applied (except as stated therein), and fairly present the financial position of
the Borrower and its Subsidiaries, or Doble and its Subsidiaries, as the case
may be, as of the respective dates indicated and the consolidated results of
their operations and cash flows for the respective periods indicated, subject in
the case of any such financial statements that are unaudited, to normal audit
adjustments, none of which shall be material. The Borrower and its Subsidiaries
did not have, as of the date of the latest financial statements referred to
above, and will not have as of the Closing Date after giving effect to the
incurrence of Loans or LC Issuances hereunder, any material or significant
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto in accordance with GAAP and that in any such
case is material in relation to the business, operations, properties, assets,
financial or other condition or prospects of the Borrower and its Subsidiaries.
(b) The financial projections of the Borrower and its Subsidiaries for the
fiscal years 2008 through 2012 prepared by the Borrower and delivered to the
Administrative Agent and the Lenders (the "Financial Projections") were prepared
on behalf of the Borrower in good faith after taking into account historical
levels of business activity of the Borrower and its Subsidiaries, known trends,
including general economic trends, and all other information, assumptions and
estimates considered by management of the Borrower and its Subsidiaries to be
pertinent thereto; provided, however, that no representation or warranty is made
as to the impact of future general economic conditions or as to whether the
Borrower's projected consolidated results as set forth in the Financial
Projections will actually be realized, it being recognized by the Lenders that
such projections as to future events are not to be viewed as facts and that
actual results for the periods covered by the Financial Projections may differ
materially from the Financial Projections. No facts are known to the Borrower as
of the Closing Date which, if reflected in the Financial Projections, would
result in a material adverse change in the assets, liabilities, results of
operations or cash flows reflected therein.
Section 5.08 Solvency. The Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that the Borrower
has incurred to the Administrative Agent, each LC Issuer and the Lenders under
the Loan Documents. The Borrower now has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is now solvent and able to pay its debts as they mature and the
Borrower, as of the Closing Date, owns property having a value, both at fair
valuation and at present fair salable value, greater than the amount required to
pay the Borrower's debts; and the Borrower is not entering into the Loan
Documents with the intent to hinder, delay or defraud its creditors. For
purposes of this Section, "debt" means any liability on a claim, and "claim"
means (y) right to payment whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (z) right to an equitable
remedy for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Section 5.09 No Material Adverse Change. Since September 30, 2006, there has
been no change in the condition, business, affairs or prospects of the Borrower
and its Subsidiaries taken as a whole, or their properties and assets considered
as an entirety, except for changes none of which, individually or in the
aggregate, has had or could reasonably be expected to have, a Material Adverse
Effect. Since December 31, 2006, there has been no change in the condition,
business, affairs or prospects of Doble and its Subsidiaries taken as a whole,
or their properties and assets considered as an entirety, except for changes
none of which, individually or in the aggregate, has had or could reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, financial or other condition or prospects of
Doble and its Subsidiaries, taken as a whole or on the ability of Doble and its
Subsidiaries, taken as a whole, to pay their liabilities and obligations as they
mature or become due.
Section 5.10 Tax Returns and Payments. The Borrower and each of its Subsidiaries
has filed all federal income tax returns and all other tax returns, domestic and
foreign, required to be filed by it and has paid all taxes and assessments
payable by it that have become due, other than those not yet delinquent and
except for those contested in good faith. The Borrower and each of its
Subsidiaries has established on its books such charges, accruals and reserves in
respect of taxes, assessments, fees and other governmental charges for all
fiscal periods as are required by GAAP. Neither the Borrower nor any of its
Subsidiaries knows of any proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Borrower and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
Section 5.11 Title to Properties, etc. The Borrower and each of its Subsidiaries
has good and marketable title, in the case of Real Property, and good title (or
valid Leaseholds, in the case of any leased property), in the case of all other
property, to all of its properties and assets free and clear of Liens other than
Permitted Liens. The interests of the Borrower and its Subsidiaries in the
properties reflected in the most recent balance sheet referred to in Section
5.07(a), taken as a whole, were sufficient, in the judgment of the Borrower, as
of the date of such balance sheet for purposes of the ownership and operation of
the businesses conducted by the Borrower and its Subsidiaries.
Section 5.12 Lawful Operations, etc. The Borrower and each of its Subsidiaries:
(i) hold all necessary foreign, federal, state, local and other governmental
licenses, registrations, certifications, permits and authorizations necessary to
conduct its business; and (ii) is in full compliance with all requirements
imposed by law, regulation or rule, whether foreign, federal, state or local,
that are applicable to it, its operations, or its properties and assets,
including, without limitation, applicable requirements of Environmental Laws,
except for any failure to obtain and maintain in effect, or noncompliance that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
Section 5.13 Environmental Matters.
(a) The Borrower and each of its Subsidiaries is in compliance with all
applicable Environmental Laws, except to the extent that any such failure to
comply (together with any resulting penalties, fines or forfeitures) would not
reasonably be expected to have a Material Adverse Effect. All licenses, permits,
registrations or approvals required for the conduct of the business of the
Borrower and its Subsidiaries under any Environmental Law have been secured and
the Borrower and its Subsidiaries is in substantial compliance therewith, except
for such licenses, permits, registrations or approvals the failure to secure or
to comply therewith is not reasonably likely to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries has received written notice, or
otherwise knows, that it is in any respect in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree to
which the Borrower or such Subsidiary is a party or that would affect the
ability of the Borrower or such Subsidiary to operate any Real Property and no
event has occurred and is continuing that, with the passage of time or the
giving of notice or both, would constitute noncompliance, breach of or default
thereunder, except in each such case, such noncompliance, breaches or defaults
as would not reasonably be expected to, in the aggregate, have a Material
Adverse Effect. There are no Environmental Claims pending or, to the best
knowledge of any Borrower, threatened wherein an unfavorable decision, ruling or
finding would reasonably be expected to have a Material Adverse Effect. There
are no facts, circumstances, conditions or occurrences on any Real Property now
or at any time owned, leased or operated by the Borrower or any of its
Subsidiaries or on any property adjacent to any such Real Property, that are
known by the Borrower or as to which the Borrower or any such Subsidiary has
received written notice, that could reasonably be expected: (i) to form the
basis of an Environmental Claim against the Borrower or any of its Subsidiaries
or any Real Property of the Borrower or any of its Subsidiaries; or (ii) to
cause such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property under any Environmental
Law, except in each such case, such Environmental Claims or restrictions that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated, used, treated
or stored on, or transported to or from, any Real Property of the Borrower or
any of its Subsidiaries or (ii) released on any such Real Property, in each case
where such occurrence or event is not in compliance with Environmental Laws and
is reasonably likely to have a Material Adverse Effect.
Section 5.14 Compliance with ERISA. Compliance by the Borrower with the
provisions hereof and Credit Events contemplated hereby will not involve any
prohibited transaction within the meaning of ERISA or Section 4975 of the Code.
The Borrower and each of its Subsidiaries and each ERISA Affiliate (i) has
fulfilled all obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan that is not a Multi-Employer Plan or a Multiple
Employer Plan, (ii) has satisfied all contribution obligations in respect of
each Multi-Employer Plan and each Multiple Employer Plan, (iii) is in compliance
in all material respects with all other applicable provisions of ERISA and the
Code with respect to each Plan, each Multi-Employer Plan and each Multiple
Employer Plan, and (iv) has not incurred any liability under Title IV of ERISA
to the PBGC with respect to any Plan, any Multi-Employer Plan, any Multiple
Employer Plan, or any trust established thereunder. No Plan or trust created
thereunder has been terminated, and there have been no Reportable Events, with
respect to any Plan or trust created thereunder or with respect to any
Multi-Employer Plan or Multiple Employer Plan, which termination or Reportable
Event will or could give rise to a material liability of the Borrower or any
ERISA Affiliate in respect thereof. Neither the Borrower nor any Subsidiary of
the Borrower nor any ERISA Affiliate is at the date hereof, or has been at any
time within the five years preceding the date hereof, an employer required to
contribute to any Multi-Employer Plan or Multiple Employer Plan, or a
"contributing sponsor" (as such term is defined in Section 4001 of ERISA) in any
Multi-Employer Plan or Multiple Employer Plan. Neither the Borrower nor any
Subsidiary of the Borrower nor any ERISA Affiliate has any contingent liability
with respect to any post-retirement "welfare benefit plan" (as such term is
defined in ERISA) except as has been disclosed to the Administrative Agent and
the Lenders in writing.
Section 5.15 Intellectual Property, etc. The Borrower and each of its
Subsidiaries has obtained or has the right to use all material patents,
trademarks, service marks, trade names, copyrights, licenses and other rights
with respect to the foregoing necessary for the present and planned future
conduct of its business, without any known conflict with the rights of others.
Section 5.16 Investment Company Act, etc. Neither the Borrower nor any of its
Subsidiaries is subject to regulation with respect to the creation or incurrence
of Indebtedness under the Investment Company Act of 1940, as amended, the
Interstate Commerce Act, as amended, the Federal Power Act, as amended, or any
applicable federal or state public utility law.
Section 5.17 Insurance. The Borrower and each of its Subsidiaries maintains
insurance coverage by such insurers and in such forms and amounts and against
such risks as are generally consistent with industry standards and in each case
in compliance with the terms of Section 6.03.
Section 5.18 Burdensome Contracts; Labor Relations. Neither the Borrower nor any
of its Subsidiaries (a) is subject to any burdensome contract, agreement,
corporate restriction, judgment, decree or order, (b) is a party to any labor
dispute affecting any bargaining unit or other group of employees generally, (c)
is subject to any material strike, slowdown, workout or other concerted
interruptions of operations by employees of the Borrower or any Subsidiary,
whether or not relating to any labor contracts, (d) is subject to any
significant pending or, to the knowledge of the Borrower, threatened, unfair
labor practice complaint, before the National Labor Relations Board, (e) is
subject to any significant pending or, to the knowledge of the Borrower,
threatened grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement, (f) is subject to any significant
pending or, to the knowledge of the Borrower, threatened significant strike,
labor dispute, slowdown or stoppage, or (g) is, to the knowledge of the
Borrower, involved or subject to any union representation organizing or
certification matter with respect to the employees of the Borrower or any of its
Subsidiaries, except (with respect to any matter specified in any of the above
clauses) for such matters as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section 5.19 Security Interests. Once executed and delivered, each of the
Security Documents creates, as security for the Obligations, a valid and
enforceable, and upon making the filings and recordings referenced in the next
sentence, perfected security interest in and Lien on all of the Collateral
subject thereto from time to time, in favor of the Administrative Agent for the
benefit of the Secured Creditors, superior to and prior to the rights of all
third persons and subject to no other Liens, except that the Collateral under
the Security Documents may be subject to Permitted Liens. No filings or
recordings are required in order to perfect the security interests created under
any Security Document except for filings or recordings required in connection
with any such Security Document that shall have been made, or for which
satisfactory arrangements have been made, upon or prior to the execution and
delivery thereof. All recording, stamp, intangible or other similar taxes
required to be paid by any Person under applicable legal requirements or other
laws applicable to the property encumbered by the Security Documents in
connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement thereof have been paid.
Section 5.20 True and Complete Disclosure. All information heretofore or
contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries in writing to the Administrative Agent or any Lender for purposes
of or in connection with this Agreement or any transaction contemplated herein,
other than the Financial Projections (as to which representations are made only
as provided in Section 5.07(b)), is, and all other such information hereafter
furnished by or on behalf of such Person in writing to the Administrative Agent
or any Lender will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by omitting
to state any material fact necessary to make such information not misleading at
such time in light of the circumstances under which such information was
provided, except that any such future information consisting of financial
projections prepared by the Borrower or any of its Subsidiaries is only
represented herein as being based on good faith estimates and assumptions
believed by such persons to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ materially from the projected results.
Section 5.21 Defaults. No Default or Event of Default exists as of the Closing
Date hereunder, nor will any Default or Event of Default begin to exist
immediately after the execution and delivery hereof.
Section 5.22 Capitalization. As of the Closing Date, Schedule 5.22 is a true,
complete and accurate description of the equity capital structure of the
Borrower and its Subsidiaries showing, for each such Person, accurate ownership
percentages of the equity holders of record and accompanied by a statement of
authorized and issued Equity Interests for each such Person. Except as set forth
on Schedule 5.22, as of the Closing Date (a) there are no preemptive rights,
outstanding subscriptions, warrants or options to purchase any Equity Interests
of any Credit Party or any of its Subsidiaries, (b) there are no obligations of
any Credit Party to redeem or repurchase any of its Equity Interests and (c)
there is no agreement, arrangement or plan to which any Credit Party or any of
its Subsidiaries is a party or of which any Credit Party has knowledge that
could directly or indirectly affect the capital structure of any Credit Party or
its Subsidiaries. The Equity Interests of the Borrower and each of its
Subsidiaries described on Schedule 5.22 are validly issued and fully paid and
non-assessable and the Equity Interests of the Borrower and each of its
Subsidiaries are owned of record and beneficially as set forth on Schedule 5.22,
free and clear of all Liens (other than Liens created under the Security
Documents).
Section 5.23 Representation and Warranties in Purchase Agreement Documentation.
As of the Closing Date, (i) each of the representations and warranties made by
the Credit Parties in the Purchase Agreement Documentation is true and correct
in all material respects, except to the extent that such representation and
warranty relates to a specific date, in which case such representation shall be
true and correct as of such earlier date, and (ii) to the knowledge of the
Credit Parties, each of the representations and warranties made by a party,
other than a Credit Party, to the Purchase Agreement Documentation is true and
correct in all material respects, expect to the extent that such representation
and warranty relates to a specific date, in which case such representation shall
be true and correct as of such earlier date.
Section 5.24 Anti-Terrorism Law Compliance. Neither the Borrower nor any of its
Subsidiaries is subject to or in violation of any law, regulation, or list of
any government agency (including, without limitation, the U.S. Office of Foreign
Asset Control list, Executive Order No. 13224 or the USA Patriot Act) that
prohibits or limits the conduct of business with or the receiving of funds,
goods or services to or for the benefit of certain Persons specified therein or
that prohibits or limits any Lender or LC Issuer from making any advance or
extension of credit to the Borrower or from otherwise conducting business with
the Borrower.
ARTICLE VI.
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date and thereafter
so long as this Agreement is in effect and until such time as the Commitments
have been terminated, no Notes remain outstanding and the Loans, together with
interest, Fees and all other Obligations incurred hereunder and under the other
Loan Documents, have been paid in full.
Section 6.01 Reporting Requirements. The Borrower will furnish to the
Administrative Agent and each Lender:
(a) Annual Financial Statements. As soon as available and in any event within 90
days after the close of each fiscal year of the Borrower, (i) the unaudited
consolidating balance sheets of the Borrower and its Subsidiaries as at the end
of such fiscal year and the related unaudited consolidating statements of
income, of stockholders' equity and of cash flows for such fiscal year, in each
case setting forth comparative figures for the preceding fiscal year, all in
reasonable detail; and (ii) the audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at the end of such fiscal year and
the related audited consolidated statements of income, of stockholders' equity
(other than retained earnings) and of cash flows for such fiscal year, in each
case setting forth comparative figures for the preceding fiscal year, all in
reasonable detail and accompanied by the opinion with respect to such
consolidated financial statements of independent public accountants of
recognized national standing selected by the Borrower, which opinion shall be
unqualified and shall (x) state that such accountants audited such consolidated
financial statements in accordance with generally accepted auditing standards,
that such accountants believe that such audit provides a reasonable basis for
their opinion, and that in their opinion such consolidated financial statements
present fairly, in all material respects, the consolidated financial position of
the Borrower and its consolidated subsidiaries as at the end of such fiscal year
and the consolidated results of their operations and cash flows for such fiscal
year in conformity with generally accepted accounting principles, or (y) contain
such statements as are customarily included in unqualified reports of
independent accountants in conformity with the recommendations and requirements
of the American Institute of Certified Public Accountants (or any successor
organization).
(b) Quarterly Financial Statements. As soon as available and in any event within
45 days after the close of each of the first three quarterly accounting periods
in each fiscal year of the Borrower, the unaudited consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as at the end of such
quarterly period and the related unaudited consolidated statements of income and
of cash flows for such quarterly period and/or for the fiscal year to date, and
setting forth, in the case of such unaudited consolidated statements of income
and of cash flows, comparative figures for the related periods in the prior
fiscal year, and which shall be certified on behalf of the Borrower by the Chief
Financial Officer of the Borrower, subject to changes resulting from normal
year-end audit adjustments.
(c) Officer's Compliance Certificates. At the time of the delivery of the
financial statements provided for in subparts (a) and (b) above and within 45
days after the close of the fourth quarterly accounting period in each fiscal
year of the Borrower, a certificate (a "Compliance Certificate"), substantially
in the form of Exhibit E, signed by the Chief Financial Officer or the Treasurer
of the Borrower to the effect that (i) no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature and extent
thereof and the actions the Borrower has taken or proposes to take with respect
thereto, and (ii) the representations and warranties of the Credit Parties are
true and correct in all material respects, except to the extent that any relate
to an earlier specified date, in which case, such representations shall be true
and correct in all material respects as of the date made, which certificate
shall set forth the calculations required to establish compliance with the
provisions of Section 7.07.
(d) Budgets and Forecasts. Not later than 90 days after the commencement of any
fiscal year of the Borrower and its Subsidiaries, commencing with the fiscal
year ending September 30, 2008, a consolidated budget in reasonable detail for
such fiscal year, and (if and to the extent prepared by management of the
Borrower) for any subsequent fiscal years, as customarily prepared by management
for its internal use, setting forth, with appropriate discussion, the forecasted
balance sheet, income statement, operating cash flows and capital expenditures
of the Borrower and its Subsidiaries for the period covered thereby, and the
principal assumptions upon which forecasts and budget are based.
(e) Notices. Promptly, and in any event within three Business Days, after, the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of:
(i) the occurrence of any event that constitutes a Default or Event of Default,
which notice shall specify the nature thereof, the period of existence
thereof and what action the Borrower proposes to take with respect thereto;
(ii) the commencement of, or any other material development concerning, any
litigation or governmental or regulatory proceeding pending against the
Borrower or any of its Subsidiaries or the occurrence of any other event,
if the same would be reasonably likely to have a Material Adverse Effect;
or
(iii) any significant adverse change in the Borrower's or any Subsidiary's
relationship with, or any significant event or circumstance which is in the
Borrower's reasonable judgment likely to adversely affect the Borrower's or
any Subsidiary's relationship with, (A) any customer (or related group of
customers) representing more than 10% of the Borrower's consolidated
revenues during its most recent fiscal year, or (B) any supplier which is
material to the operations of the Borrower and its Subsidiaries considered
as an entirety.
(f) ERISA. Promptly, and in any event within 10 days after the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate knows of the occurrence of any
of the following, the Borrower will deliver to the Administrative Agent and each
of the Lenders a certificate of an Authorized Officer of the Borrower setting
forth the full details as to such occurrence and the action, if any, that the
Borrower or such Subsidiary of the Borrower or such ERISA Affiliate is required
or proposes to take, together with any notices required or proposed to be given
by the Borrower or such Subsidiary of the Borrower or the ERISA Affiliate to or
filed with the PBGC, a Plan participant or the Plan administrator with respect
thereto: (i) that a Reportable Event has occurred with respect to any Plan;
(ii) the institution of any steps by the Borrower, any Subsidiary of the
Borrower, any ERISA Affiliate, the PBGC or any other Person to terminate any
Plan or the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan; (iii) the institution of any steps by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate to withdraw from
any Multi-Employer Plan or Multiple Employer Plan, if such withdrawal could
result in withdrawal liability (as described in Part 1 of Subtitle E of Title IV
of ERISA or in Section 4063 of ERISA) in excess of $10,000,000; (iv) a
non-exempt "prohibited transaction" within the meaning of Section 406 of ERISA
in connection with any Plan; (v) that a Plan has Unfunded Benefit Liabilities
exceeding $10,000,000; (vi) the cessation of operations at a facility of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (vii) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to a Plan; (viii) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; (ix) the
insolvency of or commencement of reorganization proceedings with respect to a
Multi-Employer Plan; (x) any material increase in the contingent liability of
the Borrower or any Subsidiary with respect to any post-retirement welfare
liability; or (xi) the taking of any action by, or the threatening of the taking
of any action by, the Internal Revenue Service, the Department of Labor or the
PBGC with respect to any of the foregoing.
(g) Environmental Matters. Promptly upon, and in any event within ten (10)
Business Days after, an officer of the Borrower or any of its Subsidiaries
obtaining knowledge thereof, notice of one or more of the following
environmental matters to the extent any of the following could reasonably be
expected to have a Material Adverse Effect: (i) any pending or threatened
Environmental Claim against the Borrower or any of its Subsidiaries or any Real
Property owned or operated by the Borrower or any of its Subsidiaries; (ii) any
condition or occurrence on or arising from any Real Property owned or operated
by the Borrower or any of its Subsidiaries that (A) results in noncompliance by
the Borrower or any of its Subsidiaries with any applicable Environmental Law or
(B) would reasonably be expected to form the basis of a Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real Property; (iii)
any condition or occurrence on any Real Property owned, leased or operated by
the Borrower or any of its Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability by the Borrower or any of its Subsidiaries of
such Real Property under any Environmental Law; and (iv) the taking of any
removal or remedial action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries as required by any Environmental Law or any
governmental or other Global agency. All such notices shall describe in
reasonable detail the nature of the Environmental Claim, the Borrower's or such
Subsidiary's response thereto and the potential exposure in Dollars of the
Borrower and its Subsidiaries with respect thereto.
(h) SEC Reports and Registration Statements. Promptly after transmission thereof
or other filing with the SEC, copies of all registration statements (other than
the exhibits thereto and any registration statement on Form S-8 or its
equivalent) and all annual, quarterly or current reports that the Borrower or
any of its Subsidiaries files with the SEC on Form 10-K, 10-Q or 8-K (or any
successor forms).
(i) Annual, Quarterly and Other Reports. Promptly after transmission thereof to
its stockholders, copies of all annual, quarterly and other reports and all
proxy statements that the Borrower furnishes to its stockholders generally.
(j) [Intentionally Omitted.]
(k) [Intentionally Omitted.]
(l) Information Relating to Collateral. At the time of the delivery of the
annual financial statements provided for in subpart (a) above, a certificate of
an Authorized Officer of the Borrower certifying that neither the Borrower nor
any of its Subsidiaries has taken any actions (and is not aware of any actions
so taken) to terminate any UCC financing statements or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction to the extent necessary to protect and perfect the security
interests and Liens under the Security Documents for a period of not less than
18 months after the date of such certificate (except as noted therein with
respect to any continuation statements to be filed within such period).
(m) Other Notices. Promptly after the transmission or receipt thereof, as
applicable, copies of all notices received or sent by the Borrower or any
Subsidiary to or from the holders of any Material Indebtedness or any trustee
with respect thereto.
(n) Proposed Amendments, etc. to Acquisition Documentation. No later than five
(5) Business Days prior to the effectiveness thereof, copies of substantially
final drafts of any proposed amendment, supplement, waiver or other modification
with respect to any Acquisition Documentation.
(o) Other Information. Within ten (10) days after a request therefor, such other
information or documents (financial or otherwise) relating to the Borrower or
any of its Subsidiaries as the Administrative Agent or any Lender may reasonably
request from time to time.
Section 6.02 Books, Records and Inspections. The Borrower will, and will cause
each of its Subsidiaries to, (i) keep proper books of record and account, in
which full and correct entries shall be made of all financial transactions and
the assets and business of the Borrower or such Subsidiary, as the case may be,
in accordance with GAAP; and (ii) permit, upon at least two Business Days'
notice to the Borrower, officers and designated representatives of the
Administrative Agent or any of the Lenders to visit and inspect any of the
properties or assets of the Borrower and its Subsidiaries in whomsoever's
possession (but only to the extent the Borrower or such Subsidiary has the right
to do so to the extent in the possession of another Person), to examine the
books of account of the Borrower and any of its Subsidiaries, and make copies
thereof and take extracts therefrom, and to discuss the affairs, finances and
accounts of the Borrower and of its Subsidiaries with, and be advised as to the
same by, its and their officers and independent accountants and independent
actuaries, if any, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or any of the Lenders may request.
Section 6.03 Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) maintain
insurance coverage by such insurers and in such forms and amounts and against
such risks as are generally consistent with the insurance coverage maintained by
the Borrower and its Subsidiaries as of the Closing Date, and (ii) forthwith
upon the Administrative Agent's or any Lender's written request, furnish to the
Administrative Agent or such Lender such information about such insurance as the
Administrative Agent or such Lender may from time to time reasonably request,
which information shall be prepared in form and detail satisfactory to the
Administrative Agent or such Lender and certified by an Authorized Officer of
the Borrower.
(b) [Intentionally Omitted.]
(c) If the Borrower or any other Credit Party shall fail to maintain any
insurance in accordance with this Section, or if the Borrower or any such Credit
Party shall fail to so endorse and deliver or deposit all endorsements or
certificates with respect thereto, the Administrative Agent shall have the right
(but shall be under no obligation) to procure such insurance and the Borrower
agrees to reimburse the Administrative Agent on demand for all costs and
expenses of procuring such insurance.
Section 6.04 Payment of Taxes and Claims. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims that, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim that is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP.
Without limiting the generality of the foregoing, the Borrower will, and will
cause each of its Subsidiaries to, pay in full all of its wage obligations to
its employees in accordance with the Fair Labor Standards Act (29 U.S.C.
Sections 206-207) and any comparable provisions of applicable law.
Section 6.05 Corporate Franchises. The Borrower will do, and will cause each of
its Material Subsidiaries to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
authority; provided, however, that nothing in this Section shall be deemed to
prohibit any transaction permitted by Section 7.02.
Section 6.06 Good Repair. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner customary for
companies in similar businesses; provided, however, that nothing in this Section
shall prevent the Borrower from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the reasonable judgment of
the Borrower, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Lenders.
Section 6.07 Compliance with Statutes, etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all Governmental
Authorities in respect of the conduct of its business and the ownership of its
property, other than those the noncompliance with which would not be reasonably
expected to have a Material Adverse Effect.
Section 6.08 Compliance with Environmental Laws. Without limitation of the
covenants contained in Section 6.07:
(a) The Borrower will comply, and will cause each of its Subsidiaries to comply,
with all Environmental Laws applicable to the ownership, lease or use of all
Real Property now or hereafter owned, leased or operated by the Borrower or any
of its Subsidiaries, and will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, except to the extent that
such compliance with Environmental Laws is being contested in good faith and by
appropriate proceedings and for which adequate reserves have been established to
the extent required by GAAP, and an adverse outcome in such proceedings is not
reasonably expected to have a Material Adverse Effect.
(b) The Borrower will keep or cause to be kept, and will cause each of its
Subsidiaries to keep or cause to be kept, all such Real Property free and clear
of any Liens imposed pursuant to such Environmental Laws other than Permitted
Liens.
(c) Neither the Borrower nor any of its Subsidiaries will generate, use, treat,
store, release or dispose of, or permit the generation, use, treatment, storage,
release or disposal of, Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its Subsidiaries
or transport or permit the transportation of Hazardous Materials to or from any
such Real Property other than in compliance with applicable Environmental Laws
and in the ordinary course of business.
(d) If required to do so under any applicable order of any Governmental
Authority, the Borrower will undertake, and cause each of its Subsidiaries to
undertake, any clean up, removal, remedial or other action necessary to remove
and clean up any Hazardous Materials from any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries in accordance with, in all
material respects, the requirements of all applicable Environmental Laws and in
accordance with, in all material respects, such orders of all Governmental
Authorities, except to the extent that the Borrower or such Subsidiary is
contesting such order in good faith and by appropriate proceedings and for which
adequate reserves have been established to the extent required by GAAP.
Section 6.09 Certain Subsidiaries to Join in Subsidiary Guaranty. In the event
that at any time after the Closing Date, (i) the Borrower acquires, creates or
has any Material Domestic Subsidiary that is not already a party to the
Subsidiary Guaranty, or (ii) any Domestic Subsidiary acquires, creates or has
any Material Foreign Subsidiary and such Domestic Subsidiary is not party to the
Subsidiary Guaranty, the Borrower will promptly, but in any event within ten
(10) Business Days, cause such Subsidiary to deliver to the Administrative
Agent, in sufficient quantities for the Lenders, (a) a Guaranty Supplement (as
defined in the Subsidiary Guaranty), duly executed by such Subsidiary, pursuant
to which such Subsidiary joins in the Subsidiary Guaranty as a guarantor
thereunder, and (b) resolutions of the Board of Directors or equivalent
governing body of such Subsidiary, certified by the Secretary or an Assistant
Secretary of such Subsidiary, as duly adopted and in full force and effect,
authorizing the execution and delivery of such joinder supplement and the other
Loan Documents to which such Subsidiary is or will be a party, together with
such other corporate documentation and an opinion of counsel as the
Administrative Agent shall reasonably request, in each case, in form and
substance satisfactory to the Administrative Agent.
Section 6.10 Additional Security; Further Assurances.
(a) Additional Security. In the event that the Borrower, any Material Domestic
Subsidiary or any other Domestic Subsidiary acquires, creates or holds any
Equity Interest in a Material Foreign Subsidiary required to be pledged
hereunder or under any Security Document and that is not at the time included in
the Collateral, the Borrower will promptly notify the Administrative Agent in
writing of such event, identifying the Equity Interests in question and
referring specifically to the rights of the Administrative Agent and the Lenders
under this Section 6.10(a), and the Borrower will, or will cause such Subsidiary
to, within ten (10) Business Days following request by the Administrative Agent,
pledge (or cause to be pledged) to the Administrative Agent for the benefit of
the Secured Creditors the certificates representing 65% of the Equity Interest
in such Foreign Subsidiary and, if applicable, deliver the certificates
representing such Equity Interest together with appropriate executed stock
transfer powers.
(b) Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Administrative Agent from time to time
such conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Administrative Agent may reasonably require.
Section 6.11 Most Favored Covenant Status. If any Credit Party at any time after
the Closing Date enters into or modifies any Material Indebtedness Agreement
(other than any Material Indebtedness Agreement permitted by Section 7.04
hereof) such that such Material Indebtedness Agreement includes affirmative or
negative covenants (or any events of default or other type of restriction that
would have the practical effect of any affirmative or negative business or
financial covenant, including, without limitation, any "put" or mandatory
prepayment of such Indebtedness upon the occurrence of a "change of control")
that are applicable to any Credit Party, other than those set forth herein or in
any of the other Loan Documents, the Borrower shall promptly so notify the
Administrative Agent and the Lenders and, if the Administrative Agent shall so
request by written notice to the Borrower (after a determination has been made
by the Required Lenders that such Material Indebtedness Agreement contains any
such provisions that either individually or in the aggregate are more favorable
to the holders of such Indebtedness than any of the provisions set forth
herein), the Borrower, the Administrative Agent and the Lenders shall promptly
amend this Agreement to incorporate some or all of such provisions, in the
discretion of the Administrative Agent and the Required Lenders, into this
Agreement and, to the extent necessary and reasonably desirable to the
Administrative Agent and the Required Lenders, into any of the other Loan
Documents, all at the election of the Administrative Agent and the Required
Lenders.
Section 6.12 Senior Debt. The Obligations shall, and the Borrower shall take all
necessary action to ensure that the Obligations shall, at all times rank at
least pari passu in right of payment (to the fullest extent permitted by law)
with all other senior Indebtedness of the Borrower and each Domestic Subsidiary.
Section 6.13 Amendment, Modification or Termination of Material Contracts. Each
Credit Party will give prompt notice to the Administrative Agent of any
cancellation or termination of any Material Contract or any amendment or other
modification of any Material Contract or any other action in connection with any
Material Contract in each case that would reasonably be expected to result in a
Material Adverse Effect.
Section 6.14 Performance of Material Contracts. Each Credit Party will perform
and observe in all material respects all the terms and provisions of each
Material Contract to be performed or observed by it, and no Credit Party will
take any action that would cause any such Material Contract to not be in full
force and effect, and cause each of its Subsidiaries to do so except, in any
case, where the failure to do so, either individually or in the aggregate, would
not be reasonably likely to have a Material Adverse Effect.
ARTICLE VII.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date and thereafter
for so long as this Agreement is in effect and until such time as the
Commitments have been terminated, no Notes remain outstanding and the Loans,
together with interest, Fees and all other Obligations incurred hereunder and
under the other Loan Documents, have been paid in full:
Section 7.01 Changes in Business. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries, would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the Closing Date.
Section 7.02 Consolidation, Merger, Acquisitions, Asset Sales, etc. The Borrower
will not, and will not permit any Subsidiary to, (i) in the case of Material
Subsidiaries, wind up, liquidate or dissolve its affairs, (ii) enter into any
transaction of merger or consolidation, (iii) make or otherwise effect any
Acquisition, (iv) sell or otherwise dispose of any of its property or assets
outside the ordinary course of business, or otherwise make or otherwise effect
any Asset Sale, or (v) agree to do any of the foregoing at any future time,
except that, if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the
Borrower with or into the Borrower, provided the Borrower is the surviving or
continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or
into any Subsidiary Guarantor, provided that the surviving or continuing or
resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary
of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) any Asset Sale by (i) the Borrower to any other Domestic Credit Party, (ii)
any Subsidiary of the Borrower to any Domestic Credit Party; or (iii) any
Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the
Borrower;
(c) the Borrower or any Subsidiary may make any Acquisition that is a Permitted
Acquisition, provided that all of the conditions contained in the definition of
the term Permitted Acquisition are satisfied;
(d) the Acquisition of Doble on the Closing Date pursuant to the Purchase
Agreement Documentation; and
(e) in addition to any Asset Sale permitted above, the Borrower or any of its
Subsidiaries may consummate any Asset Sale, provided that (i) the consideration
for each such Asset Sale represents fair value and at least 90% of such
consideration consists of cash; (ii) in the case of any Asset Sale involving
consideration in excess of $5,000,000, at least five Business Days prior to the
date of completion of such Asset Sale, the Borrower shall have delivered to the
Administrative Agent an officer's certificate executed by an Authorized Officer,
which certificate shall contain (A) a description of the proposed transaction,
the date such transaction is scheduled to be consummated, the estimated sale
price or other consideration for such transaction, and (B) a certification that
no Default or Event of Default has occurred and is continuing, or would result
from consummation of such transaction; and (iii) the aggregate amount of all
Asset Sales made pursuant to this subpart during any fiscal year of the Borrower
shall not exceed 20% of Tangible Net Worth of the Borrower.
Section 7.03 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind of the Borrower or any such
Subsidiary whether now owned or hereafter acquired, except that the foregoing
shall not apply to:
(a) any Standard Permitted Lien;
(b) Liens in existence on the Closing Date that are listed in Schedule 7.03
hereto;
(c) Liens (i) that are placed upon fixed or capital assets, acquired,
constructed or improved by the Borrower or any Subsidiary, provided that (A)
such Liens only secure Indebtedness permitted by Section 7.04(c), (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within 120 days
after such acquisition or the completion of such construction or improvement,
(C) the Indebtedness secured thereby does not exceed 90% of the cost of
acquiring, constructing or improving such fixed or capital assets; and (D) such
Liens shall not apply to any other property or assets of the Borrower or any
Subsidiary; or (ii) arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any such Liens, provided that the
principal amount of such Indebtedness is not increased and such Indebtedness is
not secured by any additional assets;
(d) any Lien granted to the Administrative Agent securing any of the Obligations
or any other Indebtedness of the Credit Parties under the Loan Documents or any
Indebtedness under any Designated Hedge Agreement; or
(e) any Lien arising in the ordinary course of business in favor of a customer
of a Domestic Subsidiary in connection with "bill and hold" sales transactions,
provided that such Lien shall not encumber any property or assets of such
Domestic Subsidiary other than the property subject to such bill and hold sales
transaction.
Section 7.04 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Borrower or any of its Subsidiaries, except:
(a) Indebtedness incurred under this Agreement and the other Loan Documents;
(b) the Indebtedness set forth on Schedule 7.04 hereto, and any refinancing,
extension, renewal or refunding of any such Indebtedness not involving an
increase in the principal amount thereof;
(c) (i) Indebtedness consisting of Capital Lease Obligations of the Borrower and
its Subsidiaries, (ii) Indebtedness secured by a Lien referred to in Section
7.03(c), and (iii) any refinancing, extension, renewal or refunding of any such
Indebtedness not involving an increase in the principal amount thereof, provided
the aggregate outstanding principal amount (using Capitalized Lease Obligations
in lieu of principal amount, in the case of any Capital Lease) of Indebtedness
permitted by this subpart (c) shall not exceed 7.5% of Tangible Net Worth of the
Borrower at the time of incurring any such Indebtedness;
(d) Indebtedness constituting Permitted Foreign Subsidiary Loans and
Investments;
(e) any intercompany loans (i) made by the Borrower or any Subsidiary of the
Borrower to any Domestic Credit Party; or (ii) made by any Foreign Subsidiary of
the Borrower to any other Foreign Subsidiary of the Borrower;
(f) Indebtedness of the Borrower and its Subsidiaries under Hedge Agreements,
provided such Hedge Agreements have been entered into in the ordinary course of
business and not for speculative purposes;
(g) Indebtedness constituting Guaranty Obligations permitted by Section 7.05;
and
(h) additional unsecured Indebtedness of the Borrower or any of its Subsidiaries
to the extent not permitted by any of the foregoing clauses, provided that the
aggregate outstanding principal amount of all such Indebtedness does not exceed
$20,000,000 at any time.
Section 7.05 Investments and Guaranty Obligations. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, (i) make or
commit to make any Investment or (ii) be or become obligated under any Guaranty
Obligations, except:
(a) Investments by the Borrower or any of its Subsidiaries in cash and Cash
Equivalents;
(b) any endorsement of a check or other medium of payment for deposit or
collection, or any similar transaction in the normal course of business;
(c) the Borrower and its Subsidiaries may acquire and hold receivables and
similar items owing to them in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans and advances to employees for business-related travel expenses, moving
expenses, costs of replacement homes, business machines or supplies, automobiles
and other similar expenses, in each case incurred in the ordinary course of
business;
(f) to the extent not permitted by any of the other subparts in this Section,
Investments existing as of the Closing Date and described on Schedule 7.05
hereto;
(g) any Guaranty Obligations of the Borrower or any Subsidiary in favor of the
Administrative Agent, each LC Issuer and the Lenders and any other benefited
creditors under any Designated Hedge Agreements pursuant to the Loan Documents;
(h) Investments of the Borrower and its Subsidiaries in Hedge Agreements
permitted to be entered into pursuant to this Agreement;
(i) Investments (i) of the Borrower or any of its Subsidiaries in any Subsidiary
existing as of the Closing Date, (ii) of the Borrower in any Domestic Credit
Party made after the Closing Date, (iii) of any Domestic Credit Party in any
other Domestic Credit Party (other than the Borrower) made after the Closing
Date, or (iv) constituting Permitted Foreign Subsidiary Loans and Investments;
(j) Investments of any Foreign Subsidiary in any other Subsidiary of the
Borrower;
(k) intercompany loans and advances permitted by Section 7.04(e);
(l) the Acquisitions permitted by Section 7.02;
(m) any Guaranty Obligation incurred by any Domestic Credit Party with respect
to Indebtedness of another Domestic Credit Party which Indebtedness is permitted
by Section 7.04; and
(n) the acquisition of Doble pursuant to the Purchase Agreement Documentation.
Section 7.06 Restricted Payments. The Borrower will not, and will not permit any
of its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except:
(a) the Borrower or any of its Subsidiaries may declare and pay or make Capital
Distributions that are payable solely in additional shares of its common stock
(or warrants, options or other rights to acquire additional shares of its common
stock);
(b) (i) any Subsidiary of the Borrower may declare and pay or make Capital
Distributions to any Domestic Credit Party, and (ii) any Foreign Subsidiary of
the Borrower may declare and pay or make Capital Distributions to any other
Foreign Subsidiary or to any Domestic Credit Party; and
(c) the Borrower may Repurchase its Equity Interests, provided that (i) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) the Borrower will be in compliance with the financial
covenants set forth in Section 7.07 after giving pro forma effect to each such
Repurchase, and (iii) the aggregate amount of all Repurchases made by the
Borrower during any fiscal year shall not exceed $30,000,000.
Section 7.07 Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit at any time the Leverage Ratio
to be greater than the maximum ratio specified below for the Testing Period
opposite such maximum ratio:
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Testing Period ending Maximum Ratio
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December 31, 2007 and March 31, 2008 4.00 to 1.00
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June 30, 2008 and thereafter 3.5 to 1.00
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(b) Interest Coverage Ratio. The Borrower will not permit at any time the
Interest Coverage Ratio to be less than 3.0 to 1.0.
Section 7.08 Limitation on Certain Restrictive Agreements. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist or become effective, any "negative pledge"
covenant or other agreement, restriction or arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or suffer to exist any Lien upon any of its property
or assets as security for Indebtedness, or (b) the ability of any such
Subsidiary to make Capital Distributions or any other interest or participation
in its profits owned by the Borrower or any Subsidiary of the Borrower, or pay
any Indebtedness owed to the Borrower or a Subsidiary of the Borrower, or to
make loans or advances to the Borrower or any of the Borrower's other
Subsidiaries, or transfer any of its property or assets to the Borrower or any
of the Borrower's other Subsidiaries, except for such restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other Loan
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest, (iv) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer or further
encumbering of assets subject to Liens permitted under Section 7.03(c), (vi)
customary restrictions affecting only a Subsidiary of the Borrower under any
agreement or instrument governing any of the Indebtedness of a Subsidiary
permitted pursuant to Section 7.04, (vii) restrictions affecting any Foreign
Subsidiary of the Borrower under any agreement or instrument governing any
Indebtedness of such Foreign Subsidiary permitted pursuant to Section 7.04, and
customary restrictions contained in "comfort" letters and guarantees of any such
Indebtedness, (viii) any document relating to Indebtedness secured by a Lien
permitted by Section 7.03, insofar as the provisions thereof limit grants of
junior liens on the assets securing such Indebtedness, and (ix) any Operating
Lease or Capital Lease, insofar as the provisions thereof limit grants of a
security interest in, or other assignments of, the related leasehold interest to
any other Person.
Section 7.09 Transactions with Affiliates. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
with any Affiliate (other than, in the case of the Borrower, any Subsidiary, and
in the case of a Subsidiary, the Borrower or another Subsidiary) other than in
the ordinary course of business of and pursuant to the reasonable requirements
of the Borrower's or such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than would be
obtained in a comparable arm's-length transaction with a Person other than an
Affiliate, except (i) sales of goods to an Affiliate for use or distribution
outside the United States that in the good faith judgment of the Borrower comply
with any applicable legal requirements of the Code, or (ii) agreements and
transactions with and payments to officers, directors and shareholders that are
either (A) entered into in the ordinary course of business and not prohibited by
any of the provisions of this Agreement, or (B) entered into outside the
ordinary course of business, approved by the directors or shareholders of the
Borrower, and not prohibited by any of the provisions of this Agreement or in
violation of any law, rule or regulation.
Section 7.10 Plan Terminations, Minimum Funding, etc. The Borrower will not, and
will not permit any Subsidiary of the Borrower or ERISA Affiliate to, (i)
terminate any Plan or Plans so as to result in liability of the Borrower or any
ERISA Affiliate to the PBGC in excess of, in the aggregate, the amount that is
equal to 5% of the Borrower's Consolidated Net Worth as of the date of the then
most recent financial statements furnished to the Lenders pursuant to the
provisions of this Agreement, (ii) permit to exist one or more events or
conditions that present a material risk of the termination by the PBGC of any
Plan or Plans with respect to which the Borrower or any Subsidiary of the
Borrower or ERISA Affiliate would, in the event of such termination, incur
liability to the PBGC in excess of such amount in the aggregate, (iii) fail to
comply with the minimum funding standards of ERISA and the Code with respect to
any Plan, or (iv) incur an obligation to contribute to, or become a contributing
sponsor (as such term is defined in Section 4001 of ERISA) in, any
Multi-Employer Plan or Multiple Employer Plan.
Section 7.11 Hedge Agreements. The Borrower shall obtain, and thereafter
maintain in effect for a period of two (2) years after the Closing Date,
interest rate Hedge Agreements with respect to at least $75,000,000 of Loans,
and such Hedge Agreements shall conform to ISDA standards and otherwise, be in
the form and substance satisfactory to the Administrative Agent.
Section 7.12 Amendments to Acquisition Documentation. Without the prior written
consent of the Administrative Agent, no Credit Party will, and no Credit Party
will permit any of its Subsidiaries to, amend, supplement, waive or otherwise
modify, or consent or agree to any amendment, supplement, waiver or other
modification to, or enter into any forbearance from exercising any rights with
respect to, the terms or provisions contained in any Acquisition Documentation,
except for (a) any amendment, supplement, waiver or other modification for
purposes of curing any ambiguity or correcting any provision therein that is
defective or inconsistent with the Acquisition Documentation for the applicable
acquisition, as the Borrower shall reasonably deem necessary or desirable and
which shall not adversely affect the Administrative Agent and the Lenders and
(b) any amendment, supplement, waiver or other modification that, in the
aggregate with all other such amendments, supplements and modifications, (x)
does not modify any provision of any agreement providing for an earnout or other
contingent purchase price such that a larger payment would be due by any Credit
Party or any payment would be required to made by any Credit Party at any
earlier date, (y) does not modify any indemnities or licenses furnished to any
Credit Party or any of its Subsidiaries such that, after giving effect thereto,
such indemnities or licenses shall be less favorable to such interests of such
Credit Party and such Subsidiaries or the Lenders and (z) could not reasonably
be expected to have a Material Adverse Effect.
Section 7.13 Anti-Terrorism Laws. Neither the Borrower nor any of its
Subsidiaries shall be subject to or in violation of any law, regulation, or list
of any government agency (including, without limitation, the U.S. Office of
Foreign Asset Control list, Executive Order No. 13224 or the USA Patriot Act)
that prohibits or limits the conduct of business with or the receiving of funds,
goods or services to or for the benefit of certain Persons specified therein or
that prohibits or limits any Lender or LC Issuer from making any advance or
extension of credit to the Borrower or from otherwise conducting business with
the Borrower.
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.01 Events of Default. Any of the following specified events shall
constitute an Event of Default (each an "Event of Default"):
(a) Payments: the Borrower shall (i) default in the payment when due (whether at
maturity, on a date fixed for a scheduled repayment, on a date on which a
required prepayment is to be made, upon acceleration or otherwise) of any
principal of the Loans or any reimbursement obligation in respect of any Unpaid
Drawing; or (ii) default, and such default shall continue for three or more
Business Days, in the payment when due of any interest on the Loans, any Fees or
any other Obligations; or
(b) Representations, etc.: any representation, warranty or statement made by the
Borrower or any other Credit Party herein or in any other Loan Document or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
(c) Certain Covenants: the Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in Sections 6.01,
6.09, 6.10, 6.11, 6.12 or Article VII of this Agreement; or
(d) Other Covenants: any Credit Party shall default in the due performance or
observance by it of any term, covenant or agreement contained in this Agreement
or any other Loan Document (other than those referred to in Section 8.01(a) or
(b) or (c) above) and such default is not remedied within 30 days after the
earlier of (i) an Authorized Officer of any Credit Party obtaining knowledge of
such default or (ii) the Borrower receiving written notice of such default from
the Administrative Agent or the Required Lenders (any such notice to be
identified as a "notice of default" and to refer specifically to this
paragraph); or
(e) Cross Default Under Other Agreements: the Borrower or any of its
Subsidiaries shall (i) default in any payment with respect to any Material
Indebtedness (other than the Obligations), and such default shall continue after
the applicable grace period, if any, specified in the agreement or instrument
relating to such Material Indebtedness, or (ii) default in the observance or
performance of any agreement or condition relating to any such Material
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto (and all grace periods applicable to such observance,
performance or condition shall have expired), or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Material Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause any such Material
Indebtedness to become due prior to its stated maturity; or any such Material
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable, or shall be required to be prepaid (other than by a regularly
scheduled required prepayment or redemption, prior to the stated maturity
thereof); or (iii) without limitation of the foregoing clauses, default in any
payment obligation under a Designated Hedge Agreement, and such default shall
continue after the applicable grace period, if any, specified in such Designated
Hedge Agreement or any other agreement or instrument relating thereto; or
(f) Invalidity of Loan Documents or Liens: any provision of any Loan Document,
at any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or under such Loan Document or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or any
Credit Party or any other Person contests in any manner the validity or
enforceability of any provision of any Loan Document; or any Credit Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document or the Administrative
Agent fails to have; or
(g) Judgments: (i) one or more judgments, orders or decrees shall be entered
against the Borrower and/or any of its Subsidiaries involving a liability (other
than a liability covered by insurance, as to which the carrier has adequate
claims paying ability and has not effectively reserved its rights) of
$10,000,000 or more in the aggregate for all such judgments, orders and decrees
for the Borrower and its Subsidiaries, and any such judgments or orders or
decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within 30 days (or such longer period, not in excess of 60 days, during
which enforcement thereof, and the filing of any judgment lien, is effectively
stayed or prohibited) from the entry thereof; or (ii) one or more judgments,
orders or decrees shall be entered against the Borrower and/or any of its
Subsidiaries involving a required divestiture of any material properties, assets
or business reasonably estimated to have a fair value in excess of $10,000,000,
and any such judgments, orders or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days (or such longer
period, not in excess of 60 days, during which enforcement thereof, and the
filing of any judgment lien, is effectively stayed or prohibited) from the entry
thereof; or
(h) Insolvency Event: any Insolvency Event shall occur with respect to the
Borrower or any Subsidiary of the Borrower; or
(i) ERISA: (i) any of the events described in clauses (i) through (xi) of
Section 6.01(f) shall have occurred; or (ii) there shall result from any such
event or events the imposition of a Lien, the granting of a security interest,
or a liability or a material risk of incurring a liability;
(j) Change of Control: if there occurs a Change of Control; or
(k) Environmental: any of the events described in clauses (i) through (iv) of
Section 6.01(g) shall have occurred and any such event or events or liability,
individually, and/or in the aggregate, has had, or could reasonably be expected
to result in liabilities in excess of $10,000,000.
Section 8.02 Remedies. Upon the occurrence of any Event of Default, and at any
time thereafter, if any Event of Default shall then be continuing, the
Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower or any other Credit Party in any manner
permitted under applicable law:
(a) declare the Commitments terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately without any other notice of any kind;
(b) declare the principal of and any accrued interest in respect of all Loans,
all Unpaid Drawings and all other Obligations (other than any Obligations under
any Designated Hedge Agreement) owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower;
(c) terminate any Letter of Credit that may be terminated in accordance with its
terms; or
(d) exercise any other right or remedy available under any of the Loan Documents
or applicable law;
provided that, if an Event of Default specified in Section 8.01(h) shall occur,
the result that would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (a) and/or (b) above shall occur
automatically without the giving of any such notice.
Section 8.03 Application of Certain Payments and Proceeds. All payments and
other amounts received by the Administrative Agent or any Lender through the
exercise of remedies hereunder or under the other Loan Documents shall, unless
otherwise required by the terms of the other Loan Documents or by applicable
law, be applied as follows:
(i) first, to the payment of that portion of the Obligations constituting fees,
indemnities and expenses and other amounts (including attorneys' fees and
amounts due under Article III) payable to the Administrative Agent in its
capacity as such;
(ii) second, to the payment of that portion of the Obligations constituting
fees, indemnities and expenses (including attorneys' fees and amounts due under
Article III) payable to each Lender or each LC Issuer, ratably among them in
proportion to the aggregate of all such amounts;
(iii) third, to the payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and Unpaid Drawings with respect
to Letters of Credit, ratably among the Lenders in proportion to the
aggregate of all such amounts;
(iv) fourth, pro rata to the payment of (A) that portion of the Obligations
constituting unpaid principal of the Loans and Unpaid Drawings, ratably
among the Lenders and each LC Issuer in proportion to the aggregate of all
such amounts, and (B) the amounts due to Designated Hedge Creditors under
Designated Hedge Agreements subject to confirmation by the Administrative
Agent that any calculations of termination or other payment obligations are
being made in accordance with normal industry practice;
(v) fifth, to the Administrative Agent for the benefit of each LC Issuer to
cash collateralize the Stated Amount of outstanding Letters of Credit;
(vi) sixth, to the payment of all other Obligations of the Credit Parties owing
under or in respect of the Loan Documents that are then due and payable to
the Administrative Agent, each LC Issuer, the Swing Line Lender, the
Lenders and the Designated Hedge Creditors, ratably based upon the
respective aggregate amounts of all such Obligations owing to them on such
date; and
(vii) finally, any remaining surplus after all of the Obligations have been paid
in full, to the Borrower or to whomsoever shall be lawfully entitled
thereto.
ARTICLE IX.
THE ADMINISTRATIVE AGENT
Section 9.01 Appointment. Each Lender hereby irrevocably designates and appoints
National City Bank to act as specified herein and in the other Loan Documents,
and each such Lender hereby irrevocably authorizes National City Bank as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this Article. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein or in the other
Loan Documents, nor any fiduciary relationship with any Lender or LC Issuer, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this Article are solely for the benefit
of the Administrative Agent and the Lenders, and no Credit Party shall have any
rights as a third-party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Administrative
Agent shall act solely as agent of the Lenders and does not assume and shall not
be deemed to have assumed any obligation or relationship of agency or trust with
or for the Borrower or any of its Subsidiaries.
Section 9.02 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
sub-agents or attorneys-in-fact, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents, sub-agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 9.03.
Section 9.03 Exculpatory Provisions. Neither the Administrative Agent nor any of
its Related Parties shall be (a) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except for its or such Related Parties' own gross
negligence or willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrower or any of its Subsidiaries or any of their respective officers
contained in this Agreement, any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or for any failure of the Borrower or any Subsidiary of the
Borrower or any of their respective officers to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower or any Subsidiary of the Borrower. The Administrative
Agent shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of the Borrower or any of
its Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
Section 9.04 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, e-mail or other electronic transmission, facsimile transmission, telex
or teletype message, statement, order or other document or conversation believed
by it, in good faith, to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower or any of its
Subsidiaries), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders or all of the Lenders, as
applicable, as to any matter that, pursuant to Section 11.12, can only be
effectuated with the consent of all Required Lenders, or all applicable Lenders,
as the case may be), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
Section 9.05 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." If the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
Section 9.06 Non-Reliance. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its Related Parties has made any representations
or warranties to it and that no act by the Administrative Agent hereinafter
taken, including, without limitation, any review of the affairs of the Borrower
or any of its Subsidiaries, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent 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 appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent, or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrower and its Subsidiaries. The Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial and other
conditions, prospects or creditworthiness of the Borrower or any of its
Subsidiaries that may come into the possession of the Administrative Agent or
any of its Related Parties.
Section 9.07 No Reliance on Administrative Agent's Customer Identification
Program. Each Lender acknowledges and agrees that neither such Lender, nor any
of its Affiliates, participants or assignees, may rely on the Administrative
Agent to carry out such Lender's, Affiliate's, participant's or assignee's
customer identification program, or other obligations required or imposed under
or pursuant to the USA Patriot Act or the regulations thereunder, including the
regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the
"CIP Regulations"), or any other Anti-Terrorism Law, including any programs
involving any of the following items relating to or in connection with the
Borrower or any of its Subsidiaries, any of their respective Affiliates or
agents, the Loan Documents or the transactions hereunder: (a) any identity
verification procedures, (b) any record keeping, (c) any comparisons with
government lists, (d) any customer notices or (e) any other procedures required
under the CIP Regulations or such other laws.
Section 9.08 USA Patriot Act. Each Lender or assignee or participant of a Lender
that is not organized under the laws of the United States of America or a state
thereof (and is not excepted from the certification requirement contained in
Section 313 of the USA Patriot Act and the applicable regulations because it is
both (a) an affiliate of a depository institution or foreign bank that maintains
a physical presence in the United States or foreign country, and (b) subject to
supervision by a banking authority regulating such affiliated depository
institution or foreign bank) shall deliver to the Administrative Agent the
certification, or, if applicable, recertification, certifying that such Lender
is not a "shell" and certifying to other matters as required by Section 313 of
the USA Patriot Act and the applicable regulations: (i) within 10 days after the
Closing Date, and (ii) at such other times as are required under the USA Patriot
Act.
Section 9.09 Indemnification. The Lenders agree to indemnify the Administrative
Agent and its Related Parties, ratably according to their pro rata share of the
Aggregate Credit Facility Exposure (excluding Swing Loans), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind
whatsoever that may at any time (including, without limitation, at any time
following the payment of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent or such Related Parties in any way relating to
or arising out of this Agreement or any other Loan Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Administrative Agent or such
Related Parties under or in connection with any of the foregoing, but only to
the extent that any of the foregoing is not paid by the Borrower; provided,
however, that no Lender shall be liable to the Administrative Agent or any of
its Related Parties for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting solely from the Administrative
Agent's or such Related Parties' gross negligence or willful misconduct. If any
indemnity furnished to the Administrative Agent or any such Related Parties for
any purpose shall, in the opinion of the Administrative Agent, be insufficient
or become impaired, the Administrative Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this Section shall survive
the payment of all Obligations.
Section 9.10 The Administrative Agent in Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, its Subsidiaries and their
Affiliates as though not acting as Administrative Agent hereunder. With respect
to the Loans made by it and all Obligations owing to it, the Administrative
Agent shall have the same rights and powers under this Agreement as any Lender
and may exercise the same as though it were not the Administrative Agent, and
the terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
Section 9.11 Successor Administrative Agent. The Administrative Agent may resign
at any time upon not less than 30 days notice to the Lenders, each LC Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor. If no such 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 may on behalf of the Lenders and each LC Issuer, appoint a
successor Administrative Agent; provided, however, that if the Administrative
Agent shall notify the Borrower and the Lenders that no such successor is
willing to accept such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (i) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of the Lenders or
any LC Issuer under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (ii) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and LC Issuer directly, until such
time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this paragraph. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (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
retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.02 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Section 9.12 Other Agents. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager, Lead Arranger,
Arranger or any other corresponding title, other than "Administrative Agent,"
shall have no right, power, obligation, liability, responsibility or duty under
this Agreement or any other Loan Document except those applicable to all Lenders
as such. Each Lender acknowledges that it has not relied, and will not rely, on
any Lender so identified in deciding to enter into this Agreement or in taking
or not taking any action hereunder.
ARTICLE X.
GUARANTY
Section 10.01 Guaranty by the Borrower. The Borrower hereby unconditionally
guarantees, for the benefit of the Benefited Creditors, all of the following
(collectively, the "Borrower Guaranteed Obligations"): (a) all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit issued for the
benefit of any LC Obligor (other than the Borrower) under this Agreement, and
(b) all amounts, indemnities and reimbursement obligations, direct or indirect,
contingent or absolute, of every type or description, and at any time existing
owing by any Subsidiary of the Borrower under any Designated Hedge Agreement or
any other document or agreement executed and delivered in connection therewith
to any Designated Hedge Creditor, in all cases under subparts (a) or (b) above,
whether now existing, or hereafter incurred or arising, including any such
interest or other amounts incurred or arising during the pendency of any
bankruptcy, insolvency, reorganization, receivership or similar proceeding,
regardless of whether allowed or allowable in such proceeding or subject to an
automatic stay under Section 362(a) of the Bankruptcy Code). Upon failure by any
Credit Party to pay punctually any of the Borrower Guaranteed Obligations, the
Borrower shall forthwith on demand by the Administrative Agent pay the amount
not so paid at the place and in the currency and otherwise in the manner
specified in this Agreement or any other applicable agreement or instrument.
Section 10.02 Additional Undertaking. As a separate, additional and continuing
obligation, the Borrower unconditionally and irrevocably undertakes and agrees,
for the benefit of the Benefited Creditors that, should any Borrower Guaranteed
Obligations not be recoverable from the Borrower under Section 10.01 for any
reason whatsoever (including, without limitation, by reason of any provision of
any Loan Document or any other agreement or instrument executed in connection
therewith being or becoming void, unenforceable, or otherwise invalid under any
applicable law) then, notwithstanding any notice or knowledge thereof by any
Lender, the Administrative Agent, any of their respective Affiliates, or any
other person, at any time, the Borrower as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent, for the account of the Benefited Creditors, of all such
obligations not so recoverable by way of full indemnity, in such currency and
otherwise in such manner as is provided in the Loan Documents or any other
applicable agreement or instrument.
Section 10.03 Guaranty Unconditional. The obligations of the Borrower under this
Article shall be unconditional and absolute and, without limiting the generality
of the foregoing shall not be released, discharged or otherwise affected by the
occurrence, one or more times, of any of the following:
(a) any extension, renewal, settlement, compromise, waiver or release in respect
to the Borrower Guaranteed Obligations under any agreement or instrument, by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement, any Note,
any other Loan Document, or any agreement or instrument evidencing or relating
to any Company Guaranteed Obligation;
(c) any release, non-perfection or invalidity of any direct or indirect security
for the Borrower Guaranteed Obligations under any agreement or instrument
evidencing or relating to any Borrower Guaranteed Obligations;
(d) any change in the corporate existence, structure or ownership of any Credit
Party or other Subsidiary or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Credit Party or other Subsidiary or its assets
or any resulting release or discharge of any obligation of any Credit Party or
other Subsidiary contained in any agreement or instrument evidencing or relating
to any of the Borrower Guaranteed Obligations;
(e) the existence of any claim, set-off or other rights which the Borrower may
have at any time against any other Credit Party, the Administrative Agent, any
Lender, any Affiliate of any Lender or any other Person, whether in connection
herewith or any unrelated transactions;
(f) any invalidity or unenforceability relating to or against any other Credit
Party for any reason of any agreement or instrument evidencing or relating to
any of the Borrower Guaranteed Obligations, or any provision of applicable law
or regulation purporting to prohibit the payment by any Credit Party of any of
the Borrower Guaranteed Obligations; or
(g) any other act or omission of any kind by any other Credit Party, the
Administrative Agent, any Lender or any other Person or any other circumstance
whatsoever which might, but for the provisions of this Article, constitute a
legal or equitable discharge of the Borrower's obligations under this Section
other than the irrevocable payment in full of all Borrower Guaranteed
Obligations.
Section 10.04 Borrower Obligations to Remain in Effect; Restoration. The
Borrower's obligations under this Article shall remain in full force and effect
until the Commitments shall have terminated, and the principal of and interest
on the Notes and other Borrower Guaranteed Obligations, and all other amounts
payable by the Borrower, any other Credit Party or other Subsidiary, under the
Loan Documents or any other agreement or instrument evidencing or relating to
any of the Borrower Guaranteed Obligations, shall have been paid in full. If at
any time any payment of any of the Borrower Guaranteed Obligations is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of such Credit Party, the Borrower's obligations under this
Article with respect to such payment shall be reinstated at such time as though
such payment had been due but not made at such time. Section 10.05 Waiver of
Acceptance, etc. The Borrower irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against any other
Credit Party or any other Person, or against any collateral or guaranty of any
other Person.
Section 10.06 Subrogation. Until the indefeasible payment in full of all of the
Obligations and the termination of the Commitments hereunder, the Borrower shall
have no rights, by operation of law or otherwise, upon making any payment under
this Section to be subrogated to the rights of the payee against any other
Credit Party with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by any such Credit Party in respect thereof.
Section 10.07 Effect of Stay. In the event that acceleration of the time for
payment of any amount payable by any Credit Party under any of the Borrower
Guaranteed Obligations is stayed upon insolvency, bankruptcy or reorganization
of such Credit Party, all such amounts otherwise subject to acceleration under
the terms of any applicable agreement or instrument evidencing or relating to
any of the Borrower Guaranteed Obligations shall nonetheless be payable by the
Borrower under this Article forthwith on demand by the Administrative Agent.
ARTICLE XI.
MISCELLANEOUS
Section 11.01 Payment of Expenses etc. The Borrower agrees to pay (or reimburse
the Administrative Agent, the Lenders or their Affiliates, as the case may be)
all of the following: (i) whether or not the transactions contemplated hereby
are consummated, for all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the negotiation, preparation,
syndication, administration and execution and delivery of the Loan Documents and
the documents and instruments referred to therein and the syndication of the
Commitments; (ii) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Administrative Agent in connection with any
amendment, waiver or consent relating to any of the Loan Documents that are
requested by any Credit Party; (iii) all reasonable out-of-pocket costs and
expenses of the Administrative Agent, the Lenders and their Affiliates in
connection with the enforcement of any of the Loan Documents or the other
documents and instruments referred to therein, including, without limitation,
the reasonable fees and disbursements of any individual counsel to the
Administrative Agent and any Lender (including, without limitation, allocated
costs of internal counsel); (iv) any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save the Administrative
Agent and each of the Lenders harmless from and against any and all liabilities
with respect to or resulting from any delay or omission (other than to the
extent attributable to any such indemnified Person) to pay such taxes.
Section 11.02 Indemnification. The Borrower agrees to indemnify the
Administrative Agent, each Lender, and their respective Related Parties
(collectively, the "Indemnitees") from and hold each of them harmless against
any and all losses, liabilities, claims, damages or expenses reasonably incurred
by any of them as a result of, or arising out of, or in any way related to, or
by reason of (i) any investigation, litigation or other proceeding (whether or
not any Lender is a party thereto) related to the entering into and/or
performance of any Loan Document or the use of the proceeds of any Loans
hereunder or the consummation of any transactions contemplated in any Loan
Document, other than any such investigation, litigation or proceeding arising
out of transactions solely between any of the Lenders or the Administrative
Agent, transactions solely involving the assignment by a Lender of all or a
portion of its Loans and Commitments, or the granting of participations therein,
as provided in this Agreement, or arising solely out of any examination of a
Lender by any regulatory or other Governmental Authority having jurisdiction
over it, or (ii) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned, leased or at any time operated by the Borrower or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Borrower or any of its Subsidiaries, if the Borrower or any such
Subsidiary could have or is alleged to have any responsibility in respect
thereof, the non-compliance of any such Real Property with foreign, federal,
state and local laws, regulations and ordinances (including applicable permits
thereunder) applicable thereto, or any Environmental Claim asserted against the
Borrower or any of its Subsidiaries, in respect of any such Real Property,
including, in the case of each of (i) and (ii) above, without limitation, the
reasonable documented fees and disbursements of counsel incurred in connection
with any such investigation, litigation or other proceeding (but excluding any
such losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified or of any other Indemnitee who is such Person or an Affiliate of
such Person). To the extent that the undertaking to indemnify, pay or hold
harmless any Person set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall make the
maximum contribution to the payment and satisfaction of each of the indemnified
liabilities that is permissible under applicable law.
Section 11.03 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender and each LC Issuer is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Lender or
such LC Issuer (including, without limitation, by branches, agencies and
Affiliates of such Lender or LC Issuer wherever located) to or for the credit or
the account of the Borrower against and on account of the Obligations and
liabilities of the Borrower to such Lender or LC Issuer under this Agreement or
under any of the other Loan Documents, including, without limitation, all claims
of any nature or description arising out of or connected with this Agreement or
any other Loan Document, irrespective of whether or not such Lender or LC Issuer
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured. Each Lender and LC
Issuer agrees to promptly notify the Borrower after any such set off and
application, provided, however, that the failure to give such notice shall not
affect the validity of such set off and application.
Section 11.04 Equalization.
(a) Equalization. If at any time any Lender receives any amount hereunder
(whether by voluntary payment, by realization upon security, by the exercise of
the right of setoff or banker's lien, by counterclaim or cross action, by the
enforcement of any right under the Loan Documents, or otherwise) that is
applicable to the payment of the principal of, or interest on, the Loans (other
than Swing Loans), LC Participations, Swing Loan Participations or Fees (other
than Fees that are intended to be paid solely to the Administrative Agent or an
LC Issuer and amounts payable to a Lender under Article III), of a sum that with
respect to the related sum or sums received by other Lenders is in a greater
proportion than the total of such Obligation then owed and due to such Lender
bears to the total of such Obligation then owed and due to all of the Lenders
immediately prior to such receipt, then such Lender receiving such excess
payment shall purchase for cash without recourse or warranty from the other
Lenders an interest in the Obligations to such Lenders in such amount as shall
result in a proportional participation by all of the Lenders in such amount.
(b) Recovery of Amounts. If any amount paid to any Lender pursuant to subparts
(i) or (ii) above is recovered in whole or in part from such Lender, such
original purchase shall be rescinded, and the purchase price restored ratably to
the extent of the recovery.
(c) Consent of Borrower. 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.
Section 11.05 Notices.
(a) Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subpart (c)
below), 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 telecopier as follows:
(i) if to the Borrower or any other Credit Party, to it at 9900A Clayton Road,
St. Louis, Missouri, 63124-1186, Attention: Matt Mainer, Treasurer, (Telecopier
No. (314) 213-7250;
(ii) if to the Administrative Agent, to it at the Notice Office; and
(iii) if to a Lender, to it at its address (or telecopier number) set forth next
to its name on the signature pages hereto or, in the case of any Lender that
becomes a party to this Agreement by way of assignment under Section 11.04 of
this Agreement, to it at the address set forth in the Assignment Agreement to
which it is a party;
(b) Receipt of Notices. Notices and communications sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by telecopier shall be deemed to
have been given when sent and receipt has been confirmed by telephone. Notices
delivered through electronic communications to the extent provided in subpart
(c) below shall be effective as provided in said subpart (c).
(c) Electronic Communications. Notices and other communications to the
Administrative Agent, an LC Issuer or any Lender hereunder and required to be
delivered pursuant to Sections 6.01(a), (b), (c), (d), (h) or (i) may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet web sites) pursuant to procedures approved by the
Administrative Agent. The Administrative Agent and the Borrower may, in their
discretion, agree in a separate writing to accept notices and other
communications to them hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications. Unless the Administrative Agent
otherwise prescribes, (i) notices and other communications sent to an e-mail
address shall be deemed received upon the sender's receipt of an acknowledgement
from the intended recipient (such as by the "return receipt requested" function,
as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet web site shall
be deemed received upon the deemed receipt by the intended recipient at its
e-mail address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the web site address
therefor.
(d) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
each of the other parties hereto in accordance with Section 11.05(a).
Section 11.06 Successors and Assigns.
(a) Successors and Assigns Generally. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns; provided, however, that the Borrower may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of all the Lenders, provided, further, that any assignment or
participation by a Lender of any of its rights and obligations hereunder shall
be effected in accordance with this Section 11.06.
(b) Participations. Each Lender may at any time grant participations in any of
its rights hereunder or under any of the Notes to an Eligible Assignee, provided
that in the case of any such participation,
(i) the participant shall not have any rights under this Agreement or any of
the other Loan Documents, including rights of consent, approval or waiver
(the participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto),
(ii) such Lender's obligations under this Agreement (including, without
limitation, its Commitments hereunder) shall remain unchanged,
(iii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations,
(iv) such Lender shall remain the holder of the Obligations owing to it and of
any Note issued to it for all purposes of this Agreement, and
(v) the Borrower, the Administrative Agent, and the other Lenders shall
continue to deal solely and directly with the selling Lender in connection
with such Lender's rights and obligations under this Agreement, and all
amounts payable by the Borrower hereunder shall be determined as if such
Lender had not sold such participation, except that the participant shall
be entitled to the benefits of Article III to the extent that such Lender
would be entitled to such benefits if the participation had not been
entered into or sold,and, provided further, that no Lender shall transfer,
grant or sell any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Loan Document except to the extent such amendment or waiver would (x)
extend the final scheduled maturity of the date of any of the Loans in
which such participant is participating, or reduce the rate or extend the
time of payment of interest or Fees thereon (except in connection with a
waiver of the applicability of any post-default increase in interest
rates), or reduce the principal amount thereof, or increase such
participant's participating interest in any Commitment over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default shall not constitute a change in the terms of any such
Commitment), (y) release all or any substantial portion of the Collateral,
or release any guarantor from its guaranty of any of the Obligations,
except strictly in accordance with the terms of the Loan Documents, or (z)
consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement.
(c) Assignments by Lenders.
(i) Any Lender may assign all, or if less than all, a fixed portion, of its
Loans, LC Participations, Swing Loan Participations and/or Commitments and
its rights and obligations hereunder to one or more Eligible Assignees,
each of which shall become a party to this Agreement as a Lender by
execution of an Assignment Agreement; provided, however, that
(A) except in the case of (x) an assignment of the entire remaining amount of
the assigning Lender's Loans and/or Commitments or (y) an assignment to
another Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender, the aggregate amount of the Commitment so assigned
(which for this purpose includes the Loans outstanding thereunder) shall
not be less than $1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any
such assignment the Lender Register shall be deemed modified to reflect the
Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender,
new Notes will be issued, at the Borrower's expense, to such new Lender and
to the assigning Lender, to the extent needed to reflect the revised
Commitments; and
(D) unless waived by the Administrative Agent, the Administrative Agent shall
receive at the time of each such assignment, from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500.
(ii) To the extent of any assignment pursuant to this subpart (c), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments.
(iii) At the time of each assignment pursuant to this subpart (c), to a Person
that is not already a Lender hereunder and that is not a United States
Person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall provide
to the Borrower and the Administrative Agent the applicable Internal
Revenue Service Forms (and any necessary additional documentation)
described in Section 3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender
and the rights to the principal of, and interest on, any Loan made pursuant
to such Commitment shall not be effective until such transfer is recorded
on the Lender Register maintained by the Administrative Agent with respect
to ownership of such Commitment and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitment and Loans
shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments and Loans shall be recorded by
the Administrative Agent on the Lender Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment
Agreement pursuant to this subpart (c).
(v) Nothing in this Section shall prevent or prohibit (A) any Lender that is a
bank, trust company or other financial institution from pledging its Notes
or Loans to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank, or (B) any Lender that is a trust,
limited liability company, partnership or other investment company from
pledging its Notes or Loans to a trustee or agent for the benefit of
holders of certificates or debt securities issued by it. No such pledge, or
any assignment pursuant to or in lieu of an enforcement of such a pledge,
shall relieve the transferor Lender from its obligations hereunder.
(d) No SEC Registration or Blue Sky Compliance. Notwithstanding any other
provisions of this Section, no transfer or assignment of the interests or
obligations of any Lender hereunder or any grant of participation therein
shall be permitted if such transfer, assignment or grant would require the
Borrower to file a registration statement with the SEC or to qualify the
Loans under the "Blue Sky" laws of any State.
(e) Representations of Lenders. Each Lender initially party to this Agreement
hereby represents, and each Person that becomes a Lender pursuant to an
assignment permitted by this Section will, upon its becoming party to this
Agreement, represents that it is a commercial lender, other financial
institution or other "accredited" investor (as defined in SEC Regulation D)
that makes or acquires loans in the ordinary course of its business and
that it will make or acquire Loans for its own account in the ordinary
course of such business; provided, however, that subject to the preceding
Sections 11.06(b) and (c), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Lender shall at all
times be within its exclusive control.
Section 11.07 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Loan Document and no course of dealing
between the Borrower and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Loan Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand. Without limiting the generality of the
foregoing, the making of a Loan or any LC Issuance shall not be construed as a
waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or any LC Issuer may have had notice or
knowledge of such Default or Event of Default at the time. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies that the Administrative Agent or any Lender would otherwise
have.
Section 11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial.
(a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE LETTERS OF
CREDIT, TO THE EXTENT SPECIFIED BELOW, AND EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN A LOAN DOCUMENT) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED
IN SUCH LETTER OF CREDIT OR, IF NO LAWS OR RULES ARE SO DESIGNATED, THE
INTERNATIONAL STANDBY PRACTICES (ISP98 - INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NUMBER 590 (THE "ISP98 RULES")) AND, AS TO MATTERS NOT GOVERNED BY
THE ISP98 RULES, THE LAW OF THE STATE OF NEW YORK.
(b) THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN
ANY LITIGATION OR OTHER PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE
LENDERS, THE L/C ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND;
PROVIDED, FURTHER, THAT NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER TO BRING PROCEEDINGS AGAINST
ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW
YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 11.05. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION THAT ANY OF THEM MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO IN CLAUSE (a) ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS WHETHER THROUGH SERVICE
OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS. THE BORROWER HEREBY WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT THAT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
(d) THE ADMINISTRATIVE AGENT, EACH LENDER, THE L/C ISSUER AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, SUCH LENDER, THE L/C
ISSUER OR THE BORROWER IN CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT,
EACH LENDER AND THE L/C ISSUER ENTERING INTO THE LOAN DOCUMENTS.
Section 11.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
Section 11.10 Integration. This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative
Agent, for its own account and benefit and/or for the account, benefit of, and
distribution to, the Lenders, constitute the entire contract among the parties
relating to the subject matter hereof and thereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof or thereof. Notwithstanding the foregoing or anything herein to
the contrary, the parties hereto expressly acknowledge and agree that the eighth
paragraph of the Commitment Letter, dated October 17, 2007, between the Borrower
and the Administrative Agent (the "Commitment Letter") regarding a "Successful
Syndication" and each other provision of such Commitment Letter and the Fee
Letter stated to expressly survive the execution and deliver of this Agreement
and the other Loan Documents and/or the termination of the commitments under the
Commitment Letter shall survive and are hereby reaffirmed, and the Borrower
shall execute and deliver such agreements, amendments and other writings as the
Administrative Agent shall request in connection therewith.
Section 11.11 Headings Descriptive. The headings of the several Sections and
other portions of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
Section 11.12 Amendment or Waiver.
(a) Neither this Agreement nor any other Loan Document, nor any terms hereof or
thereof, may be amended, changed, waived or otherwise modified unless such
amendment, change, waiver or other modification is in writing and signed by the
Borrower, the Administrative Agent, and the Required Lenders or by the
Administrative Agent acting at the written direction of the Required Lenders;
provided, however, that
(i) no change, waiver or other modification shall:
(A) increase the amount of any Commitment of any Lender hereunder, without the
written consent of such Lender or increase the Total Credit Facility Amount
without the consent of all the Lenders;
(B) extend or postpone the Revolving Facility Termination Date or the maturity
date provided for herein that is applicable to any Loan of any Lender,
extend or postpone the expiration date of any Letter of Credit as to which
such Lender is an LC Participant beyond the latest expiration date for a
Letter of Credit provided for herein, or extend or postpone any scheduled
expiration or termination date provided for herein that is applicable to a
Commitment of any Lender, without the written consent of such Lender, it
being expressly understood that the waiver or modification of any mandatory
prepayment hereunder shall require only the approval of the Required
Lenders;
(C) reduce the principal amount of any Loan made by any Lender, or reduce the
rate or extend the time of payment of, or excuse the payment of, interest
thereon (other than as a result of (x) waiving the applicability of any
post-default increase in interest rates or (y) any amendment or
modification of defined terms used in financial covenants), without the
written consent of such Lender;
(D) reduce the amount of any Unpaid Drawing as to which any Lender is an LC
Participant, or reduce the rate or extend the time of payment of, or excuse
the payment of, interest thereon (other than as a result of waiving the
applicability of any post-default increase in interest rates), without the
written consent of such Lender; or
(E) reduce the rate or extend the time of payment of, or excuse the payment of,
any Fees to which any Lender is entitled hereunder, without the written
consent of such Lender; and
(ii) no change, waiver or other modification or termination shall, without the
written consent of each Lender affected thereby,
(A) release the Borrower from any of its obligations hereunder;
(B) release the Borrower from its guaranty obligations under Article X or
release any Credit Party from the Subsidiary Guaranty, except, in the case
of a Subsidiary Guarantor, in accordance with a transaction permitted under
this Agreement;
(C) release all or any substantial portion of the Collateral, except in
accordance with Section 2.19 or in connection with a transaction permitted
under this Agreement;
(D) amend, modify or waive any provision of this Section 11.12, Section 8.03,
or any other provision of any of the Loan Documents pursuant to which the
consent or approval of all Lenders, or a number or specified percentage or
other required grouping of Lenders or Lenders having Commitments, is by the
terms of such provision explicitly required;
(E) reduce the percentage specified in, or otherwise modify, the definition of
Required Lenders; or
(F) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement.
Any waiver or consent with respect to this Agreement given or made in accordance
with this Section shall be effective only in the specific instance and for the
specific purpose for which it was given or made.
(b) No provision of Section 2.05 or any other provision in this Agreement
specifically relating to Letters of Credit may be amended without the
consent of any LC Issuer adversely affected thereby.
(c) No provision of Article IX may be amended without the consent of the
Administrative Agent and no provision of Section 2.04 may be amended
without the consent of the Swing Line Lender.
(d) To the extent the Required Lenders (or all of the Lenders, as applicable,
as shall be required by this Section) waive the provisions of Section 7.02
with respect to the sale, transfer or other disposition of any Collateral,
or any Collateral is sold, transferred or disposed of as permitted by
Section 7.02, (i) such Collateral shall be sold, transferred or disposed of
free and clear of the Liens created by the respective Security Documents;
(ii) if such Collateral includes all of the capital stock of a Subsidiary
that is a party to the Subsidiary Guaranty or whose stock is pledged
pursuant to the Security Documents, such capital stock shall be released
from the Security Documents and such Subsidiary shall be released from the
Subsidiary Guaranty; and (iii) the Administrative Agent shall be authorized
to take actions deemed appropriate by it in order to effectuate the
foregoing.
(e) Notwithstanding anything in paragraph (a) of this Section 11.12 to the
contrary, this Agreement and the other Loan Documents may be amended at any
time and from time to time to increase the Total Revolving Commitment or to
permit the Borrower to incur Term Loans and/or Revolving Commitments (the
"Incremental Loans") by an agreement in writing entered into by the
Borrower, the Administrative Agent and each Person (including any Lender)
that shall agree to provide such Incremental Loans so established (and each
such Person that shall not already be a Lender shall, at the time such
agreement becomes effective, become a Lender with the same effect as if it
had originally been a Lender under this Agreement with the Incremental
Loans set forth in such agreement); provided that the aggregate outstanding
principal amount of the Incremental Loans shall at no time exceed
$50,000,000. Any such agreement shall amend the provisions of this
Agreement and the other Loan Documents to set forth the terms of the
Incremental Loans established thereby (including the amount and final
maturity thereof (which shall not be earlier than the Revolving Facility
Termination Date), any provisions relating to the amortization or mandatory
prepayment thereof, the interest to accrue and be payable thereon and any
fees to be payable in respect thereof) and to effect such other changes
(including changes to the provisions of this Section, Section 2.14 and the
definition of "Required Lenders") as the Borrower and the Administrative
Agent shall deem necessary or advisable in connection with the
establishment of any such Class; provided that no such agreement shall (i)
effect any change described in any of clauses (i) and (ii) of paragraph (a)
of this Section without the consent of each Person required to consent to
such change under such clause (it being agreed, however, that any increase
in the Revolving Commitments or establishment of any Class of Term Loans
will not, of itself, be deemed to effect any of the changes described in
clauses (A), (C) or (D) of Section 11.12(a)(ii), (ii) amend Article VI, VII
or VIII to establish any affirmative or negative covenant, Event of Default
or remedy that by its terms benefits one or more Classes, but not all
Classes, of Loans or Borrowings without the prior written consent of
Lenders holding a majority in interest of the Loans and Commitments of each
Class not so benefited (it being agreed that no provision requiring
Borrower to prepay Term Loans of one or more Classes pursuant to Sections
2.13(c)(v) through (vii) shall be deemed to violate this clause) or (iii)
change any other provision of this Agreement or any other Loan Document
that creates rights in favor of Lenders holding Loans or Commitments of any
existing Class, other than as necessary or advisable in the judgment of the
Administrative Agent to cause such provision to take into account, or to
make the benefits of such provision available to, Lenders holding Term
Loans of such new Class or such new Commitments. The Loans, Commitments and
Borrowings of any Class established pursuant to this paragraph shall
constitute Loans, Commitments and Borrowings under, and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan
Documents, and shall, without limiting the foregoing, benefit equally and
ratably from the Subsidiary Guaranty and security interests created by the
Security Documents. The Credit Parties shall take any actions reasonably
required by the Administrative Agent to ensure and/or demonstrate that the
Lien and security interests granted by the Security Documents continue to
be perfected under the UCC or otherwise after the establishment of any such
Incremental Loan.
(f) If, in connection with any proposed amendment, modification, termination,
waiver or consent with respect to any provision hereof as contemplated by
this Section 11.12, the consent of the Required Lenders shall have been
obtained but the consent of a Lender whose consent is required shall not
have been obtained, the Borrower may replace such Non-Consenting Lender in
accordance with the provisions of Section 3.05(b) hereof.
Section 11.13 Survival of Indemnities. All indemnities set forth herein
including, without limitation, in Article III (subject to the limitations set
forth Section 9.09 or Section 11.02 shall survive the execution and delivery of
this Agreement and the making and repayment of the Obligations.
Section 11.14 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Lender; provided, however, that the Borrower shall not be responsible for costs
arising under Section 3.01 resulting from any such transfer (other than a
transfer pursuant to Section 3.05) to the extent not otherwise applicable to
such Lender prior to such transfer.
Section 11.15 Confidentiality.
(a) Each of the Administrative Agent, each LC Issuer and the Lenders agrees to
maintain the confidentiality of the Confidential Information, except that
Confidential Information may be disclosed (1) 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
Confidential Information and instructed to keep such Confidential
Information confidential), (2) to any direct or indirect contractual
counterparty in any Hedge Agreement (or to any such contractual
counterparty's professional advisor), so long as such contractual
counterparty (or such professional advisor) agrees to be bound by the
provisions of this Section, (3) to the extent requested by any regulatory
authority, (4) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (5) to any other party to this
Agreement, (6) to any other creditor of any Credit Party that is a direct
or intended beneficiary of any of the Loan Documents, (7) in connection
with the exercise of any remedies hereunder or under any of the other Loan
Documents, or any suit, action or proceeding relating to this Agreement or
any of the other Loan Documents or the enforcement of rights hereunder or
thereunder, (8) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of or participant in any
of its rights or obligations under this Agreement, (9) with the consent of
the Borrower, or (10) to the extent such Confidential Information
(i) becomes publicly available other than as a result of a breach of this
Section, or (ii) becomes available to the Administrative Agent, any LC
Issuer or any Lender on a non-confidential basis from a source other than a
Credit Party and not otherwise in violation of this Section.
(b) As used in this Section, "Confidential Information" shall mean 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,
any LC Issuer or any Lender on a non-confidential basis prior to disclosure by
the Borrower; provided, however, that, in the case of information received from
the Borrower after the Closing Date, such information is clearly identified at
the time of delivery as confidential.
(c) Any Person required to maintain the confidentiality of Confidential
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 Confidential Information as such
Person would accord to its own confidential information. The Borrower hereby
agrees that the failure of the Administrative Agent, any LC Issuer or any Lender
to comply with the provisions of this Section shall not relieve the Borrower, or
any other Credit Party, of any of its obligations under this Agreement or any of
the other Loan Documents.
Section 11.16 Limitations on Liability of the LC Issuers. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letters of Credit. Neither any
LC Issuer nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by an LC Issuer against
presentation of documents that do not comply with the terms of a Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the LC
Obligor shall have a claim against an LC Issuer, and an LC Issuer shall be
liable to such LC Obligor, to the extent of any direct, but not consequential,
damages suffered by such LC Obligor that such LC Obligor proves were caused by
(i) such LC Issuer's willful misconduct or gross negligence in determining
whether documents presented under a Letter of Credit comply with the terms of
such Letter of Credit or (ii) such LC Issuer's willful failure to make lawful
payment under any Letter of Credit after the presentation to it of documentation
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, an LC Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation.
Section 11.17 General Limitation of Liability. No claim may be made by any
Credit Party, any Lender, the Administrative Agent, any LC Issuer or any other
Person against the Administrative Agent, any LC Issuer, or any other Lender or
the Affiliates, directors, officers, employees, attorneys or agents of any of
them for any damages other than actual compensatory damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or any of the other
Loan Documents, or any act, omission or event occurring in connection therewith;
and the Borrower, each Lender, the Administrative Agent and each LC Issuer
hereby, to the fullest extent permitted under applicable law, waive, release and
agree not to sue or counterclaim upon any such claim for any special,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in their favor.
Section 11.18 No Duty. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of
which any such Person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Loan Documents shall
have the right to act exclusively in the interest of the Administrative Agent or
such Lender, as the case may be, and shall have no duty of disclosure, duty of
loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower, to any of its Subsidiaries, or to any other Person,
with respect to any matters within the scope of such representation or related
to their activities in connection with such representation. The Borrower agrees,
on behalf of itself and its Subsidiaries, not to assert any claim or
counterclaim against any such persons with regard to such matters, all such
claims and counterclaims, now existing or hereafter arising, whether known or
unknown, foreseen or unforeseeable, being hereby waived, released and forever
discharged.
Section 11.19 Lenders and Agent Not Fiduciary to Borrower, etc. The relationship
among the Borrower and its Subsidiaries, on the one hand, and the Administrative
Agent, each LC Issuer and the Lenders, on the other hand, is solely that of
debtor and creditor, and the Administrative Agent, each LC Issuer and the
Lenders have no fiduciary or other special relationship with the Borrower and
its Subsidiaries, and no term or provision of any Loan Document, no course of
dealing, no written or oral communication, or other action, shall be construed
so as to deem such relationship to be other than that of debtor and creditor.
Section 11.20 Survival of Representations and Warranties. All representations
and warranties herein shall survive the making of Loans and all LC Issuances
hereunder, the execution and delivery of this Agreement, the Notes and the other
documents the forms of which are attached as Exhibits hereto, the issue and
delivery of the Notes, any disposition thereof by any holder thereof, and any
investigation made by the Administrative Agent or any Lender or any other holder
of any of the Notes or on its behalf. All statements contained in any
certificate or other document delivered to the Administrative Agent or any
Lender or any holder of any Notes by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto or otherwise specifically for use in connection
with the transactions contemplated hereby shall constitute representations and
warranties by the Borrower hereunder, made as of the respective dates specified
therein or, if no date is specified, as of the respective dates furnished to the
Administrative Agent or any Lender.
Section 11.21 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 11.22 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action, event, condition or
circumstance is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or would otherwise be within the limitations or
restrictions of, another covenant, shall not avoid the occurrence of a Default
or an Event of Default if such action is taken or event, condition or
circumstance exists.
Section 11.23 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with
all fees, charges and other amounts that are treated as interest on such Loan
under applicable law (collectively, the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Base Rate to the date of repayment, shall have been
received by such Lender.
Section 11.24 Judgment Currency. If the Administrative Agent, on behalf of the
Lenders, obtains a judgment or judgments against the Borrower in a Designated
Foreign Currency, the obligations of the Borrower in respect of any sum adjudged
to be due to the Administrative Agent or the Lenders hereunder or under the
Notes (the "Judgment Amount") shall be discharged only to the extent that, on
the Business Day following receipt by the Administrative Agent of the Judgment
Amount in the Designated Foreign Currency, the Administrative Agent, in
accordance with normal banking procedures, may purchase Dollars with the
Judgment Amount in such Designated Foreign Currency. If the amount of Dollars so
purchased is less than the amount of Dollars that could have been purchased with
the Judgment Amount on the date or dates the Judgment Amount (excluding the
portion of the Judgment Amount which has accrued as a result of the failure of
the Borrower to pay the sum originally due hereunder or under the Notes when it
was originally due hereunder or under the Notes) was originally due and owing
(the "Original Due Date") to the Administrative Agent or the Lenders hereunder
or under the Notes (the "Loss"), the Borrower agrees as a separate obligation
and notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender, as the case may be, against the Loss, and if the amount of Dollars
so purchased exceeds the amount of Dollars that could have been purchased with
the Judgment Amount on the Original Due Date, the Administrative Agent or such
Lender agrees to remit such excess to the Borrower.
Section 11.25 USA Patriot Act. Each Lender subject to the USA Patriot Act hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act,
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the USA Patriot Act.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
ESCO TECHNOLOGIES INC.
By: /s/G.E. Muenster
Name: __Gary E. Muenster
Title: __Senior Vice President & CFO
NATIONAL CITY BANK,
as a Lender, LC Issuer, Swing Line Lender, and
as the Lead Arranger, Administrative Agent and
Syndication Agent
By: /s/S. Farris Tzinberg
Name: ___S. Farris Tzinberg
Title: ___Vice President
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