Exhibit 10.1
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CREDIT AGREEMENT
among
AMETEK, INC.,
VARIOUS LENDING INSTITUTIONS,
FIRST UNION NATIONAL BANK AND
PNC BANK N.A.,
AS SYNDICATION AGENTS,
BANKERS TRUST COMPANY
AS DOCUMENTATION AGENT,
and
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
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Dated as of September 17, 2001
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$300,000,000
J.P. MORGAN SECURITIES INC,
AS LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
Page
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SECTION 1. Amount and Terms of Credit.............................................................5
1.01 Commitments.........................................................................5
1.02 Minimum Borrowing Amounts, etc......................................................6
1.03 Notice of Borrowing of Revolving Loans..............................................6
1.04 Competitive Bid Borrowings..........................................................6
1.05 Disbursement of Funds...............................................................8
1.06 Notes; Register.....................................................................9
1.07 Conversions........................................................................10
1.08 Pro Rata Borrowings................................................................11
1.09 Interest...........................................................................11
1.10 Interest Periods...................................................................12
1.11 Increased Costs, Illegality, etc...................................................13
1.12 Compensation.......................................................................15
1.13 Change of Lending Office...........................................................16
1.14 Replacement of Banks...............................................................16
1.15 Limitation on Additional Amounts, etc..............................................17
SECTION 2. Letters of Credit.....................................................................17
2.01 Letters of Credit..................................................................17
2.02 Letter of Credit Participations....................................................19
2.03 Letter of Credit Requests; Notices of Issuance.....................................21
2.04 Agreement to Repay Letter of Credit Drawings.......................................22
2.05 Increased Costs....................................................................22
2.06 Indemnification....................................................................23
SECTION 3. Fees; Commitments.....................................................................23
3.01 Fees...............................................................................23
3.02 Voluntary Reduction of Commitments.................................................24
3.03 Mandatory Adjustments of Commitments...............................................24
SECTION 4. Payments..............................................................................25
4.01 Voluntary Prepayments..............................................................25
4.02 Mandatory Prepayments..............................................................25
4.03 Method and Place of Payment........................................................27
4.04 Net Payments.......................................................................27
SECTION 5. Conditions Precedent..................................................................29
5.01 Conditions Precedent to Loans on the Effective Date................................29
5.02 Conditions Precedent to All Credit Events..........................................31
SECTION 6. Representations, Warranties and Agreements............................................32
6.01 Corporate Status...................................................................32
6.02 Corporate Power and Authority......................................................32
6.03 No Violation.......................................................................33
6.04 Litigation.........................................................................33
6.05 Use of Proceeds....................................................................33
6.06 Governmental Approvals.............................................................33
6.07 Investment Company Act.............................................................34
6.08 Public Utility Holding Company Act.................................................34
6.09 True and Complete Disclosure.......................................................34
6.10 Financial Condition; Financial Statements..........................................34
6.11 Tax Returns and Payments...........................................................35
6.12 Compliance with ERISA..............................................................36
6.13 Subsidiaries.......................................................................37
6.14 Patents, etc.......................................................................37
6.15 Compliance with Statutes; Environmental Matters, etc...............................37
6.16 Properties.........................................................................38
6.17 Labor Relations; Collective Bargaining Agreements..................................38
6.18 Indebtedness.......................................................................38
6.19 Restrictions on Subsidiaries.......................................................39
6.20 Transaction........................................................................39
6.21 Insurance..........................................................................39
6.22 Senior Notes.......................................................................39
SECTION 7. Affirmative Covenants.................................................................39
7.01 Information Covenants..............................................................39
7.02 Books, Records and Inspections.....................................................43
7.03 Payment of Taxes...................................................................43
7.04 Corporate Franchises...............................................................43
7.05 Compliance with Statutes, Environmental Laws, etc..................................43
7.06 ERISA..............................................................................44
7.07 Good Repair........................................................................45
7.08 End of Fiscal Years; Fiscal Quarters...............................................45
7.09 Maintenance of Property; Insurance.................................................45
7.10 Performance of Obligations.........................................................45
7.11 Use of Proceeds....................................................................46
7.12 Ownership of Subsidiaries..........................................................46
7.13 Foreign Subsidiaries Guaranty......................................................46
7.14 Senior Notes Change of Control.....................................................46
SECTION 8. Negative Covenants....................................................................46
8.01 Consolidation, Merger, Sale or Purchase of Assets, etc.............................46
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8.02 Liens..............................................................................51
8.03 Indebtedness.......................................................................52
8.04 Limitation on the Creation of Subsidiaries.........................................56
8.05 Advances, Investments and Loans....................................................56
8.06 Dividends, etc.....................................................................57
8.07 Transactions with Affiliates.......................................................58
8.08 Changes in Business................................................................59
8.09 Fixed Charge Coverage Ratio........................................................59
8.10 Leverage Ratio.....................................................................59
8.11 Consolidated Indebtedness to Consolidated EBITDA...................................59
8.12 Limitation on Voluntary Payments and Modifications of Indebtedness;
Modification of Certificate of Incorporation.......................................59
8.13 Limitations on Issuance of Capital Stock...........................................59
8.14 Limitation on Restrictions Affecting Subsidiaries..................................60
SECTION 9. Events of Default.....................................................................60
9.01 Payments...........................................................................60
9.02 Representations, etc...............................................................60
9.03 Covenants..........................................................................60
9.04 Default Under Other Agreements.....................................................61
9.05 Bankruptcy, etc....................................................................61
9.06 ERISA..............................................................................61
9.07 Subsidiary Guaranty................................................................62
9.08 Judgments..........................................................................62
9.09 Change of Control..................................................................62
SECTION 10. Definitions..........................................................................63
SECTION 11. The Administrative Agent, Co-Agents, Syndication Agents, Documentation Agent, etc....88
11.01 Appointment.......................................................................88
11.02 Delegation of Duties..............................................................88
11.03 Exculpatory Provisions............................................................89
11.04 Reliance by the Administrative Agent, Co-Agents, Syndication Agents,
the Documentation Agent etc.......................................................89
11.05 Notice of Default.................................................................90
11.06 Non-Reliance on Administrative Agent, Co-Agents, Syndication Agents,
Documentation Agent and Other Banks...............................................90
11.07 Indemnification...................................................................91
11.08 Individual Capacity...............................................................91
11.09 Resignation; Successors...........................................................92
11.10 Holders...........................................................................92
SECTION 12. Miscellaneous........................................................................92
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12.01 Payment of Expenses, etc..........................................................92
12.02 Right of Setoff...................................................................93
12.03 Notices...........................................................................94
12.04 Benefit of Agreement..............................................................94
12.05 No Waiver; Remedies Cumulative....................................................95
12.06 Payments Pro Rata.................................................................96
12.07 Calculations; Computations........................................................96
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; TRIAL BY JURY...................97
12.09 Counterparts......................................................................98
12.10 Effectiveness.....................................................................98
12.11 Headings Descriptive..............................................................99
12.12 Amendment or Waiver...............................................................99
12.13 Survival..........................................................................100
12.14 Domicile of Loans.................................................................100
SCHEDULE I - Commitments
SCHEDULE II - Real Property
SCHEDULE III - Insurance
SCHEDULE IV - Projections
SCHEDULE V - Subsidiaries
SCHEDULE VI - Collective Bargaining Agreements
SCHEDULE VII - Permitted Existing Indebtedness
SCHEDULE VIII - Permitted Liens
SCHEDULE IX - Permitted Existing Investments
SCHEDULE X - Existing Letters of Credit
EXHIBIT A-1 - Notice of Borrowing
EXHIBIT A-2 - Notice of Competitive Bid Borrowing
EXHIBIT A-3 - Notice of Prepayment
EXHIBIT B - Note
EXHIBIT C - Officers' Certificate
EXHIBIT D-1 - Opinion of Stroock & Stroock & Lavan LLP
EXHIBIT D-2 - Opinion of White & Case LLP
EXHIBIT E - Subsidiary Guaranty
EXHIBIT F - Intercompany Note
EXHIBIT G - Subordination Provisions
EXHIBIT H - Assignment Agreement
EXHIBIT I - Section 4.04(b)(ii) Certificate
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CREDIT AGREEMENT, dated as of September 17, 2001, among AMETEK,
INC., a Delaware corporation (the "Borrower"), the lending institutions listed
from time to time on Schedule I hereto (each a "Bank" and, collectively, the
"Banks"), First Union National Bank and PNC Bank N.A., as syndication agents
(each a "Syndication Agent" and, collectively, the "Syndication Agents"),
Bankers Trust Company, as documentation agent (the "Documentation Agent"), and
The Chase Manhattan Bank, as administrative agent (in such capacity, and
together with its successors in such capacity, the "Administrative Agent") for
the Banks. Unless otherwise defined herein, all capitalized terms used herein
and defined in Section 10 are used herein as so defined.
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facility provided for herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and
conditions herein set forth, each Bank severally agrees, at any time and from
time to time on and after the Effective Date and prior to the Final Maturity
Date, to make a loan or loans (each, a "Revolving Loan" and, collectively, the
"Revolving Loans") to the Borrower, which Revolving Loans (i) except as
hereinafter provided, may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that all Revolving Loans made by all Banks pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Revolving Loans of the same Type, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount for any Bank at any time outstanding the amount
which, when combined with such Bank's Percentage of the sum of (A) the Letter
of Credit Outstandings at such time plus (B) the aggregate outstanding
principal amount of all Competitive Bid Loans then outstanding, equals the
Commitment of such Bank at such time, (iv) shall not exceed in aggregate
principal amount for all Banks at any time outstanding the amount which, when
added to the sum of (A) the aggregate amount of Letter of Credit Outstandings
at such time plus (B) the aggregate outstanding principal amount of all
Competitive Bid Loans then outstanding, equals the Total Commitment at such
time and (v) shall be denominated in Dollars.
(b) Subject to and upon the terms and conditions herein set
forth, each Bank severally agrees that the Borrower may incur a loan or loans
(each, a "Competitive Bid Loan" and, collectively, the "Competitive Bid
Loans") pursuant to a Competitive Bid Borrowing at any time and from time to
time on and after the Effective Date and prior to the date which is the third
Business Day preceding the date which is 14 days prior to the Final Maturity
Date, provided that after giving effect to any Competitive Bid Borrowing and
the use of the proceeds thereof, the aggregate outstanding principal amount of
Competitive Bid Loans, when combined with the aggregate principal amount of
all Revolving Loans then outstanding and the aggregate Letter of Credit
Outstandings at such time, shall not exceed the Total Commitment at such time,
provided
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further, that the aggregate outstanding principal amount of all Competitive
Bid Loans denominated in Approved Alternate Currencies shall not exceed
$50,000,000 at any time. Within the foregoing limits and subject to the
conditions set forth in Section 1.04, Competitive Bid Loans may be repaid and
reborrowed in accordance with the provisions hereof.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal
amount of each Borrowing of Loans shall not be less than the applicable
Minimum Borrowing Amount. More than one Borrowing may be incurred on any day,
provided that at no time shall there be outstanding more than twelve (12)
Borrowings of Eurodollar Loans in the aggregate.
1.03 Notice of Borrowing of Revolving Loans. (a) Whenever the
Borrower desires to incur Revolving Loans, it shall give the Administrative
Agent at its Notice Office, written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Revolving Loans constituting
Eurodollar Loans prior to 12:00 Noon (New York time) on the third Business Day
preceding the date of the proposed Borrowing and written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Revolving Loans
constituting Base Rate Loans to be made hereunder prior to 11:00 A.M. (New
York time) on the date of the proposed Borrowing. Each of the foregoing
notices (each, a "Notice of Borrowing") shall be irrevocable, and, in the case
of each written notice and each confirmation of telephonic notice, shall be in
the form of Exhibit A-1, appropriately completed to specify (i) the aggregate
principal amount of the Revolving Loans to be incurred, (ii) the date of
incurrence (which shall be a Business Day) and (iii) whether the respective
incurrence shall consist of Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Bank written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Revolving Loans, of the proportionate share thereof of each Bank and of the
other matters covered by the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent or the respective Letter of Credit Issuer (in the case of
the issuance of Letters of Credit), as the case may be, may act prior to
receipt of written confirmation without liability upon the basis of such
telephonic notice, reasonably believed by the Administrative Agent or such
Letter of Credit Issuer, as the case may be, in good faith to be from an
Authorized Officer of the Borrower as a person entitled to give telephonic
notices under this Agreement on behalf of such Borrower. In each such case the
Borrower hereby waives the right to dispute the Administrative Agent's record
of the terms of any such telephonic notice.
1.04 Competitive Bid Borrowings. (a) Whenever the Borrower
desires to incur a Competitive Bid Borrowing, it shall deliver to the
Administrative Agent, prior to 12:00 Noon (New York time) (x) at least five
Business Days prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Spread Borrowing, and (y) at least two Business Days prior to
the date of such proposed Competitive Bid Borrowing, in the case of an
Absolute Rate Borrowing, a written notice substantially in the form of Exhibit
A-2 hereto (a "Notice of Competitive Bid Borrowing"), which notice shall
specify in each case (i) the date (which shall be a Business Day) and the
aggregate amount of the proposed Competitive Bid Borrowing, (ii) the maturity
date for
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repayment of each and every Competitive Bid Loan to be made as part of such
Competitive Bid Borrowing (which maturity date may be (A) one, two, three or
six months after the date of such Competitive Bid Borrowing, in the case of a
Spread Borrowing, and (B) between 14 and 364 days, inclusive, after the date
of such Competitive Bid Borrowing, in the case of an Absolute Rate Borrowing,
provided that in no event shall the maturity date of any Competitive Bid
Borrowing be later than the third Business Day preceding the Final Maturity
Date, (iii) the interest payment date or dates relating thereto, (iv) whether
the proposed Competitive Bid Borrowing is to be an Absolute Rate Borrowing or
a Spread Borrowing, and if a Spread Borrowing, the Interest Rate Basis, (v)
whether the Competitive Bid Loans made pursuant to the proposed Competitive
Bid Borrowing are to be denominated in Dollars or an Approved Alternate
Currency and, if an Approved Alternate Currency, the Approved Alternate
Currency so desired and (vi) any other terms to be applicable to such
Competitive Bid Borrowing. The Administrative Agent shall promptly notify each
Bidder Bank by telephone or facsimile of each such request for a Competitive
Bid Borrowing received by it from the Borrower and of the contents of the
related Notice of Competitive Bid Borrowing.
(b) Each Bidder Bank shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid Loans
to the Borrower as part of such proposed Competitive Bid Borrowing at a rate
or rates of interest specified by such Bidder Bank in its sole discretion and
determined by such Bidder Bank independently of each other Bidder Bank, by
notifying the Administrative Agent (which shall give prompt notice thereof to
the Borrower) before 10:00 A.M. (New York time) on the date (the "Reply Date")
which is (x) in the case of an Absolute Rate Borrowing, the date of such
proposed Competitive Bid Borrowing and (y) in the case of a Spread Borrowing,
four Business Days before the date of such proposed Competitive Bid Borrowing,
of the minimum amount and maximum amount of each Competitive Bid Loan which
such Bidder Bank would be willing to make as part of such proposed Competitive
Bid Borrowing (which amounts may, subject to the proviso to the first sentence
of Section 1.01(b), exceed such Bidder Bank's Commitment), the rate or rates
of interest therefor and such Bidder Bank's lending office with respect to
such Competitive Bid Loan; provided that if the Administrative Agent in its
capacity as a Bidder Bank shall, in its sole discretion, elect to make any
such offer, it shall notify the Borrower of such offer before 9:45 A.M. (New
York time) on the Reply Date. If any Bidder Bank shall elect not to make such
an offer, such Bidder Bank shall so notify the Administrative Agent, before
10:00 A.M. (New York time) on the Reply Date, and such Bidder Bank shall not
be obligated to, and shall not, make any Competitive Bid Loan as part of such
Competitive Bid Borrowing; provided that the failure by any Bidder Bank to
give such notice shall not cause such Bidder Bank to be obligated to make any
Competitive Bid Loan as part of such proposed Competitive Bid Borrowing.
(c) The Borrower shall, in turn, (x) before 11:00 A.M. (New
York time) on the Reply Date in the case of a proposed Absolute Rate Borrowing
and (y) before 12:00 Noon (New York time) on the Business Day following the
Reply Date in the case of a proposed Spread Borrowing, either:
(i) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to such effect, or
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(ii) accept one or more of the offers made by any Bidder Bank or
Bidder Banks pursuant to clause (b) above by giving notice (in writing
or by telephone confirmed in writing) to the Administrative Agent of
the amount of each Competitive Bid Loan (which amount shall be equal
to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Administrative Agent
on behalf of such Bidder Bank for such Competitive Bid Borrowing
pursuant to clause (b) above) to be made by each Bidder Bank as part
of such Competitive Bid Borrowing, and reject any remaining offers
made by Bidder Banks pursuant to clause (b) above by giving the
Administrative Agent notice to that effect; provided that the
acceptance of offers may only be made on the basis of ascending
Absolute Rates (in the case of an Absolute Rate Borrowing) or Spreads
(in the case of a Spread Borrowing), in each case commencing with the
lowest rate so offered; provided further, however, if offers are made
by two or more Bidder Banks at the same rate and acceptance of all
such equal offers would result in a greater principal amount of
Competitive Bid Loans being accepted than the aggregate principal
amount requested by the Borrower, if the Borrower elects to accept any
of such offers the Borrower shall accept such offers pro rata from
such Bidder Banks (on the basis of the maximum amounts of such offers)
unless any such Bidder Bank's pro rata share would be less than the
minimum amount specified by such Bidder Bank in its offer, in which
case the Borrower shall have the right to accept one or more such
equal offers in their entirety and reject the other equal offer or
offers or to allocate acceptance among all such equal offers (but
giving effect to the minimum and maximum amounts specified for each
such offer pursuant to clause (b) above), as the Borrower may elect in
its sole discretion.
(d) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to clause (c)(i) above, the
Administrative Agent shall give prompt notice thereof to the Bidder Banks and
such Competitive Bid Borrowing shall not be made.
(e) If the Borrower accepts one or more of the offers made by
any Bidder Bank or Bidder Banks pursuant to clause (c)(ii) above, the
Administrative Agent shall in turn promptly notify (x) each Bidder Bank that
has made an offer as described in clause (b) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any offer or
offers made by such Bidder Bank pursuant to clause (b) above have been
accepted by the Borrower and (y) each Bidder Bank that is to make a
Competitive Bid Loan as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Loan to be made by such Bidder Bank as part of such
Competitive Bid Borrowing. In connection with the incurrence of any
Competitive Bid Loan denominated in a currency other than Dollars, each Bidder
Bank that is to make a Competitive Bid Loan as part of a Competitive Bid
Borrowing may request from the Administrative Agent a determination in
accordance with Section 12.07(d) as to the principal amount of such
Competitive Bid Loan, and such Bidder Bank shall be entitled to rely on such
information provided by the Administrative Agent.
1.05 Disbursement of Funds. (a) Subject to the terms and
conditions hereinafter provided, each Bank will make available its pro rata
share, if any, of each Borrowing requested to be made on the date specified in
a Notice of Borrowing or a Notice of Competitive Bid
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Borrowing, as the case may be, in the manner provided below by no later than
1:00 P.M. (New York time) on such date, but, in the case of a Borrowing of
Base Rate Loans, only to the extent that such Bank has received a notice from
the Administrative Agent of such proposed Borrowing. All amounts shall be made
available to the Administrative Agent (x) in the case of a Borrowing of
Revolving Loans, in Dollars and (y) in the case of a Competitive Bid
Borrowing, in Dollars or an Approved Alternate Currency as specified in such
Notice of Competitive Bid Borrowing and, in each case, in immediately
available funds at the Payment Office, and the Administrative Agent promptly
will, on the date specified in such Notice of Borrowing, make available to the
Borrower by depositing to its account at the Payment Office the aggregate of
the amounts so made available by the Banks by the time specified in the
preceding sentence in the type of funds received. Unless the Administrative
Agent shall have been notified by any Bank prior to the date of Borrowing that
such Bank does not intend to make available to the Administrative Agent its
portion, if any, of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank 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 Bank and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall
be entitled to recover such corresponding amount from such Bank. If such Bank
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 pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from such Bank 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 (x) if to be paid by such Bank, the customary rate set
by the Administrative Agent for the correction of errors among banks for each
day during the period consisting of the first three Business Days following
such date of availability and thereafter at the Base Rate or (y) if to be paid
by the Borrower, the then applicable rate of interest, calculated in
accordance with Section 1.09 for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by
such Bank hereunder.
1.06 Notes; Register. (a) The Borrower's obligation to pay the
principal of, and interest on, the Revolving Loans made to it by each Bank
shall be evidenced by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B, with blanks appropriately
completed in conformity herewith (each, a "Note" and, collectively, the
"Notes").
(b) The Note issued to each Bank shall (i) be payable to the
order of such Bank and be dated the Effective Date, (ii) be in a stated
principal amount equal to the Commitment of such Bank and be payable in the
principal amount of the Revolving Loans evidenced thereby, (iii) mature on the
Final Maturity Date, (iv) bear interest as provided in the appropriate clause
of
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Section 1.09 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (v) be subject to mandatory repayment as
provided in Section 4.02 and (vi) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Revolving Loans evidenced thereby and the last
date or dates on which interest has been paid in respect of the Revolving
Loans evidenced thereby. Failure to make any such notation shall not affect
the Borrower's obligations in respect of such Revolving Loans, or affect the
validity of such transfer by any Bank of such Note.
(d) Registry. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
1.06(d), to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans
of each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments 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 Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment Agreement pursuant to Section
12.04(b). Coincident with the delivery of such an Assignment Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning
or transferor Bank shall surrender the Note evidencing such Loan, and
thereupon one or more new Notes in the same aggregate principal amount shall
be issued to the assigning or transferor Bank and/or the new Bank. The
Borrower agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 1.06(d).
1.07 Conversions. The Borrower shall have the option to convert
on any Business Day occurring after the Effective Date, all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the Revolving Loans made pursuant to one or more
Borrowings of one or more Types of Revolving Loans into a Borrowing or
Borrowings of another Type of Revolving Loan, provided that (i) except as
provided in Section 1.11(b), Eurodollar Loans may be converted into Revolving
Loans of another Type only on the last day of an Interest Period applicable
thereto and no partial conversion of a Borrowing of Eurodollar Loans shall
reduce the outstanding principal amount of the Revolving Loans pursuant to
such Borrowing to less than the Minimum Borrowing Amount applicable thereto,
(ii) Revolving Loans may only be converted into Eurodollar Loans if no Default
or Event of Default is in existence on the date of the conversion and (iii)
Borrowings of Eurodollar Loans resulting
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from this Section 1.07 shall be limited in number as provided in Section 1.02.
Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at its Notice Office, prior to 12:00 Noon (New York
time), at least three Business Days or, in the case of a conversion into Base
Rate Loans, prior to 10:00 A.M. (New York time) on the same Business Day,
prior written notice (or telephonic notice promptly confirmed in writing)
(each, a "Notice of Conversion") specifying the Revolving Loans to be so
converted, the Type of Revolving Loans to be converted into and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Revolving
Loans.
1.08 Pro Rata Borrowings. All Borrowings of Revolving Loans
shall be made from the Banks pro rata on the basis of their Commitments. It is
understood that no Bank shall be responsible for any default by any other Bank
in its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder.
1.09 Interest. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from and including the date of the Borrowing
thereof until maturity (whether by acceleration or otherwise) at a rate per
annum which shall at all times be the Base Rate plus the Applicable Margin in
effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from and including the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be the relevant Eurodollar Rate plus the Applicable Margin.
(c) The unpaid principal amount of each Competitive Bid Loan
shall bear interest from the date the proceeds thereof are made available to
the Borrower until maturity (whether by acceleration or otherwise) at the rate
or rates per annum specified by a Bidder Bank or Bidder Banks, as the case may
be, pursuant to Section 1.04(b) and accepted by the Borrower pursuant to
Section 1.04(c).
(d) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per
annum equal to the Base Rate in effect from time to time plus the Applicable
Margin plus 2%, provided that no Loan shall bear interest after maturity
(whether by acceleration or otherwise) at a rate per annum less than 2% plus
the rate of interest applicable thereto at maturity.
(e) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable in arrears (i) in respect of each Base Rate Loan, quarterly on the
last Business Day of each calendar quarter, (ii) in respect of each
Competitive Bid Loan, at such times as specified in the Notice of Competitive
Bid Borrowing relating thereto, (iii) in respect of each Eurodollar Loan, on
the last day of each Interest Period applicable thereto and, in the case of an
Interest Period of six months, on the date occurring three months after the
first day of such Interest Period and (iv) in respect of each Loan,
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on any prepayment (on the amount prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(f) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(g) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify the Borrower and the Banks thereof.
1.10 Interest Periods. At the time the Borrower gives a Notice
of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 12:00 Noon (New York time) on
the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Eurodollar Loans (in the case of any subsequent
Interest Period), it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed
in writing) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three or
six month period. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of Base Rate Loans) 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 applicable to a Borrowing of
Eurodollar Loans 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
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, provided that if any Interest Period
applicable to a Borrowing of Eurodollar Loans would otherwise expire
on a day which 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 shall extend beyond the Final Maturity
Date;
(v) no Interest Period may be elected at any time when a
Default or Event of Default is then in existence; and
(vi) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period.
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If upon the expiration of any Interest Period, the Borrower has
failed to elect a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, or is unable to elect a new
Interest Period as a result of clause (v) above, the Borrower shall be deemed
to have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the
case of clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period or in respect of any Spread Borrowing priced by
reference to the Eurodollar Rate that, by reason of any changes
arising after the date of this Agreement affecting the London
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining generally the applicable interest rate on the basis
provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loans or Competitive Bid 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 date of this
Agreement (or, in the case of any such cost or reduction with respect
to any Competitive Bid Loan, since the making of such Competitive Bid
Loan) 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 referred to in Section 1.11(d)) and/or (y) other
circumstances adversely affecting the London interbank Eurodollar
market or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan or Competitive Bid Loan has become unlawful by
compliance by such Bank in good faith with any law, governmental rule,
regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force
of law but with which such Bank customarily complies even though the
failure to comply therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after the date of
this Agreement which adversely affects the London interbank Eurodollar
market;
then, and in any such event, such Bank (or the Administrative Agent in the
case of clause (i) above) shall promptly give notice (by telephone confirmed
in writing) to the Borrower and (except in the case of clause (i)) to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans (or Competitive Bid Loans
constituting a Spread
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Borrowing priced by reference to the Eurodollar Rate) shall no longer be
available until such time as the Administrative Agent notifies the Borrower
and the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing, Notice of
Competitive Bid Borrowing or Notice of Conversion given by the Borrower with
respect to Eurodollar Loans or any affected Competitive Bid Loans, as the case
may be, which have not yet been incurred shall be deemed rescinded by such
Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to
the provisions of Section 1.15 (to the extent applicable), pay to such Bank,
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 Bank in its reasonable discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts receivable hereunder and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 1.11(b) as
promptly as possible and, in any event, within the time period required by
law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.11(a)(ii) or any Eurodollar Loan or
Competitive Bid Loan is affected by the circumstances described in Section
1.11(a)(iii), the Borrower may (and in the case of a Eurodollar Loan or
Competitive Bid Loan affected pursuant to Section 1.11(a)(iii), shall) either
(i) if the affected Eurodollar Loan or Competitive Bid Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same
date that the Borrower was notified by a Bank pursuant to Section 1.11(a)(ii)
or (iii), (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Bank to convert each such Eurodollar Loan into a Base Rate Loan
(which conversion, in the case of the circumstances described in Section
1.11(a)(iii), shall occur no later than the last day of the Interest Period
then applicable to such Eurodollar Loan (or such earlier date as shall be
required by applicable law)) or (iii) if the affected Competitive Bid Loan is
then outstanding, prepay such Competitive Bid Loan in full (which prepayment
may be made with the proceeds of Revolving Loans); provided that if more than
one Bank is affected at any time, then all affected Banks must be treated the
same pursuant to this Section 1.11(b).
(c) If any Bank determines at any time that the adoption or
effectiveness after the Effective Date of any applicable law, rule or
regulation regarding capital adequacy, or any change therein after the
Effective Date, or any change after the Effective Date in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or actual compliance by such Bank 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, has or would have the effect of
increasing the costs to such Bank to a level above that, or reducing the rate
of return on such Bank's capital or assets as a consequence of its commitments
or obligations hereunder to a level below that, which such Bank could have
achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy),
then from time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall, subject to the provisions of
Section 1.15 (to the extent applicable), pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased costs or
reduction. Each Bank, upon determining that any additional amounts will be
payable pursuant
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to this Section 1.11(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish the Borrower's obligations to pay additional amounts
pursuant to this Section 1.11(c) upon receipt of such notice.
(d) In the event that any Bank shall determine (which
determination shall, absent manifest error, be final and conclusive and
binding on all parties hereto) at any time that by reason of Regulation D such
Bank is required to maintain reserves in respect of Eurocurrency loans or
liabilities during any period that it has a Eurodollar Loan or a Competitive
Bid Loan priced by reference to the Eurodollar Rate outstanding, then such
Bank shall promptly notify the Borrower and the Administrative Agent by
written notice (or telephonic notice promptly confirmed in writing) specifying
the additional amounts required to indemnify such Bank against the cost of
maintaining such reserves (such written notice to provide a computation of
such additional amounts) and the Borrower shall, subject to the provisions of
Section 1.15 (to the extent applicable), directly pay to such Bank such
specified amounts as additional interest at the time that it is otherwise
required to pay interest in respect of such Eurodollar Loan or Competitive Bid
Loan or, if later, on demand.
1.12 Compensation. The Borrower shall, subject to the
provisions of Section 1.15 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans or Competitive Bid
Loans to the Borrower) which such Bank may sustain:
(i) if for any reason (other than a default or error by such
Bank or the Administrative Agent) a Borrowing of Eurodollar Loans or
Competitive Bid Loans accepted by the Borrower in accordance with
Section 1.04(c)(ii) does not occur on a date specified therefor in a
Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.11(a));
(ii) if any repayment or conversion of any of its Eurodollar
Loans or any repayment of Competitive Bid Loans occurs on a date which
is not the last day of an Interest Period applicable thereto;
(iii) if any prepayment of any of its Eurodollar Loans or
Competitive Bid Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or
(iv) as a consequence of (x) any other default by the Borrower
to repay its Eurodollar Loans or Competitive Bid Loans when required
by the terms of this Agreement or (y) an election made pursuant to
Section 1.11(b).
Calculation of all amounts payable to a Bank with respect to
Eurodollar Loans or Competitive Bid Loans priced by reference to the
Eurodollar Rate under this Section 1.12 shall be made as though that Bank had
actually funded its relevant Loan through the purchase of a
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Eurodollar deposit bearing interest at the Eurodollar Rate in an amount equal
to the amount of that Loan, having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar deposit from an
offshore office of that Bank to a domestic office of that Bank in the United
States of America (or if such Bank has no offshore office, from an offshore
office of the Administrative Agent to the domestic office of the
Administrative Agent); provided, however, that each Bank may fund each of its
Eurodollar Loans or Competitive Bid Loans in any manner it sees fit and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 1.12.
1.13 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.11(a)(ii) or
(iii), 1.11(c), 1.11(d), 2.05 or 4.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office of such Bank
for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank or its respective lending
offices 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. Nothing in this Section 1.13 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Section 1.11,
2.05 or 4.04.
1.14 Replacement of Banks. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.11(a)(ii) or (iii), Section 1.11(c),
Section 1.11(d), Section 2.05 or Section 4.04 with respect to any Bank which
results in such Bank charging to the Borrower increased costs which are
material in amount and are in excess of those being generally charged by the
other Banks or (y) as provided in Section 12.12(b) in the case of certain
refusals by a Bank to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower shall have the right, if no Default or Event of
Default then exists or will exist immediately after giving effect to the
respective replacement and, in the case of a Bank described in clause (x)
above, such Bank has not withdrawn its request for such compensation or
changed its applicable lending office with the effect of eliminating or
substantially decreasing (to a level which is not material) such increased
cost, to replace such Bank (the "Replaced Bank") with one or more other
Eligible Assignee or Assignees (collectively, the "Replacement Bank")
reasonably acceptable to the Administrative Agent and each Letter of Credit
Issuer; provided that (i) at the time of any replacement pursuant to this
Section 1.14, the Replacement Bank shall enter into one or more Assignment
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which
the Replacement Bank shall acquire all of the Commitment and outstanding Loans
of, and participations in Letters of Credit by, the Replaced Bank and, in
connection therewith, shall pay to (x) the Replaced Bank in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank, (B) an amount
equal to all Unpaid Drawings that have been funded by (and not reimbursed to)
such Replaced Bank, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 and (y) the
respective Letter of Credit Issuer an amount equal to such Replaced Bank's
Percentage (for this purpose, determined as if the adjustment described in
clause (y) of the immediately succeeding sentence had been made with respect
to such Replaced Bank) of any Unpaid Drawing (which at such time
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remains an Unpaid Drawing) with respect to any Letter of Credit issued by such
Letter of Credit Issuer to the extent such amount was not theretofore funded
by such Replaced Bank, and (ii) all obligations of the Borrower owing to the
Replaced Bank (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Bank concurrently with
such replacement. Upon the execution of the respective Assignment Agreements,
the payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of an
appropriate Note executed by the Borrower, (x) the Replacement Bank shall
become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.11, 1.12, 2.05, 4.04 and,
12.01), which shall survive as to such Replaced Bank and (y) the Percentages
of the Banks shall be automatically adjusted at such time to give effect to
such replacement.
1.15 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Sections 1.11, 1.12, 2.05 or 4.04 of
this Agreement, unless a Bank gives notice to the Borrower that it is
obligated to pay an amount under any such respective Section within 120 days
after the later of (x) the date the Bank incurs the respective increased
costs, taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital or (y) the date such Bank has
actual knowledge of its incurrence of the respective increased costs, taxes,
loss, expense or liability, reductions in amounts received or receivable or
reduction in return on capital, then such Bank shall only be entitled to be
compensated for such amount by the Borrower pursuant to said Section 1.11,
1.12, 2.05 or 4.04, as the case may be, to the extent the costs, taxes, loss,
expense or liability, reduction in amounts received or receivable or reduction
in return on capital are incurred or suffered on or after the date which
occurs 120 days prior to such Bank giving notice to the Borrower that it is
obligated to pay the respective amounts pursuant to said Section 1.11, 1.12,
2.05 or 4.04, as the case may be. Each Bank, in determining additional amounts
owing under Sections 1.11, 1.12, 2.05 or 4.04, will act reasonably and in good
faith, provided that such Bank's determination of such additional amounts so
owing shall, absent manifest error, be final and conclusive and binding on all
parties hereto. This Section 1.15 shall have no applicability to any Section
of this Agreement other than said Sections 1.11, 1.12, 2.05 and 4.04.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit
Issuer at any time and from time to time on or after the Effective Date and
prior to the third Business Day preceding the Final Maturity Date to issue,
and subject to the terms and conditions herein set forth, such Letter of
Credit Issuer hereby agrees to issue from time to time, (x) for the account of
the Borrower on a standby basis and in support of insurance obligations,
workers compensation, bonding obligations in respect of taxes, licenses and
similar requirements or obligations in respect of commodities purchased by the
Borrower or any of its Subsidiaries in the ordinary course of their respective
businesses and not for speculative purposes (to the extent consistent with the
practices of the Borrower and its Subsidiaries prior to the Effective Date),
in each case of the Borrower, any of its Subsidiaries or any Permitted Joint
Venture, and other obligations (as specified in the respective Letter of
Credit
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Request and consented to by the Administrative Agent and the respective Letter
of Credit Issuer) of the Borrower, any of its Subsidiaries and/or any
Permitted Joint Venture, an irrevocable standby letter of credit so requested
by the Borrower in a form customarily used by such Letter of Credit Issuer or
in such other form as may be approved by such Letter of Credit Issuer and the
Administrative Agent (each such standby letter of credit, a "Standby Letter of
Credit" and, collectively, the "Standby Letters of Credit"), and (y) for the
account of the Borrower and for the benefit of sellers of goods to the
Borrower, any of its Subsidiaries or any Permitted Joint Venture, an
irrevocable documentary letter of credit in a form customarily used by such
Letter of Credit Issuer or in such other form as may be approved by such
Letter of Credit Issuer and the Administrative Agent in support of commercial
transactions of the Borrower, any of its Subsidiaries or any Permitted Joint
Venture, as the case may be, entered into in the ordinary course of its
business (each such documentary letter of credit, a "Trade Letter of Credit"
and, collectively, the "Trade Letters of Credit" and together with the Standby
Letters of Credit, the "Letters of Credit"). Notwithstanding the foregoing, no
Letter of Credit Issuer shall be obligated to issue any Letter of Credit at a
time when a Bank Default exists unless such Letter of Credit Issuer has
entered into arrangements satisfactory to it and the Borrower to eliminate
such Letter of Credit Issuer's risk with respect to the participation in
Letters of Credit of the Bank which is the subject of the Bank Default,
including by cash collateralizing such Bank's Percentage of the Letter of
Credit Outstandings. It is acknowledged and agreed that each of the letters of
credit which were issued under the Original Credit Agreement and which remain
outstanding on the Effective Date and are set forth on Part I of Schedule X
and each of the letters of credit which were issued by PNC Bank National
Association prior to the Effective Date to the account of the Borrower and
which remain outstanding on the Effective Date and are set forth on Part II of
Schedule X (each such letter of credit, an "Existing Letter of Credit" and,
collectively, the "Existing Letters of Credit") shall, from and after the
Effective Date, constitute a Letter of Credit for all purposes of this
Agreement and shall, for purposes of Sections 2.02 and 3.01, be deemed issued
on the Effective Date. The Stated Amount of each Existing Letter of Credit and
the expiry date therefor, each as in effect on the Effective Date, is set
forth on Schedule X.
(b) Notwithstanding the foregoing,
(i) no Letter of Credit shall be issued the Stated Amount of
which, when added to the Letter of Credit Outstandings at such time,
would exceed either (x) $30,000,000 or (y) when added to the aggregate
principal amount of all Revolving Loans and all Competitive Bid Loans
then outstanding, the Total Commitment at such time;
(ii) each Letter of Credit shall by its terms terminate on or
before the earlier of (x)(A) in the case of Standby Letters of Credit,
the date which occurs 18 months after such Standby Letter of Credit's
date of issuance (subject to extension provisions acceptable to the
Administrative Agent and the respective Letter of Credit Issuer) and
(B) in the case of Trade Letters of Credit, the date which occurs 12
months after such Trade Letter of Credit's date of issuance and (y)
the third Business Day preceding the Final Maturity Date;
(iii) each Standby Letter of Credit shall be denominated in
Dollars;
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(iv) each Trade Letter of Credit shall be denominated in
Dollars or an Approved Alternate Currency, provided that no Trade Letter
of Credit denominated in an Approved Alternate Currency shall be issued
by any Letter of Credit Issuer if the Stated Amount of such Trade Letter
of Credit, when added to the Letter of Credit Outstandings at such time
in respect of Trade Letters of Credit denominated in Approved Alternate
Currencies, would exceed $5,000,000;
(v) no Standby Letter of Credit shall have a Stated Amount of
less than $100,000 unless otherwise agreed to by the respective Letter
of Credit Issuer;
(vi) no Trade Letter of Credit shall have a Stated Amount of
less than $10,000 unless otherwise agreed to by the respective Letter
of Credit Issuer;
(vii) no Letter of Credit shall be issued by any Letter of
Credit Issuer after it has received a written notice from the
Borrower, the Administrative Agent or the Required Banks stating that
a Default or Event of Default has occurred and is continuing until
such time as such Letter of Credit Issuer shall have received a
written notice of (x) rescission of such notice from the party or
parties originally delivering such notice or (y) the waiver of such
Default or Event of Default by the Required Banks; and
(viii) no Letter of Credit shall be issued in support of any
obligation of any Permitted Joint Venture the Stated Amount of which,
when added to the sum of (x) the Joint Venture Letter of Credit
Outstandings at such time and (y) the aggregate outstanding principal
amount of all Joint Venture Investments, would exceed $50,000,000.
In connection with the issuance of any Letter of Credit, the
respective Letter of Credit Issuer may request from the Administrative Agent
(x) a determination in accordance with Section 12.07(c)(y) as to the Stated
Amount of any Letter of Credit and of the principal amount of Unpaid Drawings,
in each case to the extent denominated in a currency other than Dollars, (y)
the Letter of Credit Outstandings at such time with respect to Letters of
Credit issued by all other Letter of Credit Issuers and (z) the aggregate
principal amount of outstanding Revolving Loans and Competitive Bid Loans
(including the Dollar equivalent thereof) at such time, and such Letter of
Credit Issuer shall be entitled to rely on such information provided by the
Administrative Agent.
2.02 Letter of Credit Participations. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit, the respective
Letter of Credit Issuer shall be deemed to have sold and transferred to each
other Bank (each such other Bank, in its capacity under this Section 2.02, a
"Participating Bank"), and each such Participating Bank shall be deemed
irrevocably and unconditionally to have purchased and received from such
Letter of Credit Issuer, without recourse or warranty, an undivided interest
and participation, to the extent of such Participating Bank's Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto
(although L/C Fees will be paid directly to the Administrative Agent for the
ratable account of the Participating Banks as provided in Section 3.01(b) and
the Participating Banks shall have no right to receive any portion
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of any L/C Facing Fees). Upon any change in the Commitments of the Banks
pursuant to Section 12.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.02 to reflect the
new Percentages of the assignor and assignee Banks.
(b) In determining whether to pay under any Letter of Credit,
the respective Letter of Credit Issuer issuing same shall have no obligation
relative to any other Bank other than to confirm 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 a Letter of Credit Issuer under or
in connection with any Letter of Credit issued by it if taken or omitted in
the absence of gross negligence or willful misconduct, shall not create for
such Letter of Credit Issuer any resulting liability to the Borrower or any
Bank.
(c) In the event that a Letter of Credit Issuer makes any
payment under any Letter of Credit issued by it and the Borrower shall not
have reimbursed such amount in full to such Letter of Credit Issuer pursuant
to Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent and after receipt of such notice, the Administrative
Agent will notify each Participating Bank of such failure, and each
Participating Bank shall promptly and unconditionally pay to the
Administrative Agent for the account of such Letter of Credit Issuer, the
amount of such Participating Bank's Percentage of such unreimbursed payment in
lawful money of the United States of America and in same day funds; provided,
however, that no Participating Bank shall be obligated to pay to the
Administrative Agent for the account of such Letter of Credit Issuer its
Percentage of such unreimbursed amount for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer. If the Administrative Agent so notifies, prior
to 11:00 A.M. (New York time) on any Business Day, any Participating Bank
required to fund a payment under a Letter of Credit, such Participating Bank
shall make available to the Administrative Agent for the account of such
Letter of Credit Issuer such Participating Bank's Percentage of the amount of
such payment on such Business Day in same day funds. If and to the extent such
Participating Bank shall not have so made its Percentage of the amount of such
payment available to the Administrative Agent for the account of such Letter
of Credit Issuer, such Participating Bank agrees to pay to the Administrative
Agent for the account of such Letter of Credit 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 Letter of Credit Issuer at the overnight Federal Funds Rate. The failure
of any Participating Bank to make available to the Administrative Agent for
the account of the respective Letter of Credit Issuer its Percentage of any
payment under any Letter of Credit shall not relieve any other Participating
Bank of its obligation hereunder to make available to the Administrative Agent
for the account of such Letter of Credit Issuer its Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Participating Bank shall be responsible for the failure of any other
Participating Bank to make available to the Administrative Agent, such other
Participating Bank's Percentage of any such payment.
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(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the
Participating Banks pursuant to clause (c) above, such Letter of Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Participating Bank which has paid its Percentage thereof,
in Dollars and in same day funds, an amount equal to such Participating Bank's
share (based upon the proportionate aggregate amount originally funded by such
Participating Bank to the aggregate amount funded by all Participating Banks)
of the principal amount of such reimbursement and of interest reimbursed
thereon accruing from and after the date of the purchase of the respective
participations.
(e) The obligations of the Participating Banks to make payments
to the Administrative Agent for the account of any Letter of Credit 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:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower, any of its Subsidiaries or any Permitted Joint
Venture 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
Co-Agent, the Syndication Agent, the Documentation Agent, any Letter
of Credit Issuer, any Bank, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein (including the Transaction) or any unrelated
transactions (including any underlying transaction between the
Borrower, any of its Subsidiaries or any Permitted Joint Venture and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.03 Letter of Credit Requests; Notices of Issuance. (a)
Whenever it desires that a Letter of Credit be issued, the Borrower shall give
the Administrative Agent and the respective Letter of Credit Issuer written
notice (including by way of telecopier) thereof prior to 1:00 P.M. (New York
time) at least three Business Days (or such shorter period as may be
acceptable to such Letter of Credit Issuer) prior to the proposed date (which
shall be a Business Day) of
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issuance (each, a "Letter of Credit Request"), which Letter of Credit Request
shall include an application for the Letter of Credit and any other documents
that such Letter of Credit Issuer customarily requires in connection
therewith. The Administrative Agent shall promptly notify each Bank of each
Letter of Credit Request.
(b) The delivery of each Letter of Credit Request shall be
deemed a representation and warranty by the Borrower that such Letter of
Credit as requested in such Letter of Credit Request may be issued in
accordance with and will not violate the requirements of Section 2.01(b). Each
Letter of Credit Issuer shall, on the date of each issuance of a Letter of
Credit by it, give the Administrative Agent, each Bank and the Borrower
written notice of the issuance of such Letter of Credit, accompanied by a copy
to the Administrative Agent of the Letter of Credit or Letters of Credit
issued by it.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse each respective Letter of Credit Issuer,
by making payment to the Administrative Agent for the account of such Letter
of Credit Issuer in Dollars in immediately available funds at the Payment
Office, for any payment or disbursement made by such Letter of Credit Issuer
under any Letter of Credit issued by it (each such amount so paid or disbursed
until reimbursed, an "Unpaid Drawing") immediately after, and in any event on
the date of, notice from such Letter of Credit Issuer of such payment or
disbursement with interest on the amount so paid or disbursed by such Letter
of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M. (New York
time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but not including the date such Letter of Credit Issuer
is reimbursed therefor at a rate per annum which shall be the Base Rate as in
effect from time to time (plus an additional 2% per annum if not reimbursed by
the third Business Day after the date of notice of such payment or
disbursement), such interest to be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to
reimburse each respective Letter of Credit 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 which the Borrower, any of its Subsidiaries
or any Permitted Joint Venture may have or have had against such Letter of
Credit Issuer, the Administrative Agent, any Co-Agent, any Syndication Agent,
the Documentation Agent, or any Bank, 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 or any
amendment or waiver or any consent to or departure from a Letter of Credit or
any other circumstance whatsoever in making or failing to make payment under a
Letter of Credit; provided, however, that the Borrower shall not be obligated
to reimburse a Letter of Credit Issuer for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer.
2.05 Increased Costs. If at any time after the Effective Date,
the adoption or effectiveness 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
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comparable agency charged with the interpretation or administration thereof,
or actual compliance by any Letter of Credit Issuer or any Participating Bank
with any request or directive (whether or not having the force of law) by any
such authority, central bank or comparable agency shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Letters of Credit issued by any Letter of Credit Issuer or
any Participating Bank's participation therein or (ii) impose on any Letter of
Credit Issuer or any Participating Bank any other conditions affecting this
Agreement, any Letter of Credit or any Participating Bank's participation
therein; and the result of any of the foregoing is to increase the cost to any
such Letter of Credit Issuer or any such Participating Bank of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount
of any sum received or receivable by any such Letter of Credit Issuer or such
Participating Bank hereunder, then, upon demand to the Borrower by such Letter
of Credit Issuer or such Participating Bank (a copy of which notice shall be
sent by such Letter of Credit Issuer or such Participating Bank to the
Administrative Agent), the Borrower shall, subject to Section 1.15 (to the
extent applicable), pay to such Letter of Credit Issuer or such Participating
Bank such additional amount or amounts as will compensate such Letter of
Credit Issuer or such Participating Bank for such increased costs or
reduction. A certificate shall be submitted to the Borrower by a Letter of
Credit Issuer or such Participating Bank, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such
Participating Bank to the Administrative Agent), setting forth the basis for
the determination of such additional amount or amounts necessary to compensate
such Letter of Credit Issuer or such Participating Bank as aforesaid, although
the failure to deliver any such certificate shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this
Section 2.05.
2.06 Indemnification. In addition to its other obligations
under this Section 2, the Borrower hereby agrees to protect, indemnify and
hold harmless each Letter of Credit Issuer (and their respective officers,
directors, employees, representatives and agents) from and against any and all
claims, damages, losses, liabilities, costs and expenses (including reasonable
attorneys' fees) whatsoever which may be incurred by such Letter of Credit
Issuer (or which may be claimed against such Letter of Credit Issuer by any
Person whatsoever) by reason of or in connection with (i) the issuance or a
transfer of, or payment or failure to pay under, any Letter of Credit issued
by such Letter of Credit Issuer and (ii) involvement of such Letter of Credit
Issuer in any suit, investigation, proceeding, inquiry or action as a
consequence, direct or indirect, of such Letter of Credit Issuer's issuance of
a Letter of Credit or any other event or transaction related thereto;
provided, however, that the Borrower shall not be required to indemnify any
Letter of Credit Issuer for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by the willful
misconduct or gross negligence of such Letter of Credit Issuer.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent a facility fee (the "Facility Fee") for the account of each Bank pro
rata on the basis of their respective Percentages for the period from and
including the Effective Date to but not including the date the Total
Commitment has been terminated, computed at a rate for each day equal to the
Applicable Facility Fee Percentage on the daily average Total Commitment.
Accrued Facility Fees shall be
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due and payable quarterly in arrears on the last Business Day of each calendar
quarter and on the date upon which the Total Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of the Banks pro rata on the basis of their respective
Percentages, a fee in respect of each Letter of Credit (the "L/C Fee") in an
amount equal to the Applicable Margin on the average daily Stated Amount of
such Letter of Credit. Accrued L/C Fees shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter and on the date upon
which the Total Commitment is terminated.
(c) The Borrower agrees to pay to the Administrative Agent for
the account of each respective Letter of Credit Issuer a fee in respect of
each Letter of Credit issued by such Letter of Credit Issuer (the "L/C Facing
Fee") computed at the rate of 1/4 of 1% per annum on the average daily Stated
Amount of such Letter of Credit. Accrued L/C Facing Fees shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter
and on the date upon which the Total Commitment is terminated.
(d) The Borrower hereby agrees to pay to each respective Letter
of Credit Issuer upon each issuance of, drawing under and/or amendment of, a
Letter of Credit issued by it such amount as shall at the time of such
issuance, drawing and/or amendment equal the administrative charge which such
Letter of Credit Issuer is customarily charging at such time for issuances of,
drawings under and/or amendments of letters of credit issued by it.
(e) The Borrower shall pay to the Administrative Agent (x) on
the Effective Date for its own account and/or for distribution to the
Co-Agents, the Syndication Agents, the Documentation Agent and/or the Banks
such fees as heretofore agreed in writing by the Borrower and the
Administrative Agent and (y) for the account of the Administrative Agent, such
other fees as may be agreed to in writing from time to time between the
Borrower and the Administrative Agent, when and as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07.
3.02 Voluntary Reduction of Commitments. Upon at least three
Business Days' prior 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 Banks), the
Borrower shall have the right, without premium or penalty, to terminate, in
part or in whole, the Total Unutilized Commitment; provided that (x) any such
termination shall apply to proportionately and permanently reduce the
Commitment of each of the Banks, and (y) any partial reduction pursuant to
this Section 3.02 shall be in the amount of at least $5,000,000.
3.03 Mandatory Adjustments of Commitments. The Total Commitment
(and the Commitment of each Bank) shall terminate on the earlier of (x) the
date on which a Change of Control occurs and (y) the Final Maturity Date.
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SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right
to prepay Revolving Loans in whole or in part, without penalty or fee except
as otherwise provided in this Agreement, at any time and from time to time on
the following terms and conditions: (i) the Borrower shall give the
Administrative Agent at the Notice Office written notice (or telephonic notice
promptly confirmed in writing) (each such notice, a "Notice of Prepayment") of
its intent to prepay the Revolving Loans, the amount of such prepayment and
(in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which
such Eurodollar Loans were made, which Notice of Prepayment shall be
substantially in the form of Exhibit A-3 and shall be given by the Borrower
prior to 12:00 Noon (New York time) at least three Business Days prior to the
date of such prepayment, which Notice of Prepayment shall promptly be
transmitted by the Administrative Agent to each of the Banks; (ii) each
partial prepayment of any Borrowing of Base Rate Loans shall be in an
aggregate principal amount of at least $1,000,000 and of any Borrowing of
Eurodollar Loans shall be in an aggregate principal amount of at least
$5,000,000, provided that no partial prepayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the aggregate principal amount of
Eurodollar Loans outstanding pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount applicable thereto; (iii) each prepayment in
respect of any Revolving Loans made pursuant to a Borrowing shall be applied
pro rata among such Revolving Loans; and (iv) Eurodollar Loans may be
designated for prepayment pursuant to this Section 4.01 only on the last day
of the Interest Period applicable thereto. The Borrower shall not have the
right to voluntarily prepay any Competitive Bid Loans.
4.02 Mandatory Prepayments.
(A) Requirements:
(a) (i) If on any date the sum of (x) the aggregate outstanding
principal amount of Revolving Loans and Competitive Bid Loans (after giving
effect to all other repayments thereof on such date) plus (y) the Letter of
Credit Outstandings on such date (the foregoing, collectively, the "Aggregate
Outstandings"), exceeds the Total Commitment as then in effect, the Borrower
shall repay on such date the principal of Revolving Loans in an aggregate
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Revolving Loans, the Aggregate Outstandings exceed the Total
Commitment then in effect, the Borrower shall repay on such date the principal
of Competitive Bid Loans in an aggregate amount equal to such excess, provided
that (i) no Competitive Bid Loan shall be prepaid pursuant to this sentence
unless the Bank that made same consents to such prepayment and (ii) in the
absence of such consent, the provisions of the second sentence of Section
4.02(B) shall be applicable. If, after giving effect to the prepayment of all
outstanding Revolving Loans and the prepayment (or, as may be required by
Section 4.02(B), the cash collateralization) of all outstanding Competitive
Bid Loans as set forth above, the remaining Aggregate Outstandings exceed the
Total Commitment then in effect, the Borrower shall pay to the Administrative
Agent an amount in cash and/or Cash Equivalents (satisfactory to the
Administrative Agent) equal to such excess (up to a maximum amount equal to
the Letter of Credit Outstandings at such time) and the Administrative Agent
shall hold such payment as security for the Obligations of the Borrower in a
cash collateral account created pursuant to an agreement to be entered into in
form and
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substance satisfactory to the Administrative Agent (which shall permit certain
investments in Cash Equivalents satisfactory to the Administrative Agent,
until the proceeds are applied to the Obligations) (a "Cash Collateral
Account").
(ii) If on any date the aggregate outstanding principal amount
of Competitive Bid Loans denominated in Approved Alternate Currencies (after
giving effect to all other repayments thereof on such date) exceeds
$50,000,000, the Borrower shall repay on such date the principal of such
Competitive Bid Loans in an aggregate amount equal to such excess, provided
that (i) no such Competitive Bid Loan shall be prepaid pursuant to this
sentence unless the Bank that made same consents to such prepayment and (ii)
in the absence of such consent, the provisions of the second sentence of
Section 4.02(B) shall be applicable.
(iii) For purposes of this Section 4.02(A)(a), (x) the
outstanding principal amount of Competitive Bid Loans and (y) the aggregate
Stated Amount of outstanding Letters of Credit and the aggregate amount of
Unpaid Drawings in respect thereof, in each case to the extent such
Competitive Bid Loans or Letters of Credit are denominated in an Approved
Alternate Currency, will be measured on a Dollar-equivalent basis in
accordance with the terms of Sections 12.07(c) and (d). The Borrower agrees
that mandatory prepayments may be required from time to time under this
Section 4.02(A)(a) pursuant to the preceding sentence as a result of
fluctuations in the exchange rate for any Approved Alternate Currency.
(B) Application: With respect to each repayment of Revolving
Loans required by Section 4.02(A), the Borrower may designate the Types of
Revolving Loans which are to be prepaid and the specific Borrowing(s) pursuant
to which made, provided that (i) Eurodollar Loans may be designated for
repayment pursuant to this Section 4.02(B) only on the last day of an Interest
Period applicable thereto unless all Eurodollar Loans with Interest Periods
ending on such date of required repayment and all Base Rate Loans have been
paid in full; (ii) each repayment of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans; and (iii) if
any repayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the outstanding Revolving Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount for such Eurodollar Loans, such
Borrowing shall be immediately converted into Base Rate Loans. At any time
that the Borrower is obligated to prepay any Competitive Bid Loan pursuant to
Section 1.11(b) or 4.02(A) on a date other than the scheduled maturity date
thereof, such prepayment shall only be made if the respective Bank that made
such Competitive Bid Loan has consented in writing (or by telephone confirmed
in writing) to the Borrower to such prepayment within 48 hours after notice
(in writing or by telephone confirmed in writing) by the Borrower to such Bank
of such prepayment (it being understood that the Borrower will give such
notice and that any failure to respond to such notice will constitute a
rejection thereof); if such prepayment is not so consented to by the
respective Bank then, in the case of a prepayment otherwise required pursuant
to Section 4.02(A), the Borrower will deposit an amount in cash or Cash
Equivalents (satisfactory to the Administrative Agent) equal to 100% of the
principal amounts that otherwise would have been paid in respect of the
Competitive Bid Loans (subject to the provisions of Section 12.07(d)) with the
Administrative Agent to be held as security for the Obligations of the
Borrower in a Cash Collateral Account, with such cash collateral to be
released from such Cash Collateral Account (and applied to repay the principal
amount of such Competitive Bid Loans) upon each
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occurrence thereafter of the last day of an Interest Period applicable to the
relevant Competitive Bid Loans, with the amount to be so released and applied
on the last day of each Interest Period to be the amount of the Competitive
Bid Loans to which such Interest Period applies (or, if less, the amount
remaining in such Cash Collateral Account). In the absence of a designation of
a Type of Revolving Loan by the Borrower as described in the second 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 Section 1.12.
(C) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be prepaid in
full on the Final Maturity Date.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made
to the Administrative Agent for the ratable account of the Banks entitled
thereto, not later than 1:00 P.M. (New York time) on the date when due and
shall be made in immediately available funds and in lawful money of the United
States of America at the Payment Office. Any payments under this Agreement
which are made later than 1:00 P.M. (New York time) 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 which 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.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments 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 the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Bank pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of
such Bank 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 as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, 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. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Borrower agrees to reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured
by the net income or net profits of such Bank pursuant to the laws of the
jurisdiction in which such Bank is organized or in which the principal office
or applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which
such Bank is organized or in which the principal office or applicable lending
office of such Bank is located and for any withholding of taxes as such Bank
shall determine are payable by, or withheld from, such Bank, in respect of
such
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amounts so paid to or on behalf of such Bank pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Bank
pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant
to applicable law certified copies of tax receipts evidencing such payment by
the Borrower. The Borrower agrees to indemnify and hold harmless each Bank,
and reimburse such Bank upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.14 or
12.04 (unless the respective Bank was already a Bank hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Bank, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a
complete exemption under an income tax treaty) (or successor forms) certifying
to such Bank's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments to be made under this
Agreement and under any Note, or (ii) if the Bank is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit I (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest exemption)(or successor form) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Bank agrees that from time to time after the Effective
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 Internal Revenue Service Form W-8ECI, Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN (with
respect to the portfolio interest exemption) and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Bank to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such
Form or Certificate, in which case such Bank shall not be required to deliver
any such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
12.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or
other amounts payable hereunder for the account of any Bank which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has
not provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or
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withholding and (y) the Borrower shall not be obligated pursuant to Section
4.04(a) hereof to gross-up payments to be made to a Bank in respect of income
or similar taxes imposed by the United States if (I) such Bank has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above,
to the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained
in the preceding sentence or elsewhere in this Section 4.04 and except as set
forth in Section 12.04(b), the Borrower agrees to pay any additional amounts
and to indemnify each Bank in the manner set forth in Section 4.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes that are
effective after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of such Taxes.
SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to Loans on the Effective Date. The
occurrence of the Effective Date pursuant to Section 12.10 and the obligation
of each Bank to make Loans to the Borrower hereunder, and the obligation of
each Letter of Credit Issuer to issue Letters of Credit hereunder, in each
case on the Effective Date, is subject, at the time of such Credit Event, to
the satisfaction of the following conditions:
(a) Execution of Agreement; Notes. On or prior to the Effective
Date (i) this Agreement shall have been executed and delivered as provided in
Section 12.10 and (ii) there shall have been delivered to the Administrative
Agent for the account of each Bank the appropriate Note executed by the
Borrower, in the amount, maturity and as otherwise provided herein.
(b) Officer's Certificate. On the Effective Date, the
Administrative Agent shall have received from the Borrower a certificate dated
such date signed on behalf of the Borrower by its Chief Financial Officer or
any other Authorized Officer stating that all the conditions in Sections
5.01(e), (f), (j) and (k) and 5.02(a) have been satisfied on such date with
respect to all Credit Parties.
(c) Corporate Documents; Proceedings; Officers' Certificates.
(i) On the Effective Date, the Administrative Agent shall have received from
each Credit Party a certificate, dated the Effective Date, signed by an
Authorized Officer of such Credit Party, substantially in the form of Exhibit
C with appropriate insertions, together with copies of the Certificate of
Incorporation and By-Laws of such Credit Party and the resolutions of such
Credit Party referred to in such certificate and the foregoing shall be
satisfactory to the Administrative Agent.
(ii) On the Effective Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Credit Documents shall be
satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received all information
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and copies of all certificates, documents and papers, including good
standing certificates and any other records of corporate proceedings
and governmental approvals, if any, which the Administrative Agent may
have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
(d) Opinions of Counsel. On the Effective Date, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent, each Co-Agent, each Syndication Agent, the Documentation
Agent and each of the Banks and dated the Effective Date, from (i) Stroock &
Stroock & Lavan LLP, counsel to the Credit Parties, substantially in the form
of Exhibit D-1 hereto, which opinion shall cover such other matters incident
to the transactions contemplated herein as the Administrative Agent may
reasonably request and (ii) White & Case LLP, special counsel to the Banks,
substantially in the form of Exhibit D-2 hereto.
(e) Original Credit Agreement. On the Effective Date, (i) the
Borrower shall have repaid in full all loans outstanding under the Original
Credit Agreement on the Effective Date, together with all accrued and unpaid
interest, fees and commitment commission (and any other amounts) owing under
the Original Credit Agreement through the Effective Date, (ii) each lender
under the Original Credit Agreement shall have received payment in full of all
amounts then due and owing to it under the Original Credit Agreement, (iii)
the Commitments under the Original Credit Agreement shall have irrevocably
terminated and (iv) the Administrative Agent shall have received evidence in
form, scope and substance satisfactory to it that the matters set forth in
this Section 5.01(e) have been satisfied on such date.
(f) Approvals. On the Effective Date, all necessary
governmental and third party approvals (including, without limitation, the
approval of the shareholders of the Borrower and its Subsidiaries to the
extent required) required in connection with the Transaction and the other
transactions contemplated by this Agreement and the other Credit Documents and
otherwise referred to herein or therein shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents or
imposes, in the reasonable judgment of the Required Banks or the
Administrative Agent, materially adverse conditions upon the consummation of
the Transaction or the other transactions contemplated by the respective
Credit Documents.
(g) Subsidiary Guaranty. On the Effective Date, each Subsidiary
Guarantor shall have duly authorized, executed and delivered a guaranty in the
form of Exhibit E (as modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof, the "Subsidiary Guaranty"), and
the Subsidiary Guaranty shall be in full force and effect.
(h) Employee Benefit Plans; Collective Bargaining Agreements;
Management Agreements; Employment Agreements, etc. As of the Effective Date,
all of the Borrower's and each of its Subsidiaries' Employee Benefit Plans,
Collective Bargaining Agreements, Management Agreements, Employment
Agreements, Shareholders' Agreements, Permitted Existing Indebtedness
Agreements and Tax Sharing Agreements shall be in full force and effect on the
Effective Date.
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(i) Payment of Fees. On or prior to the Effective Date, all
costs, fees and expenses, and all other compensation contemplated by this
Agreement, due to the Administrative Agent, any Co-Agent, any Syndication
Agent, the Documentation Agent, or the Banks (including, without limitation,
legal fees and expenses) shall have been paid by the Borrower to the extent
due.
(j) Adverse Change. From March 31, 2001 to the Effective Date,
nothing shall have occurred (and none of the Borrower, the Required Banks, the
Administrative Agent, any Co-Agent, any Syndication Agent or the Documentation
Agent shall have become aware of any facts or conditions not previously known)
which the Borrower, the Required Banks or the Administrative Agent shall
determine (i) has, or is reasonably likely to have, a material adverse effect
on the rights or remedies of the Banks or the Administrative Agent, or on the
ability of any Credit Party to perform its obligations to the Banks or the
Administrative Agent under this Agreement or any other Credit Document or (ii)
has, or could reasonably be expected to have, a Material Adverse Effect.
(k) Litigation. No litigation by any entity (private or
governmental) shall be pending or threatened on the Effective Date (a) with
respect to this Agreement or any other Credit Document, or (b) which the
Administrative Agent or the Required Banks shall determine could reasonably be
expected to have a Material Adverse Effect.
(l) Outstanding Indebtedness. On the Effective Date and after
giving effect to the Transaction, neither the Borrower nor any of its
Subsidiaries shall have any Indebtedness or preferred stock outstanding except
for (i) the Loans, (ii) the Permitted Existing Indebtedness and (iii) such
additional Indebtedness permitted by Section 8.03. All of the Permitted
Existing Indebtedness shall remain outstanding after the consummation of the
Transaction and the other transactions contemplated hereby without any default
or events of default existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby (except to the
extent amended or waived by the parties thereto on terms and conditions
satisfactory to the Administrative Agent and the Required Banks), and there
shall not be any amendments or modifications to the Permitted Existing
Indebtedness Agreements other than as requested or approved by the
Administrative Agent and the Required Banks.
5.02 Conditions Precedent to All Credit Events. The obligation
of each Bank to make any Loans and the obligation of each Letter of Credit
Issuer to issue Letters of Credit (including, without limitation, Loans made
and Letters of Credit issued on the Effective Date) is subject, at the time of
each such Credit Event, to the satisfaction of the following conditions at
such time:
(a) 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 contained herein or in the other Credit Documents in effect
at such time 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
any representation or warranty is expressly
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made as of a specific date, in which case such representation and
warranty shall be true and correct in all material respects as of such
date).
(b) Notice of Borrowing; Notice of Competitive Bid Borrowing;
Letter of Credit Request. The Administrative Agent shall have received
a Notice of Borrowing with respect to such Borrowing meeting the
requirements of Section 1.03(a) and/or a Notice of Competitive Bid
Borrowing with respect to such Competitive Bid Borrowing meeting the
requirements of Section 1.04(a), and/or the Administrative Agent and
the respective Letter of Credit Issuer shall have received a Letter of
Credit Request for such issuance of a Letter of Credit meeting the
requirements of Section 2.03, as the case may be.
The occurrence of the Effective Date and the acceptance of the benefits of
each Credit Event shall constitute a representation and warranty by the
Borrower to each of the Banks that all of the applicable conditions specified
in Section 5.01 (with respect to the Effective Date only) and in this Section
5.02 are then satisfied. All of the certificates, legal opinions and other
documents and papers referred to in Section 5.01 and this Section 5.02, unless
otherwise specified, shall be delivered to the Administrative Agent at its
Notice Office for the account of each of the Banks and, except for the Notes,
in sufficient counterparts or copies for each of the Banks and shall be
reasonably satisfactory in form and substance to the Administrative Agent.
SECTION 6. Representations, Warranties and Agreements. In order
to induce the Banks to enter into this Agreement and to make the Loans and
participate in Letters of Credit and each Letter of Credit Issuer to issue
Letters of Credit as provided for herein, the Borrower makes the following
representations and warranties to, and agreements with, the Banks and each
Letter of Credit Issuer, in each case after giving effect to the Transaction,
all of which shall survive the execution and delivery of this Agreement and
the making of the Loans and the issuance of Letters of Credit (with the
occurrence of each Credit Event being deemed to constitute a representation
and warranty that the matters specified in this Section 6 are true and correct
in all material respects on and as of the date of each Credit Event, except to
the extent that any representation or warranty is expressly made as of a
specific date, in which case such representation or warranty shall be true and
correct in all material respects as of such specific date):
6.01 Corporate Status. (i) Each of the Borrower and its
Subsidiaries is a duly incorporated, validly existing corporation and, in the
case of those entities incorporated in the United States, in good standing
under the laws of the jurisdiction of its organization and has the corporate
power and authority to own all property and assets owned by it, to lease all
property and assets held under lease by it and to transact the business in
which it is engaged and presently proposes to engage and (ii) each of the
Credit Parties has duly qualified and is authorized to do business and, with
respect to jurisdictions within the United States, is in good standing in all
jurisdictions where it is required to be so qualified, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution,
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delivery and performance of the Credit Documents to which it is a party. Each
Credit Party has duly executed and delivered each Credit Document to which it
is a party and each such Credit Document constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms.
6.03 No Violation. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which it is a party
nor compliance with the terms and provisions thereof, nor the consummation of
the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent 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
upon any of the property or assets of any Credit Party pursuant to the terms
of any indenture, mortgage, deed of trust, agreement or other instrument to
which any 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, including, without limitation,
any Permitted Existing Indebtedness Agreements, or (iii) will violate any
provision of the Certificate of Incorporation or By-Laws of any Credit Party.
6.04 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened with respect to
the Borrower or any of its Subsidiaries (i) that could reasonably be expected
to have a Material Adverse Effect or (ii) that could have a material adverse
effect on the rights or remedies of the Administrative Agent or the Banks or
on the ability of any Credit Party to perform its obligations to them
hereunder and under the other Credit Documents to which it is, or will be, a
party.
6.05 Use of Proceeds. (a) The proceeds of Loans shall be
utilized (i) to effect the Transaction, (ii) to pay fees and expenses arising
in connection with the Transaction and (iii) for general corporate purposes of
the Borrower and its Subsidiaries, in each case in accordance with the terms
and provisions of this Agreement.
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock, except proceeds of Loans used in
connection with Common Stock Repurchases to the extent permitted pursuant to
the terms of the Agreement. No more than 25% of the assets of the Borrower and
its Subsidiaries subject on the Effective Date to the restrictions set forth
in Section 8.01 and/or 8.02 constitute Margin Stock. Neither the making of any
Loan hereunder, nor the use of the proceeds thereof (including effecting
Common Stock Repurchases), will violate the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
6.06 Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with (except as shall have been obtained or made prior to the Effective Date
or, with respect to any Common Stock Repurchase or Permitted Senior Note
Repurchase, prior to the date of the consummation of such Common Stock
Repurchase or Permitted Senior Note Repurchase, and are in full force and
effect at such time), or exemption by, any foreign or domestic governmental
body or authority, or any subdivision thereof, is required to authorize or is
required in connection with (i) the execution,
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delivery and performance of any Credit Document or (ii) the legality,
validity, binding effect or enforceability of any Credit Document.
6.07 Investment Company Act. No Credit Party is an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
6.08 Public Utility Holding Company Act. No Credit Party is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of
1935, as amended.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished in writing by or
on behalf of the Borrower or any of its Subsidiaries to the Administrative
Agent or any Bank (including, without limitation, all information contained in
the Credit Documents) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual information
(taken as a whole) hereafter furnished in writing by or on behalf of the
Borrower or any of its Subsidiaries to any Bank 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 (taken as a whole) not misleading at such time in
light of the circumstances under which such information was provided. The
projections (including the Projections) and pro forma financial information
contained in such materials are based on good faith estimates and assumptions
believed by the Borrower to be reasonable at the time made, it being
recognized by the Banks that such projections (including the Projections) as
to future events are not to be viewed as facts and accordingly are not covered
by the first sentence of this Section 6.09, and that actual results during the
period or periods covered by any such projections may differ from the
projected results in any material or other respect. There is no fact known to
the Borrower or any of its Subsidiaries which has, or could reasonably be
expected to have, a Material Adverse Effect which has not been disclosed
herein or in such other documents, certificates and statements furnished to
the Banks for use in connection with the transactions contemplated hereby.
6.10 Financial Condition; Financial Statements. (a) On and as
of the Effective Date on a pro forma basis after giving effect to the
Transaction and all Indebtedness incurred, and to be incurred, by each Credit
Party in connection therewith, with respect to each of the Borrower and the
Borrower and its Subsidiaries taken as a whole, (x) the sum of its or their
assets, at a fair valuation, will exceed its or their debts, (y) it or they
will not have incurred nor intended to, nor believes that it or they will,
incur debts beyond its or their ability to pay such debts as such debts mature
and (z) it and they will have sufficient capital with which to conduct its or
their businesses. For purposes of this Section 6.10(a), "debt" means any
liability on a claim, and "claim" means (i) 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 (ii) 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.
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(b) The consolidated balance sheets of the Borrower and its
Subsidiaries at December 31, 2000 and March 31, 2001 and the related
consolidated statements of operations and cash flows of the Borrower and its
Subsidiaries for the fiscal year or three-month period ended as of said dates,
which December 31, 2000 financial statements have been audited by Ernst &
Young, independent certified public accountants, copies of which have
heretofore been furnished to each Bank, present fairly in all material
respects the consolidated financial position of the Borrower and its
Subsidiaries at the date of said statements and the consolidated results of
their operations and cash flows for the period covered thereby. All such
financial statements have been prepared in accordance with GAAP in all
material respects except to the extent provided in the notes to said financial
statements.
(c) Nothing has occurred since March 31, 2001, that has had or
could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements
described in Section 6.10(b), there are as of the Effective Date (and after
giving effect to any Credit Events made on such date), no liabilities or
obligations of the Borrower or any of its Subsidiaries (excluding current
obligations incurred in the ordinary course of business) of a type required to
be disclosed in financial statements prepared in accordance with generally
accepted accounting principles (whether absolute, accrued, contingent or
otherwise and whether or not due), and the Borrower does not know, as of the
Effective Date (after giving effect to any Credit Events made on such date),
of any basis for the assertion against the Borrower or any of its Subsidiaries
of any such liability or obligation, which has or could be reasonably expected
to have a Material Adverse Effect.
(e) On and as of the Effective Date, the financial projections
(the "Projections") set forth in Schedule IV hereto and previously delivered
to the Administrative Agent and the Banks have been prepared on a basis
consistent with the financial statements referred to in Section 6.10(b) (other
than as set forth or presented in such Projections), and there are no
statements or conclusions in any of the Projections which are based upon or
include information known to the Borrower to be misleading in any material
respect or which fail to take into account material information regarding the
matters reported therein. On the Effective Date, the Borrower believes that
the Projections are reasonable and attainable subject, however, to the
qualifications concerning the Projections noted in the penultimate sentence of
Section 6.09.
6.11 Tax Returns and Payments. Each of the Borrower and each of
its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the Borrower and its Subsidiaries
in accordance with generally accepted accounting principles. The Borrower and
each of its Subsidiaries have at all times paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) for
the payment of, all federal, state and foreign income taxes applicable for all
prior fiscal years and for the current fiscal year to date. There is no
material action, suit, proceeding, investigation, audit, or claim now pending
or, to the knowledge of the Borrower or any of its Subsidiaries, threatened by
any authority regarding any taxes relating to
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the Borrower or any of its Subsidiaries. Neither the Borrower nor any of its
Subsidiaries has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations
relating to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of the Borrower or any of its Subsidiaries not
to be subject to the normally applicable statute of limitations.
6.12 Compliance with ERISA. (a) Each Plan (other than any
multiemployer plan as defined in section 4001(a)(3) of ERISA (a "Multiemployer
Plan")) currently maintained or contributed to by (or to which there is an
obligation to contribute of) any Credit Party or any of its Subsidiaries or
any ERISA Affiliate is in material compliance with ERISA and the Code; no
Reportable Event has occurred with respect to any such Plan; as of December
31, 2000, no such Plan has an Unfunded Current Liability in excess of
$8,000,000 individually and with respect to all such Plans in the aggregate,
in excess of $16,000,000; no such Plan has an Unfunded Current Liability which
either individually or when added to the aggregate amount of Unfunded Current
Liabilities with respect to all other Plans, has or could be reasonably
expected to have a Material Adverse Effect; no such Plan has an accumulated or
waived funding deficiency or permitted decreases in its funding standard
account or has applied for an extension of any amortization period within the
meaning of Section 412 of the Code; all contributions required to be made with
respect to any Plan currently maintained or contributed to by (or to which
there is an obligation to contribute of) any Credit Party or any of its
Subsidiaries or any ERISA Affiliate and any Foreign Pension Plan have been
timely made; neither the Borrower nor any of its Subsidiaries nor any of their
ERISA Affiliates has incurred any material liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or expects to incur any
liability (including any indirect, contingent, or secondary liability) under
any of the foregoing Sections with respect to any Plan; no proceedings have
been instituted to terminate or appoint a trustee to administer any such Plan;
no condition exists which presents a material risk to the Borrower or any of
its Subsidiaries or any of their ERISA Affiliates of incurring such a material
liability to or on account of any Plan pursuant to the foregoing provisions of
ERISA and the Code; as of the Effective Date, no Plan is a Multiemployer Plan;
neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has
incurred any liability under Section 515 of ERISA with respect to any
Multiemployer Plan; neither the Borrower nor any of its Subsidiaries nor any
ERISA Affiliate has incurred or expects to incur any material liability under
Sections 4201, 4204 or 4212 of ERISA; to the best knowledge of the Borrower,
any of its Subsidiaries or any ERISA Affiliate, no Multiemployer Plan is
insolvent or in reorganization nor is any Multiemployer Plan reasonably
expected to be in reorganization or terminated; no lien imposed under the Code
or ERISA on the assets of the Borrower or any of its Subsidiaries or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and the
Borrower and its Subsidiaries do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA) the obligations with respect to which could
reasonably be expected to have a material adverse effect on the ability of the
Borrower to perform its obligations under this Agreement.
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(b) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. Neither the Borrower nor any of its Subsidiaries has incurred any
material obligation in connection with the termination of or withdrawal from
any Foreign Pension Plan. The present value of the accrued benefit liabilities
(whether or not vested) under each Foreign Pension Plan, determined as of the
end of the Borrower's most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Foreign Pension Plan allocable to such benefit
liabilities.
6.13 Subsidiaries. Schedule V hereto lists each Subsidiary of
the Borrower, and the direct and indirect ownership interest of the Borrower
therein, in each case as of the Effective Date. As of the Effective Date, the
corporations listed on Schedule V were the only Subsidiaries of the Borrower.
6.14 Patents, etc. The Borrower and each of its Subsidiaries
owns or holds a valid license to use all material patents, trademarks,
servicemarks, trade names, copyrights, licenses, technology, know-how and
formulas and other rights that are necessary for the operation of their
respective businesses as presently conducted.
6.15 Compliance with Statutes; Environmental Matters, etc. (a)
Each Credit Party is in compliance, in all material respects, with all
applicable material statutes, regulations and orders of, and all applicable
material restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable Environmental Laws).
(b) No Credit Party is liable for any material penalties, fines
or forfeitures for failure to comply with any of the foregoing referenced in
clause (a) above. All material licenses, permits, registrations or approvals
required for the business of any Credit Party, as conducted as of the
Effective Date, under any Environmental Law have been secured or have been
timely applied for and each Credit Party is in substantial compliance
therewith. No Credit Party is in any material respect in noncompliance with,
breach of or default under any applicable writ, order, judgment, injunction,
or decree to which such Credit Party is a party or which would affect the
ability of such Credit Party to operate any Real Property and no event has
occurred and is continuing which, with the passage of time or the giving of
notice or both, would constitute a material noncompliance, breach of or
default thereunder. As of the Effective Date, there are no material
Environmental Claims pending or, to the best knowledge after due inquiry of
the Borrower, threatened, against the Borrower or any of its Subsidiaries or
any Real Property owned or operated at any time by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences on
any such Real Property or, to the best knowledge after due inquiry of the
Borrower, on any property adjacent to any such Real Property that could
reasonably be expected (i) to form the basis of a material Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real Property, 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.
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(c) Hazardous Materials have not at any time been (i)
generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by the Borrower or any of its Subsidiaries except
for quantities used or stored at any such Real Properties in material
compliance with all applicable Environmental Laws and required in connection
with the normal operation, use and maintenance of such Real Property
("Permitted Materials") or (ii) Released on any such Real Property where such
occurrence or event could reasonably be expected to give rise to a material
Environmental Claim or to violate any Environmental Law. There are not now and
never have been any underground storage tanks located on any Real Property
owned or operated by the Borrower or any of its Subsidiaries which are not in
compliance with all Environmental Laws.
6.16 Properties. Each Credit Party has good and legal title to
all properties owned by it and valid and subsisting leasehold interests in all
properties leased by it, in each case, including all property reflected in the
financial statements referred to in Section 6.10(b) (except as sold or
otherwise disposed of since the date of the March 31, 2001 financial
statements in the ordinary course of business or as otherwise permitted by
this Agreement) free and clear of all Liens, other than Liens permitted by
Section 8.02. Schedule II contains a true and complete list of each Real
Property owned and each Real Property leased by the Borrower and its
Subsidiaries on the Effective Date and the type of interest therein held by
such Person.
6.17 Labor Relations; Collective Bargaining Agreements. (a) Set
forth on Schedule VI hereto is a list and description (including dates of
termination) of all Collective Bargaining Agreements between or applicable to
any Credit Party and any union, labor organization or other bargaining agent
in respect of the employees of any Credit Party on the Effective Date.
(b) No Credit Party is engaged in any unfair labor practice
that is reasonably likely to have a Material Adverse Effect. There is (i) no
unfair labor practice complaint pending against any Credit Party or, to the
best knowledge of any Credit Party, threatened against it, before the National
Labor Relations Board, and no grievance proceeding or arbitration proceeding
arising out of or under any Collective Bargaining Agreement is now pending
against any Credit Party or, to the best knowledge of any Credit Party,
threatened against it, (ii) no strike, labor dispute, slowdown or stoppage is
pending against any Credit Party or, to the best knowledge of any Credit
Party, threatened against it and (iii) to the best knowledge of each Credit
Party, no union representation question exists with respect to the employees
of such Credit Party, except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such as
could not reasonably be likely to have a Material Adverse Effect.
6.18 Indebtedness. Schedule VII sets forth a true and complete
list of (x) all Indebtedness (other than the loans under the Original Credit
Agreement) of the Borrower and each of its Subsidiaries outstanding as of
March 31, 2001 and which is to remain outstanding after the Effective Date and
after giving effect to the Transaction and (y) all agreements existing on
March 31, 2001 and which are to remain outstanding after the Effective Date
and after giving effect to the Transaction pursuant to which the Borrower or
any of its Subsidiaries is entitled to incur Indebtedness (whether or not any
condition to such incurrence could be met) (collectively,
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as in effect and outstanding on March 31, 2001 and without giving effect to
any extension, renewal or refinancing thereof, the "Permitted Existing
Indebtedness"), in each case showing the aggregate principal amount thereof as
of March 31, 2001 and the name of the respective borrower and any other entity
which directly or indirectly guaranteed such debt.
6.19 Restrictions on Subsidiaries. There are no restrictions on
the Borrower or any of its Subsidiaries which prohibit or otherwise restrict
(i) the transfer of cash or other assets (x) between the Borrower and any of
its Subsidiaries or (y) between any Subsidiaries of the Borrower or (ii) the
ability of any Credit Party or any of its Subsidiaries to grant security
interests to the Banks in their respective assets, other than prohibitions or
restrictions existing under or by reason of (a) this Agreement or the other
Credit Documents, (b) applicable law, (c) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices, (d) purchase money obligations for property acquired in the
ordinary course of business, so long as such obligations are permitted under
this Agreement, (e) Liens permitted under Section 8.02 and any documents or
instruments governing the terms of any Indebtedness or other obligations
secured by any such Liens, provided that such prohibitions or restrictions
apply only to the assets subject to such Liens or (f) the documents or
instruments governing the terms of any Permitted Foreign Subsidiary WC Debt
permitted to be incurred pursuant to Section 8.03(g) or Permitted AMETEK
Italia Debt permitted to be incurred pursuant to Section 8.03(n) to the extent
restricting dividends or other cash distributions by a Foreign Subsidiary or
AMETEK Italia, as the case may be, to the Borrower or any other Subsidiary of
the Borrower.
6.20 Transaction. At the time of consummation of each element
of the Transaction, such element shall have been consummated in accordance
with the terms of the respective Credit Documents and all applicable laws. At
the time of consummation of each element of the Transaction, all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities and
other third parties required in order to make or consummate such element of
the Transaction shall have been obtained, given, filed or taken and are or
will be in full force and effect (or effective judicial relief with respect
thereto shall have been obtained).
6.21 Insurance. Set forth on Schedule III hereto is a true and
correct summary of all property, casualty and liability insurance carried by
the Borrower and its Subsidiaries on and as of the Effective Date.
6.22 Senior Notes. This Agreement constitutes the "Credit
Agreement" as defined in, and for all purposes of, the Senior Note Documents.
SECTION 7. Affirmative Covenants. The Borrower hereto covenants
and agrees that on the Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters
of Credit are outstanding and the Loans, Unpaid Drawings together with
interest, Fees and all other Obligations incurred hereunder are paid in full:
7.01 Information Covenants. The Borrower will furnish to each
Bank:
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(a) Annual Financial Statements. As soon as available and in
any event within 105 days after the close of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and cash flows for such fiscal year,
together with a summary of sales and profits by operating groups
prepared consistently with past practices and procedures and in form
reasonably satisfactory to the Administrative Agent for such fiscal
year, setting forth for such fiscal year, in comparative form, (x) for
each of such consolidated financial statements and such summary the
corresponding figures for the preceding fiscal year, and (y) for such
consolidated financial statements the corresponding figures for such
fiscal year as set forth in the respective budget delivered pursuant
to Section 7.01(c); all of which shall be (I) in the case of such
consolidated financial statements and such summary, certified by the
Chief Financial Officer of the Borrower to the effect that such
statements and summary fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries, or such
operating groups, as the case may be, as of the dates indicated and
the results of their operations and changes in their cash flows for
the periods indicated, and (II) in the case of such consolidated
financial statements, audited by Ernst & Young (or other independent
certified public accountants of recognized national standing
acceptable to the Required Banks) whose opinion shall not be qualified
as to the scope of audit or as to the status of the Borrower together
with its Subsidiaries as a going concern, together with a certificate
of the accounting firm referred to above stating that in the course of
its regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge of any Default or Event of Default (insofar as they relate
to accounting or financial matters) which has occurred and is
continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the close of each of the first three
quarterly accounting periods in each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries, as at
the end of such quarterly period and the related consolidated
statements of income and cash flows for such quarterly period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly period, together with a summary of sales and profits by
operating groups prepared consistently with past practices and
procedures and in form reasonably satisfactory to the Administrative
Agent for such quarterly period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and
setting forth, in comparative form, (x) for each of such consolidated
financial statements and such summary, the corresponding figures for
the related periods in the prior fiscal year and (y) for such
consolidated financial statements, the corresponding figures for such
quarterly accounting period as set forth in the respective budget
delivered pursuant to Section 7.01(c) as updated to such quarterly
period; all of which shall be in reasonable detail and certified by
the Chief Financial Officer or other Senior Financial Officer of the
Borrower to the effect that they fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries
as of the dates indicated and the
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results of their operations and changes in their cash flows for the
periods indicated, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) Budgets; etc. As soon as available but in no event later
than 60 days after the commencement of each fiscal year of the
Borrower, a budget in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income and
sources and uses of cash and balance sheets) prepared by the Borrower,
for each of the four quarters of such fiscal year, in reasonable
detail and setting forth, with appropriate discussion, the principal
assumptions upon which such budgets are based and a statement by the
Chief Financial Officer or other Senior Financial Officer of the
Borrower to the effect that, to the best of such officer's knowledge,
the budget is a reasonable estimate for the period covered thereby.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.01(a) and (b), a
certificate of the Borrower signed by its Chief Financial Officer or,
in the case of any certificate delivered with financial statements
delivered pursuant to Section 7.01(b), any other Senior Financial
Officer, to the effect that no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature
and extent thereof, which certificate shall set forth the calculations
required to establish whether the Borrower and its Subsidiaries were
in compliance with the provisions of Sections 8.01 through 8.06,
inclusive and Sections 8.09 through 8.11, inclusive, as at the end of
such fiscal quarter or year, as the case may be.
(e) Notice of Default or Litigation. Promptly, and in any event
within five Business Days after an Authorized Officer of the Borrower
obtains knowledge thereof, notice of (x) the occurrence of any event
which constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what
action the Borrower or its respective Subsidiary proposes to take with
respect thereto and (y) the commencement of, or threat of, or any
significant development in any litigation or governmental proceeding
pending against the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or a material
adverse effect on the ability of any Credit Party to perform its
obligations hereunder or under any other Credit Document.
(f) Auditors' Reports. Promptly upon receipt thereof, a copy of
any letter submitted to any Credit Party or any Material Subsidiary of
the Borrower by its independent accountants with respect to any
material weakness as to internal control noted by such independent
accountants in connection with any audit made by them of the books of
such Credit Party or such Material Subsidiary.
(g) Environmental Matters. Promptly upon, and in any event
within 15 Business Days after, an Authorized Officer or any
environmental compliance officer of the Borrower obtains knowledge
thereof, notice of any of the following matters:
(i) any pending or threatened Environmental Claim
against the Borrower or any of its Subsidiaries or any Real
Property owned or operated at any
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time by the Borrower or any of its Subsidiaries that is or
could reasonably be expected to result in a liability in excess
of $1,000,000;
(ii) any condition or occurrence on or arising from any
Real Property owned or operated at any time by the Borrower or
any of its Subsidiaries that (a) results in noncompliance by
the Borrower or such Subsidiary with any applicable
Environmental Law, or (b) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower
or such Subsidiary or any such Real Property that is or could
reasonably be expected to result in a liability in excess of
$1,000,000;
(iii) any condition or occurrence on any Real Property
owned or operated at any time by the Borrower or any of its
Subsidiaries that could reasonably be anticipated 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 or operated at any time by
the Borrower or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the response thereto of the Borrower or such Subsidiary. In
addition, the Borrower will provide the Banks with copies of all
material written communications between the Borrower or any of its
Subsidiaries and any government or governmental agency relating to
Environmental Laws, all communications between the Borrower or any of
its Subsidiaries and any Person relating to Environmental Claims, and
such detailed reports of any Environmental Claim, in each case as may
reasonably be requested in writing from time to time by the
Administrative Agent or the Required Banks.
(h) Other Information. (i) Promptly upon transmission thereof,
copies of any filings and registrations with, and reports to, the SEC
by any Credit Party or any of their respective Subsidiaries, copies of
all press releases, copies of all financial statements, proxy
statements, notices and reports that any Credit Party or any of its
Subsidiaries shall send to the holders (or any trustee, agent or other
representative therefor) of the Senior Notes or any other Indebtedness
of any Credit Party or any of their respective Subsidiaries pursuant
to the terms governing such Indebtedness (in each case, to the extent
not theretofore delivered to the Banks pursuant to this Agreement) and
copies of all written presentations and reports generally sent to
analysts by any Credit Party or any of their respective Subsidiaries,
(ii) promptly and in any event within five Business Days following a
request from the Administrative Agent or any Bank for same, a copy of
the annual and quarterly statements furnished to the Borrower with
respect to its Permitted Existing Investments listed as Items 1 and 2
on Schedule IX hereto, and (iii) with reasonable promptness, such
other information or documents (financial or otherwise) as
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the Administrative Agent on its own behalf or on behalf of the
Required Banks may reasonably request from time to time.
7.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries in conformity with GAAP (or,
in the case of any Foreign Subsidiary, in accordance with local accounting
standards) and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Borrower will,
and will cause each of its Subsidiaries to, permit, upon notice to the Chief
Financial Officer or any other Authorized Officer of the Borrower, officers
and designated representatives of the Administrative Agent, any Co-Agent, any
Syndication Agent, the Documentation Agent or any Bank to visit and inspect
any of the properties or assets of the Borrower and any of its Subsidiaries in
whomsoever's possession, and to examine the books of account and other
financial and operating records (including, without limitation, any "letters
of material weakness" submitted by independent accountants) of the Borrower
and any of its Subsidiaries and discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with, and be advised as to the same
by, the officers and independent accountants of the Borrower or such
Subsidiary, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent, any Co-Agent, any Syndication Agent, the
Documentation Agent or any Bank may request.
7.03 Payment of Taxes. 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 for sums that have
become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 8.02(a); provided, that neither the Borrower nor any
of its subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper proceedings
if it has maintained adequate reserves with respect thereto in accordance with
GAAP.
7.04 Corporate Franchises. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, rights, franchises,
intellectual property and authority to do business, provided that any
transaction permitted by Section 8.01 will not constitute a breach of this
Section 7.04.
7.05 Compliance with Statutes, Environmental Laws, etc. (a) The
Borrower will, and will cause each of its Subsidiaries to, comply, in all
material respects, with all applicable material statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable Environmental Laws). The
Borrower will promptly pay or cause to be paid all costs and expenses incurred
in such compliance, and will keep or cause to be kept all such Real Property
free and clear of any Liens imposed pursuant to any Environmental Laws.
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 by the Borrower or any of its Subsidiaries, or transport or
permit the transportation of Hazardous Materials to or
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from any such Real Property, except for Permitted Materials. If required to do
so under any applicable Environmental Law, each Credit Party agrees to
undertake, and agrees to cause each of its Subsidiaries to undertake, any
cleanup, removal, remedial or other action necessary to remove and clean up
any Hazardous Materials from any Real Property in accordance with the
requirements of all applicable Environmental Laws and in accordance with
orders and directives of all governmental authorities; provided that no Credit
Party nor any of its Subsidiaries shall be required to take any such action
where same is being contested by appropriate legal proceedings in good faith
by such Credit Party or such Subsidiary.
(b) At the request of the Administrative Agent or the Required
Banks, at any time and from time to time (i) after an Event of Default has
occurred and is continuing, (ii) after the Banks receive notice under Section
7.01(g) of any event for which notice is required to be delivered for any such
Real Property, (iii) after the acquisition of any Real Property by the
Borrower or any of its Subsidiaries subsequent to the Effective Date or (iv)
if required by law, the Borrower will provide, at the Borrower's sole cost and
expense, an environmental site assessment report concerning any Real Property
owned, operated or leased by the Borrower or any of its Subsidiaries, prepared
by an environmental consulting firm approved by the Administrative Agent,
indicating the presence or absence of any actual or threatened noncompliance
with Environmental Laws and permits required thereunder or presence or absence
of any Release of Hazardous Materials and the potential cost of any removal or
remedial action in connection with any Hazardous Materials on such Real
Property. If the Borrower fails to provide the same within 60 days after any
such request therefor made by the Administrative Agent or the Required Banks,
the Administrative Agent may order the same, and the Borrower shall grant and
hereby grants to the Administrative Agent, the Co-Agents, the Syndication
Agents, the Documentation Agent and the Banks and their agents access to such
Real Property at all reasonable times and specifically grants the
Administrative Agent, the Co-Agents, the Syndication Agents, the Documentation
Agent and the Banks an irrevocable nonexclusive license, subject to the rights
of tenants, to undertake such an assessment all at the Borrower's sole
expense.
7.06 ERISA. As soon as possible and, in any event, within 10
days after any Credit Party or any of its Subsidiaries or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, the
Borrower will deliver to each of the Banks a certificate of the Borrower
signed by its Chief Financial Officer or another Senior Financial Officer
setting forth details as to such occurrence and the action, if any, which such
Credit Party, such Subsidiary or such ERISA Affiliate is required or proposes
to take, and, at such times as any such notices are required to be filed or
given, copies of any notices required or proposed to be given to or filed with
or by such Credit Party, such Subsidiary, such ERISA Affiliate, the PBGC, a
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency has been
incurred or an application described in Section 4043(c) (2), (6), (10) or (11)
of ERISA, with respect to which notice to the PBGC is not waived, has been
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a contribution required to be made to a Plan or
Foreign Pension Plan has not been timely made; that a Plan has been terminated
involuntarily or in a distress termination, reorganized, partitioned or
declared
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insolvent under Title IV of ERISA; that a lien has arisen on the assets of a
Credit Party or any of its Subsidiaries or any ERISA Affiliate under ERISA or
the Code with respect to a Plan; that proceedings have been instituted to
terminate or appoint a trustee to administer a Plan; that any Credit Party,
any of its Subsidiaries or any ERISA Affiliate has incurred any liability
(including any indirect, contingent or secondary liability) to or on account
of the termination of or withdrawal from a Plan under Section 4062, 4063,
4064, or 4201 of ERISA or with respect to a Plan under Section 401(a)(29),
4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of ERISA; which
liability in each case could reasonably be expected to have a material adverse
effect on the ability of the Borrower to perform its obligations under this
Agreement; or that any Credit Party or any of its Subsidiaries has incurred
any liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 or ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA) which
liability could reasonably be expected to have a material adverse effect on
the ability of the Borrower to perform its obligations under this Agreement.
At the request of any Bank, the Borrower will deliver to such Bank a complete
copy of the annual report on Internal Revenue Service Form 5500 series of each
Plan (other than a Multiemployer Plan) required to be filed with the
Department of Labor. In addition to any certificates or notices delivered to
the Banks pursuant to the first sentence hereof, copies of any notices
received by any Credit Party or any of its Subsidiaries or any ERISA Affiliate
with respect to any Plan or Foreign Pension Plan which notice threatens,
refers to or pertains to any material liability or any potential material
liability of any such party, shall be delivered to the Banks no later than 10
days after the date such notice has been received by such Credit Party or such
Subsidiary or such ERISA Affiliate, as applicable.
7.07 Good Repair. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its 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 to 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.
7.08 End of Fiscal Years; Fiscal Quarters. The Borrower will,
for financial reporting purposes, cause (i) each of its fiscal years to end on
December 31 of each year and (ii) each of its fiscal quarters to end on March
31, June 30, September 30 and December 31 of each year.
7.09 Maintenance of Property; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, at all times maintain in full force
and effect insurance in such amounts, covering such risks and liabilities and
with such deductibles or self-insured retentions as are in accordance with
normal industry practice and all applicable laws.
7.10 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement and other debt
instrument by which it is bound, except such non-performance
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as could not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
7.11 Use of Proceeds. All proceeds of the Loans shall be used
as provided in Section 6.05.
7.12 Ownership of Subsidiaries. The Borrower will, at all
times, maintain, directly or indirectly, ownership of 100% of the capital
stock of its Subsidiaries, except (i) to the extent 100% of the capital stock
of any such Subsidiary is sold, transferred or disposed of in a transaction
permitted by Section 8.01; (ii) any Subsidiary constituting a Permitted Joint
Venture; and (iii) for directors qualifying shares.
7.13 Foreign Subsidiaries Guaranty. If following a change in
the relevant sections of the Code, the regulations and rules promulgated
thereunder and any rulings issued thereunder and at the reasonable request of
the Administrative Agent or the Required Banks, counsel for the Borrower
acceptable to the Administrative Agent and the Required Banks does not within
30 days after such request deliver a written opinion, in form and substance
satisfactory to the Administrative Agent and the Required Banks, with respect
to any Foreign Subsidiary that the entering into by such Foreign Subsidiary of
a guaranty in substantially the form of the Subsidiary Guaranty would cause
the earnings of such Foreign Subsidiary to be treated as a deemed dividend to
such Foreign Subsidiary's United States parent, then in the case of a failure
to deliver the opinion described above, such Foreign Subsidiary shall execute
and deliver a guaranty (each, a "Foreign Subsidiary Guaranty" and,
collectively, the "Foreign Subsidiary Guarantees") of the Obligations of the
Borrower under the Credit Documents and the obligations of the Borrower under
any Interest Rate Protection Agreements with a Bank or an affiliate of a Bank,
with such Foreign Subsidiary Guaranty to be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Banks.
7.14 Senior Notes Change of Control. Upon the occurrence of any
Change of Control, if an offer to repurchase the Senior Notes or any Permitted
Refinancing Debt is required to be made as a result of such Change of Control,
the Borrower will take all actions, including the giving of notices required
thereunder and the setting of the date for the repurchases of Senior Notes or
Permitted Refinancing Debt, as is within its power to insure that the date for
payment of the purchase price for all Senior Notes or Permitted Refinancing
Debt that must be repurchased as a result of such Change of Control is no
earlier than the date on which the Loans hereunder become due and payable as a
result of such Change of Control.
SECTION 8. Negative Covenants. The Borrower hereby covenants
and agrees that on the Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters
of Credit are outstanding and the Loans, Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:
8.01 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Borrower will not, and will not permit any of its Subsidiaries to, wind
up, liquidate or dissolve its affairs, or enter into any transaction of merger
or consolidation, sell or otherwise dispose of all,
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substantially all or any part of its property or assets (other than inventory
in the ordinary course of business), or enter into any partnerships, joint
ventures or sale-leaseback transactions, or purchase, lease or otherwise
acquire (in one transaction or a series of related transactions) all or any
part of the property or assets of any Person (other than purchases or other
acquisitions of inventory in the ordinary course of business) or agree to do
any of the foregoing at any future time, except that the following shall be
permitted:
(a) so long as no Default or Event of Default then exists or
would result therefrom, Capital Expenditures may be made by the Borrower
and its Subsidiaries in the ordinary course of their respective
businesses;
(b) advances, investments and loans (including Joint Venture
Investments in Permitted Joint Ventures) may be made to the extent
permitted pursuant to Section 8.05;
(c) Dividends may be paid to the extent permitted by Section
8.06;
(d) the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business and
otherwise in compliance with this Agreement so long as such lease does
not create Capitalized Lease Obligations except as otherwise permitted
by Section 8.03(b);
(e) each of the Borrower and its Subsidiaries may, in the
ordinary course of business and consistent with past practices, sell,
lease (as lessor) or otherwise dispose of any of its equipment to the
extent that (x) any such sale, lease or disposition shall be in an
amount at least equal to the fair market value thereof (as determined
in good faith by senior management of the Borrower), and (y) any such
sale shall be solely for cash or for cash, promissory notes and/or
contingent payment obligations of, and/or equity interests in, the
transferee or issuer, provided that the sum of (A) the aggregate
principal amount of promissory notes outstanding at any time accepted
by the Borrower and/or its Subsidiaries from all such sales, leases
and dispositions and all sales and dispositions effected pursuant to
Sections 8.01(f) and (g), plus (B) the aggregate initial value of all
such contingent payment obligations (as determined in good faith by
senior management of the Borrower) received by the Borrower and/or its
Subsidiaries from all such sales, leases and dispositions and all
sales and dispositions effected pursuant to Sections 8.01(f) and (g),
plus (C) the aggregate initial value of all equity securities (as
determined in good faith by senior management of the Borrower)
received by the Borrower and/or any of its Subsidiaries from all such
sales, leases and dispositions and all sales and dispositions effected
pursuant to Sections 8.01(f) and (g), shall not at any time exceed 20%
of the Consolidated Net Worth of the Borrower at such time;
(f) the Borrower and its Subsidiaries may sell or otherwise
dispose of non-strategic lines of their respective businesses (as so
determined in good faith by senior management of the Borrower) (any
such sale permitted by this clause (f), a "Permitted Line of Business
Sale"), so long as (i) to the extent any such Permitted Line of
Business Sale is of the capital stock of any Subsidiary of the
Borrower such Permitted Line of Business Sale must be of 100% of such
capital stock owned by the Borrower, (ii) any
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such sale shall be solely for cash, or for cash, promissory notes
and/or contingent payment obligations of, and/or equity interests in,
the transferee or issuer, provided that the sum of (A) the aggregate
initial principal amount of promissory notes accepted by the Borrower
and/or its Subsidiaries from all such sales and dispositions and all
sales, leases and dispositions effected pursuant to Sections 8.01(e)
and (g) plus (B) the aggregate initial value of all such contingent
payment obligations (as determined in good faith by senior management
of the Borrower) received by the Borrower and/or its Subsidiaries from
all such sales and dispositions and all sales, leases and dispositions
effected pursuant to Sections 8.01(e) and (g) plus (C) the aggregate
initial value of all equity securities (as determined in good faith by
senior management of the Borrower) received by the Borrower and/or any
of its Subsidiaries from all such sales and dispositions and all
sales, leases and dispositions effected pursuant to Sections 8.01(e)
and (g), shall not at any time exceed 20% of the Consolidated Net
Worth of the Borrower at such time, (iii) the aggregate book value (as
determined in good faith by senior management of the Borrower) of all
assets subject to all Permitted Line of Business Sales pursuant to
this clause (f) in any fiscal year of the Borrower shall not exceed
$60,000,000, (iv) no Default or Event of Default exists (both before
and after giving effect to such Permitted Line of Business Sale), (v)
the Borrower shall have given the Administrative Agent and the Banks
at least 10 Business Days prior written notice of the closing of such
Permitted Line of Business Sale, (vi) to the extent that the sum of
(A) the aggregate book value (as determined in good faith by senior
management of the Borrower) of all of the assets subject to such
Permitted Line of Business Sale plus (B) the aggregate book value (as
determined in good faith by senior management of the Borrower) of all
of the assets subject to all other Permitted Line of Business Sales
consummated in the same fiscal year as such Permitted Line of Business
Sale exceeds $30,000,000, the Borrower in good faith shall believe,
based on calculations made by the Borrower on a pro forma basis (the
pro forma adjustments made by the Borrower in making the calculations
pursuant to this clause (vi) shall be subject to the reasonable
satisfaction of the Administrative Agent and the Required Banks) after
giving effect to the respective Permitted Line of Business Sale as if
such Permitted Line of Business Sale had been consummated on the date
occurring twelve months prior to the last day of the most recently
ended fiscal quarter of the Borrower, that the covenants contained in
Sections 8.09 through 8.11, inclusive, of this Agreement would have
been met for the one-year period ended on the last day of such fiscal
quarter, (vii) to the extent that the sum of (A) the aggregate book
value (as determined in good faith by senior management of the
Borrower) of all of the assets subject to such Permitted Line of
Business Sale plus (B) the aggregate book value (as determined in good
faith by senior management of the Borrower) of all of the assets
subject to all other Permitted Line of Business Sales consummated in
the same fiscal year as such Permitted Line of Business Sale exceeds
$30,000,000, the Borrower in good faith shall believe, based on
calculations made by the Borrower, on a pro forma basis after giving
effect to the respective Permitted Line of Business Sale, that the
covenants contained in Sections 8.09 through 8.11, inclusive, will
continue to be met for the one-year period following the date of the
consummation of the respective Permitted Line of Business Sale and
(viii) the Borrower shall have delivered to the Administrative Agent
an officer's certificate executed by a Senior Financial Officer of the
Borrower, certifying, to
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the best of his knowledge, compliance with the requirements of
preceding clauses (i) through (vii) and, to the extent that pro forma
calculations are required by the preceding clauses (vi) and (vii),
then such certificate shall also contain such pro forma calculations
(including, without limitation, any currency exchange calculations
required in connection therewith as a result of the incurrence of
Competitive Bid Loans or the issuance of Letters of Credit, in each
case denominated in an Approved Alternate Currency). The consummation
of each Permitted Line of Business Sale shall be deemed to be a
representation and warranty by the Borrower that all conditions
thereto have been satisfied and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty
shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 5.02 and 9;
(g) the Borrower and its Subsidiaries may, in the ordinary
course of business and consistent with past practices, sell or
otherwise dispose of any of its Real Property to the extent that (w)
any such sale or disposition shall be in an amount at least equal to
the fair market value thereof (as determined in good faith by senior
management of the Borrower), (x) any such sale shall be solely for
cash, or for cash, promissory notes and/or contingent payment
obligations of, and/or equity interests in, the transferee or issuer,
provided that the sum of (A) the aggregate initial principal amount of
promissory notes accepted by the Borrower and/or its Subsidiaries from
all such sales and dispositions and all sales, leases and dispositions
effected pursuant to Sections 8.01(e) and (f) plus (B) the aggregate
initial value of all such contingent payment obligations (as
determined in good faith by senior management of the Borrower)
received by the Borrower and/or its Subsidiaries from all such sales
and dispositions and all sales, leases and dispositions effected
pursuant to Sections 8.01(e) and (f) plus (C) the aggregate initial
value of all equity securities (as determined in good faith by senior
management of the Borrower) received by the Borrower and/or any of its
Subsidiaries from all such sales and dispositions and all sales,
leases and dispositions effected pursuant to Sections 8.01(e) and (f),
shall not at any time exceed 20% of the Consolidated Net Worth of the
Borrower at such time, and (y) the fair market value of (A) any parcel
of Real Property subject to a sale pursuant to this clause (g) (as
determined in good faith by senior management of the Borrower) shall
not exceed $10,000,000 per sale, and (B) all Real Property subject to
sales pursuant to this clause (g) (as determined in good faith by
senior management of the Borrower) shall not exceed $50,000,000 in the
aggregate for all such sales;
(h) the Borrower and its Subsidiaries may acquire Reinvestment
Assets with the proceeds from any Reinvestment Event;
(i) the Borrower and its Subsidiaries may acquire (other than
on a hostile basis) assets constituting all or substantially all of a
business, business unit, division or product line of any Person not
already a Subsidiary of the Borrower or capital stock of any such
Person (including any such acquisition by way of merger or
consolidation) (any such acquisition permitted by this clause (i), a
"Permitted Acquisition"), so long as in the case of any such Permitted
Acquisition (i) the only consideration paid by the Borrower and its
Subsidiaries in respect of such Permitted Acquisition consists of
cash, Common Stock permitted to be issued under Section 8.13,
Indebtedness secured by Liens permitted by
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Section 8.02(g), to the extent permitted by Section 8.03(b), unsecured
Indebtedness permitted under Section 8.03(n) and/or Permitted Earn-Out
Debt to the extent permitted by Section 8.03(l), (ii) no Default or
Event of Default then exists (both before and after giving effect to
such Permitted Acquisition), (iii) all representations and warranties
contained herein and in the other Credit 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 Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in
all material respects as of such earlier date, (iv) such assets are to
be employed in, and/or such Person was at the time of such acquisition
engaged in, the businesses permitted pursuant to Section 8.08, (v) to
the extent that such Permitted Acquisition is of the capital stock of
another Person such Permitted Acquisition must be of 100% of such
capital stock (except for directors qualifying shares) and all of the
provisions of Section 8.04 to the extent applicable shall have been
complied with in respect of such Permitted Acquisition, (vi) the
Borrower or such Subsidiary is the surviving corporation of any
Permitted Acquisition structured as a merger or consolidation, and
(vii) with respect to each Permitted Acquisition, (A) the Borrower
shall have given the Administrative Agent and the Banks at least 5
Business Days prior written notice of the closing of such Permitted
Acquisition, (B) the Borrower in good faith shall believe, based on
calculations made by the Borrower, on a pro forma basis after giving
effect to the respective Permitted Acquisition, that the covenants
contained in Sections 8.09 through 8.11, inclusive, will continue to
be met for the one-year period following the date of the consummation
of the respective Permitted Acquisition and (C) the Borrower shall
have delivered to the Administrative Agent an officer's certificate
executed by a Senior Financial Officer of the Borrower, certifying, to
the best of his knowledge, compliance with the requirements of clauses
(i) through (vii) of this Section 8.01(i) and containing the pro forma
calculations required by the preceding clause (vii)(B), including,
without limitation, any currency exchange calculations required in
connection therewith as a result of the incurrence of Indebtedness
permitted under Section 8.03(n) in connection with such Permitted
Acquisition or as a result of the incurrence of Competitive Bid Loans
or the issuance of Letters of Credit, in each case denominated in an
Approved Alternate Currency; provided, that the provisions of the
preceding clauses (vii)(B) and (vii)(C) (to the extent requiring pro
forma calculations) shall be applicable only to the extent that either
(x) the sum of (I) the Permitted Acquisition Amount in respect of such
Permitted Acquisition plus (II) the aggregate fair market value
(determined as of the proposed date of consummation of such Permitted
Acquisition in good faith by senior management of the Borrower) of any
Common Stock issued as consideration in connection with such Permitted
Acquisition, exceeds $30,000,000, or (y) such Permitted Acquisition
does not meet the criteria set forth in clause (x) above and the sum
of (I) the Permitted Acquisition Amount in respect of such Permitted
Acquisition plus (II) the Permitted Acquisition Amount in respect of
all other Permitted Acquisitions consummated in the same fiscal year
of the Borrower as such proposed Permitted Acquisition is to be
consummated (but excluding Permitted Acquisitions meeting the criteria
set forth in clause (x) above) plus (III) the aggregate fair market
value (determined as of the proposed date of consummation of such
Permitted
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Acquisition in good faith by senior management of the Borrower) of any
Common Stock issued as consideration in connection with such Permitted
Acquisition and all other Permitted Acquisitions consummated in the
same fiscal year of the Borrower as such proposed Permitted
Acquisition is to be consummated (but excluding any Permitted
Acquisitions meeting the criteria set forth in clause (x) above),
exceeds $30,000,000; and
(j) the Borrower and its Subsidiaries may transfer accounts
receivable and related assets pursuant to the Permitted Receivables
Securitization Program.
8.02 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 (real or personal, tangible
or intangible) of the Borrower or any of its Subsidiaries, whether now owned
or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to the Borrower or any of its Subsidiaries) or assign any right to
receive income, or file or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, except:
(a) inchoate Liens for taxes not yet due or Liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of the
Borrower) have been established in accordance with GAAP;
(b) Liens (other than any Lien imposed by ERISA) in respect of
property or assets of the Borrower or any of its Subsidiaries imposed
by law which were incurred in the ordinary course of business and
which do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's and mechanics' Liens, statutory landlord's
Liens, and other similar Liens arising in the ordinary course of
business, and (x) which 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 such
Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to
such Lien;
(c) Liens, if any, created by or pursuant to this Agreement or
the other Credit Documents;
(d) Liens on the assets of the Borrower and its Subsidiaries
(excluding Liens permitted under Section 8.02(j)) created prior to,
but that will remain outstanding on and after, the Effective Date
(after giving effect to the Transaction) and listed, and the property
subject thereto described on, Schedule VIII hereto, without giving
effect to any subsequent extensions or renewals thereof ("Permitted
Liens");
(e) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (x) in connection
with workers' compensation,
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unemployment insurance and other types of social security, or (y) to
secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of
borrowed money), provided that the aggregate amount of cash and the
fair market value of the property encumbered by Liens described in
this clause (y) shall not exceed $1,000,000;
(f) leases or subleases granted to third Persons not
interfering with the ordinary course of business of the Borrower or
any of its Subsidiaries;
(g) Liens arising pursuant to purchase money mortgages securing
Indebtedness representing the purchase price (or financing of the
purchase price within 90 days after the respective purchase) of
property or other assets acquired by the Borrower or any of its
Subsidiaries after the Effective Date, provided that (i) any such
Liens attach only to the assets so purchased, (ii) the Indebtedness
secured by any such Lien does not exceed 100% of the lesser of the
fair market value or the purchase price of the assets being purchased
at the time of the incurrence of such Indebtedness and (iii) the
Indebtedness secured thereby is permitted by Section 8.03(b);
(h) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances on the property of the Borrower
or any of its Subsidiaries arising in the ordinary course of business
and not materially interfering with the conduct of the business of the
Borrower or any such Subsidiary;
(i) Liens on property of the Borrower or any of its
Subsidiaries subject to, and securing only, Capitalized Lease
Obligations to the extent such Capitalized Lease Obligations are
permitted by Section 8.03(b), provided, that such Liens only secure
the payment of Indebtedness arising under such Capitalized Lease
Obligation and the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation and the proceeds thereof do not encumber
any other asset of the Borrower or any of its Subsidiaries;
(j) Liens arising from precautionary UCC (or other similar
recording or notice statutes) financing statement filings regarding
operating leases permitted pursuant to this Agreement; and
(k) Liens on accounts receivable and related assets subject to
the Permitted Receivables Securitization Program.
8.03 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness (including, without limitation, off balance sheet debt and
receivables financings), except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
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(b) Indebtedness evidenced by Capitalized Lease Obligations
(including without limitation, such Capitalized Lease Obligations
constituting the Permitted Existing Indebtedness described as item 5
of Schedule VII), and other Indebtedness secured by Liens permitted by
Section 8.02(g), of the Borrower or any of its Subsidiaries, so long
as (x) the sum of the aggregate principal amount of all such
Indebtedness outstanding at such time and the aggregate Capitalized
Lease Obligations under all Capital Leases entered into pursuant to
this clause (b) outstanding at such time does not exceed $20,000,000
in the aggregate at any time outstanding and (y) at the time of the
incurrence of any such Indebtedness, such Indebtedness is permitted to
be incurred pursuant to the first paragraph of Section 1008 of the
Senior Note Indenture;
(c) Indebtedness under any Permitted Interest Rate Protection
Agreement;
(d) Indebtedness evidenced by Intercompany Loans to the extent
permitted by Section 8.05(f);
(e) Indebtedness under any Permitted Currency Agreement;
(f) Indebtedness under any Permitted Commodities Agreement;
(g) Indebtedness representing Permitted Foreign Subsidiary WC
Debt (including, without limitation, such Permitted Foreign Subsidiary
WC Debt constituting Permitted Existing Indebtedness described as item
3 of Schedule VII), provided that (x) the obligors thereunder are
Foreign Subsidiaries (other than AMETEK Italia) and neither the
Borrower nor any Domestic Subsidiary of the Borrower is obligated
(whether directly or indirectly through a guarantee, keep-well
arrangement or otherwise) in respect thereof and (y) the aggregate
principal amount thereof at any one time outstanding shall not exceed
$30,000,000, provided, however, that the aggregate principal amount
thereof at any one time outstanding may exceed $30,000,000 solely by
virtue of changes in the exchange rates (and not as a result of the
additional incurrence of any new Indebtedness) for the currencies in
which any such Permitted Foreign Subsidiary WC Debt is denominated for
a period not in excess of one month after any date upon which it is so
determined that the aggregate principal amount of Permitted Foreign
Subsidiary WC Debt exceeds $30,000,000 as a result solely of such a
change in exchange rates;
(h) Permitted Existing Indebtedness of the Borrower evidenced
by the Senior Notes pursuant to the Senior Note Documents, in an
aggregate principal amount not to exceed $225,000,000 (as reduced by
any repayments of principal thereof) as described as item 4 on
Schedule VII;
(i) Permitted Refinancing Debt of the Borrower;
(j) Indebtedness of the Borrower or any of its Subsidiaries
arising in connection with the entering into of any take-or-pay
contract for supplies, packaging materials or other similar materials
entered into in the ordinary course of business, consistent with the
practices of the Borrower and its Subsidiaries prior to the Effective
Date, provided that
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the aggregate amount payable under any such take-or-pay contract shall
not exceed $1,000,000;
(k) Indebtedness of the Borrower consisting of borrowings
against the cash value of the COLI Policies;
(l) Indebtedness of the Borrower or any of its Subsidiaries
which constitutes Permitted Earn-Out Debt in amounts not to exceed,
and in accordance with, the requirements of Section 8.01(i) and only
to the extent that any such Permitted Earn-Out Debt is paid in full
within six months after the date upon which such Permitted Earn-Out
Debt is determinable;
(m) Indebtedness of AMETEK Italia evidenced by a bank guaranty
denominated in Italian Lira made by a financial institution on behalf
of AMETEK Italia for the benefit of such Persons identified by AMETEK
Italia as the seller under the Permitted AMETEK Italia Acquisition in
connection with the Permitted AMETEK Italia Acquisition, provided that
(i) the sole obligor thereunder is AMETEK Italia and neither the
Borrower nor any Subsidiary of the Borrower (other than AMETEK Italia)
is obligated (whether directly or indirectly through a guarantee,
keep-well arrangement or otherwise) in respect thereof, (ii) such
Indebtedness shall not contain any provision in the documents
governing or evidencing the same which, in the reasonable opinion of
the Administrative Agent, would permit a default or event of default
to occur under such Indebtedness based upon the occurrence of a
Default or Event of Default under this Agreement unless any such Event
of Default has resulted in an acceleration under this Agreement, and
(iii) the aggregate principal amount thereof at any one time
outstanding shall not exceed 30 billion Italian Lira (it being
understood and agreed that the incurrence of such Indebtedness shall
be deemed to be a representation and warranty by the Borrower that all
conditions thereto have been satisfied and that the same is permitted
in accordance with the terms of this Agreement, which representation
and warranty shall be deemed to be a representation and warranty for
all purposes hereunder, including, without limitation, Sections 5.02
and 9);
(n) Indebtedness representing Permitted AMETEK Italia Debt
(including, without limitation, such Permitted AMETEK Italia Debt
constituting Permitted Existing Indebtedness described as items 1 and
2 of Schedule VII) denominated in Dollars, Italian Lira and/or German
Deutsche Marks, provided that (x) the sole obligor thereunder is
AMETEK Italia and neither the Borrower nor any Subsidiary of the
Borrower (other than AMETEK Italia) is obligated (whether directly or
indirectly through a guarantee, keep-well arrangement or otherwise) in
respect thereof and (y) the aggregate principal amount thereof at any
one time outstanding shall not exceed $20,000,000, provided, however,
that the aggregate principal amount thereof at any one time
outstanding may exceed $20,000,000 solely by virtue of changes in the
exchange rates (and not as a result of the additional incurrence of
any new Indebtedness) for the currencies in which any such Permitted
AMETEK Italia Debt is denominated for a period not in excess of one
month after any date upon which it is determined that the aggregate
principal amount of such Permitted AMETEK Italia Debt exceeds
$20,000,000 as a result solely of such a change in exchange rates;
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(o) outstandings under the Permitted Receivables Securitization
Program to the extent constituting Indebtedness in an aggregate
principal amount not to exceed $75,000,000;
(p) additional unsecured Indebtedness of the Borrower and its
Domestic Subsidiaries not otherwise permitted pursuant to this Section
8.03 not exceeding (for the Borrower and all of its Domestic
Subsidiaries) in aggregate principal amount at any one time
outstanding $15,000,000;
(q) Indebtedness representing Permitted Foreign Subsidiary
Guaranteed WC Debt, provided that (x) the obligors thereunder are
Foreign Subsidiaries (other than AMETEK Italia), although the Borrower
shall be permitted to guarantee such Permitted Foreign Subsidiary
Guaranteed WC Debt, and (y) the aggregate principal amount thereof at
any one time outstanding shall not exceed $30,000,000, provided,
however, that the aggregate principal amount thereof at any one time
outstanding may exceed $30,000,000 solely by virtue of changes in the
exchange rates (and not as a result of the additional incurrence of
any new Indebtedness) for the currencies in which any such Permitted
Foreign Subsidiary Guaranteed WC Debt is denominated for a period not
in excess of one month after any date upon which it is so determined
that the aggregate principal amount of Permitted Foreign Subsidiary
Guaranteed WC Debt exceeds $30,000,000 as a result solely of such a
change in exchange rates; and
(r) additional Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted hereunder; provided that (A) in
no event shall the final maturity of such Indebtedness occur prior to
the Final Maturity Date, (B) in no event shall such Indebtedness have
a shorter average life than the Loans hereunder, (C) in no event shall
such Indebtedness contain terms and conditions (including, without
limitation, with respect to the obligor and guarantors, if any, in
respect of such Indebtedness, prepayment and redemption provisions,
covenants, defaults, security, remedies and, if applicable,
subordination provisions) less favorable to the Borrower and its
Subsidiaries or to the Banks than the terms and conditions of this
Agreement and the other Credit Documents, (D) in no event shall such
Indebtedness contain terms and conditions requiring repayment,
prepayment or amortization of such Indebtedness, or any part thereof,
prior to the Final Maturity Date, (E) at the time of incurrence
thereof (both before and after giving effect thereto) no Default or
Event of Default then exists, (F) the Borrower in good faith shall
believe, based on calculations made by the Borrower, on a pro forma
basis after giving effect to the respective Indebtedness, that the
covenants contained in Sections 8.09 through 8.11, inclusive, will
continue to be met for the one-year period following the date of the
incurrence of the Indebtedness pursuant to this Section 8.03(r) (any
Indebtedness issued pursuant to this Section 8.03(r), "Additional
Indebtedness"), and (G) all of the documents evidencing or governing
the terms of such Indebtedness are delivered to the Banks prior to the
incurrence of such Indebtedness, and all of the terms and conditions
thereof are in form and substance reasonably satisfactory to the
Administrative Agent provided further, that, the aggregate principal
amount of any such Additional Indebtedness incurred pursuant to this
Section 8.03(r) shall not exceed $250,000,000 at any time outstanding.
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8.04 Limitation on the Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower will not, and
will not permit any Subsidiary to, establish, create or acquire after the
Effective Date any Material Subsidiary, except the Borrower or any of its
Subsidiaries may create, establish or acquire (x) Permitted Joint Ventures in
accordance with Section 8.05 and the definition thereof and (y) a new Material
Subsidiary of the Borrower which is a Wholly-Owned Subsidiary of the Borrower,
provided, that (i) at least 15 Business Days' prior written notice thereof is
given to the Administrative Agent and the Banks and (ii) such new Material
Subsidiary (to the extent it is a Domestic Subsidiary) executes a counterpart of
the Subsidiary Guaranty or (to the extent it is a Foreign Subsidiary) executes a
counterpart of the Foreign Subsidiary Guaranty to the extent required by Section
7.13. In addition, each new Material Subsidiary shall execute and deliver, or
cause to be executed and delivered, all other relevant documentation of the type
described in Section 5 as such new Material Subsidiary would have had to deliver
if such new Material Subsidiary were a Credit Party on the Effective Date.
8.05 Advances, Investments and Loans. The Borrower will not, and
will not permit any of its Subsidiaries to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to any
Person, except:
(a) the Borrower and its Subsidiaries may invest in cash and
Cash Equivalents, and Foreign Subsidiaries may invest in Permitted
Foreign Investments;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in its ordinary course
of business and payable or dischargeable in accordance with its
customary trade terms of the Borrower or such Subsidiary, as the case
may be;
(c) loans and advances to employees for moving and travel
expenses and other similar expenses, in each case incurred in the
ordinary course of business, shall be permitted;
(d) the Permitted Interest Rate Protection Agreement shall be
permitted;
(e) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising from ordinary business transactions;
(f) the Borrower may make intercompany loans and advances to its
Subsidiaries (other than to the Captive Insurance Subsidiary unless
required by applicable law or required to fund its insurance
operations), and any Subsidiary of the Borrower may make intercompany
loans and advances to any other Subsidiary (other than to the Captive
Insurance Subsidiary unless required by applicable law or required to
fund its insurance operations) of the Borrower or the Borrower
(collectively, "Intercompany Loans"), provided that (i) each such
Intercompany Loan shall be evidenced by an Intercompany
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Note, and (ii) each Intercompany Note evidencing an Intercompany Loan to
the Borrower shall contain the subordination provisions contained in
Exhibit G;
(g) the Borrower and its Subsidiaries may acquire and hold the
capital stock of Wholly-Owned Subsidiaries, provided that to the extent
any such Wholly-Owned Subsidiary acquired, created or established by the
Borrower or any of its Subsidiaries constitutes a Material Subsidiary,
such Wholly-Owned Subsidiary is so acquired, created or established in
accordance with Section 8.04;
(h) Permitted Currency Agreements shall be permitted;
(i) Permitted Commodities Agreements shall be permitted;
(j) the Borrower and its Subsidiaries may effect Permitted
Acquisitions in accordance with the requirements of Section 8.01(i);
(k) the Captive Insurance Subsidiary may invest in Permitted
Captive Insurance Investments;
(l) so long as (x) no Default or Event of Default then exists or
would result therefrom and (y) any such investment is permitted at such
time under the Senior Note Indenture, the Borrower and its Subsidiaries
may make Joint Venture Investments in Permitted Joint Ventures, provided
that the aggregate amount of all Joint Venture Investments at any one
time outstanding shall not exceed $50,000,000 less the Joint Venture
Letter of Credit Outstandings at such time;
(m) the Borrower may continue to own and hold Permitted Existing
Investments;
(n) the Borrower may acquire and maintain investments in COLI
Policies; and
(o) the Borrower and its Subsidiaries may make additional
advances, investments and loans not otherwise permitted pursuant to this
Section 8.05 (other than advances, investments or loans (1) in or to any
Permitted Joint Venture, (2) in or to the Captive Insurance Subsidiary
or (3) of the type constituting a Permitted Existing Investment), so
long as (i) the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
thereof) shall not exceed $7,500,000, and (ii) each such advance,
investment or loan is made by the Borrower or such Subsidiary in or to a
Person engaged in the type of business described in Section 8.08.
8.06 Dividends, etc. The Borrower will not, and will not permit
any Subsidiary to, declare or pay any dividends or return any capital to, its
stockholders or authorize or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any warrants for
or options or stock appreciation rights in respect of any of such shares), or
set aside any funds for any of the foregoing purposes and the Borrower will not,
and will not permit any of its Subsidiaries to, purchase or otherwise acquire
for a consideration any shares of any class of the capital stock of
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the Borrower or any other Subsidiary, as the case may be, now or hereafter
outstanding (or any warrants for or options or stock appreciation rights issued
by such Person in respect of any such shares) (all of the foregoing
"Dividends"), except that:
(a) any Subsidiary of the Borrower and any Permitted Joint
Venture may pay Dividends (x) to the Borrower or to any Wholly-Owned
Subsidiary of the Borrower or (y) to any other investor in such
Subsidiary or Permitted Joint Venture to the extent of such investor's
proportionate ownership interest in such Subsidiary or Permitted Joint
Venture;
(b) so long as there shall exist no Default or Event of Default
(both before and after giving effect thereto), the Borrower may effect
Common Stock Repurchases in accordance with applicable law and so long
as the Borrower (x) promptly retires any such shares of Common Stock so
repurchased or (y) holds such shares as treasury stock;
(c) the Borrower may pay cash Dividends in any fiscal quarter to
the holders of Common Stock if and only if (x) no Default or Event of
Default then exists or would result from the payment thereof and (y) the
aggregate amount of all cash Dividends proposed to be paid in any such
fiscal quarter pursuant to this clause (c), when added to the aggregate
amount of all cash Dividends previously paid during the fiscal quarter
in which such cash Dividends are proposed to be paid and during the
immediately preceding three fiscal quarters, shall not exceed the
greater of (1) $15,000,000 or (2) 35% of the Consolidated Net Income of
the Borrower for the immediately preceding four fiscal quarters of the
Borrower as determined from the most recently delivered Section 7.01
Financials; and
(d) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the
Borrower may repurchase or redeem stock appreciation rights issued by
the Borrower to its directors, employees and officers pursuant to the
Stock Option Plans.
8.07 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of transactions, whether or not in the ordinary course of business, with any
Affiliate other than on terms and conditions substantially as favorable (or more
favorable) to, the Borrower or such Subsidiary as would be obtainable by, the
Borrower or such Subsidiary at the time in a comparable arm's-length transaction
with a Person other than an Affiliate, except the following shall not be
prohibited: (i) the Transaction, (ii) Dividends permitted by Section 8.06, (iii)
Intercompany Loans, (iv) each of the Borrower and any of its Wholly-Owned
Subsidiaries may, in the ordinary course of its business, transfer inventory to
or among each other, (v) each of the Borrower and any of its Subsidiaries may,
in the ordinary course of its business, charge each other for services provided
to the other, (vi) the Borrower may grant stock options, stock appreciation
rights, restricted stock awards and phantom stock awards to its and its
Subsidiaries' directors in the ordinary course of business, and (vii) the
Borrower and its Subsidiaries may pay reasonable and customary fees to their
directors who are not also officers or employees of the Borrower or any of its
Subsidiaries.
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8.08 Changes in Business. The Borrower will not, and will not
permit any of its Subsidiaries to, engage (directly or indirectly) in any
business other than (i) the business in which it is engaged on the Effective
Date, (ii) reasonable extensions thereof and (iii) any other manufacturing
business, including, without limitation, the distribution and/or resale of
manufactured products and other reasonable extensions of the manufacturing
business.
8.09 Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio for any Test Period to be less than 1.3:1.0.
8.10 Leverage Ratio. The Borrower will not permit the ratio of
(i) Consolidated Indebtedness at such time to (ii) Consolidated Capital Funds as
of the last day of the fiscal quarter then last ended, to be greater than
0.80:1.0.
8.11 Consolidated Indebtedness to Consolidated EBITDA. The
Borrower will not permit the ratio of (i) Consolidated Indebtedness at such time
to (ii) Consolidated EBITDA for the Test Period then most recently ended, to be
greater than 3.0:1.0.
8.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modification of Certificate of Incorporation. The Borrower will
not, and will not permit any of its Subsidiaries to: (i) make (or give any
notice in respect of) any voluntary or optional payment or prepayment on or
redemption (including pursuant to any change of control provision) of or
acquisition for value of (including, without limitation, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of paying when due), any Senior Notes or any Permitted Refinancing Debt,
except that so long as no Default or Event of Default then exists or would
result therefrom (x) the Senior Notes may be refinanced with the proceeds of
Permitted Refinancing Debt and any Permitted Refinancing Debt may be refinanced
with the proceeds of Loans hereunder or any other Permitted Refinancing Debt and
(y) the Senior Notes may otherwise be repurchased, redeemed or retired pursuant
to a Permitted Senior Note Repurchase, (ii) amend or modify, or permit the
amendment or modification of, any provision of the Senior Note Documents, any
Permitted Refinancing Debt or any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement or security agreement) relating
thereto, or (iii) amend, modify or change any provision of its Certificate of
Incorporation (including, without limitation, by the filing or modification of
any certificate of designation) or By-Laws, except for such amendments to the
Certificate of Incorporation or By-Laws of the Borrower or any of its
Subsidiaries which do not impose any monetary liabilities on the Borrower or any
of its Subsidiaries, as the case may be, or grant any put or similar rights to
any Person and do not otherwise adversely affect any Bank in its capacity as
such.
8.13 Limitations on Issuance of Capital Stock. (a) The Borrower
will not permit any of its Subsidiaries to directly or indirectly issue, sell,
assign, pledge or otherwise encumber or dispose of any shares of its capital
stock or other equity securities (or warrants, rights or options to acquire
shares or other equity securities) except (i) to qualify directors to the extent
required by applicable law, (ii) in connection with a Permitted Joint Venture to
the extent otherwise permitted by the terms of this Agreement or (iii) to the
Borrower or a Wholly-Owned Subsidiary of the Borrower.
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(b) The Borrower will not issue any shares of its capital stock
or other equity securities (or warrants, rights or options to acquire shares or
other equity securities) except: (i) to qualify directors if required by
applicable law; (ii) issuances of rights or options to purchase shares of Common
Stock to directors, officers and employees of the Borrower pursuant to the Stock
Option Plans and issuances of rights to purchase shares of Common Stock to
shareholders of the Borrower pursuant to the Rights Agreement, in each case so
long as no Event of Default will exist under Section 9.09 as a result thereof;
and (iii) shares of Common Stock, so long as, after giving effect to such
issuance, no Event of Default will exist under Section 9.09.
8.14 Limitation on Restrictions Affecting Subsidiaries. The
Borrower will not, and will not permit any Subsidiary to, directly, or
indirectly, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or limits the ability of the Borrower or any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to any Credit Party or any Subsidiary thereof, (b) make loans
or advances to any Credit Party or any Subsidiary thereof, (c) transfer any of
its properties or assets to any Credit Party or any Subsidiary thereof or (d)
create, incur, assume or suffer to exist any lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than
encumbrances and restrictions arising under (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) to the extent restricting the
disposition of any property serving as security therefor, any agreement relating
to Indebtedness permitted pursuant to Section 8.03(b) secured by Liens permitted
pursuant to Section 8.02(g), (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of any Credit Party or
any of its Subsidiaries, (v) customary restrictions on dispositions of real
property interests found in reciprocal easement agreements of any Credit Party
or any of its Subsidiaries, (vi) the Senior Note Documents, or (vii) the
documents or instruments governing the terms of any Permitted Foreign Subsidiary
WC Debt permitted to be incurred pursuant to Section 8.03(g) or Permitted AMETEK
Italia Debt permitted to be incurred pursuant to Section 8.03(n) to the extent
restricting the payment of dividends or other cash distributions by a Foreign
Subsidiary, or AMETEK Italia, as the case may be, to the Borrower or any other
Subsidiary of the Borrower.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of the Loans or 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 or Unpaid Drawings or any Fees or any
other amounts owing hereunder or under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any 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
9.03 Covenants. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.01(e)(x), 7.08, 7.13
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or 8 (other than Sections 8.05, 8.07 or 8.14), or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 9.01, 9.02 or clause (a) of this Section 9.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or any Bank; or
9.04 Default Under Other Agreements. (a) The Borrower or any of
its Subsidiaries (collectively, the "Designated Parties") shall (i) default in
any payment in respect of any Indebtedness (other than the Obligations) beyond
the period of grace, if any, provided by the instrument or agreement governing
such Indebtedness or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, 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
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness (other than the Obligations) of any Designated Party shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to clause (a)
or (b) of this Section 9.04 unless the outstanding principal amount of any one
issue of such Indebtedness exceeds $5,000,000 or the aggregate amount of all
such Indebtedness referred to in clauses (a) and (b) above exceeds $15,000,000
at any one time; or
9.05 Bankruptcy, etc. Any Designated Party shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against any
Designated Party and the petition is not controverted within 10 Business Days,
or is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of any Designated Party; or any
Designated Party commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to any Designated Party; or there is commenced against any
Designated Party any such proceeding which remains undismissed for a period of
60 days; or any Designated Party is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or any Designated Party suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or any Designated Party makes a general assignment for
the benefit of creditors; or any Designated Party admits in writing its
inability to pay its debts generally as they become due; or any corporate action
is taken by any Designated Party for the purpose of effecting any of the
foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code, any Plan shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan is, shall have been or is likely to
be terminated or to be the subject of termination proceedings under ERISA, any
Plan
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shall have an Unfunded Current Liability, a contribution required to be made to
a Plan or a Foreign Pension Plan has not been timely made, any Designated Party
or any ERISA Affiliate has incurred or is likely to incur a liability to or on
account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code, or any Designated Party or any ERISA Affiliate has incurred or is likely
to incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA); (b) there
shall result from any event or events described in clause (a) of this Section
9.06, the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) which lien,
security interest or liability referred to in clause (b) of this Section 9.06,
in the opinion of the Required Banks, could reasonably be expected to have a
Material Adverse Effect; or
9.07 Subsidiary Guaranty. The Subsidiary Guaranty or any
provision thereof shall cease to be in full force and effect, or any Subsidiary
Guaranty thereunder or any Person acting on behalf of such Subsidiary Guarantor
shall deny or disaffirm the Subsidiary Guarantor's obligations under the
Subsidiary Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiary Guaranty; or
9.08 Judgments. One or more judgments or decrees shall be
entered against the Borrower and/or any of its Subsidiaries involving a
liability (not paid or fully covered by a reputable and solvent insurance
company) of $15,000,000 or more for all such judgments and decrees, and all such
judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof; or
9.09 Change of Control. A Change of Control shall have occurred;
then, and in any such event, 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 Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent, any Co-Agent, any Syndication Agent, the Documentation
Agent, or any Bank or the holder of any Note to enforce its claims against any
Credit Party, except as otherwise specifically provided for in this Agreement
(provided that, if an Event of Default specified in Section 9.05 shall occur
with respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Bank
shall forthwith terminate immediately and any Facility Fees shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and all
obligations owing hereunder (including Unpaid Drawings) 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 each
Credit Party; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) apply any cash collateral in a Cash Collateral
Account or otherwise, as provided in Section 4.02 or
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otherwise in the Credit Documents; and (v) direct the Borrower to pay (and the
Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Section 9.05, it will pay) to the
Administrative Agent at the Payment Office such additional amounts of cash, to
be held as security for the Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding equal to the aggregate Stated Amount of all
Letters of Credit then outstanding.
SECTION 10. Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Absolute Rate" shall mean an interest rate (rounded to the
nearest .0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid Borrowing
with respect to which the Borrower has requested that the Banks offer to make
Competitive Bid Loans at Absolute Rates.
"Additional Indebtedness" shall have the meaning provided in
Section 8.03(r).
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 5% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise. For purposes of Section 8.07 of this
Agreement, so long as American Securities Corporation has any representatives on
the Board of Directors of the Borrower or any of its Subsidiaries, American
Securities Corporation shall be deemed to be an Affiliate of the Borrower to the
extent not otherwise meeting the criteria set forth above in the definition of
"Affiliate."
"Aggregate Outstandings" shall have the meaning provided in
Section 4.02(A)(a).
"Agreement" shall mean this Credit Agreement, as the same may be
from time to time modified, amended and/or supplemented.
"AMETEK Italia" shall mean AMETEK Italia, S.r.l., a corporation
organized and existing under the laws of the Republic of Italy.
"Applicable Facility Fee Percentage" shall mean, at any time,
the margin set forth below opposite the ratio of (i) Consolidated Indebtedness
as of the last day of the most recent fiscal year or fiscal quarter in respect
of which the Banks shall have received Section 7.01
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Financials to (ii) Consolidated EBITDA for the Test Period ending on the last
day of such fiscal year or fiscal quarter (it being understood that each
Applicable Facility Fee Percentage shall be in effect from the date the
respective Section 7.01 Financials are delivered to the Banks until the date the
next such Section 7.01 Financials are delivered to the Banks at which time the
Applicable Facility Fee Percentage shall be reset in accordance with the
foregoing provisions of this definition):
Applicable
Consolidated Indebtedness/ Facility Fee
Consolidated EBITDA Ratio Percentage
------------------------- ----------
Greater than 2.75:1.00 0.375%
Greater than 2.50:1.00
but less than or equal to
2.75:1.00 0.30%
Greater than 2.00:1.00
but less than or equal to
2.50:1.00 0.20%
Greater than 1.75:1.00
but less than or equal to
2.00:1.00 0.175%
Less than or equal to 1.75
to 1.00 0.15%
; provided that if any Section 7.01 Financials are not delivered when required
(the "Late Section 7.01 Financials") and such Late Section 7.01 Financials
establish that the Applicable Facility Fee Percentage would have been increased
to an amount set forth in the table above on the date that such Late Section
7.01 Financials were required to have been delivered (the "Required Delivery
Date"), then such increased Applicable Facility Fee Percentage shall be deemed
to be effective as of such Required Delivery Date, and in the event that the
Borrower shall have made any payment of Facility Fees during the period from the
Required Delivery Date to the actual date of delivery of such Late Section 7.01
Financials based upon any such lower Applicable Facility Fee Percentage, then
the Borrower shall pay in the form of a supplemental Facility Fee payment, an
amount which equals the difference between the amount of Facility Fees which
would otherwise have been paid determined as if the Late Section 7.01 Financials
were delivered on the Required Delivery Date and the amount of such Facility
Fees so paid, which supplemental Facility Fee payment shall be due and payable
on the date of delivery of the Late Section 7.01 Financials; provided, further,
notwithstanding the foregoing, the Applicable Facility Fee Percentage as of the
Effective Date shall be 0.20%.
"Applicable Margin" shall mean, at any time, the margin set
forth below opposite the ratio of (i) Consolidated Indebtedness as of the last
day of the most recent fiscal year or fiscal
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quarter in respect of which the Banks shall have received Section 7.01
Financials to (ii) Consolidated EBITDA for the Test Period ending on the last
day of such fiscal year or fiscal quarter (it being understood that each
Applicable Margin shall be in effect from the date the respective Section 7.01
Financials are delivered to the Banks until the date the next such Section 7.01
Financials are delivered to the Banks at which time the Applicable Margin shall
be reset in accordance with the foregoing provisions of this definition):
Consolidated Indebtedness/ Eurodollar BaseRate
Consolidated EBITDA Ratio Applicable Applicable
-------------------- Margin Margin
------ ------
Greater than 2.75:1.00 1.625% 0.625%
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Greater than 2.50:1.00
but less than or equal to
2.75:1.00 1.20% 0.20%
Greater than 2.00:1.00
but less than or equal to
2.50:1.00 1.05% 0.05%
Greater than 1.75:1.00
but less than or equal to
2.00:1.00 0.825% N/A
Less than or equal to 1.75
to 1.00 0.725% N/A
; provided that if any Section 7.01 Financials are not delivered when required
and such Late Section 7.01 Financials establish that the Applicable Margin would
have been increased to an amount set forth in the table above on the Required
Delivery Date, then such increased Applicable Margin shall be deemed to be
effective as of such Required Delivery Date, and in the event that the Borrower
shall have made any interest payment during the period from the Required
Delivery Date to the actual date of delivery of such Late Section 7.01
Financials based upon any such lower Applicable Margin, then the Borrower shall
pay in the form of a supplemental interest payment, an amount which equals the
difference between the amount of interest which would otherwise have been paid
determined as if the Late Section 7.01 Financials were delivered on the Required
Delivery Date and the amount of such interest so paid, which supplemental
interest payment shall be due and payable on the date of delivery of the Late
Section 7.01 Financials; provided, further, notwithstanding the foregoing, the
Applicable Margin as of the Effective Date shall be (x) 1.05%, in the case of
Eurodollar Loans, and (y) 0.05%, in the case of Base Rate Loans.
"Approved Alternate Currency" shall mean Canadian Dollars,
British Pounds Sterling, Euros, Italian Lira, German Deutsche Marks, Swiss
Francs, French Francs, Belgian Francs, Dutch Guilders, Spanish Pesetas, Danish
Krone and Japanese Yen, and, with respect to any Trade Letter of Credit, any
other currency other than Dollars which is approved by the Letter of Credit
Issuer in respect of such Trade Letter of Credit and the Administrative Agent
prior to the issuance of such Trade Letter of Credit.
"Approved Bank" shall have the meaning set forth in the
definition of Cash Equivalents.
"Asset Sale" shall mean any sale, transfer or other disposition
by the Borrower or any of its Subsidiaries to any Person other than the Borrower
or any Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding any sale, transfer or other disposition by the Borrower or any of its
Subsidiaries of its capital stock or any other securities issued by it) of the
Borrower or such Subsidiary (other than (w) Joint Venture Investments made
pursuant to Section 8.05(l), (x) sales
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of investments held pursuant to Section 8.05(a), (c), (d), (f), (h), (i), (k),
or (n), (y) any sale, transfer or disposition of inventory and/or excess, worn,
outmoded or obsolete equipment in the ordinary course of business of the
Borrower or such Subsidiary and (z) any other sale, transfer or disposition of
assets generating Net Cash Proceeds from such transaction in an amount which,
when added to the Net Cash Proceeds of all other Asset Sales consummated
pursuant to this clause (z), does not exceed $2,500,000).
"Assignment Agreement" shall have the meaning provided in
Section 12.04(b).
"Authorized Officer" shall mean, with respect to any Person, the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, any executive vice president,
any senior vice president, any group vice president, any vice president,
treasurer or secretary of such Person.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement, and shall include any Person which becomes a Bank party to this
Agreement in accordance with Section 12.04(b).
"Bank Affiliate" means, (a) with respect to any Bank, (i) an
Affiliate of such Bank or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Bank or an Affiliate of such
Bank and (b) with respect to any Bank that is a fund which invests in bank loans
and similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Bank or by an Affiliate of such investment advisor.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.02(c) or (ii) a Bank
having notified the Administrative Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 1.01 or under Section
2.02(c), in the case of either clause (i) or (ii) above as a result of the
appointment of a receiver or conservator with respect to such Bank at the
direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" shall mean the higher of (i) the Federal Funds Rate
plus 1/2 of 1% and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Revolving Loan bearing interest
at the rates provided in Section 1.09(a).
"Bidder Bank" shall mean each Bank that has notified in writing
(and has not withdrawn such notice) the Administrative Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
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"Borrower" shall have the meaning provided in the first
paragraph of the Agreement.
"Borrowing" shall mean (i) the incurrence of one Type of
Revolving Loan by the Borrower from all of the Banks on a pro rata basis on a
given date (or resulting from conversions on a given date), having in the case
of Eurodollar Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 1.11(b) shall be considered part of any related
Borrowing of Eurodollar Loans or (ii) a Competitive Bid Borrowing.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in Dollar deposits in the London interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the aggregate
of all expenditures (whether paid in cash or accrued as liabilities, including
Capitalized Lease Obligations but, in any event, excluding interest capitalized
in accordance with GAAP), by the Borrower and its Subsidiaries during that
period that, in conformity with GAAP, are or are required to be included in the
property, plant or equipment reflected in the consolidated balance sheet of the
Borrower and its Subsidiaries.
"Capital Lease," as applied to any Person, shall mean any lease
of any property (whether real, personal or mixed) by such Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
consolidated balance sheet of such Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower and its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Captive Insurance Subsidiary" shall mean AMETEK (Bermuda) Ltd.,
a corporation organized and existing under the laws of Bermuda.
"Cash Collateral Account" shall have the meaning provided in
Section 4.02(A)(a).
"Cash Equivalents" shall mean (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 five years from the date of acquisition, (ii) Dollar denominated time
deposits, certificates of deposit and bankers acceptances of (x) any Bank that
is a commercial bank having capital and surplus in excess of $500,000,000 or (y)
any bank whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof
(any such Bank or bank, an "Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition,
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(iii) commercial paper issued by any Approved Bank or by the parent company of
any 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 one
year after the date of acquisition, (iv) any fund or funds investing solely in
investments of the type described in clauses (i) through (iii) above, (v) shares
of money market or mutual or similar funds having assets in excess of
$100,000,000 investing solely in debt securities with maturities of less than
one year and (vi) debt securities with a rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case may be, of public
companies which (x) are freely tradeable without restriction on a stock exchange
or through a nationally recognized automated quotation system, (y) are purchased
and held as current assets and not for investment and (z) have a maturity of not
more than five years from the issuance thereof.
"Cash Proceeds" shall mean, with respect to any sale, lease,
transfer or other disposition of assets, the aggregate cash payments in
connection therewith (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection therewith, other than the
portion of such deferred payment constituting interest, and including any
amounts received under any noncompete or similar agreement or as disbursement or
withdrawals from any escrow or similar account established in connection with
any such sale, lease, transfer or other disposition, but, in each such case,
only as and when so received).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time, 42 U.S.C.
Section 9601 et seq.
"Change of Control" shall mean (i) any "change of control" or
similar event shall occur under any Senior Note Document or any other agreements
governing or evidencing Indebtedness of the Borrower or any of its Subsidiaries
(including, without limitation, Permitted Refinancing Debt, if any) or (ii) any
Person or group (as such term is defined in Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall have
acquired, directly or indirectly, beneficial ownership (as such term is defined
in Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
outstanding Voting Stock of the Borrower.
"Chase" shall mean The Chase Manhattan Bank, and any successor
corporation thereto by merger, consolidation or otherwise.
"Co-Agent" shall have the meaning provided below the signature
blocks to this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
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"COLI Policy" shall mean a corporate owned life insurance policy
held by the Borrower with respect to certain of its employees.
"Collective Bargaining Agreements" shall mean all collective
bargaining agreements or any other similar agreement or arrangements covering
the employees of the Borrower or any of its Subsidiaries, together with any
agreements referred to in Section 5.01(i)(b) of the Original Credit Agreement,
and any amendments thereto.
"Commitment" shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name in Part A of Schedule I hereto directly
below the column entitled "Commitment," as the same may be (x) reduced from time
to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 12.04.
"Commodities Agreement" shall mean any forward contract, futures
contract, commodity price swap, option contract or similar agreement or
arrangement, in each case intended to protect the Persons entering into same
from fluctuations in the price of, or shortage of supply of, products or other
materials utilized in the businesses permitted by Section 8.08.
"Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Borrower.
"Common Stock Repurchase" shall mean, collectively, the
repurchase of Common Stock by the Borrower pursuant to open market and/or
privately negotiated purchases and/or a cash tender offer in accordance with the
provisions of Section 8.06(b).
"Competitive Bid Borrowing" shall mean a Borrowing of
Competitive Bid Loans pursuant to Section 1.04.
"Competitive Bid Loan" shall have the meaning provided in
Section 1.01(b).
"Consolidated Capital Funds" shall mean, as at any date of
determination, the sum of (i) Consolidated Indebtedness outstanding on such date
and (ii) the Consolidated Net Worth at such date.
"Consolidated Cash Interest Expense" shall mean, for any period,
Consolidated Interest Expense for such period but only to the extent such
Consolidated Interest Expense is payable in cash for such period.
"Consolidated EBIT" shall mean, for any period, the sum of,
without duplication, the amounts for such period of (i) the Consolidated Net
Income of the Borrower and its Subsidiaries, (ii) provisions for taxes based on
income, (iii) Consolidated Interest Expense, and (iv) the amount of any increase
in the Borrower's LIFO reserve (exclusive of any portion thereof attributable to
sales of assets) during such period (and minus any decrease in the Borrower's
LIFO reserve (exclusive of any portion thereof attributable to sales of assets)
during such period), without giving effect to the amount for such period of
gains or losses on sales of assets (excluding sales in the ordinary course of
business other than sales of equipment) and other
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extraordinary or nonrecurring gains or losses, in each case, to the extent
included in determining Consolidated Net Income for such period, all as
determined on a consolidated basis for the Borrower and its Subsidiaries.
"Consolidated EBITDA" shall mean, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated EBIT,
(ii) depreciation expense, (iii) amortization expense and (iv) other non-cash
charges (excluding any non-cash charges recorded in connection with any
restructuring of the Borrower or any of its Subsidiaries), in the case of each
of clauses (ii)-(iv) above to the extent deducted in determining Consolidated
EBIT for such period, all as determined on a consolidated basis for the Borrower
and its Subsidiaries; it being understood and agreed that in determining the
ratio of Consolidated Indebtedness to Consolidated EBITDA, pursuant to Section
8.11 (and not for purposes of calculating the Applicable Facility Fee
Percentage, Applicable Margin or Fixed Charge Coverage Ratio), Consolidated
EBITDA for any period shall be calculated on a pro forma basis (such pro forma
calculations to be made in accordance with GAAP and in a manner satisfactory to
the Administrative Agent) to give effect to any Person or assets acquired during
such period pursuant to a Permitted Acquisition, as if same had been consummated
on the first day of such period and so long as such Person or assets were not
subsequently sold or otherwise disposed of by the Borrower or any of its
Subsidiaries during such period.
"Consolidated Fixed Charges" shall mean, for any period, the
sum, without duplication, of the amounts for such period of (i) Consolidated
Cash Interest Expense, (ii) the payment of all cash income taxes, (iii) all cash
Dividends paid during such period and (iv) the scheduled principal amount of all
amortization payments on all Indebtedness other than Loans, and the principal
portion of rentals under Capitalized Lease Obligations, all as determined on a
consolidated basis for the Borrower and its Subsidiaries.
"Consolidated Indebtedness" shall mean all Indebtedness of the
Borrower and its Subsidiaries required to be accounted for as debt in accordance
with GAAP, determined on a consolidated basis, other than Indebtedness evidenced
by Intercompany Notes; provided that the aggregate principal or invested amount
outstanding under the Permitted Receivables Securitization Program from time to
time shall constitute Consolidated Indebtedness for all purposes of this
Agreement.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of the Borrower and its Subsidiaries determined on a
consolidated basis with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries, including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs (i.e., costs minus benefits) under Interest
Rate Protection Agreements, but excluding, however, amortization of deferred
financing costs to the extent included in total interest expense, all as
determined on a consolidated basis, in each case net of the total interest
income (excluding non-cash interest income on investments issued with original
issue discount) of the Borrower and its Subsidiaries for such period, determined
on a consolidated basis.
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"Consolidated Net Income" shall mean, for any period, net after
tax income (or loss) of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, as at any date of
determination, the stockholders' equity of the Borrower (after deducting
treasury stock) as determined in accordance with GAAP and as would be reflected
on a consolidated balance sheet of the Borrower prepared as of such date.
"Contingent Obligations" shall mean as to any Person (i) any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") 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, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof
and (ii) any Interest Rate Protection Agreement, Currency Agreement and
Commodities Agreement; provided, however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent 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) as determined
by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes and the
Subsidiary Guaranty.
"Credit Event" shall mean the making of a Loan or the issuance
of a Letter of Credit.
"Credit Party" shall mean each of the Borrower and each
Subsidiary Guarantor.
"Creditors" shall have the meaning provided in the Subsidiary
Guaranty.
"Currency Agreement" shall mean any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement designed to protect the Persons entering into same
against fluctuations in currency values.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Designated Parties" shall have the meaning provided in Section
9.04.
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"Dividends" shall have the meaning provided in Section 8.06.
"Documentation Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Dollars" and the sign "$" shall mean freely transferable lawful
money of the United States of America.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any state or territory thereof
(other than AMETEK (FSC) Inc.).
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Assignee" shall have the meaning provided in Section
12.04(b).
"Employee Benefit Plans" shall mean all Plans of the Borrower or
any of its Subsidiaries, and for each such Plan (x) that is a "single-employer
plan" (as defined in Section 4001(a)(15) of ERISA) the most recently completed
actuarial valuation prepared therefor by such Plan's regular enrolled actuary
and the Schedule B, "Actuarial Information" to the IRS Form 5500 (Annual Report)
most recently filed with the Internal Revenue Service and (y) that is a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA), each of the
documents referred to in clause (x) either in the possession of any Credit Party
or available on request from the sponsor or trustees of such Plan, together with
any agreements referred to in Section 5.01(i)(a) of the Original Credit
Agreement, and any amendments thereto.
"Employment Agreements" shall mean all material employment
agreements entered into by the Borrower or any of its Subsidiaries with its
employees, together with any agreements referred to in Section 5.01(i)(d) of the
Original Credit Agreement, and any amendments thereto.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, guideline,
written policy and rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials, including,
without limitation,
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CERCLA; RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 7401
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3808 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., the Hazardous
Material Transportation Act, 49 U.S.C. Section 1801 et seq.; the Occupational
Safety and Health Act, 29 U.S.C. Section 651 et seq.; and any applicable state
and local or foreign counterparts or equivalents.
"ERISA" shall mean 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 date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Borrower or any Subsidiary of the
Borrower would be deemed to be a "single employer" within the meaning of Section
414(b), (c), (m) or (o) of the Code.
"Eurodollar Loans" shall mean each Revolving Loan bearing
interest at the rates provided in Section 1.09(b).
"Eurodollar Rate" shall mean with respect to each Interest
Period, the offered quotation to first-class banks in the London interbank
Eurodollar market by the Administrative Agent for Dollar deposits of amounts in
same day funds comparable to the outstanding principal amount of the Eurodollar
Loan of the Administrative Agent for which an interest rate is then being
determined (or, in the case of a Competitive Bid Loan that is a Spread Borrowing
priced by reference to the Eurodollar Rate, the arithmetic average (rounded to
the nearest 1/100 of 1%) of the offered rates for deposits in Dollars for the
applicable Interest Period (or the period closest to such applicable Interest
Period) which appear on Telerate Screen 3740 or 3750) with maturities comparable
to the Interest Period to be applicable to such Loan, determined as of 10:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period.
"Event of Default" shall have the meaning provided in Section 9.
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01(a).
"Facility Fee" shall have the meaning provided in Section
3.01(a).
"Federal Funds Rate" shall mean 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 which is a Business Day, the average of the quotations for such day on such
transactions received
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by the Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred
to in, Section 3.01.
"Final Maturity Date" shall mean the fifth anniversary of the
Effective Date.
"Fixed Charge Coverage Ratio" for any period shall mean the
ratio of (i) Consolidated EBITDA for such period less all Capital Expenditures
paid in cash during such period to (ii) Consolidated Fixed Charges for such
period.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or any such Subsidiary residing outside the United States of America, which
plan, fund or other similar program provides, or results in, retirement income,
a deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiaries" shall mean each Subsidiary of the
Borrower which is not a Domestic Subsidiary.
"Foreign Subsidiary Guaranty" shall have the meaning provided in
Section 7.13.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the date of this Agreement; it
being understood and agreed that determinations in accordance with GAAP for
purposes of Section 8, including defined terms as used therein, are subject (to
the extent provided therein) to Section 12.07(a).
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contained or
contains, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Environmental Law.
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services payable to sellers thereof or any of such
seller's assignees which in accordance with GAAP would be shown on the liability
side of the balance sheet of such Person, (iii) the Stated Amount of all letters
of credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (iv) 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, (v) all Capitalized Lease Obligations of such
Person, (vi) all obligations of such Person to pay a specified purchase
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price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, and (vii) all Contingent Obligations of
such Person, provided that Indebtedness shall not include trade payables and
accrued expenses, in each case arising in the ordinary course of business.
"Insurance Proceeds" shall mean, with respect to any Recovery
Event, the aggregate cash payments received by the Borrower or any of its
Subsidiaries in respect of such Recovery Event (including any cash payments
received in respect of any condemnation award or the exercise of any power of
eminent domain).
"Intercompany Loan" shall have the meaning provided in Section
8.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit F hereto, evidencing Intercompany Loans.
"Interest Period" shall mean (x) with respect to any Eurodollar
Loan, the interest period applicable thereto, as determined pursuant to Section
1.10 and (y) with respect to any Competitive Bid Loan, the period beginning on
the date of incurrence thereof and ending on the stated maturity thereof.
"Interest Rate Basis" shall mean the Eurodollar Rate and/or such
other basis for determining an interest rate as the Borrower and the
Administrative Agent may agree upon from time to time.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, any interest rate cap agreement, any interest rate collar
agreement or any other similar agreement or arrangement designed to hedge the
risks for a Person with respect to, or otherwise manage, interest rates.
"Joint Venture Investments" shall mean any investment, capital
contribution, advance, loan, or guaranty, or any other investment by the
Borrower or any of its Subsidiaries in a joint venture related to any business
permitted by Section 8.08.
"Joint Venture Letter of Credit Outstandings" shall mean at any
time the aggregate amount of Letter of Credit Outstandings at such time in
respect of Letters of Credit issued on behalf of any Permitted Joint Venture.
"Late Section 7.01 Financials" shall have the meaning provided
in the definition of Applicable Facility Fee Percentage set forth in this
Section 10.
"L/C Facing Fee" shall have the meaning provided in Section
3.01(c).
"L/C Fee" shall have the meaning provided in Section 3.01(b).
"Leasehold" of any Person means all of 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.
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"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Issuer" shall mean (x) Chase, (y) PNC Bank
National Association and (z) with the consent of the Administrative Agent and
the Borrower, any other Bank, to the extent such Bank agrees, in its sole
discretion, to become a Letter of Credit Issuer for the purpose of issuing
Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum
of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit; provided, however, that for purposes of
Sections 1.01, 2.01(b)(i) and 4.02(A)(a), and the definitions of "Joint Venture
Letter of Credit Outstandings" and "Total Unutilized Commitment," in determining
the Letter of Credit Outstandings, the Stated Amount of any outstanding Trade
Letter of Credit denominated in an Approved Alternate Currency shall be deemed
to be an amount equal to 120% of the maximum available amount to be drawn under
such Trade Letter of Credit (regardless of whether any conditions for drawing
could then be met).
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement, any financing or similar statement or notice filed
under the UCC or any similar recording or notice statute or any lease in the
nature thereof).
"Loan" shall mean each Revolving Loan and each Competitive Bid
Loan.
"Management Agreements" shall mean all material agreements (or
the forms thereof) with members of, or with respect to, the management of the
Borrower or any of its Subsidiaries, together with any agreements referred to in
Section 5.01(i)(c) of the Original Credit Agreement, and any amendments thereto.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect
on the business, operations, properties, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.
"Material Subsidiary" shall mean any Domestic Subsidiary having
gross assets with a fair market value (reasonably determined by senior
management of the Borrower in good faith) of at least $3,000,000 and/or
Consolidated EBITDA for the last four fiscal quarters of at least $750,000 (for
purposes of this definition Consolidated EBITDA shall be calculated for such
Subsidiary on a stand-alone basis notwithstanding anything to the contrary
contained in the definition thereof or in any other definition used in the
calculation thereof); provided, however, that in any event the term Material
Subsidiary shall include any Domestic Subsidiary which constitutes a
"Significant Subsidiary" under, and as defined in, the Senior Note Indenture
regardless of whether the above conditions are satisfied.
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"Minimum Assignment Amount" shall mean, with respect to any
assignment by any Bank of its Loans or Commitment hereunder, an amount equal to
$5,000,000.
"Minimum Borrowing Amount" shall mean (i) in the case of
Revolving Loans maintained as (x) Base Rate Loans, $1,000,000 and (y) Eurodollar
Loans, $5,000,000 and (ii) in the case of Competitive Bid Loans denominated in
(x) Dollars, $10,000,000 and (y) Approved Alternate Currencies, the foreign
currency equivalent of $2,000,000 as determined in accordance with Section
12.07(d).
"Moody's" shall mean Moody's Investors Services, Inc.
"Multiemployer Plan" shall have the meaning provided in Section
6.12(a).
"Net Cash Proceeds" shall mean, with respect to any Asset Sale,
the Cash Proceeds resulting therefrom net of (a) cash expenses of sale
(including, without limitation, payment of principal, premium and interest on
Indebtedness and other liabilities other than the Loans) and (b) taxes paid or
payable as a result thereof over and above the taxes which would otherwise have
been payable in the absence of such Asset Sale.
"Net Equity Issuance Proceeds" shall mean the cash proceeds (net
of underwriting discounts and commissions and other reasonable costs associated
therewith) received from the sale of equity.
"Net Insurance Proceeds" shall mean the Insurance Proceeds
received by the Borrower and/or its Subsidiaries with respect to any Recovery
Event net of reasonable costs and expenses associated therewith (including
payment of principal, premium and interest of Indebtedness other than the Loans,
required to be, and which is, repaid under the terms thereof as a result of such
Recovery Event).
"Note" shall have the meaning provided in Section 1.06(a).
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Competitive Bid Borrowing" shall have the meaning
provided in Section 1.04(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.07.
"Notice Office" shall mean the office of the Administrative
Agent at One Chase Manhattan Plaza, New York, New York 10081, or such other
office as the Administrative Agent may designate in writing to the Borrower and
the Banks from time to time.
"Notice of Prepayment" shall have the meaning set forth in
Section 4.01.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent, any Co-
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Agent, any Syndication Agent, the Documentation Agent, or any Bank pursuant to
the terms of this Agreement or any other Credit Document.
"Original Credit Agreement" shall mean the Credit Agreement,
dated as of August 2, 1995, and amended and restated as of September 12, 1996
among the Borrower, various lenders party thereto, certain Co-Agents named
therein and the Administrative Agent.
"Participating Bank" shall have the meaning set forth in Section
2.02.
"Payment Office" shall mean the office of the Administrative
Agent at One Chase Manhattan Plaza, New York, New York 10081, or such other
office as the Administrative Agent may designate in writing to the Borrower and
the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan Refund" shall mean any cash payments (net of
reasonable costs associated therewith, including income, excise and other taxes
payable thereon) received by the Borrower and/or any of its Subsidiaries from
any return of any surplus assets from any single Plan (other than any such
refund the cash payment received with respect to which, when added to the cash
payments received from all other such refunds from any such Plan in the same
fiscal year as such refund, does not exceed $400,000).
"Percentage" shall mean at any time for each Bank, the
percentage obtained by dividing such Bank's Commitment by the Total Commitment,
provided that if the Total Commitment has been terminated, the Percentage of
each Bank shall be determined by dividing such Bank's Commitment immediately
prior to such termination by the Total Commitment immediately prior to such
termination.
"Permitted Acquisition" shall have the meaning set forth in
Section 8.01(i).
"Permitted Acquisition Amount" shall mean, with respect to any
Permitted Acquisition, the aggregate amount paid (including for this purpose all
cash consideration paid and the face amount of all Indebtedness incurred in
connection with such Permitted Acquisition, and all cash paid in respect of any
Permitted Earn-Out Debt incurred in connection with such Permitted Acquisition,
but excluding the fair market value of any Common Stock, if any, issued as
consideration in connection with such Permitted Acquisition) in connection with
such Permitted Acquisition.
"Permitted AMETEK Italia Acquisition" shall mean the acquisition
by AMETEK Italia of a business involving the design, manufacture and/or sale of
motors, effected in compliance with the terms and conditions of Section 8.01(i).
"Permitted AMETEK Italia Debt" shall mean Indebtedness of AMETEK
Italia denominated in Dollars, Italian Lira or German Deutsche Marks, the
proceeds of which are used to finance working capital requirements of AMETEK
Italia and/or to make Capital Expenditures in the ordinary course of its
business, provided that (A) no such Indebtedness shall be guaranteed
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by the Borrower or any of its Subsidiaries, (B) any such Indebtedness shall be
non-recourse to the Borrower and its Subsidiaries (other than AMETEK Italia) and
(C) no Permitted AMETEK Italia Debt may be incurred or assumed which contains
any provision in the documents governing or evidencing the same which, in the
reasonable opinion of the Administrative Agent, would permit a default or event
of default to occur under such Permitted AMETEK Italia Debt based upon the
occurrence of a Default or Event of Default under this Agreement unless any such
Event of Default has resulted in an acceleration under this Agreement. It is
understood and agreed that the aggregate Dollar amount of Permitted AMETEK
Italia Debt outstanding at any time shall be determined at the spot exchange
rate for the currency in question at such time of determination. The incurrence
of Permitted AMETEK Italia Debt shall be deemed to be a representation and
warranty by the Borrower that all conditions thereto have been satisfied and
that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 5.02 and 9.
"Permitted Captive Insurance Investments" shall mean any
investments currently held by the Captive Insurance Subsidiary and any other
investment made by the Captive Insurance Subsidiary in compliance with the
applicable laws and regulations governing the Captive Insurance Subsidiary in
its capacity as a captive insurance entity.
"Permitted Commodities Agreement" shall mean any Commodities
Agreement entered into in the ordinary course of business by the Borrower and/or
any of its Subsidiaries and not for speculative purposes, to the extent
consistent with the practices of the Borrower and its Subsidiaries prior to the
Effective Date.
"Permitted Currency Agreement" shall mean any Currency Agreement
entered into in the ordinary course of business by the Borrower or any
Subsidiary of the Borrower and not for speculative purposes, to the extent
consistent with the practices of the Borrower and its Subsidiaries prior to the
Effective Date.
"Permitted Earn-Out Debt" shall mean Indebtedness of the
Borrower or any of its Subsidiaries incurred in connection with a Permitted
Acquisition and in accordance with Section 8.01(i), which Indebtedness is not
secured by any assets of the Borrower or any of its Subsidiaries (including,
without limitation, the assets so acquired) and is only payable by the Borrower
and its Subsidiaries in the event certain future performance goals are achieved
with respect to the assets acquired; provided that, such Indebtedness shall only
constitute Permitted Earn-Out Debt to the extent the terms of such Indebtedness
expressly limit the maximum potential liability of the Borrower and its
Subsidiaries with respect thereto and all such other terms shall be in form and
substance reasonably satisfactory to the Administrative Agent.
"Permitted Existing Indebtedness" shall have the meaning
provided in Section 6.18.
"Permitted Existing Indebtedness Agreements" shall mean all
agreements evidencing or relating to the Permitted Existing Indebtedness,
together with any agreements referred to in Section 5.01(i)(f) of the Original
Credit Agreement, and any amendments thereto.
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"Permitted Existing Investments" shall mean the investments held
by the Borrower and its Subsidiaries as of the Effective Date and listed on
Schedule IX hereto, but only to the respective date, if any, set forth on such
Schedule IX for the liquidation of any such Permitted Existing Investment.
"Permitted Foreign Investments" shall mean, with respect to any
Foreign Subsidiary, (i) government obligations of the country of such Foreign
Subsidiary's organization, in each case with maturities of not greater than one
year and (ii) investments by such Foreign Subsidiary in banks or other financial
institutions that are not otherwise provided for in the definition of Cash
Equivalents to the extent necessitated by commercial trade requirements or due
to a lack of approved bank investment alternatives as individually approved by a
Senior Financial Officer of the Borrower, in each case, with maturities of less
than six months.
"Permitted Foreign Subsidiary Guaranteed WC Debt" shall mean
Indebtedness of a Foreign Subsidiary (other than AMETEK Italia) the proceeds of
which are used to finance working capital requirements of such Foreign
Subsidiary, it being understood that such Indebtedness may be guaranteed by the
Borrower, provided, however, that no Permitted Foreign Subsidiary Guaranteed WC
Debt (other than up to $5,000,000 of such Debt outstanding under a line of
credit existing as of the Effective Date between the Borrower and certain of its
Foreign Subsidiaries, including Ametek do Brasil, and ABN AMRO Bank (the
"Umbrella Agreement") may be incurred or assumed which contains any provision in
the documents governing or evidencing the same which, in the reasonable opinion
of the Administrative Agent, would permit a default or event of default to occur
under such Permitted Foreign Subsidiary Guaranteed WC Debt based upon the
occurrence of a Default or Event of Default under this Agreement unless any such
Event of Default has resulted in an acceleration under this Agreement. It is
understood and agreed that the aggregate Dollar amount of Permitted Foreign
Subsidiary Guaranteed WC Debt outstanding at any time shall be determined at the
spot exchange rate for the currency in question at such time of determination.
The incurrence of Permitted Foreign Subsidiary Guaranteed WC Debt shall be
deemed to be a representation and warranty by the Borrower that all conditions
thereto have been satisfied and that same is permitted in accordance with the
terms of this Agreement, which representation and warranty shall be deemed to be
a representation and warranty for all purposes hereunder, including, without
limitation, Sections 5.02 and 9.
"Permitted Foreign Subsidiary WC Debt" shall mean Indebtedness
of a Foreign Subsidiary (other than AMETEK Italia) the proceeds of which are
used to finance working capital requirements of such Foreign Subsidiary,
provided that (A) no such Indebtedness shall be guaranteed by the Borrower or
any of its Subsidiaries (other than other Foreign Subsidiaries, except for
AMETEK Italia), (B) any such Indebtedness shall be non-recourse to the Borrower
and its Subsidiaries (other than other Foreign Subsidiaries, except for AMETEK
Italia), and (C) no Permitted Foreign Subsidiary WC Debt may be incurred or
assumed which contains any provision in the documents governing or evidencing
the same which, in the reasonable opinion of the Administrative Agent, would
permit a default or event of default to occur under such Permitted Foreign
Subsidiary WC Debt based upon the occurrence of a Default or Event of Default
under this Agreement unless any such Event of Default has resulted in an
acceleration under this Agreement. It is understood and agreed that the
aggregate Dollar amount of Permitted Foreign Subsidiary WC Debt outstanding at
any time shall be determined at the spot exchange
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rate for the currency in question at such time of determination. The incurrence
of Permitted Foreign Subsidiary WC Debt shall be deemed to be a representation
and warranty by the Borrower that all conditions thereto have been satisfied and
that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 5.02 and 9.
"Permitted Interest Rate Protection Agreements" shall mean any
Interest Rate Protection Agreement entered into in the ordinary course of
business by the Borrower or any Subsidiary of the Borrower and not for
speculative purposes with respect to Indebtedness permitted under Sections
8.03(a), (h), (i) or (r) to the extent consistent with the practices of the
Borrower and its Subsidiaries prior to the Effective Date.
"Permitted Joint Venture" shall mean any Person engaged in
business of the type described in Section 8.08 of which the Borrower shall own,
directly or indirectly, 50% or more, but less than 100%, of the equity and
voting interests and another Person (or group of Persons which acts together in
relation to such Permitted Joint Venture) owns the remaining equity and voting
interests.
"Permitted Liens" shall have the meaning provided in Section
8.02(d).
"Permitted Line of Business Sale" shall have the meaning
provided in Section 8.01(f).
"Permitted Materials" shall have the meaning provided in Section
6.15(c).
"Permitted Receivables Securitization Program" shall mean a
receivables securitization program pursuant to which the Borrower or any of its
Subsidiaries sells or grants a security interest in its accounts receivable or
an undivided interest therein, provided that (i) the aggregate principal or
invested amount outstanding at any time thereunder shall not exceed $75,000,000
and (ii) the recourse of the purchaser or lender thereunder, as the case may be,
for losses resulting from an obligor's failure to pay a receivable due to credit
problems is limited to such accounts receivable or an interest therein, and the
collections thereof (it being understood and agreed that recourse to the
Borrower and its Subsidiaries pursuant to Standard Securitization Undertakings
shall be permitted).
"Permitted Receivables Securitization Transaction" shall mean
the consummation of the Permitted Receivables Securitization Program and related
transactions in accordance with the requirements of Sections 8.01(j) and 8.03(o)
and the component definitions as used therein.
"Permitted Refinancing Debt" shall mean Indebtedness incurred by
the Borrower, the proceeds of which are used to refinance the Senior Notes or
previously issued Permitted Refinancing Debt, so long as (i) at the time of
incurrence thereof (both before and after giving effect thereto) no Default or
Event of Default then exists, (ii) the aggregate principal amount of such
Permitted Refinancing Debt does not exceed the aggregate principal amount of
Senior Notes or Permitted Refinancing Debt then outstanding, (iii) the interest
rate on such Permitted
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Refinancing Debt is no greater than the interest rate on the Senior Notes or the
Permitted Refinancing Debt so refinanced, (iv) the final maturity of such
Permitted Refinancing Debt is no earlier than the final maturity of the Senior
Notes or the Permitted Refinancing Debt so refinanced, (v) there shall be no
scheduled amortization payments on the Permitted Refinancing Debt prior to
September 31, 2008, (vi) no payment or make-whole premium or any other similar
fee is paid in connection with the refinancing of the Senior Notes or the
Permitted Refinancing Debt so refinanced except the payment of a premium, if
any, up to the amount set forth in the Senior Note Documents as in effect on the
Effective Date, (vii) concurrently with the issuance thereof, all proceeds
thereof shall be deposited with the trustee for the payment of all or a portion
of the Senior Notes or Permitted Refinancing Debt so refinanced and (viii) all
of the documents evidencing or governing the terms of such Permitted Refinancing
Debt are delivered to the Banks prior to the incurrence of the Permitted
Refinancing Debt and all of the other terms and conditions thereof, including
the covenants, amortization schedules, interest rate, redemption provisions,
maturity, defaults and remedies are in form and substance satisfactory to, and
approved in writing by, the Administrative Agent and the Required Banks.
"Permitted Senior Note Repurchase" shall mean the redemption,
repurchase or retirement of any Senior Notes or Permitted Refinancing Debt so
long as no Default or Event of Default then exists at such time or would result
therefrom.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of), any Credit Party or any of
its Subsidiaries or any ERISA Affiliate, and each such plan for the five year
period immediately following the latest date on which any Credit Party or any
such Subsidiary or any ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Prime Lending Rate" shall mean the rate which Chase announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Chase may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Projections" shall have the meaning provided in Section
6.10(e).
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 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.
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"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any Insurance Proceeds payable by reason of theft,
physical destruction or damage or any other similar event (including as a result
of any condemnation proceeding or the exercise of the power of eminent domain)
with respect to any properties or assets of the Borrower or any of its
Subsidiaries.
"Register" shall have the meaning provided in Section 1.06(d).
"Regulation D" shall mean 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" shall mean 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.
"Reinvestment Assets" shall mean, with respect to any Asset Sale
or the receipt of any Net Insurance Proceeds from a Recovery Event, assets to be
employed in, and/or the capital stock of any Person engaged in, the types of
businesses permitted in Section 8.08.
"Reinvestment Event" shall mean the consummation of any Asset
Sale, the receipt of any Pension Plan Refund or the receipt of any Net Insurance
Proceeds from a Recovery Event.
"Release" shall mean disposing, discharging, injecting,
spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, releasing, pumping, injecting, depositing, dispersing, migrating and
the like, into or upon land or water or air, or otherwise entering into the
indoor or outdoor environment or into or out of any Real Property, including the
movement of Hazardous Materials through or in the air, soil, surface water,
ground water or property.
"Replaced Bank" shall have the meaning provided in Section 1.14.
"Replacement Bank" shall have the meaning provided in Section
1.14.
"Reply Date" shall have the meaning provided in Section 1.04(b).
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Banks" shall mean Banks whose outstanding Commitments
(or, if after the Total Commitment has been terminated, outstanding Loans and an
amount equal to their Percentages of Letter of Credit Outstandings, at such
time) constitute at least a majority of the Total Commitment (or, if after the
Total Commitment has been terminated, the total outstanding Loans and an amount
equal to the aggregate Percentages of all Banks of Letter of Credit Outstandings
at such time).
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"Required Delivery Date" shall have the meaning provided in the
definition of Applicable Facility Fee Percentage set forth in this Section 10.
"Revolving Loan" shall have the meaning provided in Section
1.01(a).
"Rights Agreement" shall mean the Rights Agreement, dated as of
July 26, 1989 between the Borrower and The Chase Manhattan Bank, as rights agent
thereunder, as amended, modified or supplemented from time to time.
"S&P" shall mean Standard & Poor's Ratings Services, a division
of McGraw-Hill, Inc.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 7.01 Financials" shall mean the financial statements
delivered, or to be delivered, pursuant to Section 7.01(a) or (b).
"Senior Financial Officer" of any Person shall mean the Chief
Financial Officer and any other senior financial officer of such Person
designated as such in writing to the Administrative Agent by the Chief Financial
Officer of such Person.
"Senior Note Documents" shall mean the Senior Notes, the Senior
Note Indenture and all other documents and agreements entered into in connection
therewith.
"Senior Note Indenture" shall mean the Indenture, dated as of
July 17, 1998 among the Borrower and Chase Manhattan Trust Company, National
Association, as trustee, as in effect on the Effective Date and as amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Senior Notes" shall mean the $225,000,000 aggregate principal
amount of the Borrower's Senior Notes due 2008, as in effect on the Effective
Date and as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
"Shareholders Agreements" shall mean all agreements entered into
by the Borrower or any of its Subsidiaries governing the terms and relative
rights of its capital stock and any agreements entered into by shareholders
relating to any such entity with respect to their capital stock, together with
any agreements referred to in Section 5.01(i)(e) of the Original Credit
Agreement, and any amendments thereto.
"Spread" shall mean a percentage per annum in excess of, or less
than, an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid Borrowing with
respect to which the Borrower has requested the Banks to make Competitive Bid
Loans at a Spread over or under a specified Interest Rate Basis.
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"Standard Securitization Undertakings" means representations,
warranties, covenants, indemnities and such other obligations of the Borrower or
any of its Subsidiaries in connection with the Permitted Receivables
Securitization Program which are customary in an off-balance-sheet accounts
receivable transaction.
"Standby Letter of Credit" shall have the meaning set forth in
Section 2.01(a).
"Stated Amount" of each letter of credit (including any Letter
of Credit issued hereunder) shall mean the maximum amount available to be drawn
thereunder (regardless of whether any conditions for drawing could then be met);
provided, however, for purposes of Sections 2.01(b)(i) and 2.01(b)(viii) the
Stated Amount of any Trade Letter of Credit denominated in an Approved Alternate
Currency shall be an amount equal to 120% of the maximum available amount to be
drawn thereunder (regardless of whether any conditions for drawing could then be
met).
"Stock Option Plans" shall mean the 1981 Employees'
Non-Qualified Stock Option and Stock Appreciation Rights Plan of AMETEK, Inc.,
as amended; the 1983 Employees' Incentive Stock Option Plan of AMETEK, Inc., as
amended; the 1987 Employees' Stock Incentive Plan of AMETEK, Inc., as amended;
the 1991 Stock Incentive Plan of AMETEK, Inc., as amended; and any similar
replacement or other plans which provide for stock options, restricted stock
awards, stock appreciation rights, phantom stock awards and other similar
options, awards and rights established by the Borrower after the Effective Date.
"Subsidiary" of any Person shall mean and include (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, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each of (i) each Domestic
Subsidiary of the Borrower existing on the Effective Date and (ii) such other
Subsidiaries of the Borrower that become a Subsidiary Guarantor by executing and
delivering to the Administrative Agent, a counterpart of a Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01(g), and shall also include any Foreign Subsidiary Guaranty when executed
and delivered in accordance with the terms hereof.
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
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"Tax Sharing Agreements" shall mean all tax sharing, tax
allocation and other similar agreements, if any, entered into by the Borrower
and/or any of its Subsidiaries, together with any agreements referred to in
Section 5.01(i)(g) of the Original Credit Agreement, and any amendments thereto.
"Taxes" shall have the meaning provided in Section 4.04.
"Test Period" shall mean the four consecutive fiscal quarters of
the Borrower then last ended.
"Total Commitment" shall mean the sum of the Commitments of each
of the Banks.
"Total Unutilized Commitment" shall mean, at any time, the
excess, if any, of (i) the Total Commitment over (ii) the sum of (x) the
outstanding principal amount of all Loans plus (y) the Letter of Credit
Outstandings, in each case at such time.
"Trade Letter of Credit" shall have the meaning set forth in
Section 2.01(a).
"Transaction" shall mean the (i) payment of all outstanding
Obligations (as defined therein) under the Original Credit Agreement and (ii)
the incurrence of Loans and issuance of Letters of Credit, if any, on the
Effective Date.
"Type" shall mean any type of Revolving Loan determined with
respect to the interest option applicable thereto, i.e., a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount,
if any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent plan year, determined in
accordance with Statement of Financial Accounting Standards No. 35, based upon
the actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Treasury Regulations Section
1.412(c)(2)-1(c)(1).
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Voting Stock" shall mean the shares of capital stock and any
other securities of any Person entitled to vote generally for the election of
directors of such Person or any other securities (including, without limitation,
rights and options), convertible into, exchangeable into or exercisable for, any
of the foregoing (whether or not presently exercisable, convertible or
exchangeable).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership,
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association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device, telegraph
or cable.
SECTION 11. The Administrative Agent, Co-Agents, Syndication
Agents, Documentation Agent, etc.
11.01 Appointment. Each Bank hereby irrevocably designates and
appoints The Chase Manhattan Bank as Administrative Agent, each of Allfirst
Bank, Fleet National Bank, IntesaBci, Mellon Bank, SunTrust Bank and The Bank of
New York as a Co-Agent, each of PNC Bank National Association and First Union
National Bank as a Syndication Agent and Bankers Trust Company, as Documentation
Agent for such Bank to act as specified herein and in the other Credit
Documents, and each such Bank hereby irrevocably authorizes The Chase Manhattan
Bank as the Administrative Agent, Allfirst Bank, Fleet National Bank, IntesaBci,
Mellon Bank, SunTrust Bank and The Bank of New York as Co-Agents, PNC Bank
National Association and First Union National Bank as Syndication Agents and
Bankers Trust Company, as Documentation Agent for such Bank, to take such action
on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent, the Co-Agents, the Syndication Agents,
and the Documentation Agent as the case may be, by the terms of this Agreement
and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent, the Co-Agents, the
Syndication Agents and the Documentation Agent each agree to act as such upon
the express conditions contained in this Section 11. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent, the Co-Agents, the Syndication Agents nor the
Documentation Agent shall have any duties or responsibilities, except those
expressly set forth herein or in the other Credit Documents, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent, any Co-Agent, any
Syndication Agent or the Documentation Agent; provided, further, that the duties
of the Syndication Agents, the Co-Agents, the Documentation Agent shall be
nominal and titular in nature. The provisions of this Section 11 are solely for
the benefit of the Administrative Agent, the Co-Agents, the Syndication Agents,
the Documentation Agent, and the Banks, and neither the Borrower nor any of its
Subsidiaries 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, the Co-Agents, the Syndication Agents and the
Documentation Agent each shall act solely as agent of the Banks and the
Administrative Agent, the Co-Agents, the Syndication Agents and the
Documentation Agent each do 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.
11.02 Delegation of Duties. The Administrative Agent, the
Co-Agents, the Syndication Agents and the Documentation Agent each may execute
any of its duties under this Agreement or any other Credit Document by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative
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Agent, the Co-Agents, the Syndication Agents and the Documentation Agent each
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 Exculpatory Provisions. Neither the Administrative Agent
nor any Co-Agent nor any Syndication Agent nor the Documentation Agent nor any
of their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Banks 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 Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent and/or any Co-Agent
and/or the Syndication Agent and/or the Documentation Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any of its Subsidiaries or any of their respective officers
to perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor any Co-Agent nor any Syndication Agent nor the Documentation Agent
shall be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrower or any of its Subsidiaries. Neither the Administrative Agent nor any
Co-Agent nor any Syndication Agent nor the Documentation Agent shall be
responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any Credit
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 and/or any Co-Agent and/or any Syndication Agent and/or the Documentation
Agent to the Banks by or on behalf of the Borrower or any of its Subsidiaries to
the Administrative Agent and/or any Co-Agent and/or any Syndication Agent and/or
the Documentation Agent or any Bank 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.
11.04 Reliance by the Administrative Agent, Co-Agents,
Syndication Agents, the Documentation Agent etc. The Administrative Agent, the
Co-Agents, the Syndication Agents and the Documentation Agent each shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Credit Parties), independent accountants and other experts selected by the
Administrative Agent and/or any such Co-Agent and/or any Syndication Agent
and/or the Documentation Agent. The Administrative Agent, the Co-Agents, the
Syndication Agents and the Documentation Agent each shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or
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concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent, the Co-Agents, the Syndication Agents
and the Documentation Agent each shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks.
11.05 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 it has received notice from a Bank or the Borrower or
any other Credit Party referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, it shall give prompt
notice thereof to the Banks. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Banks, provided 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 Banks.
11.06 Non-Reliance on Administrative Agent, Co-Agents,
Syndication Agents, Documentation Agent and Other Banks. Each Bank expressly
acknowledges that neither the Administrative Agent nor any Co-Agent nor any
Syndication Agent nor the Documentation Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the
Administrative Agent, any Co-Agent, any Syndication Agent or the Documentation
Agent hereinafter taken, including 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, any Co-Agent, any Syndication Agent or the
Documentation Agent to any Bank. Each Bank represents to the Administrative
Agent, the Co-Agents, the Syndication Agents and the Documentation Agent that it
has, independently and without reliance upon the Administrative Agent, any
Co-Agent, any Syndication Agent, the Documentation Agent, or any other Bank, 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
Credit Parties and made its own decision to make its Loans, and participate in
Letters of Credit, hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent or any Co-Agent or any Syndication Agent or the
Documentation Agent or any other Bank, 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 Credit Parties. Neither the
Administrative Agent nor any Co-Agent nor any Syndication Agent nor the
Documentation Agent shall have any duty or responsibility to provide any Bank
with any credit or other information concerning the business, operations,
assets, property, financial and other conditions, prospects or creditworthiness
of any Credit Party which may come into the
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possession of the Administrative Agent or such Co-Agent or such Syndication
Agent or such Documentation Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.
11.07 Indemnification. The Banks agree to indemnify each of the
Administrative Agent, each Co-Agent, each Syndication Agent and the
Documentation Agent in its capacity as such ratably according to their
respective "percentages" as used in determining the Required Banks at such time
(or if the Total Commitment has been terminated and all Loans have been repaid,
their respective "percentages" used in determining the Required Banks
immediately prior to such termination and repayment), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, reasonable expenses or disbursements of any kind whatsoever which
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 Co-Agent or such Syndication Agent or such
Documentation Agent in its capacity as such in any way relating to or arising
out of this Agreement or any other Credit 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
Co-Agent or such Syndication Agent or such Documentation Agent 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 or any of its Subsidiaries, provided that
no Bank shall be liable to the Administrative Agent or any Co-Agent or any
Syndication Agent or the Documentation Agent for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the gross
negligence or willful misconduct of the Administrative Agent or such Co-Agent or
such Syndication Agent or such Documentation Agent, as the case may be. If any
indemnity furnished to the Administrative Agent or any Co-Agent or any
Syndication Agent or the Documentation Agent for any purpose shall, in the
opinion of the Administrative Agent or such Co-Agent or such Syndication Agent
or such Documentation Agent, be insufficient or become impaired, the
Administrative Agent or such Co-Agent or such Syndication Agent or such
Documentation 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 11.07 shall survive the payment of all
Obligations.
11.08 Individual Capacity. The Administrative Agent, each
Co-Agent, each Syndication Agent, the Documentation Agent and their respective
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or any of its Subsidiaries as though the
Administrative Agent or such Co-Agent or such Syndication Agent or such
Documentation Agent were not the Administrative Agent, a Co-Agent, a Syndication
Agent or the Documentation Agent hereunder. With respect to the Loans made by it
and all Obligations owing to it, the Administrative Agent, each Co-Agent, each
Syndication Agent and the Documentation Agent shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not the Administrative Agent, a Co-Agent, a Syndication Agent or the
Documentation Agent and the terms "Required Banks," "Bank" and "Banks" shall
include the Administrative Agent, each Co-Agent, each Syndication Agent and the
Documentation Agent in each of their respective individual capacity.
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11.09 Resignation; Successors. The Administrative Agent and/or
each Co-Agent and/or the Documentation Agent and/or each Syndication Agent may
resign as the Administrative Agent or a Co-Agent or a Syndication Agent or the
Documentation Agent, as the case may be, upon 20 days' notice to the Banks. To
the extent not prohibited by law, the Administrative Agent shall send a copy of
any such resignation notice to the Borrower. Upon the resignation of the
Administrative Agent (including in its capacity as a Co-Agent), the Required
Banks shall appoint from among the Banks a successor Administrative Agent for
the Banks subject to prior approval by the Borrower (such approval not to be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent effective upon its
appointment, and the resigning Administrative Agent's rights, powers and duties
as the Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement. After the retiring Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this Section 11 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. In the event no successor
Administrative Agent has been appointed by the end of such 20 day period, the
resignation of the Administrative Agent shall become effective and the Required
Banks shall perform the duties of the Administrative Agent until a successor
Administrative Agent is appointed.
11.10 Holders. The Administrative Agent, the Co-Agents, the
Syndication Agents and the Documentation Agent each may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange thereof.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of White & Case LLP and any consultants
retained by the Administrative Agent) and in connection with the Administrative
Agent's syndication efforts with respect to this Agreement; (ii) pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent and each
of the Banks in connection with the enforcement of the Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent
and for each of the Banks); (iii) pay and hold each of the Banks harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Banks 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 such Bank) to pay such taxes;
and (iv) indemnify the
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Administrative Agent, each Co-Agent, each Syndication Agent, the Documentation
Agent and each Bank, their respective officers, directors, employees,
representatives and agents (each, an "indemnified person") from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, regardless of when any such indemnified matter
arises, (a) any investigation, litigation or other proceeding (whether or not
the Administrative Agent, any Co-Agent, any Syndication Agent, the Documentation
Agent or any Bank is a party thereto and whether or not any such investigation,
litigation or other proceeding is between or among the Administrative Agent, any
Co-Agent, any Syndication Agent, the Documentation Agent, any Bank, any Credit
Party or any third Person or otherwise) related to the entering into and/or
performance of any Credit Document or the use of the proceeds of any Loans or
Letter of Credit hereunder or any other aspect of the Transaction or the
consummation of any other transactions contemplated in any Credit Document, (b)
any settlement entered into in connection with the foregoing to the extent such
settlement has been consented to by the Borrower, which consent shall not be
unreasonably withheld or (c) the actual or alleged presence, generation or
Release of Hazardous Materials on or from, or the transportation of Hazardous
Materials to or from, any Real Property owned or operated at any time by the
Borrower or any of its Subsidiaries, the non-compliance of any such Real
Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any such Real
Property, or any Environmental Claim with respect to the Borrower or any of its
Subsidiaries or any such Real Property, in each case including, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation,
Environmental Claim or any of such Credit Party's acts, omissions, business,
operations or Real Property, 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 indemnified person). To the extent
that the undertaking to indemnify and hold harmless set forth in this Section
12.01 may be unenforceable because it is violative of any law or public policy
as determined by a final judgment of a court of competent jurisdiction, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the liabilities giving rise to claims under the indemnification
provisions of this 12.01 which is permissible under applicable law.
12.02 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 of an Event of Default, each
Bank 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 any of its
Subsidiaries 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 Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of the Borrower or any of its
Subsidiaries against and on account of the Obligations and liabilities of the
Borrower or any of its Subsidiaries to such Bank under this Agreement or under
any of the other Credit Documents, including, without limitation, all interests
in Obligations of the Borrower purchased by such Bank pursuant to Section
12.06(b), and all other claims of any nature or description arising out of or
connected with this Agreement or any other Credit Document, irrespective of
whether or not
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such Bank shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured. Each
Bank shall promptly notify the Borrower in writing after exercising any of its
rights pursuant to this Section 12.02.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
and mailed, telegraphed, telexed, telecopied, cabled or delivered, if to the
Borrower, at the address specified opposite its signature below; if to any Bank,
at its address specified for such Bank specified on Part B of Schedule I hereto,
provided, however, that in respect to regular reporting obligations of the
Borrower set forth in Sections 7.01(a) and (b), all notices and other
communications provided for therein, if to any Bank, may be satisfied by way of
electronic distribution; if to the Administrative Agent, at its Notice Office;
or, at such other address as shall be designated by any party in a written
notice to the other parties hereto. All such notices and communications shall be
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, and shall be effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder (except as expressly
provided herein) without the prior written consent of the Banks. Each Bank may
at any time grant participations in any of its rights hereunder or under any of
the Notes to a Person that is a commercial bank, other financial institution,
mutual fund, "Accredited Investor" as such term is defined in Regulation D of
the Securities Act of 1933, as amended, or Bank Affiliate provided that in the
case of any such participation, the participant shall not have any rights under
this Agreement or any of the other Credit Documents (the participant's rights
against such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation, except that the participant shall be
entitled to the benefits of Sections 1.11, 1.12, 2.05, and 4.04 of this
Agreement to the extent that such Bank would be entitled to such benefits if the
participation had not been entered into or sold, and provided further, that no
Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
an installment on, the application of any prepayment or the method of any
application of any prepayment to the amortization of the Loans shall not
constitute an extension of the final scheduled maturity date) 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 or of a
mandatory reduction in the Total Commitment, or a mandatory prepayment, shall
not constitute a change in the terms of any Commitment and that an increase in
any Commitment shall be permitted without the consent of any participant if such
participant's participation is not increased as a result thereof), or (ii)
consent to the assignment or transfer by
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the Borrower of any of its rights and obligations under this Agreement or any
other Credit Document (except as expressly provided herein or therein).
(b) Notwithstanding the foregoing, (x) any Bank may assign all
or a portion of its Loans and/or Commitment and its rights and obligations
hereunder to its parent company and/or any Bank Affiliate of such Bank or its
parent company or to one or more Banks and (y) any Bank may assign a portion, in
an amount equal to at least the Minimum Assignment Amount (or the remaining
balance thereof if less) of its Loans and/or Commitment and its rights and
obligations hereunder to a Person that is a commercial bank, other financial
institution, mutual fund or "Accredited Investor" as such term is defined in
Regulation D of the Securities Act of 1933, as amended (each, an "Eligible
Assignee"), each of which Eligible Assignees shall be reasonably acceptable to
the Administrative Agent and the Borrower, provided, however, the consent of the
Borrower shall not be required during the continuance of an Event of Default,
and shall become a party to this Agreement as a Bank after the Effective Date by
executing an assignment agreement substantially in the form of Exhibit H hereto,
appropriately completed (an "Assignment Agreement") with the assigning Bank,
provided that, in each case, (i) at such time Schedule I shall be deemed to have
been modified to reflect the Commitment of such new Bank and of the existing
Banks, (ii) if requested by such new Bank or the assigning Bank, the Borrower
shall issue new Notes to such new Bank and to the assigning Bank in conformity
with the requirements of Section 1.06 to the extent needed to reflect the
revised Commitments, and (iii) the Administrative Agent shall have received at
the time of each such assignment from either the assigning or assignee Bank the
payment of a nonrefundable assignment fee of $3,500. To the extent of any
assignment pursuant to this Section 12.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned Loans and/or
Commitment. No Bank may assign all or a portion of its Commitment to an Eligible
Assignee not already a Bank hereunder unless each Letter of Credit Issuer shall
have consented in writing to such assignment. At the time of each assignment
pursuant to this Section 12.04(b) to a Person which is not already a Bank
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income taxes, the respective
assignee Bank shall, to the extent legally entitled to do so, provide to the
Borrower the forms described in Section 4.04(b)(ii). Nothing in this Section
12.04(b) shall prevent or prohibit any Bank from pledging its Loans or Notes
hereunder to a Federal Reserve Bank in support of borrowings made by such Bank
from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 12.04,
no transfer or assignment of the interests or obligations of any Bank hereunder
or any grant of participations therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
or qualify an indenture with the SEC or to qualify the Loans under the "Blue
Sky" laws of any State.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent, any Co-Agent, any Syndication Agent, the
Documentation Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and the Administrative Agent, any Co-Agent, any Syndication
Agent, the Documentation Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder
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or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Administrative Agent, any
Co-Agent, any Syndication Agent, the Documentation Agent or any Bank would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent, any Co-Agent, any Syndication Agent, the Documentation Agent or the Banks
to any other or further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided by
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations,
it shall, except as otherwise provided in this Agreement, distribute such
payment to the Banks (other than any Bank that has consented in writing to waive
its pro rata share of such payment) pro rata based upon their respective shares,
if any, of the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive 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 Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligations then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
in such amount as shall result in a proportional participation by all of the
Banks in such amount, provided that if all or any portion of such excess amount
is thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks), provided that, except as otherwise specifically
provided herein, all computations determining compliance with Section 8,
including definitions used therein, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the 2000 historical financial statements delivered to the
Banks pursuant to Section 6.10(b).
(b) All computations of interest, Facility Fees and other Fees
hereunder shall be made on the actual number of days elapsed over a year of 360
days.
(c) All determinations of the Stated Amount of Letters of Credit
and of the principal amount of Unpaid Drawings, in each case to the extent
denominated in a currency other than Dollars, shall be made by converting same
into Dollars at (x) in the case of a determination
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of the Borrower's obligation to reimburse in Dollars a drawing under a Letter of
Credit denominated in a currency other than Dollars or of each Participating
Bank's obligation pursuant to Section 2.02(c) to pay the amount of such
Participating Bank's Percentage of an unreimbursed payment in respect of any
such Letter of Credit, the spot exchange rate for the currency in question of
the respective Letter of Credit Issuer on the date of such drawing or (y) if the
provisions of the foregoing clause (x) are not applicable, the spot exchange
rate for the currency in question calculated by the Administrative Agent on the
last day of the month preceding the month in which any such determination is
being made and at such other times as the Administrative Agent elects to make
such determination, it being understood that the Administrative Agent shall have
no obligation to make any such other determinations.
(d) All determinations of the principal amount of Competitive
Bid Loans denominated in a currency other than Dollars shall be made by
converting same into Dollars at the spot exchange rate for the currency in
question calculated by the Administrative Agent on the last day of the month
preceding the month in which any such determination is being made and at such
other times as the Administrative Agent elects to make such determination, it
being understood that the Administrative Agent shall have no obligation to make
any such other determinations.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; TRIAL BY
JURY. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT
LACKS JURISDICTION OVER THE BORROWER. IF FOR ANY REASON THE BORROWER CEASES TO
MAINTAIN AN OFFICE IN NEW YORK CITY, THE BORROWER AGREES TO DESIGNATE, APPOINT
AND EMPOWER A DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND
FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH
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ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE BORROWER, AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH
MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY CREDIT DOCUMENT THAT
SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR THE HOLDER OF ANY NOTE
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
(B) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE
AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE BORROWER AND EACH BANK IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR JURISDICTION,
INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT
OF ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
12.09 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 instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which (i) each of the Borrower, the
Administrative Agent, each Co-Agent, each Syndication Agent, the Documentation
Agent and each Bank shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent
at its Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written, telex or
telecopy notice (actually received) at such office that the same has been signed
and mailed to it and (ii) the conditions contained in Sections 5 and 6 are met
to the satisfaction of the Administrative Agent, the Co-Agents, the Syndication
Agents, the Documentation Agent and the Required Banks (determined immediately
after the occurrence of the Effective Date). Unless the Administrative Agent has
received actual notice from any Bank that the conditions contained in Sections 5
and 6
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have not been met to its satisfaction, upon the satisfaction of the condition
described in clause (i) of the immediately preceding sentence and upon the
Administrative Agent's good faith determination that the conditions described in
clause (ii) of the immediately preceding sentence have been met, then the
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been
met (although the occurrence of the Effective Date shall not release the
Borrower from any liability for failure to satisfy one or more of the applicable
conditions contained in Section 5 or 6). The Administrative Agent will give the
Borrower and each Bank prompt written notice of the occurrence of the Effective
Date.
12.11 Headings Descriptive. The headings of the several sections
and subsections 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.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
affected thereby, (i) extend the final scheduled maturity of any Unpaid Drawing,
Loan or Note (it being understood that any waiver of an installment on, the
application of any prepayment or the method of application of any prepayment to
the amortization of the Loans shall not constitute an extension of the final
scheduled maturity date), or reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or Fees, or reduce the amount
thereof, (ii) amend, modify or waive any provision of this Section, (iii) reduce
the percentage specified in the definition of Required Banks (it being
understood that, with the consent of the Required Banks, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Banks on substantially the same basis as an extension of Loans, Letters
of Credit and Commitments are included on the Effective Date), or (iv) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under any Credit Document (except as expressly provided herein or
therein); provided further, that no such change, waiver, discharge or
termination shall (w) increase the Commitment of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitment of such Bank), (x) without the consent of each Letter
of Credit Issuer, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit or (y) without the
consent of the Administrative Agent, the Co-Agents, the Syndication Agents or
the Documentation Agent, respectively, amend, modify or waive any provision of
Section 11 as same applies to such Administrative Agent, Co-Agent, Syndication
Agents or the Documentation Agent, as the case may be, or any other provision as
same relates to the rights or obligations of such Administrative Agent,
Co-Agent, Syndication Agent or the Documentation Agent, as the case may be.
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(b) If, in connection with any proposed change, waiver,
discharge or termination of any of the provisions of this Agreement as
contemplated by clauses (i) through (iv), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right to replace each such non-consenting Bank
or Banks (so long as all non-consenting Banks are so replaced) with one or more
Replacement Banks pursuant to Section 1.14 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination, provided that the Borrower shall not have the right to
replace a Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to the second proviso
to Section 12.12(a).
(c) Notwithstanding anything to the contrary contained above in
this Section 12.12, the Administrative Agent may enter into amendments to the
Subsidiary Guaranty for the purpose of adding Subsidiaries of the Borrower to
the Subsidiary Guaranty without the consent of the Required Banks.
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.11, 1.12, 2.05, 2.06, 4.04, 11.07 or 12.01
shall survive the execution and delivery of this Agreement and the making and
repayment of the Loans and the satisfaction of all other Obligations.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans or participations at, to or for the account of any branch office,
subsidiary or affiliate of such Bank, provided that the Borrower shall not be
responsible for costs arising under Section 1.11, 1.12, 2.05, or 4.04 resulting
from any such transfer (other than a transfer pursuant to Section 1.13) to the
extent such costs would not otherwise be applicable to such Bank prior to such
transfer.
12.15 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 12.15, each Bank agrees that it will use its best efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information, provided such Persons shall be
subject to the provisions of this Section 12.15 to the same extent as such Bank)
any information with respect to the Borrower or any of its Subsidiaries which is
now or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by the Borrower in writing as confidential,
provided that any Bank may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or to the
Federal Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in respect to any summons or subpoena or
in connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, (e) to the Administrative Agent
and (f) to any prospective or actual transferee or participant in connection
with any contemplated or actual transfer or participation of any of the Notes or
Commitment or any interest therein by such Bank, provided that such
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prospective transferee or participant executes an agreement with such Bank
containing provisions substantially the same as to those contained in this
Section.
(b) The Borrower hereby acknowledges and agrees that each Bank
may share with any of its affiliates any information related to the Borrower or
any of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its
Subsidiaries), provided such Persons shall be subject to the provisions of this
Section 12.15 to the same extent as such Bank.
* * *
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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.
Address: AMETEK, INC.
37 North Valley Building 4
P.O. Box 1764
Paoli, Pennsylvania 19301-0801 By: /s/ Deirdre D. Saunders
Telephone No.: 610-647-2121 --------------------------------------------------
Telecopier No.: 610-647-0211 Title: Vice President & Treasurer
Attention: Chief Financial Officer
THE CHASE MANHATTAN BANK,
Individually and as the Administrative Agent
By: /s/ Gail Weiss
--------------------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK,
Individually and as a Syndication Agent
By: /s/ Jorge A. Gonzalez
--------------------------------------------------
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually and as a Syndication Agent
By: /s/ Denise D. Killen
--------------------------------------------------
Title: Vice President
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BANKERS TRUST COMPANY, Individually
and as Documentation Agent
By: /s/ Diane F. Rolfe
--------------------------------------------------
Title: Vice President
ALLFIRST BANK
By: /s/ Theodore K. Oswald
--------------------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Beth Goodman
--------------------------------------------------
Title: Vice President
IntesaBci, New York Branch
By: /s/ Charles W Kennedy
--------------------------------------------------
Title FVP & Deputy Manager
By: /s/ E. Bermant
--------------------------------------------------
Title FVP & Deputy Manager
MELLON BANK,
By: /s/ Mark Torie
--------------------------------------------------
Title: Vice President
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SUNTRUST BANK
By: /s/ Paul R. Belivenu
--------------------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ David S. Csatari
--------------------------------------------------
Title: Assistant Vice President
ABN AMRO BANK N.V.
By: /s/ Donald Sutton
--------------------------------------------------
Title: Group Vice President and Director
By: /s/ Juliette Mound
--------------------------------------------------
Title: Vice President
COMERICA BANK
By: /s/ Robert P. Wilson
--------------------------------------------------
Title: Assistant Vice President
The following Banks each named as a Co-Agent:
ALLFIRST BANK
FLEET NATIONAL BANK
IntesaBci
MELLON BANK
SUNTRUST BANK
THE BANK OF NEW YORK
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