Exhibit 10.7
REVOLVING CREDIT AGREEMENT
by and among
BDM INTERNATIONAL, INC.,
THE LENDERS PARTY HERETO,
CORESTATES BANK, N.A.,
As Co-Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
As Agent
dated as of September 7, 1995
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . 14
2.1. Description of Facility . . . . . . . . . . . . . . . . 14
2.2. Availability of Facility . . . . . . . . . . . . . . . . 14
2.3. Committed Advances . . . . . . . . . . . . . . . . . . . 14
2.3.1. Commitment . . . . . . . . . . . . . . . . . . 14
2.3.2. Ratable Loans; Types of Advances . . . . . . . 14
2.3.3. Minimum Amount of Each Committed Advance . . . 14
2.3.4. Applicable Margin . . . . . . . . . . . . . . . 15
2.3.5. Method of Selecting Types and Interest Periods for
New Committed Advances . . . . . . . . . . . . 16
2.3.6. Conversion and Continuation of Outstanding
Advances . . . . . . . . . . . . . . . . . . 16
2.4. Competitive Bid Advances . . . . . . . . . . . . . . . . 17
2.4.1. Competitive Bid Option; Repayment of
Competitive Bid Advances . . . . . . . . . . . 17
2.4.2. Competitive Bid Quote Request . . . . . . . . . 17
2.4.3. Invitation for Competitive Bid Quotes . . . . . 18
2.4.4. Submission and Contents of Competitive Bid
Quotes . . . . . . . . . . . . . . . . . . . 18
2.4.5. Notice to Borrower . . . . . . . . . . . . . . 19
2.4.6. Acceptance and Notice by Borrower . . . . . . . 19
2.4.7. Allocation by the Agent . . . . . . . . . . . . 19
2.4.8. Administration Fee . . . . . . . . . . . . . . 20
2.5. Method of Borrowing . . . . . . . . . . . . . . . . . . 20
2.6. Fees . . . . . . . . . . . . . . . . . . . . . . . . 20
2.6.1. Commitment Fee . . . . . . . . . . . . . . . . 20
2.6.2. Facility Fee . . . . . . . . . . . . . . . . . 20
2.6.3. Agent Fees . . . . . . . . . . . . . . . . . . 20
2.7. Reductions in Aggregate Commitment; Principal
Payments . . . . . . . . . . . . . . . . . . . . . . . 21
2.7.1. Reductions in Aggregate Commitment . . . . . . 21
2.7.2. Principal Payments . . . . . . . . . . . . . . 21
2.8. Changes in Interest Rate. etc. . . . . . . . . . . . . . 21
2.9. Rates Applicable After Default . . . . . . . . . . . . . 21
2.10. Method of Payment . . . . . . . . . . . . . . . . . . . 22
2.10.1. General . . . . . . . . . . . . . . . . . . . . 22
2.10.2. Currency of Payment . . . . . . . . . . . . . . 22
2.11. Notes; Telephonic Notices . . . . . . . . . . . . . . . 22
2.12. Interest Payment Dates; Interest and Fee Basis . . . . . 23
2.13. Notification by Agent . . . . . . . . . . . . . . . . . 23
2.14. Lending Installations . . . . . . . . . . . . . . . . . 23
2.15. Non-Receipt of Funds by the Agent . . . . . . . . . . . 23
2.16. Withholding Tax Exemption . . . . . . . . . . . . . . . 24
2.17. Change in Circumstances . . . . . . . . . . . . . . . . 24
2.17.1. Taxes . . . . . . . . . . . . . . . . . . . . . 24
2.17.2. Yield Protection . . . . . . . . . . . . . . . 25
2.17.3. Changes in Capital Adequacy Regulations . . . . 26
2.17.4. Availability of Types of Advances . . . . . . . 26
2.17.5. Funding Indemnification . . . . . . . . . . . . 26
2.17.6. Mitigation of Additional Costs;
Replacement of Lenders . . . . . . . . . . . 26
2.17.7. Lender Statements; Survival of Indemnity . . . 27
2.18. Market Disruption . . . . . . . . . . . . . . . . . . . 27
ARTICLE III THE LETTER OF CREDIT SUBFACILITY . . . . . . . . . . . . 28
3.1. Obligation to Issue . . . . . . . . . . . . . . . . . . 28
3.2. Types and Amounts . . . . . . . . . . . . . . . . . . . 28
3.3. Conditions . . . . . . . . . . . . . . . . . . . . . . . 28
3.4. Procedure for Issuance of Facility Letters of Credit . . 29
3.5. Reimbursement Obligations; Duties of Issuing Banks . . . 30
3.6. Participation . . . . . . . . . . . . . . . . . . . . . 31
3.7. Payment of Reimbursement Obligations . . . . . . . . . . 32
3.8. Compensation for Facility Letters of Credit . . . . . . 32
3.9. Letter of Credit Collateral Account . . . . . . . . . . 33
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . 33
4.1. Initial Advance and Facility Letter of Credit . . . . . 33
4.2. Each Advance and Facility Letter of Credit . . . . . . . 35
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BORROWER . . . . . . . . 35
5.1. Corporate Existence and Standing . . . . . . . . . . . . 35
5.2. Authorization and Validity . . . . . . . . . . . . . . . 35
5.3. No Conflict; Government Consent . . . . . . . . . . . . 35
5.4. Financial Statements . . . . . . . . . . . . . . . . . . 36
5.5. Material Adverse Change . . . . . . . . . . . . . . . . 36
5.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 36
5.7. Litigation and Contingent Obligations . . . . . . . . . 36
5.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 36
5.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . 36
5.10. Accuracy of Information . . . . . . . . . . . . . . . . 37
5.11. Regulation U . . . . . . . . . . . . . . . . . . . . . . 37
5.12. Material Agreements . . . . . . . . . . . . . . . . . . 37
5.13. Compliance With Laws . . . . . . . . . . . . . . . . . . 37
5.14. Ownership of Properties . . . . . . . . . . . . . . . . 37
5.15. Investment Company Act . . . . . . . . . . . . . . . . . 37
5.16. Public Utility Holding Company Act . . . . . . . . . . . 37
5.17. Subordinated Indebtedness . . . . . . . . . . . . . . . 37
5.18. Insurance . . . . . . . . . . . . . . . . . . . . . . . 38
5.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . 38
5.20. Single Business Enterprise . . . . . . . . . . . . . . . 38
ARTICLE VI COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 39
6.1. Financial Reporting . . . . . . . . . . . . . . . . . . 39
6.2. Use of Proceeds . . . . . . . . . . . . . . . . . . . . 40
6.3. Notice of Default . . . . . . . . . . . . . . . . . . . 40
6.4. Conduct of Business . . . . . . . . . . . . . . . . . . 40
6.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 40
6.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . 40
6.7. Compliance with Laws . . . . . . . . . . . . . . . . . . 41
6.8. Maintenance of Properties . . . . . . . . . . . . . . . 41
6.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . 41
6.10. Dividends . . . . . . . . . . . . . . . . . . . . . . . 41
6.11. Indebtedness . . . . . . . . . . . . . . . . . . . . . . 41
6.12. Merger . . . . . . . . . . . . . . . . . . . . . . . . 42
6.13. Sale of Assets . . . . . . . . . . . . . . . . . . . . . 42
6.14. Affiliates . . . . . . . . . . . . . . . . . . . . . . . 42
6.15. Subordinated Indebtedness . . . . . . . . . . . . . . . 42
6.16. Investments and Acquisitions . . . . . . . . . . . . . . 42
6.16.1. Investments . . . . . . . . . . . . . . . . . . 42
6.16.2. Acquisitions . . . . . . . . . . . . . . . . . . 43
6.17. Liens . . . . . . . . . . . . . . . . . . . . . . . . 43
6.18 Financial Covenants - . . . . . . . . . . . . . . . . . 43
6.18.1. Debt to Total Capitalization . . . . . . . . . 44
6.18.2. Debt to EBITDA . . . . . . . . . . . . . . . . 44
ARTICLE VII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . . . . 46
8.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . 46
8.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . 46
8.3. Preservation of Rights . . . . . . . . . . . . . . . . . 47
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 47
9.1. Survival of Representations . . . . . . . . . . . . . . 47
9.2. Governmental Regulation . . . . . . . . . . . . . . . . 47
9.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 48
9.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . 48
9.5. Entire Agreement . . . . . . . . . . . . . . . . . . . . 48
9.6. Several Obligations; Benefits of this Agreement . . . . 48
9.7. Expenses; Indemnification . . . . . . . . . . . . . . . 48
9.8. Numbers of Documents . . . . . . . . . . . . . . . . . . 48
9.9. Accounting . . . . . . . . . . . . . . . . . . . . . . . 48
9.10. Severability of Provisions . . . . . . . . . . . . . . . 49
9.11. Nonliability of Lenders . . . . . . . . . . . . . . . . 49
9.12. Language . . . . . . . . . . . . . . . . . . . . . . . . 49
9.13. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . 49
9.14. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . 49
9.15. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . 49
9.16. Confidentiality . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . 50
10.1. Appointment . . . . . . . . . . . . . . . . . . . . . . 50
10.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . 50
10.3. General Immunity . . . . . . . . . . . . . . . . . . . . 50
10.4. No Responsibility for Loans, Recitals, etc. . . . . . . 50
10.5. Action on Instructions of Lenders . . . . . . . . . . . 50
10.6. Employment of Agents and Counsel . . . . . . . . . . . . 51
10.7. Reliance on Documents; Counsel . . . . . . . . . . . . . 51
10.8. Agent's Reimbursement and Indemnification . . . . . . . 51
10.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . 51
10.10.Lender Credit Decision . . . . . . . . . . . . . . . . . 51
10.11.Successor Agent . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XI SETOFF; RATABLE PAYMENTS . . . . . . . . . . . . . . . . 52
11 1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . 52
11.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . 53
12.1. Successors and Assigns . . . . . . . . . . . . . . . . . 53
12.2. Participations . . . . . . . . . . . . . . . . . . . . . 53
12.2.1. Permitted Participants; Effect . . . . . . . . 53
12.2.2. Voting Rights . . . . . . . . . . . . . . . . . 53
12.2.3. Benefit of Setoff . . . . . . . . . . . . . . . 54
12.3. Assignments . . . . . . . . . . . . . . . . . . . . . . 54
12.3.1. Permitted Assignments . . . . . . . . . . . . . 54
12.3.2. Effect; Effective Date . . . . . . . . . . . . 54
12.4. Dissemination of Information . . . . . . . . . . . . . . 55
12.5. Tax Treatment . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 55
13.1. Giving Notice . . . . . . . . . . . . . . . . . . . . . 55
13.2. Change of Address . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIV COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBITS AND SCHEDULES
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EXHIBIT "A-1" COMMITTED NOTE . . . . . . . . . . . . . . . . 59
EXHIBIT "A-2" COMPETITIVE BID NOTE . . . . . . . . . . . . . 61
EXHIBIT "B" COMPETITIVE BID QUOTE REQUEST . . . . . . . . . 63
EXHIBIT "C" INVITATION FOR COMPETITIVE BID QUOTES . . . . . 64
EXHIBIT "D" COMPETITIVE BID QUOTE . . . . . . . . . . . . . 65
EXHIBIT "E" FORM OF OPINION . . . . . . . . . . . . . . . . 67
EXHIBIT "F" LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION 69
EXHIBIT "G" COMPLIANCE CERTIFICATE . . . . . . . . . . . . 70
EXHIBIT "H" GUARANTY COUNTERPART . . . . . . . . . . . . . 73
EXHIBIT "I" ASSIGNMENT AGREEMENT . . . . . . . . . . . . . 75
SCHEDULE "1" PERCENTAGES . . . . . . . . . . . . . . . . . . 83
SCHEDULE "2" LENDING INSTALLATIONS . . . . . . . . . . . . . 84
SCHEDULE "3" LITIGATION . . . . . . . . . . . . . . . . . . 88
SCHEDULE "4" SUBSIDIARIES AND OTHER INVESTMENTS . . . . . . 89
SCHEDULE "5" INDEBTEDNESS AND LIENS . . . . . . . . . . . . 92
SCHEDULE "6" AFFILIATED TRANSACTIONS . . . . . . . . . . . . 93
SCHEDULE "7" EXISTING LETTERS OF CREDIT . . . . . . . . . . 94
REVOLVING CREDIT AGREEMENT
This Agreement, dated as of September 7, 1995, is among BDM
International, Inc., a Delaware corporation, the Lenders and The First
National Bank of Chicago, as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender
for the relevant Absolute Rate Interest Period, the rate of interest per
annum (rounded to the nearest 1/100 of 1%) offered by such Lender and
accepted by the Borrower pursuant to Section 2.4.6.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of
the Lenders to the Borrower at the same time and for the same Absolute Rate
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid
Quotes setting forth Absolute Rates pursuant to Section 2.4.
"Absolute Rate Interest Period" means, with respect to an Absolute
Rate Advance or an Absolute Rate Loan, a period of not less than 7 and not
more than 180 days commencing on a Business Day selected by the Borrower
pursuant to this Agreement, but in no event extending beyond the
Termination Date. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall end
on the next succeeding Business Day.
"Absolute Rate Loan" means a Loan, denominated in Dollars, which
bears interest at an Absolute Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires (A) all or a
substantial part of the assets, (B) one or more manufacturing lines or (C)
a going business or division, of any Person whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
control of at least 10% (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of
a contingency) or a 10% (by percentage or voting power) ownership interest
in any partnership or joint venture.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Eurocurrency Advances,
denominated in the same Eurocurrency and, in the case of Fixed Rate
Advances, for the same Interest Period and includes both a Committed
Advance and a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly
or indirectly, the power to direct or cause the direction of the management
or policies of the controlled Person, whether through ownership of stock,
by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as
agent for the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article
X.
"Aggregate Available Commitment" means at any time the Aggregate
Commitment minus the Facility Letter of Credit Obligations.
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"Aggregate Commitment" means $150,000,000, as such amount may be
reduced from time to time pursuant to the terms hereof.
"Agreement" means this revolving credit agreement, as it may be
amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a
manner consistent with that used in preparing the financial statements
referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Corporate Base Rate for such day or
(ii) the sum of Federal Funds Effective Rate for such day plus 1/2% per
annum.
"Alternate Base Rate Advance" means an Advance, denominated in
Dollars, which bears interest at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Loan, denominated in Dollars,
which bears interest at the Alternate Base Rate.
"Applicable Margin" means, at any date of determination thereof with
respect to any Eurocurrency Committed Advance, the commitment fees payable
pursuant to Section 2.6.1, the facility fees payable pursuant to Section
2.6.2 and Facility Letter of Credit Fees, the respective rates per annum
for such Eurocurrency Committed Advance, commitment fees, facility fees and
Facility Letter of Credit Fees calculated in accordance with the terms of
Section 2.3.4.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means the Chief Financial Officer or the
Controller of the Borrower or, solely for purposes of Article III, of any
Domestic Subsidiary, in any case acting singly.
"Borrower" means BDM International, Inc., a Delaware corporation, and
its successors and assigns.
2
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurocurrency Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago, New York and London
for the conduct of substantially all of their commercial lending activities
and on which dealings in United States dollars are carried on in the London
interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago and New
York for the conduct of substantially all of their commercial lending
activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 30% or more of the outstanding shares
of voting stock of the Borrower; provided however, that a Change in Control
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shall not occur by virtue of the acquisition of voting stock by (a) the
Borrower's employee stock ownership plan, (b) the Carlyle Group, L.P. and
all Affiliates of the Carlyle Group, L.P. or (c) the Borrower's 401-K plan.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commercial Letter of Credit" means a commercial, documentary or
trade Letter of Credit issued by an Issuing Bank pursuant to Section 3.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans and participate in Facility Letters of Credit not exceeding an
amount equal to the product of (i) the then existing Aggregate Commitment
and (ii) the Percentage applicable to such Lender.
"Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Committed Loans made by the Lenders to the
Borrower at the same time, of the same Type and, in the case of
Eurocurrency Committed Advances, denominated in the same Eurocurrency and
for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.3.5.
"Committed Loan" means a Loan made by a Lender pursuant to Section
2.3.
"Committed Note" means a promissory note, in substantially the form
of Exhibit "A-1" hereto, duly executed by the Borrower and payable to the
order of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Advance" means a Eurodollar Bid Rate Advance or an
Absolute Rate Advance.
3
"Competitive Bid Acceptance Notice" is defined in Section 2.4.6.
"Competitive Bid Auction" means an Absolute Rate Auction or a
Eurodollar Auction.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an
Absolute Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the
applicable Eurodollar Base Rate offered for a Eurodollar Bid Rate Loan,
expressed as a percentage (rounded to the nearest 1/100 of 1%) to be added
or subtracted from such Eurodollar Base Rate.
"Competitive Bid Note" means a promissory note in substantially the
form of Exhibit "A-2" hereto, with appropriate insertions, duly executed
and delivered to the Agent by the Borrower for the account of a Lender and
payable to the order of such Lender, including any amendment, modification,
renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially
in the form of Exhibit "D" hereto completed and delivered by a Lender to
the Agent in accordance with Section 2.4.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "B" hereto completed and delivered by
the Borrower to the Agent in accordance with Section 2.4.2.
"Condemnation" is defined in Section 7.8.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person (including but not limited to Financial
Guaranties), or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss, including, without limitation,
any comfort letter, operating agreement, take-or-pay contract or
application for a Letter of Credit.
"Conversion/Continuation Notice" is defined in Section 2.3.6(c).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any, of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Corporate Base Rate" means a rate per annum equal to the "corporate
base rate of interest" announced by First Chicago from time to time,
changing when and as said corporate base rate changes.
"Debt" of a Person means such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade),
(iii) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
4
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi)
Financial Guaranties and (vii) Standby Letters of Credit.
"Default" means an event described in Article VII, provided that any
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requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Determination Date" means the last day of each fiscal quarter of the
Borrower and the date that each Permitted Acquisition described in clause
(ii) of such definition is consummated.
"Dollar" or "$" means United States Dollars.
"Dollar Equivalent" of a Foreign Currency Loan means the Dollar
equivalent of the amount of such Foreign Currency Loan, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange
of the Agent for such Foreign Currency on the London market at 11:00 a.m.
London time, two Business Days prior to the date on which such amount is to
be determined.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
organized under the laws of the United States of America, any state thereof
or the District of Columbia.
"EBITDA" means, for any period, Net Income plus (a) to the extent
----
deducted in determining Net Income, the sum of interest expense, income tax
expense, depreciation expense and amortization expense, plus (b)
----
extraordinary or unusual losses or other losses not incurred in the
ordinary course of business included in the calculation of Net Income, plus
----
(c) any non-cash charge against Net Income required to be recognized in
connection with the issuance of capital stock to employees (whether upon
lapse of vesting restrictions, exercise of employee options or otherwise),
plus (d) any non-cash charge against Net Income required to be recognized
- ----
in connection with employee pension plans, minus (e) extraordinary or
-----
unusual gains or other gains not incurred in the ordinary course of
business included in the calculation of Net Income, all determined on a
consolidated basis for the Borrower and its Subsidiaries in accordance with
Agreement Accounting Principles.
"Effective Date" is defined in Section 4.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurocurrency" means, subject to Section 2.18, (i) Dollars, (ii)
Australian dollars, Belgian francs, Canadian dollars, Deutsche marks, Dutch
guilders, european currency units, French francs, Hong Kong dollars,
Italian lira, Japanese yen, pounds sterling, Spanish pesetas, Swedish
kroner and Swiss francs, so long as any such currency is one (A) which is
freely transferable and convertible into Dollars and (B) in which deposits
are customarily offered to banks in the London interbank market, and (iii)
any other currency (A) which is freely transferable and convertible into
Dollars, (B) in which deposits are customarily offered to banks in the
London interbank market, (C) which the Borrower requests the Administrative
Agent to include as a Eurocurrency hereunder and (D) which is acceptable to
each Lender.
"Eurocurrency Advance" means a Eurocurrency Committed Advance or a
Eurodollar Bid Rate Advance, as applicable.
5
"Eurocurrency Base Rate" means with respect to any Eurocurrency
Advance for the relevant Eurocurrency Interest Period, the rate determined
by the Agent to be the rate at which deposits in the applicable
Eurocurrency are offered by First Chicago to first-class banks in the
London interbank market at approximately 11 a.m. (London time) two Business
Days prior to the first day of such Eurocurrency Interest Period, in the
approximate amount of First Chicago's relevant Eurocurrency Loan, or, in
the case of a Eurodollar Bid Rate Advance, the amount of the Eurodollar Bid
Rate Advance requested by the Borrower, and having a maturity approximately
equal to such Eurocurrency Interest Period.
"Eurocurrency Committed Advance" means a Committed Advance which
bears interest at a Eurocurrency Rate requested by the Borrower pursuant to
Section 2.3, including, but not limited to, Eurodollar Committed Advances.
"Eurocurrency Committed Loan" means a Committed Loan which bears
interest at a Eurocurrency Rate requested by the Borrower pursuant to
Section 2.3, including but not limited to, Eurodollar Committed Loans.
"Eurocurrency Interest Period" means, with respect to a Eurocurrency
Advance, a period of one, two, three or six months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such Eurocurrency
Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter;
provided, however, that if there is no such numerically corresponding day
- -------- -------
in such next, second, third or sixth succeeding month, such Eurocurrency
Interest Period shall end on the last Business Day of such next, second,
third or sixth succeeding month. If a Eurocurrency Interest Period would
otherwise end on a day which is not a Business Day, such Eurocurrency
Interest Period shall end on the next succeeding Business Day; provided,
--------
however, that if said next succeeding Business Day falls in a new calendar
- -------
month, such Eurocurrency Interest Period shall end on the immediately
preceding Business Day.
"Eurocurrency Loan" means a Eurocurrency Committed Loan or a
Eurodollar Bid Rate Loan, as applicable.
"Eurocurrency Rate" means, with respect to a Eurocurrency Committed
Advance for the relevant Eurocurrency Interest Period, the sum of (i) the
percentage indicated as the Applicable Margin for the Eurocurrency Rate
plus (ii) the quotient of (a) the Eurocurrency Base Rate applicable to such
- ----
Eurocurrency Interest Period, divided by (b) either (1) for any Eurodollar
Committed Advance, a number equal to one minus the Reserve Requirement
(expressed as a decimal) applicable to such Eurocurrency Interest Period or
(2) for any other Eurocurrency Committed Advance, the number one. The
Eurocurrency Rate shall be rounded to the next higher multiple of 1/16 of
1% if the rate is not such a multiple.
"Eurodollar Advance" means a Eurodollar Committed Advance or a
Eurodollar Bid Rate Advance.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.4.
"Eurodollar Bid Rate" means, with respect to a Loan made by a given
Lender for the relevant Eurocurrency Interest Period, the sum of (i) the
Eurocurrency Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the Borrower pursuant to Section 2.4.6.
6
"Eurodollar Bid Rate Advance" means a borrowing hereunder consisting
of the aggregate amount of the several Eurodollar Bid Rate Loans made by
some or all of the Lenders to the Borrower at the same time and for the
same Absolute Rate Interest Period.
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan, denominated
in Dollars, which bears interest at a Eurodollar Bid Rate.
"Eurodollar Committed Advance" means a Committed Advance, denominated
in Dollars, which bears interest at the Eurocurrency Rate.
"Eurodollar Committed Loan" means a Committed Loan, denominated in
Dollars, which bears interest at the Eurocurrency Rate.
"Existing Letter of Credit" means any Letter of Credit issued by
either CoreStates Bank, N.A. or Signet Bank prior to the date of this
Agreement and listed on Schedule "7" attached hereto.
"Facility Letter of Credit" means a Commercial Letter of Credit or
Standby Letter of Credit that is either (i) issued by an Issuing Bank
pursuant to Section 3.1 or (ii) an Existing Letter of Credit.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of
the Borrower with respect to Facility Letters of Credit, including the sum
of (a) the Reimbursement Obligations and (b) the aggregate undrawn face
amount of the then outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately 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 at
approximately 10 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent in its sole discretion.
"Financial Guaranties" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses or
contingently agrees to provide funds for the repayment of money borrowed by
or advanced to or for the account of another Person.
"Financial Letter of Credit" means any Standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank (i) to repay money borrowed by or advanced to or for the
account of the account party or (ii) to make any payment on account of any
indebtedness undertaken by the account party, in the event the account
party fails to fulfill its obligation to the beneficiary.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fixed Rate" means the Eurocurrency Rate, the Eurodollar Bid Rate or
the Absolute Rate.
7
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Foreign Currency" means any Eurocurrency other than Dollars.
"Foreign Currency Advance" means any Advance in a Foreign Currency.
"Foreign Currency Loan" means any Loan in a Foreign Currency.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Funded Debt" means, without duplication, for the Borrower and its
Subsidiaries on a consolidated basis, all obligations for borrowed money
determined in accordance with Agreement Accounting Principles.
"Governmental Agency" means any government, foreign or domestic, or
any state, department or other political subdivision thereof, or
governmental body, agency, authority, department or commission (including
without limitation any taxing authority or political subdivision) or
instrumentality (including without limitation any court or tribunal)
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any corporation, partnership
or other entity, directly or indirectly owned by or subject to the control
of any of the foregoing.
"Guarantors" means all of the Subsidiaries as of the Effective Date
(other than the Specified Subsidiaries) and any New Subsidiaries formed
after the Effective Date, and their respective successors and assigns.
"Guaranty" means that certain Guaranty dated as of September 7, 1995
executed by the Guarantors in favor of the Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to
time.
"IABG" means, collectively, IABG Holding GmbH, a German corporation,
Umwelttechnologie und Sanierungsmanagement GmbH, a German corporation, and
Industrieanlagen-Betriebsgesellschaft mbH, a stock company organized under
the laws of Germany.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price
of Property or services (other than accounts payable arising in the
ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or
payable out of the proceeds or production from property now or hereafter
owned or acquired by such Person, (iv) obligations which are evidenced by
notes, acceptances, or other instruments, (v) Capitalized Lease
Obligations, (vi) net liabilities under Rate Hedging Agreements and (vii)
Contingent Obligations.
"Interest Period" means a Eurocurrency Interest Period or an Absolute
Rate Interest Period.
8
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in
the ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade), deposit account or contribution of capital by such Person to
any other Person or any investment in, or purchase or other acquisition of,
the stock, partnership interests, notes, debentures or other securities of
any other Person made by such Person.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "C" hereto,
completed and delivered by the Agent to the Lenders in accordance with
Section 2.4.3.
"Issuance Date" is defined in Section 3.4(a).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each (i) Existing Letter of
Credit, either CoreStates Bank, N.A. or Signet Bank, as the case may be and
(ii) other Facility Letter of Credit, First Chicago or such other Lender
selected by the Borrower or any Domestic Subsidiary to issue such Facility
Letter of Credit, so long as such Lender consents to such selection.
"Judgment Currency" is defined in Section 2.10.2.
"Lenders" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any
way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"Level I Status" is defined in Section 2.3.4.
"Level II Status" is defined in Section 2.3.4.
"Level III Status" is defined in Section 2.3.4.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
9
"Loan Documents" means this Agreement and the Notes.
"Marketable Securities" means any Investment in any of the following:
(i) Short-term obligations of, or fully guaranteed by, the United States of
America; (ii) Commercial paper rated A-I or better by S&P or P-I or better
by Moody's; (iii) Demand deposit accounts maintained in the ordinary,
course of business; and (iv) Certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under
the Loan Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer
is obligated to make contributions.
"Net Income" means, for any period, the net income (or loss) of the
Borrower and its Subsidiaries on a consolidated basis determined in
conformity with Agreement Accounting Principles.
"Net Worth" means the aggregate amount of common shareholders equity
as determined from a consolidated balance sheet of the Borrower and its
Subsidiaries, prepared in accordance with Agreement Accounting Principles.
"New Subsidiary" is defined in Section 6.16.2.
"Notes" means, collectively, the Committed Notes and the Competitive
Bid Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, the Facility Letter of Credit Obligations, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and
other obligations of the Borrower to the Lenders or to any Lender, the
Agent or any indemnified party hereunder arising under the Loan Documents.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Percentage" means, for each Lender the percentage set forth opposite
its name on Schedule "1" attached hereto, as such percentage (and such
schedule) may be modified from time to time pursuant to the terms hereof,
including but not limited to the provisions of Section 12.3.2.
10
"Performance Letter of Credit" means any Standby Letter of Credit
which represents an irrevocable obligation to the beneficiary on the part
of the Issuing Bank to make payment on account of any default by the
account party in the performance of a nonfinancial or commercial
obligation.
"Permitted Acquisition" means either an Acquisition: (i) for a
purchase price that does not exceed $500,000 made at a time when no Default
or Unmatured Default exists or would exist after giving effect to such
Acquisition or (ii) (a) for a purchase price that exceeds $500,000, (b)
made at a time when no Default or Unmatured Default exists or would exist
after giving effect to such Acquisition, (c) for which the board of
directors of the Person being acquired has approved the terms of the
Acquisition, (d) in the form of a merger (so long as the Borrower or a
Wholly-Owned Subsidiary is the survivor), purchase of stock or purchase of
assets and (e) for which the Borrower has first provided the Lenders with
(1) financial information with respect to the target of the Acquisition
(including historical and pro forma financial statements) and (2) a
description of the target of the Acquisition (which description confirms
that such entity is in the same line of business as the Borrower).
"Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, trust or
other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Borrower or any member of the Controlled
Group may have any liability.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreements" of a Person means (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or cross-
currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"Rate Hedging Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under Rate Hedging
Agreements.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
11
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Banks and the Agent in
respect of all unreimbursed payments or disbursements made by the Lenders, the
Issuing Banks and the Agent under or in respect of the Facility Letters of
Credit.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more, but does not include any amounts payable under Capitalized Leases
of such Person.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the sum of (i) the Dollar
Equivalent of the aggregate unpaid principal amount of the outstanding Advances
plus (ii) the Facility Letter of Credit Obligations.
- ----
"Reserve Requirement" means, with respect to a Eurocurrency Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Group.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Specified Currency" is defined in Section 2.10.2.
"Specified Place" is defined in Section 2.10.2.
"Specified Subsidiaries" means, collectively, IABG, BDM Services Arabia,
Limited, a Saudi Arabian corporation, Saudi Strategic Services (S-3), a Saudi
Arabian corporation and Vinnell Arabia, a Saudi Arabian corporation.
12
"Standby Letter of Credit" means an irrevocable standby Letter of Credit,
consisting of either a Financial Letter of Credit or a Performance Letter of
Credit.
"Status" means, at any date of determination thereof, whichever of Level I
Status, Level II Status or Level III Status exists at such date.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 15% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 15% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Taxes" is defined in Section 2.17.1.
"Termination Date" means September 6, 2000.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Loan or Advance, its nature as a
Alternate Base Rate Advance or Loan, Eurocurrency Committed Advance or Loan,
Eurodollar Bid Rate Advance or Loan or Absolute Rate Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event which would constitute a Default under
Article VII, except that the requirement to give notice and/or the lapse of any
grace period has not occurred.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
13
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
-----------
2.1. Description of Facility. Upon the terms and subject to the conditions
-----------------------
set forth in this Agreement, the Lenders hereby grant to the Borrower a
revolving credit facility pursuant to which: (i) each Lender severally agrees to
make Committed Loans to the Borrower in accordance with Section 2.3; and (ii)
each Lender may, in its sole discretion, make bids to make Competitive Bid Loans
to the Borrower in accordance with Section 2.4; provided that in no event may
the aggregate principal amount of all outstanding Advances exceed the Aggregate
Available Commitment.
2.2. Availability of Facility. Subject to all of the terms and conditions
------------------------
of this Agreement, the facility is available from the date of this Agreement to
the Termination Date, the Borrower may borrow, repay and reborrow at any time
prior to the Termination Date.
2.3. Committed Advances.
------------------
2.3.1. Commitment. From and including the date of this Agreement and
----------
prior to the Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Committed Loans to the Borrower
from time to time in amounts having a Dollar Equivalent not to exceed in the
aggregate at any one time outstanding (after giving effect to the intended use
of proceeds of any Advance used to repay any outstanding Reimbursement
Obligations) the amount of such Lender's Percentage of the Aggregate Available
Commitment. The Commitments to lend hereunder shall expire on the Termination
Date.
2.3.2. Ratable Loans; Types of Advances. Each Committed Advance
--------------------------------
hereunder shall consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the Aggregate
Commitment. The Committed Advances may be Alternate Base Rate Advances or
Eurocurrency Committed Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.3.5 and 2.3.6; provided, however, that
(i) Eurocurrency Committed Advances denominated in a Foreign Currency may be
outstanding in not more than five Foreign Currencies at any one time and (ii)
there shall not be more than eight Eurocurrency Committed Advances outstanding
at any one time.
2.3.3. Minimum Amount of Each Committed Advance. Each Eurocurrency
----------------------------------------
Committed Advance shall be in an amount, having a Dollar Equivalent, of not less
than $2,000,000 (and in multiples of $100,000 if in excess thereof), and each
Alternate Base Rate Advance shall be in the minimum amount of $500,000 (and in
multiples of $100,000 if in excess thereof); provided, however, that (i) up to
five Eurocurrency Committed Advances in any twelve month period may be in an
amount, having a Dollar Equivalent, of less than $2,000,000 but not less than
$1,000,000 and (ii) any Alternate Base Rate Advance may be in the amount of the
unused Aggregate Available Commitment.
14
2.3.4. Applicable Margin. The Applicable Margin set forth below with
-----------------
respect to each Eurocurrency Committed Advance and for commitment fees, facility
fees and Facility Letter of Credit Fees payable hereunder, shall be subject to
adjustment (upwards or downwards, as appropriate) based on the Borrower's Status
as at each Determination Date in accordance with the table set forth below. The
Borrower's Status as at each Determination Date shall be determined from the
then most recent annual, quarterly or pro forma financial statements of the
Borrower delivered by the Borrower to the Lenders with the compliance
certificate required pursuant to Section 6.1(iii) (collectively, the
"Financials"). The adjustment, if any, to the Applicable Margin shall take place
on, and be effective from and after, the fifth Business Day following the date
the Agent has received the Financials. In the event that the Borrower shall at
any time fail to furnish to the Lenders the Financials within the time
limitations specified by Section 6.1 or the definition of Permitted Acquisition,
as applicable, then the Borrower's Status shall be Level III Status from the
date of such failure until five Business Days after such Financials are so
delivered. Notwithstanding anything to the contrary contained herein, the
Borrower's Status on the Effective Date shall be Level I Status and shall be
adjusted as set forth above, effective five Business Days after the Agent
receives the Borrower's Financials for its quarter ending September 30, 1995.
MARGIN OR FEE LEVEL I LEVEL II LEVEL III
Applicable Margin -- .15% .25% .35%
Eurocurrency Rate
Facility Fee .10% .10% .10%
Commitment Fee 0 0 .02%
Standby Letter of Credit Fee .15% .25% .35%
(Financial)
Standby Letter of Credit Fee .10% .175% .25%
(Performance)
Commercial Letter of Credit .10% .175% .25%
Fee
For purposes of this Agreement, the Borrower's Status will be determined based
on the following definitions:
"Level I Status" exists at any date if, as of the last day of the then most
recently ended fiscal quarter of the Borrower, the ratio of (i) Funded Debt to
(ii) EBITDA (for the four quarter period ending as of such date of
determination) is less than or equal to 1.0 to 1.0.
"Level II Status" exists at any date if, as of the last day of the then
most recently ended fiscal quarter of the Borrower, (i) the requirements
necessary to achieve Level I Status shall not have been satisfied and (ii) the
ratio of (a) Funded Debt to (b) EBITDA (for the four quarter period ending as of
such date of determination) is less than or equal to 2.0 to 1.0.
"Level III Status" exists at any date if the requirements necessary to
achieve Level I Status or Level II Status shall not have been satisfied.
15
2.3.5. Method of Selecting Types and Interest Periods for New
------------------------------------------------------
Committed Advances. The Borrower shall select the Type of Committed Advance and,
- ------------------
in the case of each Eurocurrency Committed Advance, the Eurocurrency and the
Eurocurrency Interest Period applicable thereto. The Borrower shall give the
Agent irrevocable notice (a "Committed Borrowing Notice") not later than 10:00
a.m. (Chicago time) on the Borrowing Date of each Alternate Base Rate Advance
and at least three Business Days before the Borrowing Date for each Eurocurrency
Committed Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Committed
Advance,
(ii) the aggregate amount of such Committed Advance,
(iii) the Type of Committed Advance selected,
(iv) in the case of each Eurocurrency Committed Advance, the Eurocurrency
applicable thereto, and
(v) in the case of each Eurocurrency Committed Advance, the Interest
Period applicable thereto.
2.3.6. Conversion and Continuation of Outstanding Advances.
---------------------------------------------------
(a) Dollar Advances. Alternate Base Rate Advances shall
---------------
continue as Alternate Base Rate Advances unless and until such Alternate Base
Rate Advances are converted into Eurodollar Committed Advances. Each Eurodollar
Committed Advance shall continue as a Eurodollar Committed Advance until the end
of the then applicable Interest Period therefor, at which time such Eurodollar
Committed Advance shall be automatically converted into an Alternate Base Rate
Advance unless repaid or unless the Borrower shall have given the Agent a
Conversion/Continuation Notice in accordance with Section 2.3.6(c) requesting
that, at the end of such Interest Period, such Eurodollar Committed Advance
continue as a Eurodollar Committed Advance for the same or another Interest
Period. Subject to the terms of Section 2.3.3, the Borrower may elect from time
to time to convert all or any part of an Alternate Base Rate Advance into a
Eurodollar Committed Advance.
(b) Foreign Currency Advances. Each Foreign Currency Advance
-------------------------
shall continue as such until the end of the then applicable Interest Period
therefor, at which time such Foreign Currency Advance shall automatically be
deemed to be continued as a Foreign Currency Advance in the same amount and the
same Foreign Currency with a Eurocurrency Interest Period of one month
(commencing on the last day of the expiring Interest Period), unless repaid or
unless the Borrower shall have given the Agent a Conversion/Continuation Notice
in accordance with Section 2.3.6(c) requesting that, at the end of such Interest
Period, such Foreign Currency Advance continue as a Foreign Currency Advance in
the same Foreign Currency for the same or another Eurocurrency Interest Period.
(c) General Provisions. The Borrower shall give the Agent
------------------
irrevocable notice (a "Conversion/Continuation Notice") of each conversion of an
Alternate Base Rate Advance or continuation of a Eurocurrency Committed Advance
(as permitted by the provisions of Sections 2.3.6(a) and (b)) not later than
10:00 a.m. (Chicago time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
16
(i) the requested date which shall be a Business Day, of such conversion
or continuation;
(ii) the aggregate amount, Eurocurrency and Type of the Committed Advance
which is to be converted or continued; and
(iii) the amount and Type(s) of Committed Advance(s) into which such
Committed Advance is to be converted or continued and, in the case of
a conversion into or continuation of a Eurocurrency Committed Advance,
the duration of the Interest Period applicable thereto.
Notwithstanding the provisions of Sections 2.3.6(a) and (b), no Eurocurrency
Committed Advance shall be continued as or converted into a Eurocurrency
Committed Advance for a new Interest Period if the Dollar Equivalent of the
aggregate principal amount of Advances and Facility Letter of Credit Obligations
to be outstanding after giving effect to such continuation or conversion would
exceed 105% of the Aggregate Commitment.
2.4. Competitive Bid Advances.
------------------------
2.4.1. Competitive Bid Option; Repayment of Competitive Bid Advances.
-------------------------------------------------------------
In addition to Committed Advances pursuant to Section 2.3, but subject to all of
the terms and conditions of this Agreement (including, without limitation, the
limitation set forth in Section 2.1 as to the maximum aggregate principal amount
of all outstanding Advances hereunder), the Borrower may, as set forth in this
Section 2.4, request the Lenders, prior to the Termination Date, to make offers
to make Competitive Bid Advances to the Borrower. Each Lender may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.4. Competitive Bid Advances shall be evidenced by the Competitive Bid Notes.
Each Competitive Bid Advance shall be repaid in full by the Borrower on the last
day of the Interest Period applicable thereto.
2.4.2. Competitive Bid Quote Request. When the Borrower wishes to
-----------------------------
request offers to make Competitive Bid Loans under this Section 2.4, the
Borrower shall transmit to the Agent by telecopy a Competitive Bid Quote Request
so as to be received no later than (x) 10:00 a.m., Chicago time, at least five
Business Days prior to the Borrowing Date proposed therein, in the case of a
Eurodollar Auction, or (y) 9:00 a.m., Chicago time, at least two Business Days
prior to the Borrowing Date proposed therein, in the case of an Absolute Rate
Auction, specifying in accordance with all of the terms of this Agreement:
(i) the proposed Borrowing Date for the proposed Competitive Bid
Advance;
(ii) the aggregate principal amount of such Competitive Bid Advance;
(iii) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or an Absolute Rate, or both; and
(iv) the Interest Period applicable thereto.
17
A Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and for a Eurodollar Auction and an Absolute Rate Auction in a
single Competitive Bid Quote Request. No Competitive Bid Quote Request shall be
given within five Business Days (or upon reasonable prior notice to the Lenders,
such other number of days as the Borrower and the Agent may agree) of any other
Competitive Bid Quote Request. Each Competitive Bid Quote Request shall be in a
minimum amount of $5,000,000 or a larger multiple of $500,000. A Competitive Bid
Quote Request that does not conform substantially to the format of Exhibit "B"
hereto shall be rejected, and the Agent shall promptly notify the Borrower of
such rejection by telecopy.
2.4.3. Invitation for Competitive Bid Quotes. Promptly upon receipt of
-------------------------------------
a Competitive Bid Quote Request that is not rejected pursuant to Section 2.4.2,
the Agent shall send to each of the Lenders by telecopy an Invitation for
Competitive Bid Quotes which shall constitute an invitation by the Borrower to
each Lender to submit Competitive Bid Quotes offering to make the Competitive
Bid Loans to which such Competitive Bid Quote Request relates in accordance with
this Section 2.4.
2.4.4. Submission and Contents of Competitive Bid Quotes.
-------------------------------------------------
(a) Each Lender may, in its sole discretion, submit a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.4.4 and must be submitted to the
Agent by telecopy at its offices specified in or pursuant to Article XIII not
later than (i) (A) 12:45 p.m., Chicago time, in the case of First Chicago and
(B) 1:00 p.m., Chicago time, in the case of each other Lender, at least four
Business Days prior to the proposed Borrowing Date in the case of a Eurodollar
Auction, or (ii) (A) 8:45 a.m., Chicago time, in the case of First Chicago and
(B) 9:00 a.m., Chicago time, in the case of each other Lender, on the proposed
Borrowing Date in the case of an Absolute Rate Auction (or, in any such case
upon reasonable prior notice to the Lenders, such other time and date as the
Borrower and the Agent may agree; provided that First Chicago shall always be
required to submit its Competitive Bid Quotes not less than fifteen minutes
prior to the other Lenders). Subject to Articles IV and VIII, any Competitive
Bid Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall in any case specify: (i) the
proposed Borrowing Date, which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes; (ii) the principal amount of
the Competitive Bid Loan for which each such offer is being made, (1) which
principal amount may be greater than, less than or equal to the Commitment of
the quoting Lender, but in no case greater than the unutilized Aggregate
Available Commitment, (2) which principal amount must be at least $2,000,000 and
an integral multiple of $500,000, and (3) which principal amount may not exceed
the principal amount of Competitive Bid Loans for which offers were requested;
(iii) in the case of a Eurodollar Auction, the Competitive Bid Margin offered
for each such Competitive Bid Loan; (iv) the minimum or maximum amount, if any,
of the Competitive Bid Loan which may be accepted by the Borrower; (v) in the
case of an Absolute Rate Auction, the Absolute Rate offered for each such
Competitive Bid Loan; (vi) the applicable Interest Period; and (vii) the
identity of the quoting Lender.
(c) The Agent shall reject any Competitive Bid Quote that: (i) is not
substantially in the form of Exhibit "D" hereto or does not specify all of the
information required by Section 2.4.4(b); (ii) contains qualifying, conditional
or similar language, other than any such language contained in Exhibit "D"
hereto; (iii) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or (iv) arrives after the time
set forth in Section 2.4.4(a).
18
(d) If any Competitive Bid Quote shall be rejected pursuant to Section
2.4.4(c), then the Agent shall notify the relevant Lender of such rejection as
soon as practicable.
2.4.5. Notice to Borrower. The Agent shall promptly notify the
------------------
Borrower of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.4.4 and (ii) of any Competitive Bid Quote
that is in accordance with Section 2.4.4 and amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such Lender with
respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to correct
a manifest error in such former Competitive Bid Quote. The Agent's notice to the
Borrower shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Competitive Bid Margins or Absolute Rates, as the case may be, so offered.
2.4.6. Acceptance and Notice by Borrower. Subject to the receipt of
---------------------------------
the notice from the Agent referred to in Section 2.4.5, not later than (i) 10:00
a.m. (Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (ii) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction, the
Borrower shall notify the Agent of the Borrower's acceptance or rejection of the
offers so notified to it pursuant to Section 2.4.5; provided, however, that the
failure by the Borrower to give such notice to the Agent shall be deemed to be a
rejection by the Borrower of all such offers. In the case of acceptance, such
notice (a "Competitive Bid Acceptance Notice") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept or reject any Competitive Bid Quote in whole or in part
(subject to the terms of Section 2.4.4(b)(iv)); provided that:
(i) the aggregate principal amount of each Competitive Bid Advance may
not exceed the applicable amount set forth in the related Competitive Bid
Quote Request;
(ii) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Absolute Rates, as the case may be; and
(iii) the Borrower may not accept any offer of the type described in
Section 2.4.4(c) or that otherwise fails to comply with the requirements of
this Agreement for the purpose of obtaining a Competitive Bid Loan under
this Agreement.
2.4.7. Allocation by the Agent. If offers are made by two or more
-----------------------
Lenders with the same Competitive Bid Margins or Absolute Rate, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
offers are permitted to be accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Lenders as nearly as
possible (in such multiples as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers; provided, however, that no Lender
shall be allocated a portion of any Competitive Bid Advance which is less than
the minimum amount which such Lender has indicated that it is willing to accept.
Allocations by the Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Agent shall promptly, but in
any event on the same Business Day in the case of Eurodollar Bid Rate Advances,
and by 11:00 a.m. (Chicago time) on the same Business Day in the case of
Absolute Rate Advances, notify
19
each Lender of its receipt of a Competitive Bid Acceptance Notice and the
aggregate principal amount of each Competitive Bid Advance allocated to each
participating Lender.
2.4.8. Administration Fee. The Borrower hereby agrees to pay to the
------------------
Agent an administration fee for each Competitive Bid Auction in the amount
agreed to in the fee letter described in Section 2.6.3. Such administration fee
shall be payable in arrears on each Payment Date hereafter and on the
Termination Date (or such earlier date on which the Aggregate Commitment shall
terminate or be cancelled) for any period then ending for which such fee, if
any, shall not have been theretofore paid.
2.5. Method of Borrowing. In the case of Eurocurrency Advances (other than
-------------------
Eurodollar Advances), not later than 11:00 a.m. (London time) on each Borrowing
Date, each Lender shall make available its Eurocurrency Loan or Eurocurrency
Loans, in funds immediately available in London, in the Foreign Currency
selected by the Borrower, to the Agent at its London address specified in
Schedule "2" attached hereto or at any other Lending Installation of the Agent
specified in writing by the Agent. In the case of all other Advances, not later
than noon (Chicago time) on each Borrowing Date, each Lender shall make
available its Loan or Loans, in funds immediately available in Chicago, in
Dollars, to the Agent at its Chicago address specified in Schedule "2" or at any
other Lending Installation of the Agent specified in writing by the Agent. The
Agent will make the funds so received from the Lenders available to the Borrower
at the Agent's aforesaid address, as applicable.
2.6. Fees. In addition to the Facility Letter of Credit Fees and issuance
----
fees identified in Section 3.8, the Borrower agrees to pay the following fees:
2.6.1. Commitment Fee. The Borrower agrees to pay to the Agent for the
--------------
account of each Lender, for the period from the date hereof to and including the
Termination Date, a commitment fee equal to the product of (i) the daily
unborrowed portion of such Lender's Percentage of the Aggregate Available
Commitment times (ii) the percentage indicated for the commitment fee in Section
2.3.4, payable on each Payment Date hereafter and on the Termination Date. All
accrued commitment fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans and issue or
participate in Facility Letters of Credit hereunder. For purposes of calculating
the commitment fee hereunder, (i) the principal amount of each Foreign Currency
Advance shall be the Dollar Equivalent of such Foreign Currency Advance on the
first day of each Interest Period applicable to such Advance and (ii) the
principal amount of all outstanding Competitive Bid Advances shall not count as
usage.
2.6.2. Facility Fee. The Borrower agrees to pay to the Agent for the
------------
account of each Lender, for the period from the date hereof to and including the
Termination Date, a facility fee equal to the product of (i) the Aggregate
Commitment times (ii) the percentage indicated for the facility fee in Section
2.3.4, payable on each Payment Date hereafter and on the Termination Date. All
accrued facility fees shall be payable on the effective date of any termination
of the obligations of the Lenders to make Loans and issue or participate in
Facility Letters of Credit hereunder.
2.6.3. Agent Fees. The Borrower agrees to pay certain fees to the
----------
Agent on the dates and in the amounts set forth in that certain fee letter
between the Borrower and the Agent dated August 2, 1995, as it may be amended
from time to time.
20
2.7. Reductions in Aggregate Commitment; Principal Payments.
------------------------------------------------------
2.7.1. Reductions in Aggregate Commitment. The Borrower may
----------------------------------
permanently reduce the Aggregate Commitment in whole, or in part ratably among
the Lenders in integral multiples of $5,000,000, upon at least three Business
Day's written notice to the Agent, which notice shall specify, the amount of any
such reduction; provided, however, that the amount of the Aggregate Commitment
may not be reduced below the sum of (i) the Dollar Equivalent of the aggregate
principal amount of the then outstanding Advances plus (ii) the Facility Letter
----
of Credit Obligations.
2.7.2. Principal Payments.
------------------
(a) Optional Payments. The Borrower may from time to time
-----------------
pay, without penalty or premium, all outstanding Alternate Base Rate Advances,
or, in a minimum aggregate amount of $200,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding Alternate Base Rate
Advances upon same day notice to the Agent. A Fixed Rate Advance may not be paid
prior to the last day of the applicable Interest Period.
(b) Currency Fluctuations. If at any time the Agent shall
---------------------
determine that the Dollar Equivalent (and the Agent shall calculate the Dollar
Equivalent upon the request of any Lender) of the aggregate principal amount of
outstanding Advances and Facility Letter of Credit Obligations is greater than
105% of the Aggregate Commitment then in effect, the Borrower shall, upon one
(1) Business Day's written notice to the Borrower from the Agent, prepay an
aggregate principal amount of Advances such that the Dollar Equivalent of the
aggregate principal amount of outstanding Advances and Facility Letter of Credit
Obligations does not exceed the Aggregate Commitment then in effect.
(c) Termination. The Borrower shall pay in full, on the
-----------
Termination Date, the entire unpaid principal amount of the Advances made to it
and repay (or cash collateralize) all other unpaid Obligations, all as more
fully set forth in Sections 3.9 and 8.1.
2.8. Changes in Interest Rate, etc. Each Alternate Base Rate Advance shall
-----------------------------
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Committed Advance into an Alternate Base Rate Advance pursuant to Section
2.3.6(a) to but excluding the date it becomes due or is converted into a
Eurodollar Committed Advance pursuant to Section 2.3.6(a) hereof, at a rate per
annum equal to the Alternate Base Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as an Alternate Base Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate. Each Fixed Rate Advance shall bear interest from and including the first
day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined as applicable to
such Fixed Rate Advance. No Interest Period may end after the Termination Date.
2.9. Rates Applicable After Default. Notwithstanding anything to the
------------------------------
contrary contained in Section 2.3.5 or 2.3.6, during the continuance of a
Default or Unmatured Default no Advance may be made as, converted into or
continued as a Fixed Rate Advance (except with the consent of the Required
Lenders). During the continuance of a Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Fixed Rate Advance shall bear interest for the remainder of the applicable
Interest Period at
21
the rate otherwise applicable to such Interest Period plus 2% per annum and (ii)
each Alternate Base Rate Advance shall bear interest at a rate per annum equal
to the Alternate Base Rate plus 2% per annum.
2.10. Method of Payment.
-----------------
2.10.1. General. All payments of the Obligations hereunder shall be
-------
made, without setoff, deduction, or counterclaim, in immediately available
funds, to the Agent, in Dollars, at the Agent's address for Dollars, as
specified in Schedule "2" hereto (or, in the case of payments of principal of
and interest on Foreign Currency Advances, in the Foreign Currency borrowed, at
the Agent's address for Foreign Currencies, as specified in Schedule "2"
hereto), or at any other Lending Installation of the Agent specified in writing
by the Agent to the Borrower, by noon (Chicago time or London time, as
applicable) on the date when due and shall be applied ratably by the Agent among
the Lenders. Each payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender, in the same type of
funds that the Agent received, at such Lender's address for Dollars or for
Foreign Currencies, as specified in Schedule "2" hereto, or at any other Lending
Installation specified in a notice received by the Agent from such Lender. The
Agent is hereby authorized to charge the account of the Borrower maintained with
First Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
2.10.2. Currency of Payment. All payments of principal of and interest
-------------------
on any Advance or payments of Reimbursement Obligations or any other Obligations
hereunder shall be made by the Borrower in the currency borrowed (the "Specified
Currency") in the manner and at the address (the "Specified Place") specified in
Section 2.10.1. Payment of the Obligations shall not be discharged by an amount
paid in another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the Specified
Currency and transfer to the Specified Place under normal banking procedures
does not yield the amount of the Specified Currency at the Specified Place due
hereunder. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in the Specified Currency into another
currency (the "Judgment Currency"), the rate of exchange which shall be applied
shall be that at which in accordance with normal banking procedures the Agent
could purchase the Specified Currency with that amount of the Judgment Currency
on the Business Day next preceding that on which such judgment is rendered. The
obligation of the Borrower in respect of any such sum due from it to the Agent
or any Lender hereunder (an "Entitled Person") shall, notwithstanding the rate
of exchange actually applied in rendering such judgment, be discharged only to
the extent that on the Business Day following receipt by such Entitled Person of
any sum adjudged to be due hereunder or under the Notes in the Judgment
Currency, such Entitled Person may in accordance with normal banking procedures
purchase and transfer to the Specified Place the Specified Currency with the
amount of the Judgment Currency so adjudged to be due; and the Borrower hereby,
as a separate Obligation and notwithstanding any such judgment, agrees to
indemnify such Entitled Person against, and to pay such Entitled Person on
demand, in the Specified Currency, any difference between the sum originally due
to such Entitled Person in the Specified Currency and the amount of the
Specified Currency so purchased and transferred.
2.11. Notes; Telephonic Notices. Each Lender is hereby authorized to record
-------------------------
the principal amount of each of its Loans and each repayment on the schedule
attached to its Notes; provided, however, that the failure to so record shall
not affect the Borrower's obligations under such Notes. The Borrower hereby
authorizes the Lenders and the Agent to extend, convert or continue Advances,
effect selections of Types of Advances and to transfer funds, and the Issuing
Bank to issue Facility Letters of Credit, based on telephonic notices made by
any person or persons the Agent or any Lender in good faith believes to
22
be acting on behalf of the Borrower (or, for the issuance of Facility Letters of
Credit only, any Domestic Subsidiary). The Borrower (or such Domestic
Subsidiary) agrees to deliver promptly to the Agent a written confirmation, if
such confirmation is requested by the Agent or any Lender, of each telephonic
notice signed by any of its Authorized Officers. If the written confirmation
differs in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern absent manifest
error.
2.12. Interest Payment Dates; Interest and Fee Basis. Interest on each
----------------------------------------------
Alternate Base Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Alternate Base Rate Advance is prepaid due to acceleration and at maturity.
Interest accrued on each Fixed Rate Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Fixed Rate Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Fixed Rate Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest and fees shall be calculated for actual days elapsed
on the basis of a 360-day year. Interest shall be payable for the day an Advance
is made but not for the day of any payment on the amount paid if payment is
received prior to noon (Chicago time or London time, as applicable) at the place
of payment. If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
2.13. Notification by Agent. Promptly after receipt thereof, the Agent will
---------------------
notify each Lender of the contents of each Aggregate Commitment reduction
notice, Committed Borrowing Notice, Competitive Bid Acceptance Notice,
Conversion/Continuation Notice, Letter of Credit Request, Issuance Notice and
repayment notice received by it hereunder. The Agent will notify each Lender of
the interest rate applicable to each Fixed Rate Advance promptly in writing upon
determination of such interest rate and will give each Lender prompt written
notice of each change in the Alternate Base Rate.
2.14. Lending Installations. Each Lender may book its Loans at any Lending
---------------------
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or telex notice to the
Agent and the Borrower, designate a Lending Installation through which Loans
will be made by it and for whose account Loan payments are to be made.
2.15. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
---------------------------------
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Committed Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the Lenders, that it
does not intend to make such payment, the Agent may assume that such payment has
been made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
23
2.16. Withholding Tax Exemption. At least five Business Days prior to the
-------------------------
first date on which interest or fees are payable hereunder for the account of
any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1101 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
2.17. Change in Circumstances.
-----------------------
2.17.1. Taxes.
-----
(a) Payments to be Free and Clear. All sums payable by the
-----------------------------
Borrower whether in respect of principal, interest, fees or otherwise shall be
paid without deduction for any present and future taxes, levies, imposts,
deductions, charges or withholdings imposed by any country, any Governmental
Agency thereof or therein, any jurisdiction from which any or all such payments
are made and any political subdivision or taxing authority thereof or therein
(collectively, "Taxes"), which amounts shall be paid by the Borrower as provided
in Section 2.17.1 (b). The Borrower will pay each Lender the amounts necessary
such that the net amount of the principal, interest, fees or other sums received
and retained by each Lender is not less than the amount payable under this
Agreement.
(b) Grossing-up of Payments. If: (a) the Borrower or any other
-----------------------
Person is required by law to make any deduction or withholding on account of any
such Tax or other amount from any sum paid or expressed to be payable by the
Borrower to any Lender under this Agreement; or (b) any party to this Agreement
(or any Person on its behalf) other than the Borrower is required by law to make
any deduction or withholding from, or (other than on account of tax on the
overall net income of that party) any payment on or calculated by reference to
the amount of, any such sum received or receivable by any Lender under this
Agreement:
(i) the Borrower shall notify the Agent of any such requirement or
any change in any such requirement as soon as the Borrower
becomes aware of it;
(ii) the Borrower shall pay any such Tax or other amount before the
date on which penalties attached thereto become due and payable,
such payment to be made (if the liability to pay is imposed on
the Borrower) for its own account or (if that
24
liability is imposed on any party to this Agreement) on behalf of
and in the name of that party;
(iii) the sum payable by the Borrower in respect of which the relevant
deduction, withholding or payment is required shall (except, in
the case of any such payment, to the extent that the amount
thereof is not ascertainable when that sum is paid) be increased
to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, that party receives on the due
date and retains (free from any liability in respect of any such
deduction, withholding or payment) a sum equal to that which it
would have received and so retained had no such deduction,
withholding or payment been required or made; and
(iv) within thirty (30) days after payment of any sum from which the
Borrower is required by law to make any deduction or withholding,
and within thirty (30) days after the due date of payment of any
Tax or other amount which it is required by Section 2.17.1(b)(ii)
to pay, it shall deliver to the Agent all such certified
documents and other evidence as to the making of such deduction,
withholding or payment as (a) are satisfactory to other affected
parties as proof of such deduction, withholding or payment and of
the remittance thereof to the relevant taxing or other authority
and (b) are required by any such party to enable it to claim a
tax credit with respect to such deduction, withholding or
payment.
2.17.2. Yield Protection. If the adoption or promulgation, on or after
----------------
the date hereof, of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change, on or after the date hereof, in the interpretation thereof,
or the compliance of any Lender with any such adoption, promulgation or change
in interpretation,
(i) subjects any Lender or any applicable Lending Installation to any tax,
duty, charge or withholding on or from payments due from the Borrower
(excluding United States federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its Loans, its
interest in the Facility Letters of Credit or other amounts due it
hereunder, or
(ii) imposes, increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining loans or issuing letters of credit or reduces
any amount receivable by any Lender or any applicable Lending
Installation in connection with loans or letters of credit, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held, letters
of credit issued or participated in or interest received by it by an
amount deemed material by such Lender,
25
then, within 15 days of demand by such Lender, the Borrower shall compensate
such Lender for that portion of such increased expense incurred or reduction in
an amount received which such Lender reasonably determines is attributable to
making, funding and maintaining its Loans, its interest in the Facility Letters
of Credit, and its Commitment.
2.17.3. Changes in Capital Adequacy Regulations. If a Lender
---------------------------------------
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans, its interest in the Facility Letters of Credit, or its
obligation to make Loans, participate in or issue Facility Letters of Credit
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in
the Risk-Based Capital Guidelines or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines"
means (i) the risk-based capital guidelines in effect in the United States on
the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices entitled "International
Convergence of Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement.
2.17.4. Availability of Types of Advances. If any Lender determines
----------------------------------
that maintenance of any of its Eurocurrency Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, the Agent shall suspend the availability
of the affected Type of Advance and require any Fixed Rate Advances of the
affected Type to be repaid; or if the Required Lenders determine that (i)
deposits of a type or maturity appropriate to match fund Fixed Rate Advances are
not available, the Agent shall suspend the availability of the affected Type of
Advance with respect to any Fixed Rate Advances made after the date of any such
determination, or (ii) an interest rate applicable to a Type of Advance does not
accurately reflect the cost of making a Fixed Rate Advance of such Type, then,
if for any reason whatsoever the provisions of Section 2.17.2 are inapplicable,
the Agent shall suspend the availability of the affected Type of Advance with
respect to any Fixed Rate Advances made after the date of any such
determination.
2.17.5. Funding Indemnification. If any payment of a Fixed Rate
-----------------------
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a Fixed
Rate Advance is not made on the date specified by the Borrower for any reason
other than default by the Lenders, the Borrower will indemnify each Lender for
any loss or cost (including lost profits) incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance.
2.17.6. Mitigation Of Additional Costs; Replacement of Lenders. If,
------------------------------------------------------
in respect of any Lender, circumstances arise which result in:
(i) an increase in the liability of the Borrower to such Lender under
Section 2.17.1, 2.17.2 or 2.17.3,
26
(ii) the unavailability of a Type of Committed Advance under Section
2.17.4, or
(iii) a Lender being incapable of receiving payments without deduction or
withholding of United States federal income tax;
then, without in any way limiting, reducing or otherwise qualifying the
Borrower's obligations under any of the Sections referred to above in this
Section 2.17.6, such Lender shall promptly upon becoming aware of such
circumstances notify the Agent thereof and such Lender shall, in consultation
with the Agent and the Borrower and to the extent that it can do so without
disadvantaging itself, take such reasonable steps as may be reasonably open to
it to mitigate the effects of such circumstances (including, without limitation,
the designation of an alternate Lending Installation or the transfer of its
Loans to another Lending Installation). If and so long as a Lender has been
unable to take, or has not taken, steps acceptable to the Borrower to mitigate
the effect of the circumstances in question, such Lender shall be obliged, at
the request of the Borrower, to assign all its rights and obligations hereunder
to another Person nominated by the Borrower with the approval of the Agent
(which shall not be unreasonably withheld) and willing to participate in the
facility in place of such Lender; provided that such Person satisfies all of the
requirements of this Agreement including, but not limited to, providing the
forms required by Sections 2.16 and 12.3.2. Notwithstanding any such assignment,
the obligations of the Borrower under Sections 2.17.1, 2.17.2, 2.17.3 and 9.7
shall survive any such assignment and be enforceable by such Lender.
2.17.7. Lender Statements; Survival of Indemnity. Each shall deliver
----------------------------------------
a written statement of such Lender as to the amount due, if any, under Sections
2.17.1, 2.17.2, 2.17.3 or 2.17.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as though each Lender
funded its Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Fixed Rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
shall be payable on demand after receipt by the Borrower of the written
statement. The obligations of the Borrower under Sections 2.17.1, 2.17.2, 2.17.3
and 2.17.5 shall survive payment of the Obligations and termination of this
Agreement.
2.18. Market Disruption. Notwithstanding the satisfaction of all conditions
-----------------
referred to in Article IV with respect to any Foreign Currency Advance, if there
shall occur on or prior to the date of such Advance any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which would in the reasonable opinion of the Agent or
the Required Lenders make it impracticable for the Foreign Currency Loans
comprising such Advance to be denominated in the Eurocurrency specified by the
Borrower, then the Agent shall forthwith give notice thereof to the Borrower and
the Lenders, and such Loans shall not be denominated in such Eurocurrency but
shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Equivalent of the aggregate principal amount
specified in the related Committed Borrowing Notice as Alternate Base Rate
Loans, unless the Borrower notifies the Agent at least one Business Day before
such date that it elects not to borrow on such date.
27
ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
--------------------------------
3.1. Obligation to Issue. Subject to the terms and conditions of this
-------------------
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, each Issuing Bank hereby agrees to issue for the
account of the Borrower (even though a Domestic Subsidiary may be listed as the
account party thereon) through such of the Issuing Bank's branches as it and the
Borrower or any Domestic Subsidiary may jointly agree, one or more Facility
Letters of Credit in accordance with this Article III, from time to time during
the period, commencing on the Effective Date and ending on the Business Day
prior to the Termination Date.
3.2. Types and Amounts. The issuance of a Facility Letter of Credit shall
-----------------
be subject to the following conditions:
(a) the aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon such Issuing Bank;
(b) after giving effect thereto, the sum of (a) the Dollar Equivalent
of the aggregate unpaid principal balance of the Advances plus (b) the Facility
----
Letter of Credit Obligations do not exceed the Aggregate Commitment as then in
effect;
(c) it does not have an expiration date after the Termination Date;
(d) it does not have an expiration date more than twenty four (24)
months after the date of its issuance; provided, however, that the aggregate
face amount of all Facility Letters of Credit having an expiration date in
excess of twelve (12) months outstanding at any one time shall not exceed
$10,000,000; and
(e) the Facility Letter of Credit Obligations, after giving effect to
any Facility Letter of Credit requested hereunder, do not exceed $50,000,000.
3.3. Conditions. In addition to being subject to the satisfaction of the
----------
conditions contained in Sections 3.2 and 4.2, the obligation of an Issuing Bank
to issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(a) the Borrower (not a Domestic Subsidiary) shall have delivered to
---
such Issuing Bank an executed application, reimbursement agreement or such other
documents and materials as may be required by such Issuing Bank (it being
understood that if any inconsistency exists between such documents and the Loan
Documents, the terms of the Loan Documents shall control);
(b) the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content; and
(c) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to enjoin
or restrain that Issuing Bank from issuing the
28
requested Facility Letter of Credit and no law, rule or regulation applicable to
that Issuing Bank and no request or directive (whether or not having the force
of law) from any governmental authority with jurisdiction over that Issuing Bank
shall prohibit or request that such Issuing Bank refrain from the issuance of
Letters of Credit generally or the issuance of the requested Facility Letter of
Credit in particular.
3.4. Procedure for Issuance of Facility Letters of Credit.
----------------------------------------------------
(a) The Borrower or a Domestic Subsidiary shall give the Issuing Bank
and the Agent at least three (3) Business Days' prior written notice, signed by
an Authorized Officer, of any requested issuance of a Facility Letter of Credit
under this Agreement (a "Letter of Credit Request") (except that, in lieu of
such written notice, the Borrower or Domestic Subsidiary may give the Issuing
Bank and the Agent telephonic notice of such request if confirmed in writing by
delivery to the Issuing Bank and the Agent (i) immediately (A) of a telecopy of
the written notice required hereunder which has been signed by an Authorized
Officer or (B) of a telex containing all information required to be contained in
such written notice and (ii) promptly (but in no event later than the requested
date of issuance) of the written notice required hereunder containing the
original signature of an Authorized Officer); such notice shall be irrevocable
and shall specify:
(1) whether the requested Facility Letter of Credit is a Commercial
Letter of Credit or a Standby Letter of Credit and, if it is a
Standby Letter of Credit, whether the Borrower or Domestic
Subsidiary believes it to be a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $250,000), provided,
however, that up to five Facility Letters of Credit issued in any
twelve month period may have a stated amount of less than
$250,000 each;
(3) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(4) the date on which such requested Facility Letter of Credit is to
expire (which date shall be a Business Day and shall comply with
the provisions of Section 3.2(c) and (d));
(5) the name of the Issuing Bank chosen by the Borrower or Domestic
Subsidiary to issue the requested Facility Letter of Credit;
(6) the purpose for which such Facility Letter of Credit is to be
issued;
(7) the name of the account party to be listed on the Facility Letter
of Credit (notwithstanding the fact that the Borrower shall be
responsible therefor); and
(8) the Person for whose benefit the requested Facility Letter of
Credit is to be issued.
29
At the time such request is made, the Borrower or Domestic Subsidiary shall also
provide the Agent and the Issuing Bank with a copy of the form of the Facility
Letter of Credit it is requesting be issued. Such notice, to be effective, must
be received by such Issuing Bank and the Agent not later than 2:00 p.m. (Chicago
time) on the last Business Day on which notice can be given under this Section
3.4(a).
(b) Subject to the terms and conditions of this Article III and
provided that the applicable conditions set forth in Section 4.2 hereof have
been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Issuing Bank's
usual and customary business practices unless the Issuing Bank has actually
received (i) written notice from the Borrower or Domestic Subsidiary
specifically revoking the Letter of Credit Request with respect to such Facility
Letter of Credit, (ii) written notice from a Lender, which complies with the
provisions of Section 3.6(a) or (iii) written or telephonic notice from the
Agent stating that the issuance of such Facility Letter of Credit would violate
Section 3.2.
(c) Each Issuing Bank shall give the Agent and the Borrower written or
telex notice, or telephonic notice confirmed promptly thereafter in writing, of
the issuance of a Facility Letter of Credit (the "Issuance Notice"), which shall
indicate, in the case of the issuance of a Standby Letter of Credit, the Issuing
Bank's reasonable determination as to whether such Standby Letter of Credit is a
Financial Letter of Credit or a Performance Letter of Credit, which
determination shall be conclusive absent manifest error.
(d) An Issuing Bank shall not extend or amend any Facility Letter of
Credit or allow a Facility Letter of Credit to be automatically extended unless
the requirements of this Section 3.4 are met as though a new Facility Letter of
Credit was being requested and issued.
3.5. Reimbursement Obligations; Duties of Issuing Banks.
--------------------------------------------------
(a) (i) Each Issuing Bank shall promptly notify the Borrower and the
Agent of any draw under a Facility Letter of Credit and the Borrower shall
reimburse such Issuing Bank in accordance with Section 3.7; and (ii) any
Reimbursement Obligation with respect to any Facility Letter of Credit shall
bear interest from the date of the relevant drawings under the pertinent
Facility Letter of Credit until payment in full is received by the pertinent
Issuing Bank at (A) the Alternate Base Rate until the next succeeding Business
Day and (B) the Alternate Base Rate plus 2% thereafter.
(b) Any action taken or omitted to be taken by an Issuing Bank under
or in connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put that Issuing
Bank under any resulting liability to any Lender or, assuming that such Issuing
Bank has complied with the procedures specified in Section 3.4, all conditions
to the issuance of a Facility Letter of Credit have been satisfied and any such
Lender has not given a notice contemplated by Section 3.6(a) that continues in
full force and effect, relieve any such Lender of its obligations hereunder to
that Issuing Bank. In determining whether to pay under any Facility Letter of
Credit, an Issuing Bank shall have no obligation relative to the Lenders other
than to confirm that any documents required to be delivered under such Facility
Letter of Credit appear to have been delivered in compliance and that they
appear to comply on their face, with the requirements of such Facility Letter of
Credit.
30
3.6. Participation.
-------------
(a) Immediately upon (i) the Effective Date with respect to each
Existing Letter of Credit and (ii) issuance by an Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in Section 3.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from that Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to its Percentage in
such Facility Letter of Credit (including, without limitation, all rights and
obligations of the Issuing Bank with respect thereto) and any security therefor
or guaranty pertaining thereto; provided, that a Letter of Credit issued by any
Issuing Bank shall not be deemed to be a Facility Letter of Credit for purposes
of this Section 3.6 if such Issuing Bank shall have received written notice from
any Lender on or before the Business Day prior to the date of its issuance of
such Letter of Credit that one or more of the conditions contained in Section
4.2 is not then satisfied, and, in the event an Issuing Bank receives such a
notice, it shall have no further obligation to issue any Facility Letter of
Credit until such notice is withdrawn by that Lender or it receives a notice
from the Agent that such condition has been effectively waived in accordance
with the provisions of this Agreement.
(b) In the event that any Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
such Issuing Bank pursuant to Section 3.7 hereof, such Issuing Bank shall
promptly notify the Agent, which shall promptly notify each Lender, of such
failure, and each Lender shall promptly and unconditionally pay to the Agent for
the account of such Issuing Bank the amount of such Lender's Percentage of the
unreimbursed amount of such payment, and the Agent shall promptly pay such
amount to the Issuing Bank. The failure of any Lender to make available to the
Agent for the account of any Issuing Bank its Percentage of the unreimbursed
amount of any such payment shall not relieve any other Lender of its obligation
hereunder to make available to the Agent for the account of such Issuing Bank
its Percentage of the unreimbursed amount of any payment on the date such
payment is to be made, but no Lender shall be responsible for the failure of any
other Lender to make available to the Agent its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made.
(c) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to the Agent and the Agent shall promptly pay to each Lender which has funded
its participating interest therein, in immediately available funds, an amount
equal to such Lender's Percentage thereof.
(d) Upon the request of the Agent or any Lender, an Issuing Bank
shall furnish to such Agent or Lender copies of any Facility Letter of Credit to
which that Issuing Bank is party and such other documentation as may reasonably
be requested by the Agent or Lender.
(e) The obligations of a Lender to make payments to the Agent for the
account of each Issuing Bank with respect to a Facility Letter of Credit shall
be absolute, unconditional and irrevocable, not subject to any counterclaim,
set-off, qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances.
31
3.7. Payment of Reimbursement Obligations.
------------------------------------
(a) The Borrower agrees to pay to each Issuing Bank the amount of all
Reimbursement Obligations, interest and other amounts payable to such Issuing
Bank under or in connection with any Facility Letter of Credit immediately when
due (and in any event shall reimburse an Issuing Bank for drawings under a
Facility Letter of Credit issued by it no later than the next Business Day after
payment by that Issuing Bank), irrespective of any claim, set-off, defense or
other right which the Borrower or any Subsidiary may have at any time against
any Issuing Bank or any other Person, under all circumstances, including without
limitation any of the following circumstances:
(1) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(2) the existence of any claim, setoff, defense or other right which
the Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, the Issuing
Bank, any Lender, or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any Subsidiary
and the beneficiary named in any Facility Letter of Credit);
(3) any draft, certificate or any other document presented under the
Facility 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, so long as the Issuing
Bank adhered to the provisions contained in Article 13 (Standard
for Examination of Documents) of the Uniform Customs and Practice
for Documentary Credits, 1993 Revision;
(4) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
or
(5) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by or for the account of the Borrower or
any Subsidiary received by an Issuing Bank with respect to a Facility Letter of
Credit and distributed by the Agent to the Lenders on account of their
participations is thereafter set aside, avoided or recovered from that Issuing
Bank in connection with any receivership, liquidation, reorganization or
bankruptcy proceeding, each Lender which received such distribution shall, upon
demand by that Issuing Bank, contribute such Lender's Percentage of the amount
set aside, avoided or recovered together with interest at the rate required to
be paid by that Issuing Bank upon the amount required to be repaid by it.
3.8. Compensation for Facility Letters Of Credit.
-------------------------------------------
(a) The Borrower shall pay to the Agent, for the ratable account of
the Lenders, based upon the Lenders' respective Percentages, a fee (the
"Facility Letter of Credit Fee") with respect to each Facility Letter of Credit
that is:
32
(1) a Standby Letter of Credit, for the period from the Issuance Date
thereof to but including the final expiration date thereof, in a
per annum amount equal to the product of (A) the average daily
undrawn amount of such Standby Letter of Credit times (B) with
respect to a Standby Letter of Credit that is (1) a Financial
Letter of Credit, the percentage indicated as the Applicable
Margin for the Standby Letter of Credit Fee (Financial) in
Section 2.3.4 or (2) a Performance Letter of Credit, the
percentage indicated as the Applicable Margin for the Standby
Letter of Credit Fee (Performance) in Section 2.3.4, and
(2) a Commercial Letter of Credit, in an amount equal to the
percentage indicated as the Applicable Margin for the Commercial
Letter of Credit Fee in Section 2.3.4 times the face amount of
such Commercial Letter of Credit.
The Facility Letter of Credit Fees shall be due and payable in arrears on each
Payment Date and, to the extent any such fees are then due and unpaid, on the
Termination Date. The Agent shall promptly remit such Facility Letter of Credit
Fees, when paid, to the other Lenders in accordance with their Percentages
thereof.
(b) Each Issuing Bank shall have the right to receive issuance fees
for any Facility Letter of Credit solely for its own account in an amount in
accordance with its standard fee schedule or such other amount to which it and
the Borrower may agree in writing. In addition, each Issuing Bank shall be
entitled to receive its reasonable out-of-pocket costs of issuing and servicing
Facility Letters of Credit.
3.9. Letter of Credit Collateral Account. From and after the occurrence and
-----------------------------------
during the continuance of a Default, the Borrower hereby agrees that it will,
until the Termination Date, maintain a special collateral account (the "Letter
of Credit Collateral Account") at the Agent's office at the address specified
pursuant to Article XIII, in the name of the Borrower but under the sole
dominion and control of the Agent, for the benefit of the Lenders, and in which
the Borrower shall have no interest other than as set forth in Section 8.1. In
addition to the foregoing, the Borrower hereby grants to the Agent, for the
benefit of the Lenders, a security interest in and to the Letter of Credit
Collateral Account and any funds that may hereafter be on deposit in such
account.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance and Facility Letter of Credit. The Lenders shall not
---------------------------------------------
be required to make the initial Advance and, if the initial Advance shall not
have been made, an Issuing Bank shall not be obligated to issue any Facility
Letter of Credit hereunder to the Borrower and, in any event, this Agreement
shall not become effective unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders, the following items (and the date upon which
all such items shall have been so furnished is hereinafter referred to as the
"Effective Date"):
33
(i) Copies of the certificate or articles of incorporation, together with
all amendments, and a certificate of good standing for the Borrower,
both certified, as of a recent date, by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its by-laws and of its Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the performance and execution of
the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and
bear the signature of the Authorized Officers of (a) the Borrower
authorized to sign the Loan Documents and to make borrowings and
request Facility Letters of Credit hereunder and (b) each Domestic
Subsidiary authorized to request Facility Letters of Credit hereunder,
upon which certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower.
(iv) A compliance certificate, signed by the chief financial officer or
controller of the Borrower, in substantially the form attached hereto
as Exhibit "G".
(v) A written opinion of counsel to the Borrower, addressed to the Lenders
in substantially the form of Exhibit "E".
(vi) Notes from the Borrower payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in substantially the form of
Exhibit "F" hereto, addressed to the Agent and signed by an Authorized
Officer of the Borrower, together with such other related money
transfer authorizations as the Agent may have reasonably requested.
(viii) The Guaranty executed by each Guarantor, together with an opinion of
counsel to the Guarantors in form and substance satisfactory to the
Agent.
(ix) Evidence satisfactory to the Agent that the Borrower and certain of
its Subsidiaries party thereto have paid (or will pay with the initial
advance hereunder) in full and terminated the existing credit
agreement, dated July 20, 1993, among the Borrower, such Subsidiaries,
the lenders party thereto and Corestates Bank, N.A. as agent for such
lenders and have released all Liens granted in connection therewith.
(x) The insurance certificate described in Section 5.18.
(xi) Payment of any fees due to the Agent pursuant to the letter agreement
referred to in Section 2.6.3.
(xii) Such other documents as any Lender or its counsel may have reasonably
requested.
34
4.2. Each Advance and Facility Letter of Credit. No Lender shall be
------------------------------------------
required to make any Advance (other than a Committed Advance that, after giving
effect thereto and to the application of the proceeds thereof, does not increase
the aggregate amount of the sum of outstanding (x) Committed Advances and (y)
Reimbursement Obligations) and the Issuing Bank shall not be obligated to issue
any Facility Letter of Credit, unless on the applicable Borrowing Date or
Issuance Date:
(i) There exists no Default or Unmatured Default before and after giving
effect to such advance or issuance.
(ii) The representations and warranties contained in Article V are true
and correct as of such Borrowing Date or Issuance Date, as the case
may be, except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such
representation or warranty shall remain true and correct on and as
of such earlier date.
(iii) All legal matters incident to the making of such Advance or issuance
of such Facility Letter of Credit shall be satisfactory to the
Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance and each Letter of
Credit Request with respect to each Facility Letter of Credit (even if delivered
by a Domestic Subsidiary) shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. Any Lender or the Issuing Bank may require a duly completed
compliance certificate in substantially the form of Exhibit "G" hereto as a
condition to making an Advance or issuing a Facility Letter of Credit.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
--------------------------------
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
5.2. Authorization and Validity. The Borrower has the corporate power
--------------------------
and authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery
-------------------------------
by the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree
35
or award binding on the Borrower or any of its Subsidiaries or the Borrower's or
any Subsidiary's certificate or articles of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any Lien in, of or on the Property of
the Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
Governmental Agency, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
5.4. Financial Statements. The December 31, 1994 and June 30, 1995
--------------------
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and operations
of the Borrower and its Subsidiaries at such date and the consolidated results
of their operations for the period then ended.
5.5. Material Adverse Change. Since December 31, 1994, there has been no
-----------------------
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States
-----
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. No tax liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on Schedule
-------------------------------------
"3" hereto, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect. Other than any
liability incident to such litigation, arbitration or proceedings, the Borrower
has no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule "4" hereto (as the same may have been revised
------------
in accordance with Section 6.16) contains an accurate list of all of the
presently existing Subsidiaries of the Borrower, setting forth their respective
jurisdictions of incorporation and the percentage of their respective capital
stock owned by the Borrower or other Subsidiaries. All of the issued and
outstanding shares of capital stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
-----
the aggregate exceed $7,500,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the Borrower nor any other
members of the Controlled Group has withdrawn from any Plan or initiated steps
to do so, and no steps have been taken to reorganize or
36
terminate any Plan (except that any Single Employer Plan may be terminated so
long as all Unfunded Liabilities with respect to such Plan are paid or otherwise
eliminated).
5.10. Accuracy of Information. No information, exhibit or report furnished
-----------------------
by the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes
------------
less than 25% of those assets of the Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
-------------------
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied
--------------------
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or Government Agency thereof, having jurisdiction
over the conduct of their respective businesses or the ownership of their
respective Property. Neither the Borrower nor any Subsidiary has received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable federal, state and local environmental, health
and safety statutes and regulations or the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule "5" hereto,
-----------------------
on the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.17, to all of
the Property and assets reflected in the financial statements as owned by it.
5.15. Investment Company Act. Neither the Borrower nor any Subsidiary
----------------------
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
5.16. Public Utility Holding Company Act. Neither the Borrower nor any
----------------------------------
Subsidiary 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.
5.17. Subordinated Indebtedness. The Obligations constitute senior
-------------------------
indebtedness which is entitled to the benefits of the subordination provisions
of all outstanding Subordinated Indebtedness.
37
5.18. Insurance. The certificate signed by the President or Chief Financial
---------
Officer of the Borrower, that attests to the existence and adequacy of, and
summarizes, the property and casualty insurance program carried by the Borrower
and that has been furnished by the Borrower to the Agent and the Lenders, is
complete and accurate as of the date of this Agreement. This summary includes
the insurer's or insurers' name(s), policy number(s), expiration date(s),
amount(s) of coverage, type(s) of coverage, exclusion(s), and deductibles. This
summary also includes similar information, and describes any reserves, relating
to any self-insurance program that is in effect.
5.19. Solvency. Immediately following the making of each Loan, if any, made
--------
on the (i) Effective Date and after giving effect to the application of the
proceeds of such Loans, and (ii) date of any Permitted Acquisition and after
giving effect to the application of the proceeds of such Loans,
(a) the fair value of the assets of the Borrower and the Subsidiaries
on a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower and the
Subsidiaries on a consolidated basis;
(b) the present fair saleable value of the property of the Borrower
and the Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the Borrower
and the Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured;
(c) the Borrower and the Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and
(d) the Borrower and the Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are now
proposed to be conducted.
The Borrower does not intend to, or to permit any of its Subsidiaries to, and
does not believe that it or any of its Subsidiaries will, incur debts beyond (i)
the Borrower's ability to pay its debts as they mature and (ii) the ability of
the Borrower and its Subsidiaries on a consolidated basis to pay all such debts
as they mature, taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the amounts of cash to
be payable on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
5.20. Single Business Enterprise. The Borrower and its Subsidiaries have
--------------------------
historically operated as, and intend to continue operating as a single business
enterprise. Although separate entities, the Borrower and its Subsidiaries
operate under a common business plan. Each of the Borrower and its Subsidiaries
will accordingly benefit from the financing arrangement established by this
Agreement. The Borrower acknowledges that, but for the agreement by each of the
Guarantors to execute and deliver the Guaranty, the Borrower would not have
qualified separately for the total amount of the credit facilities established
hereby.
38
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and each
-------------------
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants of recognized national standing selected by the
Borrower, prepared in accordance with generally accepted accounting
principles on a consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for itself
and the Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and changes in shareholder's
equity statements, and a statement of cash flows, accompanied by
any management letter or other similar written materials prepared
by said accountants.
(ii) Within 45 days after the close of the first three quarterly periods
of each of its fiscal years, for itself and the Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the
close of each such period and consolidated and consolidating profit
and loss and changes in shareholder's equity statements and a
statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer or controller.
(iii) Together with the financial statements required pursuant to Sections
6.1(i) and 6.1(ii) and the pro forma financial statements required
pursuant to the definition of Permitted Acquisition, a compliance
certificate in substantially the form of Exhibit "G" hereto signed
by its chief financial officer or controller showing the
calculations necessary to determine compliance with this Agreement
and stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof.
(iv) Within 270 days after the close of each fiscal year, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA; provided, however, that
in lieu thereof, the Borrower may deliver an audited financial
statement for any Single Employer Plan, prepared by the Borrower's
independent certified public accountants.
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect
to any Plan, a statement, signed by the chief financial officer of
the Borrower, describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
39
(vi) As soon as possible and in any event within 10 days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that
the Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste
or substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(ix) Such other information (including non-financial information) as the
Agent or any Lender may from time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
---------------
to, use the Facility Letters of Credit and the proceeds of the Advances for
general corporate purposes (including Investments and Acquisitions permitted
hereunder), and to repay outstanding Advances and Reimbursement Obligations.
The Borrower will not, nor will it permit any Subsidiary to, use any of the
Facility Letters of Credit or the proceeds of the Advances to purchase or
carry any "margin stock" (as defined in Regulation U).
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary
-----------------
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
-------------------
Subsidiary to, (i) carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and (other than sales of Subsidiaries and mergers of the Borrower or
any Subsidiary which are permitted under this Agreement) do all things necessary
to remain duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, pay
-----
when due all taxes, assessments and governmental charges and levies upon it or
its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
---------
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
40
6.7. Compliance with Laws. The Borrower will, and will cause each
--------------------
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject and obtain
and maintain in effect all consents, licenses, permits, orders or other
governmental approvals necessary in order to perform its obligations under the
Loan Documents.
6.8. Maintenance of Properties. The Borrower will, and will cause each
-------------------------
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition (ordinary wear and tear
excepted), and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
----------
permit the Lenders, by their respective representatives and agents, to inspect
any of the Property, corporate books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
6.10. Dividends. The Borrower will not, nor will it permit any Subsidiary
---------
to, declare or pay any dividends on its capital stock (other than dividends
payable in its own capital stock) or redeem, repurchase or otherwise acquire or
retire any of its then outstanding capital stock at any time at which a Default
or Unmatured Default exists or would exist after giving effect to such dividend,
redemption, repurchase, acquisition or retirement; provided, however, that (i)
any Subsidiary may at any time declare and pay dividends to the Borrower or to a
Wholly-Owned Subsidiary, (ii) the Borrower may redeem, repurchase or otherwise
acquire or retire its then outstanding capital stock to the extent permitted by
Section 6.16.1(iv) and (iii) from and after September 1, 1996, the Borrower may
declare and pay dividends on its capital stock, provided that the aggregate
amount of such dividends shall at no time exceed twenty percent (20%) of the
Borrower's cumulative Net Income since July 1, 1996 (taken as one accounting
period).
6.11. Indebtedness. The Borrower will not, nor will it permit any
------------
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Facility Letters of Credit.
(ii) Indebtedness existing on the date hereof and described in Schedule
"5" hereto.
(iii) The Guaranty.
(iv) Contingent Obligations by endorsement of instruments for deposit or
collection in the ordinary course of business.
(v) Indebtedness not included in any of the foregoing exceptions, so
long as no Default or Unmatured Default has occurred and is
continuing on the date of its creation or incurrence.
41
6.12. Merger. The Borrower will not, nor will it permit any
------
Subsidiary to, merge or consolidate with or into any other Person, except
(i) that a Subsidiary may merge with and into the Borrower or a Wholly-
Owned Subsidiary and (ii) pursuant to a Permitted Acquisition.
6.13. Sale of Assets. The Borrower will not, nor will it permit any
--------------
Subsidiary to, lease, sell or otherwise dispose of its Property, to any
other Person except for (i) sales of inventory in the ordinary course of
business and (ii) leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than inventory in the
ordinary course of business) as permitted by this Section during the
twelve-month period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries.
6.14. Affiliates. Except as otherwise described on Schedule "6"
----------
hereto, the Borrower will not, and will not permit any Subsidiary to, enter
into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.15. Subordinated Indebtedness. The Borrower will not, and will not
-------------------------
permit any Subsidiary to, (i) make any amendment or modification to the
indenture, note or other agreement evidencing or governing any Subordinated
Indebtedness, or (ii) directly or indirectly voluntarily prepay, defease or
in substance defease, purchase, redeem, retire or otherwise acquire, any
Subordinated Indebtedness.
6.16. Investments and Acquisitions.
----------------------------
6.16.1. Investments. The Borrower will not, nor will it permit any
-----------
Subsidiary to, make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries),
or commitments therefor, or to create any Subsidiary or to become or remain
a partner in any partnership or joint venture, except:
(i) Marketable Securities.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule "4"
hereto.
(iii) Any Investment consisting of (A) the acquisition of stock or
other equity interests which constitutes a Permitted
Acquisition, (B) the creation of a new Subsidiary to act as
the Purchaser in a Permitted Acquisition and (C) an Investment
in a Subsidiary for the purpose of facilitating a Permitted
Acquisition.
(iv) Investments by the Borrower in shares of its stock to be held
in treasury for purposes of providing such shares to the
employee stock ownership plan.
(v) Investments in (A) IABG, in an aggregate amount not to exceed
6,000,000 Deutsche marks and (B) Specified Subsidiaries, in an
aggregate amount not to exceed $5,000,000.
42
(vi) Investments (other than Investments in Specified Subsidiaries)
not included in any of the foregoing exceptions, in an
aggregate amount not to exceed, in any calendar year, the
greater of (i) $15,000,000 or (ii) fifteen percent (15%) of
the Borrower's Net Worth; provided, however, that all such
-------- ------
Investments are related to the Borrower's existing lines of
business.
6.16.2. Acquisitions. The Borrower will not, nor will it permit any
------------
Subsidiary to, make any Acquisition of any Person, except for Permitted
Acquisitions. Upon the consummation of any Permitted Acquisition, (i) the
Borrower may deliver to the Lenders a revised Schedule "4" listing any new
Subsidiary, if any, formed or acquired pursuant to such Permitted
Acquisition (each, a "New Subsidiary"), and such revised Schedule shall
replace the old Schedule and shall be deemed to have become part of the
Agreement and (ii) the Borrower shall or shall cause any such New
Subsidiary to deliver to the Agent, promptly but in any event within five
days, an executed counterpart to become a Guarantor under the Guaranty, in
the form of Exhibit "H" attached hereto, and appropriate corporate
resolutions and incumbency certificates authorizing such execution and
delivery and an opinion of counsel related thereto, in form and substance
satisfactory to the Agent.
6.17. Liens. The Borrower will not, nor will it permit any
-----
Subsidiary to, (i) be a party to any agreement or undertaking with any
lender or other person whereby the Borrower or such Subsidiary shall commit
itself to any undertaking similar in tenor or effect to this Section 6.17
and (ii) create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on
its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule
"5" hereto.
6.18. Financial Covenants. The Borrower shall maintain, for itself
-------------------
and its Subsidiaries on a consolidated basis, each of the following
financial covenants, each calculated in accordance with Agreement Account
Principles:
43
6.18.1. Debt to Total Capitalization. The Borrower shall maintain, on
----------------------------
a consolidated basis, at all times a ratio of (i) Debt to (ii) the sum of
(a) Net Worth plus (b) Debt, all determined on a consolidated basis for the
----
Borrower and its Subsidiaries, not exceeding .60 to 1.0.
6.18.2. Debt to EBITDA. The Borrower shall maintain, on a consolidated
--------------
basis, as of the end of each fiscal quarter a ratio of (i) Debt to (ii)
EBITDA for such fiscal quarter and the three immediately preceding fiscal
quarters, not exceeding 3.0 to 1.0.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following
events shall constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Agent under or in connection with this Agreement, any Loan, any Facility
Letter of Credit, or any certificate or information delivered in connection
with this Agreement or any other Loan Document shall be materially false on
the date as of which made or deemed made.
7.2. Nonpayment of principal of any Note when due; nonpayment of
any Reimbursement Obligation when due; or nonpayment of interest upon any
Note or of any fee or other obligation under any of the Loan Documents
within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions
of Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.15, 6.16, 6.17 or 6.18.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
provisions of this Agreement which is not remedied within fifteen days
after the earlier to occur of (i) receipt of written notice from the Agent
or any Lender or (ii) the date the Borrower becomes aware of any such
breach.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in excess of $5,000,000 in the aggregate when due; or the
default by the Borrower or any of its Subsidiaries in the performance of
any term, provision or condition contained in any agreement under which any
Indebtedness in excess of $5,000,000 in the aggregate was created or is
governed, or any other event shall occur or condition exist, the effect of
which is to cause, or to permit the holder or holders of such Indebtedness
to cause, such Indebtedness to become due prior to its stated maturity; or
any Indebtedness in excess of $5,000,000 in the aggregate of the Borrower
or any of its Subsidiaries shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior
to the stated maturity thereof; or the Borrower or any of its Subsidiaries
shall not pay, or admit in writing its inability to pay, its debts
generally as they become due.
44
7.6. The Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy
laws as now or hereafter in effect, (ii) make an assignment for the benefit
of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any portion of its Property that constitutes a
Substantial Portion, (iv) institute any proceeding seeking an order for
relief under the Federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer
or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate action to authorize or effect any
of the foregoing actions set forth in this Section 7.6 or (vi) fail to
contest in good faith any appointment or proceeding described in Section
7.7.
7.7. Without the application, approval or consent of the Borrower
or any of its Subsidiaries, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any of its
Subsidiaries or any portion of its Property that constitutes a Substantial
Portion, or a proceeding described in Section 7.6(iv) shall be instituted
against the Borrower or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of the Borrower and its
Subsidiaries which, when taken together with all other Property of the
Borrower and its Subsidiaries so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month
in which any such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith.
7.10. The Borrower or any of its Subsidiaries shall be the subject
of any proceeding or investigation pertaining to the release by the
Borrower or any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, or any violation of any
federal, state or local environmental, health or safety law or regulation,
which, in either case, could reasonably be expected to have a Material
Adverse Effect.
7.11. Any Change in Control shall occur.
7.12. Any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply
with any of the terms or provisions of any Guaranty to which it is a party,
or any Guarantor denies that it has any further liability under any
Guaranty to which it is a party, or gives notice to such effect.
7.13. Twenty-five percent (25%) or more of the value of any class of
equity interests (which are not "publicly-offered securities" within the
---
meaning of 29 C.F.R. Sec.2510.3-101 (b)(2)) in the Borrower shall be held by
"benefit plan investors" within the meaning of 29 C.F.R. Sec.2510.3-101(f).
45
7.14. The Borrower or any Subsidiary shall have received notice of
the suspension or debarment of the Borrower or any Subsidiary from
contracting with the federal government.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
------------
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans and of an Issuing Bank to issue Facility Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become
due and payable without any election or action on the part of the Agent or
any Lender. If any other Default occurs and is continuing, the Required
Lenders may terminate or suspend the obligations of the Lenders to make
Loans and of an Issuing Bank to issue Facility Letters of Credit hereunder,
or declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives. In addition to the foregoing following the occurrence and
during the continuance of a Default, so long as any Facility Letter of
Credit has not been fully drawn and has not been cancelled or expired by
its terms, upon demand by the Agent the Borrower shall deposit in the
Letter of Credit Collateral Account cash in an amount equal to the
aggregate undrawn face amount of all outstanding Facility Letters of Credit
and all fees and other amounts due or which may become due with respect
thereto. The Borrower shall have no control over funds in the Letter of
Credit Collateral Account, which funds shall be invested by the Agent from
time to time in its discretion in certificates of deposit of First Chicago
having a maturity not exceeding thirty days, so long as the Borrower has
provided the Agent with such documents as the Agent shall have requested in
order to perfect a security interest in such certificates of deposit. Such
funds shall be promptly applied by the Agent to reimburse any Issuing Bank
for drafts drawn from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid
over to the Borrower.
If, within 14 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
and of an Issuing Bank to issue Facility Letters of Credit hereunder as a
result of any Default (other than any Default as described in Section 7.6
or 7.7 with respect to the Borrower) and before any judgment or decree for
the payment of the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the Agent
shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII,
----------
the Required Lenders (or the Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default hereunder; provided, however,
-------- -------
that no such supplemental agreement shall, without the consent of each
Lender, directly or indirectly, affected thereby:
(i) Extend the maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate or
extend the time of payment of interest or fees
thereon.
46
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Reduce the amount or extend the payment date for, the
mandatory payments required under Section 2.7, or increase the
amount of the Commitment of any Lender hereunder, or permit
the Borrower to assign its rights under this Agreement.
(iv) Amend (a) this Section 8.2 or (b) Section 3.2, 7.6 or 7.7.
(v) Increase the maximum drawable amount or extend the expiration
date of any outstanding Facility Letter of Credit (except as
expressly permitted by its terms and in accordance with
Article III) or reduce the principal amount of or extend the
time of payment of any Reimbursement Obligation or fee
associated with any Facility Letter of Credit.
(vi) Release any Guarantor of any of the Obligations or release all
or substantially all of any collateral, if any.
No amendment of any provision of this Agreement relating to the Agent shall
be effective without the written consent of the Agent. The Agent may waive
payment of any fee payable to, and for the sole benefit of, the Agent
without obtaining the consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or
----------------------
the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 8.2, and then only to the extent in
such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available
to the Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. Survival of Representations. All representations and
---------------------------
warranties of the Borrower contained in this Agreement shall survive
delivery of the Notes and the making of the Loans and the issuance of the
Facility Letters of Credit herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
-----------------------
to the contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
47
9.3. Taxes. Any taxes (excluding federal income taxes on the
-----
overall net income of any Lender) or other similar assessments or charges
ruled payable by any governmental or revenue authority in respect of the
Loan Documents shall be paid by the Borrower, together with interest and
penalties, if any.
9.4. Headings. Section headings in the Loan Documents are for
--------
convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
9.5. Entire Agreement. The Loan Documents, together with the letter
----------------
agreement referred to in Section 2.6.3, embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and
the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The
-----------------------------------------------
respective obligations of the Lenders hereunder are several and not joint
and no Lender shall be the partner or agent of any other (except to the
extent to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall
not be construed so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective successors and
assigns.
9.7. Expenses; Indemnification. The Borrower shall reimburse the
-------------------------
Agent for any reasonable costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent,
which attorneys may be employees of the Agent) paid or incurred by the
Agent in connection with the preparation, negotiation, execution, delivery,
review, amendment, modification, and administration of the Guaranty and the
Loan Documents (subject to any limitation contained in the letter agreement
referred to in Section 2.6.3). The Borrower also agrees to reimburse the
Agent and the Lenders for any reasonable costs, internal charges and out-
of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent and the Lenders, which attorneys may be employees of the
Agent or the Lenders) paid or incurred by the Agent or any Lender in
connection with the collection and enforcement of the Guaranty and the Loan
Documents. The Borrower further agrees to indemnify the Agent and each
Lender, its directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or
not the Agent or any Lender is a party thereto) which any of them may pay
or incur arising out of or relating to this Agreement, the Guaranty and the
other Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Loan or
the use or intended use of any Facility Letter of Credit hereunder;
provided that in no event shall any Person be entitled to indemnification
- --------
for any such losses, claims, damages, penalties, judgments, liabilities or
expenses arising out of the gross negligence or willful misconduct of such
Person or any of its Affiliates. The obligations of the Borrower under this
Section shall survive the termination of this Agreement.
9.8. Numbers of Documents. All statements, notices, closing
--------------------
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.9. Accounting. Except as provided to the contrary herein, all
----------
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
48
9.10. Severability of Provisions. Any provision in any Loan Document
--------------------------
that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any
other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
9.11. Nonliability of Lenders. The relationship between the Borrower
-----------------------
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities
to the Borrower. Neither the Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or
operations.
9.12. Language. The Loan Documents and all notices, communications,
--------
opinions and other documents to be furnished by or on behalf of the
Borrower pursuant to the Loan Documents shall be in the English language
or, in the case of any notices, communications, opinions or other documents
submitted in another language, accompanied by a certified English
translation thereof and in the event of any conflict between the English
text and such other text of any such document, the English text shall
prevail.
9.13. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
-------------
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
9.14. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
-----------------------
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR
ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
9.15. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
--------------------
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE)
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
49
9.16. Confidentiality. Each Lender agrees to hold any confidential
---------------
information which it may receive from the Borrower or any Subsidiary
pursuant to this Agreement in confidence, except for disclosure (i) to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to that Lender or to a
Transferee on a need-to-know basis, (iii) upon request from regulatory
officials, (iv) to any Person as required by law, regulation, or legal
process, (v) to any Person as required in connection with any legal
proceeding to which that Lender is a party, and (vi) permitted by Section
12.4.
ARTICLE X
THE AGENT
---------
10.1. Appointment. The First National Bank of Chicago is hereby
-----------
appointed Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Agent to act as the agent of such
Lender. The Agent agrees to act as such upon the express conditions
contained in this Article X. The Agent shall not have a fiduciary
relationship in respect of the Borrower or any Lender by reason of this
Agreement.
10.2. Powers. The Agent is hereby authorized to execute and accept
------
the Guaranty. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
----------------
officers, agents or employees shall be liable to the Borrower, the Lenders
or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful
misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent
-------------------------------------------
nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness
of any Loan Document or any other instrument or writing furnished in
connection therewith. The Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity),
unless such information would have a Material Adverse Effect.
10.5. Action on Instructions of Lenders. The Agent shall in all
---------------------------------
cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions
signed by the Required Lenders, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Agent shall
50
be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any
such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
--------------------------------
its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it
or its authorized agents, for the default or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. The Agent shall
be entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
------------------------------
rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by
the Agent, which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
-----------------------------------------
to reimburse and indemnify the Agent ratably in proportion to their
respective Commitments (i) for any amounts not reimbursed by the Borrower
for which the Agent is entitled to reimbursement by the Borrower under the
Loan Documents, (ii) for any other expenses incurred by the Agent on behalf
of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby,
or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of
the Agent. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender
------------------
(including its capacity as an Issuing Bank), the Agent shall have the same
rights and powers hereunder and under any other Loan Document as any Lender
and may exercise the same as though it were not the Agent, and the term
"Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless
the context otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition
to those contemplated by this Agreement or any other Loan Document, with
the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
The Agent, in its individual capacity, is not obligated to remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
51
10.11. Successor Agent. The Agent may resign at any time by giving
---------------
written notice thereof to the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. Upon any such resignation, the Required
Lenders shall have the right to appoint, on behalf of the Borrower and the
Lenders, a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders within thirty days after the resigning
Agent's giving notice of its intention to resign, then the resigning Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent,
the resigning Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation of an Agent, the provisions of this Article X shall continue in
effect for the benefit of such Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder and
under the other Loan Documents.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
------------------------
11.1. Setoff. In addition to, and without limitation of, any rights
------
of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any
time held or owing by any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Obligations
owing to such Lender, whether or not the Obligations, or any part hereof,
shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
----------------
otherwise, has payment made to it upon its share of any Advance (other than
payments received pursuant to Sections 2.17.1, 2.17.2, 2.17.3 or 2.17.5) in
a greater proportion than that received by any other Lender, such Lender
agrees, promptly upon demand, to purchase a portion of the Loans comprising
that Advance held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans comprising that Advance.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for
its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
their Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
52
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. Successors and Assigns. The terms and provisions of the Loan
----------------------
Documents shall be binding upon and inure to the benefit of the Borrower
and the Lenders and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any Lender
must be made in compliance with Section 12.3. Notwithstanding clause (ii)
of this Section, any Lender may at any time, without the consent of the
Borrower or the Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; provided, however, that
-------- -------
no such assignment shall release the transferor Lender from its obligations
hereunder. The Agent may treat the payee of any Note as the owner thereof
for all purposes hereof unless and until such payee complies with Section
12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound
by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, 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 or assignee of
such Note or of any Note or Notes issued in exchange therefor.
12.2. Participations.
--------------
12.2.1. Permitted Participants; Effect. Any Lender may, in the
------------------------------
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Lender's Percentage of
Facility Letters of Credit, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender
shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
---------------
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan,
Facility Letter of Credit or Commitment in which such Participant has
an interest which forgives principal, interest or fees or reduces the
interest rate or fees payable with respect to any such Loan, Facility
Letter of Credit or Commitment, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on,
any such Loan, Facility Letter of Credit or Commitment, releases any
Guarantor or releases any substantial portion of collateral, if any,
securing any such Loan or Facility Letter of Credit.
53
12.2.3. Benefit of Setoff. The Borrower agrees that each
-------------------
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
12.3. Assignments.
-----------
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
---------------------
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit "I"
hereto or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower and the Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; provided, however, that
-------- -------
if a Default has occurred and is continuing, the consent of the
Borrower shall not be required. Such consent shall not be unreasonably
withheld.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent of
----------------------
a notice of assignment, substantially in the form attached as Annex
"I" to Exhibit "I" hereto (a "Notice of Assignment"), together with
any consents required by Section 12.3.1, and (ii) payment of a $2,500
fee to the Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of
Assignment. The Notice of Assignment shall contain a representation by
the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment, Facility Letters of Credit and
Loans under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser
in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any
other Loan Document executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further
consent or action by any of the Borrower, the Lenders or the Agent
shall be required to release the transferor Lender with respect to its
Percentage of the Aggregate Commitment, Facility Letters of Credit and
Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts reflecting their
Commitments, as adjusted pursuant to such assignment. In addition,
within a reasonable time after the effective date of any assignment,
the Agent shall, and is hereby authorized and directed to, revise
Schedule "1" reflecting the revised Percentages of each of the Lenders
and shall distribute such revised Schedule "I" to the Lenders and the
Borrower and such revised Schedule "1" shall replace the old Schedule
"1" and become part of this Agreement.
54
12.4. Dissemination of Information. The Borrower authorizes each
----------------------------
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each
a "Transferee") and any prospective Transferee any and all information
in such Lender's possession concerning the creditworthiness of the
Borrower and its Subsidiaries; provided that each Transferee and
--------
prospective Transferee agrees to be bound by the confidentiality
restrictions set forth in Section 9.16 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
-------------
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 2.16.
ARTICLE XIII
NOTICES
-------
13.1. Giving Notice. Except as otherwise permitted by Section
-------------
2.11 with respect to borrowing notices, all notices and other
communications provided to any party hereto under this Agreement or
any other Loan Document shall be in writing or by telex or by
facsimile and addressed or delivered to such party at its address set
forth below its signature hereto or at such other address as may be
designated by such party in a notice to the other parties. Any notice,
if mailed and properly addressed with postage prepaid, shall be deemed
given when received; any notice, if transmitted by telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the
case of telexes).
13.2. Change of Address. The Borrower, the Agent and any Lender
-----------------
may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
55
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
BDM INTERNATIONAL, INC.,
as the Borrower
By: /s/ Judith N. Huntzinger
--------------------------------------
Print Name: JUDITH N. HUNTZINGER
------------------------------
Title: SENIOR VICE PRESIDENT & CONTROLLER
-----------------------------------
1501 BDM Way
McLean, VA 22102
Phone: (703) 848-5066
Fax: (703) 848-6270
Attention: Judith N.Huntzinger,
Senior Vice President
and Controller
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ Ted Wozniak
--------------------------------------
Print Name: TED WOZNIAK / AUTHORIZED AGENT
------------------------------
Title: Managing Director
-----------------------------------
One First National Plaza
Chicago, Illinois 60670
Phone: (312) 732-1032
Fax: (312) 732-3885
Attention: Theodore C. Wozniak
56
CORESTATES BANK, N.A.,
lndividually and as Co-Agent
By: /s/ Matthew T. Panarese
-----------------------------
Print Name: MATTHEW T. PANARESE
---------------------
Title: VICE PRESIDENT
--------------------------
FC 1-8-3-16
1339 Chestnut Street
Philadelphia, Pennsylvania
19101-7618
Phone (215) 973-3646
Fax: (215) 973-6745
Attention: Matthew T. Panarese
Vice President
CRESTAR BANK By
By: /s/ Diane D. Taylor
-----------------------------
Print Name: DIANE D. TAYLOR
---------------------
Title: SVP
--------------------------
8245 Boone Boulevard Suite 300
Vienna, Virginia 22182
Phone (703) 902-9084
Fax: (703) 902-9075
Attention: Diane Taylor
Senior Vice President
SIGNET BANK
By: /s/ Michael C. O'grady
-----------------------------
Print Name: MICHAEL C. O'GRADY
---------------------
Title: VICE PRESIDENT
--------------------------
7799 Leesburg Pike,
N. Tower Falls
Church, VA 22043
Phone: (703) 714-5034
Fax: (703) 506-9551
Attention: Michael C. O'Grady
Vice President
57
THE, BANK OF TOKYO LIMITED,
NEW YORK AGENCY
By: /s/ Yukio Yanaka
-----------------------------
Print Name: YUKIO YANAKA
---------------------
Title: SENIOR VICE PRESIDENT
--------------------------
1251 Avenue of the Americas
New York, New York 10116-3138
Phone: (201) 413-8726
Fax: (201) 413-8920/8922
Attention: Aura Buchberger
with a copy to:
2000 K Street, N.W. - Suite 701
Washington, DC 20006
Phone: (202)463-0177
Fax: (202) 293-3416
Attention: R. Frederick Kay, Jr.
BAYERISCHE VEREINSBANK AG,
New York Branch
By: /s/ Marrianne Weinzinger
-----------------------------
Print Name: MARRIANNE WEINZINGER
---------------------
Title: VICE PRESIDENT
--------------------------
335 Madison Avenue 19th Floor
New York, New York 10017-4679
Phone: (212) 210-0352
Fax: (212) 880-9724
Attention: Marrianne Weinzinger
58