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EXHIBIT 4.8
EXECUTION COPY
FIVE-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 21, 2003
AMONG
UNITED STATIONERS SUPPLY CO.,
AS THE BORROWER
UNITED STATIONERS INC.,
AS A CREDIT PARTY
THE LENDERS FROM TIME TO TIME PARTIES HERETO
AND
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS ADMINISTRATIVE AGENT
================================================================================
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
================================================================================
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SIDLEY AUSTIN BROWN & WOOD
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................................................1
1.1. Certain Defined Terms...........................................................................1
1.2. Plural Forms...................................................................................20
ARTICLE II THE CREDITS................................................................................20
2.1. Commitment.....................................................................................20
2.2. Required Payments; Termination.................................................................20
2.3. Ratable Loans; Types of Advances...............................................................22
2.4. Swing Line Loans...............................................................................22
2.5. Commitment Fee; Aggregate Commitment...........................................................23
2.6. Minimum Amount of Each Advance.................................................................24
2.7. Optional Principal Payments....................................................................24
2.8. Method of Selecting Types and Interest Periods for New Advances................................24
2.9. Conversion and Continuation of Outstanding Advances; No Conversion or
Continuation of Eurodollar Advances After Default..............................................25
2.10. Changes in Interest Rate, etc..................................................................25
2.11. Rates Applicable After Default.................................................................26
2.12. Method of Payment..............................................................................26
2.13. Noteless Agreement; Evidence of Indebtedness...................................................26
2.14. Telephonic Notices.............................................................................27
2.15. Interest Payment Dates; Interest and Fee Basis.................................................27
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions; Availability of Loans..............................................................28
2.17. Lending Installations..........................................................................28
2.18. Non-Receipt of Funds by the Agent..............................................................29
2.19. Replacement of Lender..........................................................................29
2.20. Facility LCs...................................................................................30
2.21. Increase of Aggregate Commitment...............................................................35
ARTICLE III YIELD PROTECTION; TAXES....................................................................36
3.1. Yield Protection...............................................................................36
3.2. Changes in Capital Adequacy Regulations........................................................37
3.3. Availability of Types of Advances..............................................................37
3.4. Funding Indemnification........................................................................38
3.5. Taxes..........................................................................................38
3.6. Lender Statements; Survival of Indemnity.......................................................41
3.7. Alternative Lending Installation...............................................................42
ARTICLE IV CONDITIONS PRECEDENT.......................................................................42
4.1. Effectiveness of Commitments...................................................................42
4.2. Each Credit Extension..........................................................................43
ARTICLE V REPRESENTATIONS AND WARRANTIES.............................................................44
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5.1. Existence and Standing.........................................................................44
5.2. Authorization and Validity.....................................................................44
5.3. No Conflict; Government Consent................................................................44
5.4. Financial Statements...........................................................................45
5.5. Material Adverse Change........................................................................45
5.6. Taxes..........................................................................................45
5.7. Litigation and Contingent Obligations..........................................................45
5.8. Subsidiaries...................................................................................46
5.9. ERISA..........................................................................................46
5.10. Accuracy of Information........................................................................46
5.11. Regulation U...................................................................................46
5.12. Compliance With Laws...........................................................................47
5.13. Ownership of Properties........................................................................47
5.14. Plan Assets; Prohibited Transactions...........................................................47
5.15. Environmental Matters..........................................................................47
5.16. Investment Company Act.........................................................................47
5.17. Public Utility Holding Company Act.............................................................47
5.18. Insurance......................................................................................48
5.19. Solvency.......................................................................................48
5.20. Collateral Documents...........................................................................48
5.21. No Default or Unmatured Default................................................................48
ARTICLE VI COVENANTS..................................................................................48
6.1. Financial Reporting............................................................................48
6.2. Use of Proceeds................................................................................50
6.3. Notice of Default..............................................................................50
6.4. Conduct of Business............................................................................50
6.5. Taxes..........................................................................................51
6.6. Insurance......................................................................................51
6.7. Compliance with Laws...........................................................................51
6.8. Maintenance of Properties......................................................................51
6.9. Inspection; Keeping of Books and Records.......................................................52
6.10. Dividends......................................................................................52
6.11. Merger.........................................................................................53
6.12. Sale of Assets.................................................................................53
6.13. Investments and Acquisitions...................................................................54
6.14. Indebtedness...................................................................................57
6.15. Liens..........................................................................................59
6.16. Affiliates.....................................................................................61
6.17. Financial Contracts............................................................................61
6.18. Subsidiary Covenants...........................................................................61
6.19. Contingent Obligations.........................................................................62
6.20. Amendments to Agreements.......................................................................62
6.21. Leverage Ratio.................................................................................62
6.22. Fixed Charge Coverage Ratio....................................................................62
6.23. Minimum Consolidated Net Worth.................................................................63
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6.24. Capital Expenditures...........................................................................63
6.25. Subsidiary Collateral Documents; Subsidiary Guarantors.........................................63
6.26. Foreign Subsidiary Investments.................................................................64
6.27. TOPCO Investments..............................................................................65
6.28. Mortgages......................................................................................65
ARTICLE VII DEFAULTS...................................................................................65
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.............................................68
8.1. Acceleration...................................................................................68
8.2. Amendments.....................................................................................69
8.3. Preservation of Rights.........................................................................70
ARTICLE IX GENERAL PROVISIONS.........................................................................70
9.1. Survival of Representations....................................................................70
9.2. Governmental Regulation........................................................................70
9.3. Headings.......................................................................................71
9.4. Entire Agreement...............................................................................71
9.5. Several Obligations; Benefits of this Agreement................................................71
9.6. Expenses; Indemnification......................................................................71
9.7. Numbers of Documents...........................................................................72
9.8. Accounting.....................................................................................72
9.9. Severability of Provisions.....................................................................72
9.10. Nonliability of Lenders........................................................................72
9.11. Confidentiality................................................................................73
9.12. Lenders Not Utilizing Plan Assets..............................................................73
9.13. Nonreliance....................................................................................74
9.14. Disclosure.....................................................................................74
9.15. Performance of Obligations.....................................................................74
ARTICLE X THE AGENT..................................................................................75
10.1. Appointment; Nature of Relationship............................................................75
10.2. Powers.........................................................................................75
10.3. General Immunity...............................................................................75
10.4. No Responsibility for Loans, Recitals, etc.....................................................75
10.5. Action on Instructions of Lenders..............................................................76
10.6. Employment of Agents and Counsel...............................................................76
10.7. Reliance on Documents; Counsel.................................................................76
10.8. Agent's Reimbursement and Indemnification......................................................76
10.9. Notice of Default..............................................................................77
10.10. Rights as a Lender.............................................................................77
10.11. Lender Credit Decision.........................................................................77
10.12. Successor Agent................................................................................77
10.13. Agent and Arranger Fees........................................................................78
10.14. Delegation to Affiliates.......................................................................78
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10.15. Collateral Documents...........................................................................78
10.16. Quebec Security................................................................................78
ARTICLE XI SETOFF; RATABLE PAYMENTS...................................................................80
11.1. Setoff.........................................................................................80
11.2. Ratable Payments...............................................................................80
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..........................................80
12.1. Successors and Assigns; Designated Lenders.....................................................80
12.2. Participations.................................................................................82
12.3. Assignments....................................................................................83
12.4. Dissemination of Information...................................................................85
12.5. Tax Certifications.............................................................................86
12.6. Reimbursement Obligations......................................................................86
ARTICLE XIII NOTICES....................................................................................86
13.1. Notices........................................................................................86
13.2. Change of Address..............................................................................86
ARTICLE XIV COUNTERPARTS...............................................................................86
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...............................87
15.1. CHOICE OF LAW..................................................................................87
15.2. CONSENT TO JURISDICTION........................................................................87
15.3. WAIVER OF JURY TRIAL...........................................................................87
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SCHEDULES
Commitment Schedule
Pricing Schedule
Schedule 2.20 - Transitional Letters of Credit
Schedule 5.8 - Subsidiaries
Schedule 6.12 - Identified Property Dispositions
Schedule 6.13 - Investments
Schedule 6.14 - Indebtedness
Schedule 6.15 - Liens
EXHIBITS
Exhibit A - Form of the Credit Parties' Counsel's Opinion
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of Promissory Note (if requested)
Exhibit E - Form of Designation Agreement
Exhibit F - List of Closing Documents
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FIVE-YEAR REVOLVING CREDIT AGREEMENT
This Five-Year Revolving Credit Agreement, dated as of March 21, 2003, is
entered into by and among United Stationers Supply Co., an Illinois corporation,
as the Borrower, United Stationers Inc., a Delaware corporation, as a Credit
Party, the Lenders and Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, as Administrative Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Closing Date, by which the Parent or any of its
Subsidiaries (i) acquires any going concern business or all or substantially all
of the assets of any Person, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires from one or
more Persons (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (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 majority (by percentage of voting power) of the outstanding
ownership interests of any Person.
"Advance" means a borrowing hereunder consisting of the aggregate amount of
several Revolving Loans (i) made by some or all of the Lenders on the same date,
or (ii) converted or continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of the several
Revolving Loans of the same Type and, in the case of Eurodollar Loans, for the
same Interest Period. The term "Advance" shall include Swing Line Loans unless
otherwise expressly provided.
"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 is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person having ordinary voting power for the
election of directors (or equivalent governing body) 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 voting
securities, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
as Administrative Agent, and any successor Agent appointed pursuant to
Article X.
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"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as increased or reduced from time to time pursuant to the terms hereof.
The initial Aggregate Commitment is Two Hundred Seventy-Five Million and 00/100
Dollars ($275,000,000).
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Five-Year Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified and as in effect from time
to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5% ) per annum.
"Applicable Fee Rate" means, with respect to the Commitment Fee at any
time, the percentage rate per annum which is applicable at such time with
respect to such fee as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation,
and its successors, in its capacity as Lead Arranger and Sole Book Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Authorized Officer" means any of the chief executive officer, president,
chief operating officer, chief financial officer, controller, treasurer or
assistant treasurer of the Parent, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect MINUS the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
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"Borrower" means United Stationers Supply Co., an Illinois corporation, and
its permitted successors and assigns (including, without limitation, a debtor in
possession on its behalf).
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in 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,
Illinois for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Canadian Subsidiary" means (i) any Foreign Subsidiary organized under the
laws of Canada or any jurisdiction located therein and (ii) any Subsidiary of a
Person described in clause (i) hereof that is organized under the laws of a
jurisdiction located in the United States of America.
"Capital Expenditures" means, without duplication, any expenditures for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Parent and its
Subsidiaries prepared in accordance with Agreement Accounting Principles,
excluding (i) expenditures of insurance proceeds to rebuild or replace any asset
after a casualty loss, (ii) leasehold improvement expenditures for which the
Parent or a Subsidiary is reimbursed by the lessor, sublessor or sublessee,
(iii) expenditures of Net Cash Proceeds of any asset sale permitted under
Section 6.12, and (iv) with respect to any Permitted Acquisition, (a) the
Purchase Price thereof and (b) any Capital Expenditures expended by the seller
or entity to be acquired in any Permitted Acquisition prior to the date of such
Permitted Acquisition.
"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.
"Cash Equivalent Investments" means (i) obligations of, or fully guaranteed
by, the United States of America having maturities of not more than one year
from the date of acquisition thereof, (ii) commercial paper rated A-1 or better
by S&P or P-1 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, (v) money market funds that (a) comply
with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of
1940,
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(b) are rated AAA by S&P or Aaa by Moody's and (c) have portfolio assets of at
least $5,000,000,000, (vi) marketable direct obligations issued by any state of
the United States or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than 90 days from the date
of acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's and (vii) repurchase
obligations with a term of not more than 30 days underlying securities of the
types described in clause (i) above entered into with any commercial bank
meeting the qualifications specified in clause (iv) above.
"Change in Control" means (i) 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 SEC under the Securities Exchange Act of 1934) of 30% or more
of the outstanding shares of voting stock of the Parent having ordinary voting
power for the election of directors; (ii) the Parent shall cease to own,
directly or indirectly and free and clear of all Liens or other encumbrances
(other than Liens in favor of the Agent), all of the outstanding shares of
voting stock of the Borrower and, other than pursuant to a transaction otherwise
permitted under this Agreement, the Guarantors, on a fully diluted basis; or
(iii) the majority of the Board of Directors of the Parent fails to consist of
Continuing Directors.
"Closing Date" means March 21, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral" means all property and interests in property now owned or
hereafter acquired by the Parent or any of its Domestic Subsidiaries in or upon
which a security interest, lien or mortgage is granted to the Agent, for the
benefit of the Holders of Secured Obligations, or to the Agent, for the benefit
of the Lenders, whether under the Security Agreement, under any of the other
Collateral Documents or under any of the other Loan Documents; PROVIDED,
HOWEVER, that Collateral shall not include property constituting "Securitization
Collateral" as defined in the Security Agreement.
"Collateral Documents" means all agreements, instruments and documents
executed in connection with this Agreement that are intended to create or
evidence Liens to secure the Secured Obligations, including, without limitation,
the Security Agreement, the Intellectual Property Security Agreements, and all
other security agreements, mortgages, deeds of trust, loan agreements, notes,
guarantees, subordination agreements, pledges, powers of attorney, consents,
assignments, contracts, fee letters, notices, leases, financing statements and
all other written matter whether heretofore, now, or hereafter executed by or on
behalf of the Parent or any of its Domestic Subsidiaries and delivered to the
Agent or any of the Lenders, together with all agreements and documents referred
to therein or contemplated thereby.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, including, without limitation, each LC
Issuer, such Lender's obligation to make Loans to, and participate in Facility
LCs issued upon the application of, and each LC Issuer's obligation to issue
Facility LCs for the account of, the
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Borrower in an aggregate amount not exceeding the amount set forth for such
Lender on the Commitment Schedule or in an Assignment Agreement delivered
pursuant to Section 12.3, as such amount may be modified from time to time
pursuant to the terms hereof.
"Commitment Fee" is defined in Section 2.5.1.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Closing Date attached hereto and identified as such.
"Consolidated Capital Expenditures" means, with reference to any period,
the Capital Expenditures of the Parent and its Subsidiaries (other than TOPCO)
calculated on a consolidated basis for such period.
"Consolidated EBITDA" means, with respect to any period, Consolidated Net
Income for such period PLUS, to the extent deducted from revenues in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v)
losses attributable to equity in Affiliates, (vi) non-cash charges related to
employee compensation and (vii) any extraordinary non-cash or nonrecurring
non-cash charges or losses incurred other than in the ordinary course of
business, MINUS, to the extent included in Consolidated Net Income for such
period, any extraordinary non-cash or nonrecurring non-cash gains realized other
than in the ordinary course of business, all calculated for the Parent and its
Subsidiaries (other than TOPCO) on a consolidated basis.
"Consolidated Funded Indebtedness" means, at any time, with respect to any
Person, without duplication, the sum of (i) the aggregate dollar amount of
Consolidated Indebtedness for borrowed money owing by such Person or for which
such Person is liable which has actually been funded and is outstanding at such
time, whether or not such amount is due or payable at such time, PLUS (ii) the
aggregate undrawn amount of all standby Letters of Credit at such time for which
such Person or any of its Subsidiaries is the account party or is otherwise
liable (other than standby Letters of Credit in an amount up to $10,000,000
issued to support worker's compensation obligations of the Credit Parties and
other than Letters of Credit supporting any other component of this definition),
PLUS (iii) the aggregate principal component of Capitalized Lease Obligations
owing by such Person and its Subsidiaries on a consolidated basis or for which
such Person or any of its Subsidiaries is otherwise liable, PLUS (iv) all
Off-Balance Sheet Liabilities of such Person and its Subsidiaries on a
consolidated basis, PLUS (v) all Disqualified Stock of such Person and its
Subsidiaries on a consolidated basis.
"Consolidated Indebtedness" means at any time, with respect to any Person,
the Indebtedness of such Person and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense of the Parent and its Subsidiaries calculated on a consolidated
basis for such period (net of interest income), including, without limitation,
yield or any other financing costs resembling interest which are payable under
any Receivables Purchase Facility.
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"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Parent and its Subsidiaries (other than TOPCO)
calculated on a consolidated basis for such period and on a FIFO basis of
inventory valuation.
"Consolidated Net Worth" means at any time, with respect to any Person, the
consolidated stockholders' equity of such Person and its Subsidiaries calculated
on a consolidated basis and on a FIFO basis of inventory valuation as of such
time.
"Consolidated Rentals" means, with reference to any period, the rental
expense (net of rental income) of the Parent and its Subsidiaries in respect of
Operating Leases, but excluding rental expense for any extension thereof for a
period shorter than twelve months, calculated on a consolidated basis for such
period; PROVIDED that rental expense in respect of all non-real property rentals
shall be the amount as set forth on the compliance certificate most recently
delivered to the Agent pursuant to Section 6.1.3 in connection with the most
recent annual financial statements of the Parent delivered pursuant to
Section 6.1.1 (and for the period prior to the delivery of the first such
compliance certificate, the amount set forth on the compliance certificate
delivered pursuant to Section 4.1.5).
"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, 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 the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership
unless the underlying obligation is expressly made non-recourse to such general
partner; PROVIDED, HOWEVER, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the lesser of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Contingent Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of the Contingent Obligation shall be
such guaranteeing person's reasonably anticipated liability in respect thereof
as determined by such Person in good faith.
"Continuing Director" means, with respect to any Person as of any date of
determination, any member of the board of directors of such Person who (i) was a
member of such board of directors on the Closing Date, or (ii) was nominated for
election or elected to such board of directors with the approval of the required
majority of the Continuing Directors who were members of such board at the time
of such nomination or election; PROVIDED that if any individual who is so
elected or nominated in connection with a merger, consolidation, acquisition or
similar transaction and who was not a Continuing Director prior thereto,
together with all other individuals so elected or nominated in connection with
such merger, consolidation, acquisition or similar transaction who were not
Continuing Directors prior thereto, constitute a majority of the
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members of the board of directors of such Person, such individual shall not be a
Continuing Director.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Parent or any of its
Subsidiaries, are treated as a single employer under Section 414(b) or (c) of
the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Credit Party" means, collectively, the Parent, the Borrower and each of
the Guarantors.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender, each
Eligible Designee designated by such Designating Lender pursuant to
Section 12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Disqualified Stock" means any preferred or other capital stock that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is ninety-one (91) days after the Facility Termination Date.
"Dollar", "dollar" and "$" means the lawful currency of the United States
of America.
"Domestic Subsidiary" means any Subsidiary of any Person that is not a
Foreign Subsidiary.
"Eligible Designee" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of America or any state
thereof, (ii) is engaged primarily in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and (iii) issues (or
the parent of which issues) commercial paper rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's.
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"Environmental Laws" means any and all applicable federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rules or regulations promulgated thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, PROVIDED that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which Bank One or one of its affiliate banks offers to place
deposits in Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Revolving Loan which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the then Applicable Margin, changing as and when the Applicable Margin
changes.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes or similar taxes imposed on it, by (i) the jurisdiction under
the laws of which such Lender, such Lending Installation or the Agent is
incorporated or organized or any political combination or subdivision or taxing
authority thereof, (ii) the jurisdiction in which the Agent's, such Lending
Installation's or such Lender's principal executive office or such Lender's
applicable Lending Installation is located or (iii) any other jurisdiction
except to the extent the imposition of such taxes results solely from the
Borrower's operations or presence in such jurisdiction as reasonably determined
by the Lender or the Agent, as applicable.
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"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing Credit Agreement" means that certain Third Amended and Restated
Credit Agreement, dated as of June 29, 2000, by and among the Borrower, the
Parent, the lenders parties thereto, and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as agent, as the same has been amended, restated,
supplemented or otherwise modified from time to time.
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Facility Termination Date" means the earlier of (a) March 21, 2008 and (b)
the date of termination in whole of the Aggregate Commitment pursuant to
Section 2.5 hereof or the Commitments pursuant to Section 8.1 hereof.
"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 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three (3)
Federal funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financing" means, with respect to any Person, the issuance, assumption,
incurrence or sale by such Person of any Indebtedness (other than Indebtedness
described in Sections 6.14.1 through 6.14.10, any Indebtedness incurred under
Section 6.14.11 and described in clauses (a) or (b) of the first parenthetical
thereof, and any Indebtedness incurred under Section 6.14.12 and described in
the first parenthetical thereof); PROVIDED, HOWEVER, that the foregoing shall
not permit the incurrence by the Parent or any Subsidiary of any Indebtedness if
such incurrence is not otherwise permitted by this Agreement.
"Fixed Charge Coverage Ratio" is defined in Section 6.22.
"Floating Rate" means, for any day, a rate per annum equal to the sum of
(i) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes PLUS (ii) the then Applicable Margin, changing as and when the
Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Revolving Loan which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
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"Foreign Subsidiary" means (i) any Subsidiary of any Person that is not
organized under the laws of a jurisdiction located in the United States of
America and (ii) any Subsidiary of a Person described in clause (i) hereof that
is organized under the laws of a jurisdiction located in the United States of
America.
"Foreign Subsidiary Investment" means the sum, without duplication, of (i)
the aggregate outstanding principal amount of all intercompany loans made on or
after the Closing Date from any Credit Party to any Foreign Subsidiary; (ii) all
outstanding Investments made on or after the Closing Date by any Credit Party in
any Foreign Subsidiary; and (iii) an amount equal to the net benefit derived by
the Foreign Subsidiaries resulting from any non-arm's-length transactions, or
any other transfer of assets conducted, in each case entered into on or after
the Closing Date, between any Credit Party, on the one hand, and such Foreign
Subsidiaries, on the other hand, other than (a) transactions in the ordinary
course of business and (b) in respect of legal, accounting, reporting, listing
and similar administrative services provided by any Credit Party to any such
Foreign Subsidiary in the ordinary course of business consistent with past
practice.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Guarantor" means each of the Parent's Domestic Subsidiaries (other than
the Borrower, TOPCO and any SPV) and all other Subsidiaries of the Parent which
become Guarantors in satisfaction of the provisions of Section 6.25, in each
case, together with their respective permitted successors and assigns.
"Guaranty" means the Guaranty, dated as of March 21, 2003, made by the
Parent and certain Subsidiaries of the Parent in favor of the Agent for the
benefit of the Holders of Secured Obligations, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Holders of Secured Obligations" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans, (ii) the LC Issuers in respect of Reimbursement Obligations, (iii)
the Agent, the Lenders and the LC Issuers in respect of all other present and
future obligations and liabilities of the Parent, the Borrower or any of their
respective Domestic Subsidiaries of every type and description arising under or
in connection with this Agreement or any other Loan Document, (iii) each Person
benefiting from indemnities made by the Parent, the Borrower or any Subsidiary
hereunder or under other Loan Documents, (iv) each Lender (or Affiliate
thereof), in respect of all Rate Management Obligations of the Borrower to such
Lender (or such Affiliate) as exchange party or counterparty under any Rate
Management Transaction, and (v) their respective successors, transferees and
assigns (to the extent not prohibited by this Agreement).
"Identified Disclosure Documents" means, collectively, the Parent's Annual
Report on Form 10-K for the fiscal year ended December 31, 2001, the Parent's
Quarterly Reports on Form 10-Q for the periods ending on September 30, 2002 and
earlier, and the Current Reports on Form 8-K filed by the Parent on January 31,
2003 or earlier, in each case as filed with the SEC, and any written disclosure
memorandum delivered to the Lenders on or prior to March 19, 2003.
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"Indebtedness" of a Person means, at any time, without duplication, such
Person's (i) obligations for borrowed money which in accordance with Agreement
Accounting Principles would be shown as a liability on the consolidated balance
sheet of such Person, (ii) obligations representing the deferred purchase price
of Property or services (other than current accounts payable arising in the
ordinary course of such Person's business payable on terms customary in the
trade and accrued expenses in connection with the provision of services incurred
in the ordinary course of such Person's business), (iii) Indebtedness of others,
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
(PROVIDED that the amount of any such Indebtedness at any time shall be deemed
to be the lesser of (a) such Indebtedness at such time and (b) the fair market
value of such Property, as determined by such Person in good faith at such
time), (iv) financial obligations which are evidenced by notes, bonds,
debentures, acceptances, or other instruments, (v) obligations to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations of such Person in respect of any
Indebtedness, (viii) reimbursement obligations under Letters of Credit, bankers'
acceptances, surety bonds and similar instruments, (ix) Off-Balance Sheet
Liabilities, (x) Net Mark-to-Market Exposure under Rate Management Transactions
and (xi) Disqualified Stock.
"Intellectual Property Security Agreements" means each of (i) the Trademark
Security Agreement, dated as of March 21, 2003, by and among the Agent and the
Borrower, Azerty Incorporated and Lagasse, Inc., (ii) the Copyright Security
Agreement, dated as of March 21, 2003, by and between the Agent and the
Borrower, and (iii) such other intellectual property security documents as the
Borrower or any Affiliate may from time to time make in favor of the Agent, in
each case as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Interest Period" means, with respect to a Eurodollar Advance, a period of
one, two, three or six months, or, to the extent available to all of the
Lenders, nine or twelve months, commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on but
exclude the day which corresponds numerically to such date one, two, three or
six months, or if applicable nine or twelve months, thereafter, PROVIDED,
HOWEVER, that if there is no such numerically corresponding day in such next,
second, third, sixth, ninth or twelfth succeeding month, such Interest Period
shall end on the last Business Day of such next, second, third, sixth, ninth or
twelfth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such 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 Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel, relocation and similar advances to directors, 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) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
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"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means Bank One (or any Subsidiary or Affiliate of Bank One
designated by Bank One) or any of the other Lenders, as applicable, in its
respective capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of (i)
the aggregate undrawn amount under all Facility LCs outstanding at such time
PLUS (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"LC Reimbursement Date" is defined in Section 2.20.6.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lenders" includes the Swing Line Lender and the LC Issuers.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, Subsidiary or Affiliate of such Lender or the Agent listed on
the signature pages hereof or on the administrative information sheets provided
to the Agent in connection herewith or on a Schedule or otherwise selected by
such Lender or the Agent pursuant to Section 2.17.
"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, without duplication, for which such Person
has a reimbursement obligation.
"Leverage Ratio" is defined in Section 6.21.
"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 loan made pursuant to
Article II (or any conversion or continuation thereof), whether constituting a
Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC Applications, the
Collateral Documents, the Guaranty, and all other documents, instruments, notes
(including any Notes issued pursuant to Section 2.13 (if requested)) and
agreements executed in connection herewith or therewith or contemplated hereby
or thereby, as the same may be amended, restated or otherwise modified and in
effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition (financial or otherwise), operations, Properties or
prospects of the Parent and its Subsidiaries taken as a whole, or the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of the
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Parent, the Borrower or any Subsidiary to perform its obligations under the Loan
Documents, (iii) the validity or enforceability of any of the Loan Documents or
(iv) the rights or remedies of the Agent, the LC Issuers or the Lenders
thereunder or their rights with respect to the Collateral taken as a whole.
"Material Foreign Subsidiary" means any direct or indirect first-tier
Foreign Subsidiary of the Parent that at any time has (i) (a) sales as of the
last day of any fiscal quarter (calculated on a consolidated basis for such
Subsidiary and its consolidated Subsidiaries for the twelve-month period then
ended) greater than or equal to five percent (5%) of consolidated sales of the
Parent and its Subsidiaries for such period and (b) Consolidated EBITDA as of
the last day of such fiscal quarter (calculated on a consolidated basis for such
Subsidiary and its consolidated Subsidiaries for the twelve-month period then
ended) greater than or equal to five percent (5%) of Consolidated EBITDA of the
Parent and its Subsidiaries for such period, or (ii) on a consolidated basis for
such Subsidiary and its consolidated Subsidiaries at any time five percent (5%)
or more of the consolidated total assets of the Parent and its Subsidiaries as
reported in the most recent annual or quarterly financial statements of the
Parent delivered pursuant to Section 6.1.1 or 6.1.2.
"Material Indebtedness" means any Indebtedness in an outstanding principal
amount of $25,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than Dollars), other than the Obligations.
"Modify" and "Modification" are defined in Section 2.20.1.
"Moody's" means Moody's Investors Services, Inc. and any successor thereto.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, which is covered by Title IV of ERISA and to which
the Parent or any member of the Controlled Group is obligated to make
contributions.
"Net Cash Proceeds" means, with respect to any sale of Property or any
Financing by any Person, (a) cash (freely convertible into Dollars) received by
such Person or any Subsidiary of such Person from such sale of Property or
Financing, after (i) provision for all income or other taxes measured by or
resulting from such sale of Property, (ii) payment of all reasonable brokerage
commissions and other fees and expenses related to such sale of Property or
Financing, and (iii) all amounts used to repay Indebtedness secured by a Lien on
any asset disposed of in such sale of Property which is or may be required (by
the express terms of the instrument governing such Indebtedness or by the
purchaser of such Property) to be repaid in connection with such sale of
Property (including payments made to obtain or avoid the need for the consent of
any holder of such Indebtedness).
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such
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Rate Management Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).
"1998 Indenture" means the Indenture dated as of April 15, 1998, among the
Borrower, the Parent and The Bank of New York, as Trustee.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.13.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Loans, all Reimbursement Obligations, accrued and unpaid fees, all
expense and other reimbursement obligations, and all indemnities and other
obligations of any Credit Party to the Agent, any Lender, the Arranger (or any
Affiliate of any of the foregoing) or any Person benefiting from indemnities
made by any Credit Party hereunder or under any other Loan Document, in each
case of any kind or nature, present or future, arising under this Agreement or
any other Loan Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, outside attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed under the
Federal bankruptcy laws), and any other sum chargeable to any Credit Party under
this Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means, without duplication, the
principal component of (i) any Receivables Purchase Facility or any other
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person (other than the sale or disposition in the
ordinary course of business of accounts or notes receivable in connection with
the compromise or collection thereof consistent with customary industry practice
(and not as part of any bulk sale or financing of receivables)) or (ii) any
liability under any so-called "synthetic lease" or "tax ownership operating
lease" transaction entered into by such Person; PROVIDED that "Off-Balance Sheet
Liabilities" shall not include the principal component of the foregoing if such
principal component (a) is otherwise reflected as a liability on such Person's
consolidated balance sheet or (b) is deducted from revenues in determining such
Person's consolidated net income but is not thereafter added back in calculating
such Person's Consolidated EBITDA.
"Off-Balance Sheet Trigger Event" is defined in Section 7.15.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the sum
of (i) the aggregate principal amount of its Revolving Loans outstanding at such
time, PLUS (ii) an amount equal to its ratable obligation to purchase
participations in the aggregate principal amount of
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Swing Line Loans outstanding at such time, PLUS (iii) an amount equal to its
ratable obligation to purchase participations in the LC Obligations at such
time.
"Parent" means United Stationers Inc., a Delaware corporation.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 6.13.5.
"Permitted Priority Liens" means any Liens permitted by Section 6.15 and
(i) arising by operation of applicable law (and not solely by contract) and are
perfected (other than by the filing of a financing statement or other filing or
control agreement) and accorded priority over the Agent's Liens on the
Collateral by operation of applicable law, (ii) arising under any of
Sections 6.15.6 or 6.15.7 or reflected on any title commitment issued with any
Collateral Document, or (iii) securing purchase money Indebtedness, Capitalized
Lease Obligations or Indebtedness described in the first parenthetical of
Section 6.14.12, in each case to the extent the same are permitted to exist or
otherwise be incurred hereunder.
"Permitted Purchase Money Debt" is defined in Section 6.14.5.
"Permitted Share Repurchase Amount" is defined in Section 6.10.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, 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, excluding any Multiemployer
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 Parent or any member of
the Controlled Group may have any liability.
"Pricing Schedule" means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"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.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from
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time to time in accordance with the provisions of this Agreement) and the
denominator of which is the Aggregate Commitment at such time, or, if the
Aggregate Commitment has been terminated, a fraction the numerator of which is
such Lender's Outstanding Credit Exposure at such time and the denominator of
which is the sum of the Aggregate Outstanding Credit Exposure at such time.
"Purchase Price" means the total consideration and other amounts payable in
connection with any Acquisition, including, without limitation, any portion of
the consideration payable in cash, all Indebtedness incurred or assumed in
connection with such Acquisition, but exclusive of the value of any capital
stock or other equity interests of the Parent, the Borrower or any Subsidiary
issued as consideration for such Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Rate Management 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 (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the Parent, the
Borrower or a Subsidiary which is a rate swap, basis swap, forward rate
transaction, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices or equity prices.
"Receivables Purchase Documents" means any series of receivables purchase
or sale agreements, servicing agreements and other related agreements generally
consistent with terms contained in comparable structured finance transactions
pursuant to which the Parent, the Borrower or any of its Subsidiaries, in their
respective capacities as sellers or transferors of any receivables, sell or
transfer, directly or indirectly, to SPVs all of their respective right, title
and interest in and to (but not their obligations under) certain receivables for
further sale or transfer (or granting of Liens to other purchasers of or
investors in such assets or interests therein (and the other documents,
instruments and agreements executed in connection therewith)), as any such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, or any replacement or substitution therefor.
"Receivables Purchase Facility" means any securitization facility made
available to the Parent, the Borrower or any of its Subsidiaries, pursuant to
which receivables of the Parent, the Borrower or any of its Subsidiaries are
transferred, directly or indirectly, to one or more SPVs, and thereafter to
certain investors, pursuant to the terms and conditions of the Receivables
Purchase Documents.
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"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.
"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, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X 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 foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means, at any time, with respect to any LC
Issuer, the aggregate of all obligations of the Borrower then outstanding under
Section 2.20 to reimburse such LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
"Required Lenders" means Lenders in the aggregate having more than 50% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding more than 50% of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D).
"Revolving Loan" means, with respect to a Lender, such Lender's loan made
pursuant to its commitment to lend set forth in Section 2.1 (and any conversion
or continuation thereof).
"S&P" means Standard and Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"SEC" means the United States Securities and Exchange Commission, and any
successor thereto.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii) so
long as any Lender shall remain a Lender hereunder, all Rate Management
Obligations owing in connection with Rate Management Transactions to such Lender
or any Affiliate of such Lender.
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"Security Agreement" means the Security Agreement, dated as of March 21,
2003, by and between the Borrower, the Parent and certain Subsidiaries of the
Parent, as grantors thereunder, and the Agent for the benefit of the Holders of
Secured Obligations, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Senior Subordinated Notes" means the Borrower's 8-3/8% Senior Subordinated
Notes due April 15, 2008 issued pursuant to the 1998 Indenture in an original
aggregate principal amount equal to $100,000,000.
"Single Employer Plan" means a Plan maintained by the Parent or any member
of the Controlled Group for employees of the Parent or any member of the
Controlled Group.
"Solvent" means, when used with respect to the Parent and its Subsidiaries
(on a consolidated basis), that at the time of determination:
(i) the fair value of their consolidated assets (both at fair
valuation and at present fair saleable value) is equal to or in excess of the
total amount of their consolidated liabilities, including without limitation
contingent liabilities; and
(ii) they are then able and presently expect to be able to pay their
consolidated debts as they mature; and
(iii) they have capital sufficient to carry on their business as
conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SPV" means any special purpose entity established for the purpose of
purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"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, limited liability company, 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 Parent.
"Substantial Portion" means, with respect to the Property of the Parent and
its Subsidiaries, Property which represents more than 10% of the consolidated
assets of the Parent and its Subsidiaries or property which is responsible for
more than 10% of the consolidated net sales or of the Consolidated Net Income of
the Parent and its Subsidiaries, in each case, as would be shown in the
consolidated financial statements of the Parent and its Subsidiaries as at the
end of the four fiscal quarter period ending with the fiscal quarter immediately
prior to the fiscal quarter in which such determination is made (or if financial
statements have not been delivered
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hereunder for that fiscal quarter which ends the four fiscal quarter period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that quarter).
"Swing Line Borrowing Notice" is defined in Section 2.4.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
"Swing Line Lender" means Bank One or such other Lender which may succeed
to its rights and obligations as Swing Line Lender pursuant to the terms of this
Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the Swing
Line Lender pursuant to Section 2.4.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Term Loan" is defined in Section 2.21.
"TOPCO" means The Order People Company, a Delaware corporation.
"TOPCO Investment" means the sum, without duplication, of (i) the aggregate
outstanding principal amount of all intercompany loans made on or after the
Closing Date from any Credit Party to TOPCO; (ii) all outstanding Investments
made on or after the Closing Date by any Credit Party in TOPCO; and (iii) an
amount equal to the net benefit derived by TOPCO resulting from any
non-arm's-length transactions, or any other transfer of assets conducted, in
each case entered into on or after the Closing Date, between any Credit Party,
on the one hand, and TOPCO, on the other hand, other than (a) transactions in
the ordinary course of business and (b) in respect of legal, accounting,
reporting, listing and similar administrative services provided by any Credit
Party to TOPCO in the ordinary course of business consistent with past practice.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance and with respect to any Revolving Loan, its
nature as a Floating Rate Loan or a Eurodollar Loan.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Weighted Average Life to Maturity" means when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payments
of principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
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between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities (other than directors' qualifying shares) 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,
limited liability company, 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.
1.2. PLURAL FORMS. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. COMMITMENT. From and including the Closing Date and prior to the
Facility Termination Date, upon the satisfaction of the conditions precedent set
forth in Section 4.1 and 4.2, as applicable, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to (i)
make Revolving Loans to the Borrower in Dollars from time to time and (ii)
participate in Facility LCs issued upon the request of the Borrower, in each
case in an amount not to exceed in the aggregate at any one time outstanding of
its Pro Rata Share of the Available Aggregate Commitment; PROVIDED that at no
time shall the Aggregate Outstanding Credit Exposure hereunder exceed the
Aggregate Commitment. Subject to the terms of this Agreement, the Borrower may
borrow, repay and reborrow Revolving Loans at any time prior to the Facility
Termination Date. The commitment of each Lender to lend hereunder shall
automatically expire on the Facility Termination Date. The LC Issuers will issue
Facility LCs hereunder on the terms and conditions set forth in Section 2.20.
2.2. REQUIRED PAYMENTS; TERMINATION. (a) Any outstanding Advances and
all other unpaid Secured Obligations shall be paid in full by the Borrower on
the Facility Termination Date. Notwithstanding the termination of the
Commitments under this Agreement on the Facility Termination Date, until all of
the Secured Obligations (other than contingent indemnity obligations) shall have
been fully paid and satisfied and all financing arrangements among the Borrower
and the Lenders hereunder and under the other Loan Documents shall have been
terminated, all of the rights and remedies under this Agreement and the other
Loan Documents shall survive.
(b) ASSET SALES AND INSURANCE PROCEEDS. Upon (1) the
consummation of any sale, lease, conveyance, transfer, casualty or other
disposition ("Asset Sale") of Property (other than sales permitted under
Sections 6.12.1 through 6.12.9) by the Parent or any Subsidiary of the Parent,
except to the extent that the Net Cash Proceeds of such Asset Sale, when
combined with the Net Cash Proceeds of all such Asset Sales during the
immediately preceding twelve-month period, do not exceed $20,000,000 for any
such Asset Sale or series of related Asset Sales or (2) the receipt by the
Parent or any of its Subsidiaries of proceeds from insurance in connection with
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any property loss or casualty, net of costs and taxes incurred in connection
with such loss or casualty ("Loss Proceeds"), except to the extent that such
Loss Proceeds, when combined with all other Loss Proceeds received during the
then current fiscal year, do not exceed $20,000,000, and in each case, except as
provided in the second sentence of this clause (b), within five (5) Business
Days after the Parent's or any of its Subsidiaries' (x) receipt of any Net Cash
Proceeds from any such Asset Sale or any such Loss Proceeds, or (y) conversion
to cash or Cash Equivalent Investments of non-cash proceeds (whether principal
or interest and including securities, release of escrow arrangements or lease
payments) received from any Asset Sale, the Borrower shall make a mandatory
prepayment of the Obligations, subject to the provisions governing the
application of payments set forth in Section 2.2(d), in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds or Loss Proceeds or such
proceeds converted from non-cash to cash or Cash Equivalent Investments. Unless
a Default or Unmatured Default shall have occurred and is continuing, in the
event that the Borrower shall have given the Agent written notice within thirty
(30) days after an Asset Sale or event giving rise to such Loss Proceeds of its
intention to replace the assets or use such Net Cash Proceeds or Loss Proceeds,
as applicable, to acquire other assets useful in the business of the Parent and
its Subsidiaries (other than the acquisition of assets for use by TOPCO) (which
shall include, without limitation, assets acquired pursuant to a Permitted
Acquisition) within twelve (12) months following such Asset Sale or the receipt
of such Loss Proceeds, as applicable, then such Net Cash Proceeds or Loss
Proceeds shall not be subject to the provisions of the first sentence of this
clause (b) unless and to the extent that such applicable period shall have
expired without such replacement having been made.
(c) FINANCINGS. Upon the consummation of any Financing by the
Parent or any Subsidiary of the Parent, within five (5) Business Days after the
Parent's or any of its Subsidiaries' receipt of any Net Cash Proceeds from such
Financing, the Borrower shall make a mandatory prepayment of the Obligations,
subject to the provisions governing the application of payments set forth in
Section 2.2(d), in an amount equal to one hundred percent (100%) of the excess
over $50,000,000 (when taken together with the Net Cash Proceeds of all other
Financings after the Closing Date) of all such Net Cash Proceeds.
(d) APPLICATION OF DESIGNATED PREPAYMENTS. Each mandatory
prepayment required by CLAUSES (b) and (c) of this Section 2.2 shall be referred
to herein as a "Designated Prepayment." Designated Prepayments shall be applied
to repay Revolving Loans and shall automatically reduce Commitments ratably in
an amount equal to such Designated Prepayment. Following the payment in full of
the Revolving Loans, the amount of each Designated Prepayment shall be applied
first to interest on the Reimbursement Obligations, then to principal on the
Reimbursement Obligations, then to fees on account of Facility LCs, then, to the
extent any L/C Obligations are contingent, deposited with the Agent as cash
collateral in respect of such L/C Obligations (up to an amount not to exceed
100% of such contingent obligations), and then any excess shall be returned to
the Borrower or paid to whomever may be legally entitled thereto at such time.
(e) APPLICATION AND PRIORITY OF PREPAYMENTS. With respect to
the reduction of the Revolving Loans on any date, Designated Prepayments shall
first be applied to Floating Rate Loans and to any Eurodollar Rate Loans
maturing on such date and then to subsequently maturing Eurodollar Rate Loans in
order of maturity.
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2.3. RATABLE LOANS; TYPES OF ADVANCES. (a) Each Advance hereunder
(other than a Swing Line Loan) shall consist of Revolving Loans made from the
several Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment.
(b) The Advances may be Floating Rate Advances or Eurodollar
Advances, or a combination thereof, selected by the Borrower in accordance with
Sections 2.8 and 2.9, or Swing Line Loans selected by the Borrower in accordance
with Section 2.4.
2.4. SWING LINE LOANS.
2.4.1 AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing Line Loan
is to be made on the date of the initial Credit Extension hereunder, the
satisfaction of the conditions precedent set forth in Section 4.1 as well,
from and including the Closing Date and prior to the Facility Termination
Date, the Swing Line Lender agrees, on the terms and conditions set forth
in this Agreement, to make Swing Line Loans in Dollars to the Borrower from
time to time in an aggregate principal amount not to exceed the Swing Line
Commitment, PROVIDED that (i) the Aggregate Outstanding Credit Exposure
shall not at any time exceed the Aggregate Commitment and (ii) at no time
shall the sum of (a) the Swing Line Loans then outstanding, PLUS (b) the
outstanding Revolving Loans made by the Swing Line Lender pursuant to
Section 2.1 (including its participation in any Facility LCs), exceed the
Swing Line Lender's Commitment at such time. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at
any time prior to the Facility Termination Date.
2.4.2 BORROWING NOTICE. The Borrower shall deliver to the Agent
and the Swing Line Lender irrevocable notice (a "Swing Line Borrowing
Notice") not later than 2:00 p.m. (Chicago time) on the Borrowing Date of
each Swing Line Loan, specifying (i) the applicable Borrowing Date (which
date shall be a Business Day), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than $100,000.
The Swing Line Loans shall bear interest at the Floating Rate or such other
rate per annum as shall be agreed to by the Swing Line Lender and the
Borrower.
2.4.3 MAKING OF SWING LINE LOANS. Promptly after receipt of a
Swing Line Borrowing Notice, the Agent shall notify each Lender by fax or
other similar form of transmission, of the requested Swing Line Loan. Not
later than 4:00 p.m. (Chicago time) on the applicable Borrowing Date, the
Swing Line Lender shall make available the Swing Line Loan, in funds
immediately available in Chicago, to the Agent at its address specified
pursuant to Article XIII. The Agent will promptly make the funds so
received from the Swing Line Lender available to the Borrower on the
Borrowing Date at the Agent's aforesaid address in an account maintained
and designated by the Borrower.
2.4.4 REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall
be paid in full by the Borrower on or before the fifth (5th) Business Day
after the Borrowing Date for such Swing Line Loan. In addition, the Swing
Line Lender (i) may at any time in its sole discretion with respect to any
outstanding Swing Line Loan, or (ii) shall, on the fifth (5th) Business Day
after the Borrowing Date of any Swing Line Loan, require each
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Lender (including the Swing Line Lender) to make a Revolving Loan in the
amount of such Lender's Pro Rata Share of such Swing Line Loan (including,
without limitation, any interest accrued and unpaid thereon), for the
purpose of repaying such Swing Line Loan. Not later than 2:00 p.m. (Chicago
time) on the date of any notice received pursuant to this Section 2.4.4,
each Lender shall make available its required Revolving Loan, in funds
immediately available in Chicago to the Agent at its address specified
pursuant to Article XIII. Revolving Loans made pursuant to this
Section 2.4.4 shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurodollar Loans in the
manner provided in Section 2.9 and subject to the other conditions and
limitations set forth in this Article II. Unless a Lender shall have
notified the Swing Line Lender, prior to its making any Swing Line Loan,
that any applicable condition precedent set forth in Sections 4.1 or 4.2
had not then been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this Section 2.4.4 to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Agent, the Swing Line Lender or any other Person, (b)
the occurrence or continuance of a Default or Unmatured Default, (c) any
adverse change in the condition (financial or otherwise) of the Borrower,
or (d) any other circumstances, happening or event whatsoever. In the event
that any Lender fails to make payment to the Agent of any amount due under
this Section 2.4.4, the Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the Agent
of any amount due under this Section 2.4.4, such Lender shall be deemed, at
the option of the Agent, to have unconditionally and irrevocably purchased
from the Swing Line Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swing Line Loan in the amount
of such Revolving Loan, and such interest and participation may be
recovered from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date
of demand and ending on the date such amount is received. On the Facility
Termination Date, the Borrower shall repay in full the outstanding
principal balance of the Swing Line Loans.
2.5. COMMITMENT FEE; AGGREGATE COMMITMENT.
2.5.1 COMMITMENT FEE. The Borrower shall pay to the Agent, for
the account of the Lenders in accordance with their Pro Rata Shares of the
Aggregate Commitment, from and after the Closing Date until the date on
which the Aggregate Commitment shall be terminated in whole, a commitment
fee (the "Commitment Fee") accruing at the rate of the then Applicable Fee
Rate on the daily average Available Aggregate Commitment (excluding from
the calculation thereof, the Swing Line Loans). All such Commitment Fees
payable hereunder shall be payable quarterly in arrears on each Payment
Date.
2.5.2 REDUCTIONS IN AGGREGATE COMMITMENT. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part, ratably
among the Lenders in a minimum amount of $5,000,000 (and in multiples of
$1,000,000 if in excess thereof),
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upon at least three (3) Business Days' prior 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 Aggregate Outstanding Credit Exposure. All accrued Commitment
Fees shall be payable on the effective date of any termination of the
Commitments.
2.6. MINIMUM AMOUNT OF EACH ADVANCE. Each Eurodollar Advance shall be
in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance (other than an Advance to repay Swing
Line Loans or to refund Reimbursement Obligations) shall be in the minimum
amount of $5,000,000 (and in multiples of $1,000,000 if in excess thereof),
PROVIDED, HOWEVER, that any Floating Rate Advance may be in the amount of the
Available Aggregate Commitment.
2.7. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances (other
than Swing Line Loans), or any portion of the outstanding Floating Rate Advances
(other than Swing Line Loans), in a minimum aggregate amount of $1,000,000 or
any integral multiple of $100,000 in excess thereof, with notice to the Agent by
11:00 a.m. (Chicago time) on the date of any anticipated repayment. The Borrower
may at any time pay, without penalty or premium, all outstanding Swing Line
Loans, or, in a minimum amount of $100,000 and increments of $100,000 in excess
thereof, any portion of the outstanding Swing Line Loans, with notice to the
Agent and the Swing Line Lender by 12:00 noon (Chicago time) on the date of
repayment. The Borrower may from time to time pay, subject to the payment of any
funding indemnification amounts required by Section 3.4 but without penalty or
premium, all outstanding Eurodollar Advances, or, in a minimum aggregate amount
of $5,000,000 or any integral multiple of $1,000,000 in excess thereof, any
portion of the outstanding Eurodollar Advances upon three (3) Business Days'
prior notice to the Agent.
2.8. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time;
PROVIDED that there shall be no more than eight (8) Interest Periods in effect
with respect to all of the Revolving Loans at any time, unless such limit has
been waived by the Agent in its sole discretion. The Borrower shall give the
Agent irrevocable notice (a "Borrowing Notice") not later than 12:00 noon
(Chicago time) on the Borrowing Date of each Floating Rate Advance (other than a
Swing Line Loan) and three (3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than 2:00 p.m. (Chicago time) on each Borrowing Date, each Lender
shall make available its Revolving Loan or Revolving Loans in Federal or other
funds immediately available in Chicago to the Agent at its address specified
pursuant to Article XIII. The Agent will
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promptly make the funds so received from the Lenders available to the Borrower
at the Agent's aforesaid address in an account maintained and designated by the
Borrower.
2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES; NO CONVERSION
OR CONTINUATION OF EURODOLLAR ADVANCES AFTER DEFAULT. Floating Rate Advances
(other than Swing Line Advances) shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Agent a Conversion/Continuation Notice requesting
that, at the end of such Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Interest Period. Subject to the terms
of Section 2.6 and the payment of any funding indemnification amounts required
by Section 3.4, the Borrower may elect from time to time to convert all or any
part of an Advance of any Type (other than a Swing Line Advance) into any other
Type or Types of Advances. Notwithstanding anything to the contrary contained in
this Section 2.9, during the continuance of a Default, the Agent may (or shall
at the direction of the Required Lenders), by notice to the Borrower, declare
that no Advance may be made as, converted to or, following the expiration of any
Interest Periods then in effect, continued as a Eurodollar Advance. The Borrower
shall give the Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance or continuation of a Eurodollar Advance not later
than 12:00 noon (Chicago time) on the same Business Day, in the case of a
conversion into a Floating Rate Advance, or three (3) Business Days, in the case
of a conversion into or continuation of a Eurodollar Advance, prior to the date
of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
2.10. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance (other
than a Swing Line Advance) shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Advance is made or
is automatically converted from a Eurodollar Advance into a Floating Rate
Advance pursuant to Section 2.9, to but excluding the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 2.9 hereof, at a rate
per annum equal to the Floating Rate for such day. Each Swing Line Loan shall
bear interest on the outstanding principal amount thereof, for each day from and
including the day such Swing Line Loan is made to but excluding the date it is
fully paid at a rate per annum equal to the Floating Rate for such day or at
such other rate per annum as shall be agreed to by the Swing Line Lender and the
Borrower. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base
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Rate. Each Eurodollar Advance shall bear interest on the outstanding principal
amount thereof 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 Eurodollar Rate applicable to such Eurodollar Advance and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.11. RATES APPLICABLE AFTER DEFAULT. 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 Eurodollar Advance
shall bear interest for the remainder of the applicable Interest Period at a
rate per annum equal to the Floating Rate in effect from time to time PLUS 2%
per annum, (ii) each Floating Rate Advance and each Swing Line Loan shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time PLUS 2% per annum, and (iii) the LC Fee described in the first sentence of
Section 2.20.4 shall be increased to a rate per annum equal to the Applicable
Margin for Eurodollar Loans in effect from time to time PLUS 2% per annum;
PROVIDED that, during the continuance of a Default under Section 7.2, 7.6 or
7.7, the interest rates set forth in clauses (i) and (ii) above and the increase
in the LC Fee set forth in clause (iii) above shall be applicable without any
election or action on the part of the Agent, any LC Issuer or any Lender.
2.12. METHOD OF PAYMENT. All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in immediately available
funds to the Agent at the Agent's address specified pursuant to Article XIII, or
at any other Lending Installation of the Agent specified in writing by the Agent
to the Borrower, by 12:00 noon (Chicago time) on the date when due and shall
(except with respect to repayments of Swing Line Loans, and except in the case
of Reimbursement Obligations for which any LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) 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 its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. Each reference to the Agent in
this Section 2.12 shall also be deemed to refer, and shall apply equally, to the
LC Issuers in the case of payments required to be made by the Borrower to the LC
Issuers pursuant to Section 2.20.6.
2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Revolving Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a)
the date and the amount of each Revolving Loan made hereunder, the
Type thereof and the Interest Period (in the case of a Eurodollar
Advance) with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the original stated amount
of each Facility LC and the amount of LC Obligations (including
specifying Reimbursement Obligations) outstanding at any time, (d)
the effective date and
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amount of each Assignment Agreement delivered to and accepted by
it and the parties thereto pursuant to Section 12.3, (e) the
amount of any sum received by the Agent hereunder from the
Borrower and each Lender's share thereof, and (f) all other
appropriate debits and credits as provided in this Agreement,
including, without limitation, all fees, charges, expenses and
interest.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be PRIMA FACIE evidence
(absent manifest error) of the existence and amounts of the
Obligations therein recorded; PROVIDED, HOWEVER, that the failure
of the Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
(iv) Any Lender may request that its Revolving Loans or, in the case of
the Swing Line Lender, the Swing Line Loans, be evidenced by a
promissory note in substantially the form of Exhibit D with
appropriate changes for notes evidencing Swing Line Loans (a
"Note"). In such event, the Borrower shall prepare, execute and
deliver to such Lender such Note payable to the order of such
Lender or its registered assigns. Thereafter, the Revolving Loans
evidenced by such Note and interest thereon shall at all times
(prior to any assignment pursuant to Section 12.3) be represented
by one or more Notes payable to the order of the payee named
therein, except to the extent that any such Lender subsequently
returns any such Note for cancellation and requests that such
Revolving Loans once again be evidenced as described in
paragraphs (i) and (ii) above.
2.14. TELEPHONIC NOTICES. 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 based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, signed by an Authorized Officer, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice.
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.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Floating Rate Advance shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the Closing Date, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an Interest Period
longer than three (3) months shall also be payable on the last day of each
three-month interval during such Interest Period. LC Fees and all other fees
hereunder and interest on Eurodollar Advances shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest on Floating Rate Advances
shall be calculated for actual days elapsed on the basis of a 365/366-day year.
Interest
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on Swing Line Loans shall be calculated on a basis agreed to by the Swing Line
Lender and the Borrower. 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 12:00 noon (Chicago time) at the place of payment. If any
payment of principal of or interest on an Advance, any fees or any other amounts
payable to the Agent or any Lender hereunder 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, fees and commissions in connection with such
payment.
2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS; AVAILABILITY OF LOANS. Promptly after receipt thereof,
the Agent will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from the applicable LC Issuer, the Agent will notify each
Lender of the contents of each request for issuance of a Facility LC hereunder.
The Agent will notify the Borrower and each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give the Borrower and each Lender prompt notice of each
change in the Alternate Base Rate. Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan or
Revolving Loans in funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIII. The Agent will promptly make the
funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address in an account maintained and designated by the Borrower.
2.17. LENDING INSTALLATIONS. Each Lender may book its Revolving Loans
and its participation in any LC Obligations and the LC Issuers may book the
Facility LCs issued by it at any Lending Installation selected by such Lender or
LC Issuer, as applicable, and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such Lending Installation
and the Revolving Loans, Facility LCs, participations in LC Obligations and any
Notes issued hereunder shall be deemed held by each Lender or LC Issuer, as
applicable, for the benefit of any such Lending Installation. Each Lender and LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Revolving Loans will be made by it or Facility LCs will be issued by it
and for whose account Revolving Loan payments or payments with respect to
Facility LCs are to be made. In addition, each such Lender that books its
Revolving Loans and its participation in any LC Obligations at any Lending
Installation and each LC Issuer that books the Facility LCs issued by it at any
Lending Installation as provided in this Section 2.17, (i) shall keep a register
for the registration relating to each such Revolving Loan, LC Obligation and
Facility LC, as applicable, specifying such Lending Installation's name, address
and entitlement to payments of principal and interest or any other payments with
respect to such Revolving Loan, LC Obligation and Facility LC, as applicable,
and each transfer thereof and the name and address of each transferee and (ii)
shall collect, prior to the time such Lending Installation receives payment with
respect to such Revolving Loans, LC Obligations and Facility LCs, as applicable
as the case may be, from each such Lending Installation, the appropriate forms,
certificates, and statements described in Section 3.5 (and updated as required
by Section 3.5) as if Lending Installation were a Lender under Section 3.5.
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2.18. 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 Revolving 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 (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Revolving Loan or (y)
in the case of payment by the Borrower, the interest rate applicable to the
relevant Revolving Loan.
2.19. REPLACEMENT OF LENDER. If (i) the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3, (ii) any
Lender becomes insolvent and its assets become subject to a receiver,
liquidator, trustee, custodian or other Person having similar powers, (iii) any
Lender refuses to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement requiring the consent of all Lenders
(or all affected Lenders) pursuant to Section 8.2 and the same have been
approved by the Required Lenders, or (iv) any Lender defaults on its obligation
to make available its Pro Rata Share of any Advance or to fund its Pro Rata
Share of any unreimbursed payment as required by this Agreement (or such Lender
has notified the Borrower and the Agent in writing that it does not intend to
comply with is obligations under this Agreement) (any Lender in clauses (i)
through (iv) above being an "Affected Lender"), the Borrower may elect to
terminate or replace the Commitment of such Affected Lender, PROVIDED that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such termination or replacement unless the same shall be waived in connection
with such termination or replacement, and PROVIDED FURTHER that, concurrently
with such termination or replacement, (a) if the Affected Lender is being
replaced, another bank or other entity which is reasonably satisfactory to the
Borrower and the Agent shall agree, as of such date, to purchase for cash the
Outstanding Credit Exposure of such Affected Lender pursuant to an Assignment
Agreement substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of such Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, (b) in the case of replacement, the
replacement Lender shall pay to the Affected Lender an amount equal to the sum
of (1) an amount equal to the principal of, and all accrued interest on, all
outstanding Credit Exposure of such Affected Lender and (2) an amount equal to
all accrued but unpaid fees owing to such Affected Lender under this Agreement,
and, to the extent not paid by the purchasing Lender, the Borrower shall pay to
such Affected Lender in immediately available funds on the day of such
replacement (x) all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by the Borrower hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5, and (y) an amount, if any, equal to the payment
which
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would have been due to such Affected Lender on the day of such replacement under
Section 3.4 had the Revolving Loans of such Affected Lender been prepaid on such
date rather than sold to the replacement Lender, in each case to the extent not
paid by the purchasing Lender, and (c) if the Affected Lender is being
terminated, the Borrower shall pay to such Affected Lender an amount equal to
the sum of (1) an amount equal to the principal of, and all accrued interest to
an including the date of termination on, all outstanding Credit Exposure of such
Affected Lender PLUS (2) an amount equal to all accrued but unpaid fees to an
including the date of termination owing to such Affected Lender under this
Agreement PLUS (3) all amounts due to such Affected Lender under Sections 3.1,
3.2 and 3.5 and any amount due to such Affected Lender under Section 3.4.
2.20. FACILITY LCs.
2.20.1 ISSUANCE; TRANSITIONAL FACILITY LCs.
(a) ISSUANCE. The LC Issuers hereby agree, on the terms
and conditions set forth in this Agreement, to issue standby
letters of credit in Dollars (each, together with the letters of
credit deemed issued by the LC Issuers hereunder pursuant to
Section 2.20.1(b), a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify,"
and each such action, a "Modification"), from time to time from
and including the Closing Date and prior to the Facility
Termination Date upon the request of the Borrower; PROVIDED that
immediately after each such Facility LC is issued or Modified, (i)
the aggregate amount of the outstanding LC Obligations shall not
exceed $90,000,000 and (ii) the Aggregate Outstanding Credit
Exposure shall not exceed the Aggregate Commitment. No Facility LC
shall have an expiry date later than the earlier of (x) the fifth
Business Day prior to the Facility Termination Date and (y) one
year after its issuance; PROVIDED that any Facility LC with a
one-year tenor may provide for the renewal thereof for additional
one year periods (which, subject to the next succeeding proviso,
may extend beyond the date referred to in CLAUSE (x) above);
PROVIDED, HOWEVER, that, subject to the terms of Section 2.20.11,
on or before the 10th day prior to the Facility Termination Date
the Borrower may request and the LC Issuers hereby agree to issue
Facility LCs with (or to Modify Facility LCs to have) an expiry
date on or after the Facility Termination Date but not later than
the twelve-month anniversary of the Facility Termination Date.
(b) TRANSITIONAL PROVISION. SCHEDULE 2.20 contains a
schedule of certain letters of credit issued for the account of
the Borrower prior to the Closing Date. Subject to the
satisfaction of the conditions contained in Sections 4.1 and 4.2,
from and after the Closing Date such letters of credit shall be
deemed to be Facility LCs issued pursuant to this Section 2.20.
2.20.2 PARTICIPATIONS. On the Closing Date, with respect to the
Facility LCs identified on Schedule 2.20, and upon the issuance or
Modification by the applicable LC Issuer of a Facility LC in accordance
with this Section 2.20, such LC Issuer shall be deemed, without further
action
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by any party hereto, to have unconditionally and irrevocably sold to each
Lender, and each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from such
LC Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Pro Rata
Share.
2.20.3 NOTICE. Subject to Section 2.20.1, the Borrower shall give
the applicable LC Issuer notice prior to 10:00 a.m. (Chicago time) at least
three (3) Business Days prior to the proposed date of issuance or
Modification of each Facility LC (or such shorter period as shall be agreed
to by the Borrower, the Agent and the LC Issuer), specifying the
beneficiary, the proposed date of issuance (or Modification) and the expiry
date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported
thereby. The applicable LC Issuer shall promptly notify the Agent, and,
upon issuance only, the Agent shall promptly notify each Lender, of the
contents thereof and of the amount of such Lender's participation in such
Facility LC. The issuance or Modification by any LC Issuer of any Facility
LC shall, in addition to the conditions precedent set forth in Article IV
(the satisfaction of which such LC Issuer shall have no duty to ascertain),
be subject to the conditions precedent that such Facility LC shall be
reasonably satisfactory to such LC Issuer and that the Borrower shall have
executed and delivered such application agreement and/or such other
instruments and agreements relating to such Facility LC as such LC Issuer
shall have reasonably requested (each, a "Facility LC Application"). In the
event of any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
2.20.4 LC FEES. The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, a letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurodollar Loans in effect from time to time on the average
daily undrawn amount under such Facility LC, such fee to be payable in
arrears on each Payment Date. The Borrower shall also pay to each LC Issuer
for its own account (x) in arrears on each Payment Date, a per annum
fronting fee in an amount agreed upon between the Borrower and such LC
Issuer MULTIPLIED BY the average daily undrawn amount under such Facility
LC, and (y) documentary and processing charges in connection with the
issuance, or Modification cancellation, negotiation, or transfer of, and
draws under Facility LCs in accordance with the applicable LC Issuer's
standard schedule for such charges as in effect from time to time. Each fee
described in this Section 2.20.4 shall constitute an "LC Fee".
2.20.5 ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the applicable LC Issuer shall notify the Agent and the
Agent shall promptly notify the Borrower and each other Lender as to the
amount to be paid by such LC Issuer as a result of such demand and the
proposed payment date to such beneficiary (the "LC Payment Date");
PROVIDED, HOWEVER, that the failure of such LC Issuer to so notify the
Borrower shall not in any manner affect the obligations of the Borrower to
reimburse such LC Issuer pursuant to section 2.20.6. The responsibility of
each LC Issuer to the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under each
Facility LC issued by such LC Issuer in connection with such presentment
shall be in conformity in all material respects with such Facility
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LC. Each LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facility LCs issued by such LC Issuer as it does
with respect to letters of credit in which no participations are granted,
it being understood that in the absence of any gross negligence or willful
misconduct by the applicable LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the occurrence of
any Default or any condition precedent whatsoever, to reimburse such LC
Issuer on demand for (i) such Lender's Pro Rata Share of the amount of each
payment made by such LC Issuer under each Facility LC issued by such LC
Issuer to the extent such amount is not reimbursed by the Borrower pursuant
to Section 2.20.6 below, PLUS (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the applicable LC
Issuer's demand for such reimbursement (or, if such demand is made after
12:00 noon (Chicago time) on such date, from the next succeeding Business
Day) to the date on which such Lender pays the amount to be reimbursed by
it, at a rate of interest per annum equal to the Federal Funds Effective
Rate for the first three (3) days and, thereafter, at a rate of interest
equal to the rate applicable to Floating Rate Advances. In the case of each
LC Issuer that has received any payments from any Lender pursuant to this
Section 2.20.5, each such LC Issuer (i) shall keep a register for the
registration relating to each such Reimbursement Obligation, specifying
such participating Lender's name, address and entitlement to payments with
respect to such participating Lender's share of the principal amount of any
Reimbursement Obligation and interest thereon with respect to its
respective participations, and each transfer thereof and the name and
address of each transferee and (ii) shall collect, prior to the time such
participating Lender receives payment with respect to such participation,
from each such participating Lender the appropriate forms, certificates,
and statements described in Section 3.5 (and updated as required by
Section 3.5) as if such participating Lender were a Lender under
Section 3.5.
2.20.6 REIMBURSEMENT BY BORROWER. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuers on or
before the first Business Day after the applicable LC Payment Date (the "LC
Reimbursement Date") for any amounts paid by any LC Issuer upon any drawing
under any Facility LC issued by such LC Issuer, without presentment,
demand, protest or other formalities of any kind; PROVIDED that neither the
Borrower nor any Lender shall hereby be precluded from asserting any claim
for direct (but not consequential) damages suffered by the Borrower or such
Lender to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the applicable LC Issuer in determining
whether a request presented under any Facility LC issued by it complied
with the terms of such Facility LC or (ii) the applicable LC Issuer's
failure to pay under any Facility LC issued by it after the presentation to
it of a request strictly complying with the terms and conditions of such
Facility LC. Unless the Borrower shall have otherwise notified the Agent
and the applicable LC Issuer prior to 12:00 noon (Chicago time) on the LC
Reimbursement Date with respect to any Facility LC, the Borrower shall be
deemed to have elected to borrow Revolving Loans from the Lenders, as of
such LC Reimbursement Date, equal in amount to the amount of the unpaid
Reimbursement Obligations with respect to such Facility LC. Subject to the
satisfaction of the applicable conditions precedent set forth in
Article IV, such Revolving Loans shall be made as of the LC Reimbursement
Date automatically and without notice. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of which
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Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, the Borrower fails to repay a Reimbursement Obligation on
applicable LC Reimbursement Date and, for any reason, the Lenders are
unable to make or have no obligation to make Revolving Loans, then such
Reimbursement Obligation shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to (x) the rate applicable to
Floating Rate Advances for such day if such day falls on or before the
applicable LC Reimbursement Date and (y) the sum of 2% PLUS the rate
applicable to Floating Rate Advances for such day if such day falls after
such LC Reimbursement Date. Each LC Issuer will pay to each Lender ratably
in accordance with its Pro Rata Share all amounts received by it from the
Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by such LC
Issuer, but only to the extent such Lender has made payment to such LC
Issuer in respect of such Facility LC pursuant to Section 2.20.5.
2.20.7 OBLIGATIONS ABSOLUTE. The Borrower's obligations under
this Section 2.20 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any LC Issuer, any
Lender or any beneficiary of a Facility LC. The Borrower further agrees
with the LC Issuers and the Lenders that the LC Issuers and the Lenders
shall not be responsible for, and the Borrower's Reimbursement Obligation
in respect of any Facility LC shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the
Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any
of its Affiliates against the beneficiary of any Facility LC or any such
transferee. No LC Issuer shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Facility LC. The
Borrower agrees that any action taken or omitted by any LC Issuer or any
Lender under or in connection with each Facility LC and the related drafts
and documents, if done without gross negligence or willful misconduct,
shall be binding upon the Borrower and shall not put any LC Issuer or any
Lender under any liability to the Borrower. Nothing in this Section 2.20.7
is intended to limit the right of the Borrower to make a claim against any
LC Issuer for damages as contemplated by the proviso to the first sentence
of Section 2.20.6.
2.20.8 ACTIONS OF LC ISSUERS. Each LC Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC, draft,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order
or other document believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts
selected by such LC Issuer. Each LC Issuer shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as
it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and
expense which
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may be incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 2.20, each LC
Issuer shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any future holders
of a participation in any Facility LC.
2.20.9 INDEMNIFICATION. The Borrower hereby agrees to indemnify
and hold harmless each Lender, each LC Issuer and the Agent, and their
respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, reasonable costs or
expenses which such Lender, such LC Issuer or the Agent may incur (or which
may be claimed against such Lender, such LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay under
any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities,
reasonable costs or expenses which any LC Issuer may incur by reason of or
in connection with (i) the failure of any other Lender to fulfill or comply
with its obligations to such LC Issuer hereunder (but nothing herein
contained shall affect any rights the Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of such LC Issuer
issuing any Facility LC which specifies that the term "Beneficiary"
included therein includes any successor by operation of law of the named
Beneficiary, but which Facility LC does not require that any drawing by any
such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to such LC Issuer, evidencing the appointment of such
successor Beneficiary; PROVIDED that the Borrower shall not be required to
indemnify any Lender, any LC Issuer or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the
extent, (x) caused by the willful misconduct or gross negligence of the
applicable LC Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of such
Facility LC or (y) caused by any LC Issuer's failure to pay under any
Facility LC issued by such LC Issuer after the presentation to it of a
request strictly complying with the terms and conditions of such Facility
LC, or (z) with respect to taxes and amounts relating thereto (payments
with respect to which shall be governed solely and exclusively by
Section 3.5). Nothing in this Section 2.20.9 is intended to limit the
obligations of the Borrower under any other provision of this Agreement.
2.20.10 LENDERS' INDEMNIFICATION. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify each LC Issuer, its
affiliates and their respective directors, officers, agents and employees
(to the extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct or the applicable LC Issuer's
failure to pay under any Facility LC issued by such LC Issuer after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC) that such indemnitees may suffer or incur
in connection with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.
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2.20.11 FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees that
it will, upon the reasonable request of the Agent or the Required Lenders
and until the final expiration date of any Facility LC and thereafter as
long as any amount is payable to the LC Issuers or the Lenders in respect
of any Facility LC, maintain a special collateral account pursuant to
arrangements satisfactory to the Agent (the "Facility LC 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. The
Borrower hereby pledges, assigns and grants to the Agent, on behalf of and
for the ratable benefit of the Lenders and the LC Issuers, a security
interest in all of the Borrower's right, title and interest in and to all
funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and
performance of the Secured Obligations. The Agent will invest any funds on
deposit from time to time in the Facility LC Collateral Account in Cash
Equivalent Investments as directed by the Borrower (in the absence of a
Default). On or before the 10th day prior to the Facility Termination Date,
the Borrower shall pay to the Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account,
equal to 1.05 MULTIPLIED BY the aggregate amount of the outstanding LC
Obligations in respect of Facility LCs with an expiry date on or after the
Facility Termination Date. Nothing in this Section 2.20.11 shall either
obligate the Agent to require the Borrower to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to release
any funds held in the Facility LC Collateral Account in each case other
than as required by Section 8.1.
2.20.12 RIGHTS AS A LENDER. In its capacity as a Lender, each LC
Issuer shall have the same rights and obligations as any other Lender.
2.21. INCREASE OF AGGREGATE COMMITMENT. Subject to Section 2.5 and the
other terms and conditions of this Agreement, at any time prior to the Facility
Termination Date, the Borrower may, on the terms set forth below, request that
(a) the Aggregate Commitment hereunder be increased by an amount up to
$100,000,000 and/or (b) term loans be issued hereunder (such term loans being
"Term Loans") on terms and conditions (including, without limitation, pricing,
amortization, prepayment and related interest rate hedging) reasonably
acceptable to the Agent in an aggregate principal amount up to $100,000,000;
PROVIDED, HOWEVER, that (i) no such increase shall cause the Aggregate
Commitment plus all Term Loans to exceed (x) $325,000,000 MINUS (y) any
reduction in the Commitments under Sections 2.2 or 2.5.2 and all theretofore
scheduled principal payments or prepayments in respect of any Term Loans, (ii)
an increase in the Aggregate Commitment or issuance of Term Loans hereunder may
only be made at a time when no Default or Unmatured Default shall have occurred
and be continuing or would result therefrom and (iii) no Lender's Commitment
shall be increased, nor shall any Lender have any commitment to make any Term
Loan, under this Section 2.21 without its consent. In the event of such a
requested increase in the Aggregate Commitment or issuance of Term Loans, any
financial institution which the Borrower and the Agent invite to become a Lender
or to increase its Commitment or issue such Term Loans may set the amount of its
Commitment or Term Loan, as applicable, at a level agreed to by the Borrower and
the Agent. In the event that the Borrower and one or more of the Lenders (or
other financial institutions) shall agree upon such an increase in the Aggregate
Commitment and/or issuance of Term Loans
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(i) the Borrower, the Agent and each Lender or other financial institution
increasing its Commitment or extending a new Commitment or Term Loan shall enter
into an amendment to this Agreement setting forth the amounts of the Commitments
and Term Loans, as applicable, as so increased, providing that the financial
institutions extending new Commitments or Term Loans shall be Lenders for all
purposes under this Agreement, and setting forth such additional provisions as
the Agent shall consider reasonably appropriate and (ii) the Borrower shall
furnish, if requested, a new Note to each financial institution that is
extending a new Commitment or Term Loan or increasing its Commitment. No such
amendment shall require the approval or consent of any Lender whose Commitment
is not being increased. Upon the execution and delivery of such amendment as
provided above, and upon satisfaction of such other conditions as the Agent may
reasonably specify upon the request of the financial institutions that are
extending new Commitments and/or making Term Loans (including, without
limitation, the Agent administering the reallocation of any outstanding
Revolving Loans ratably among the Lenders with Commitments after giving effect
to each such increase in the Aggregate Commitment, and the delivery of
certificates, evidence of corporate authority and legal opinions on behalf of
the Borrower), this Agreement shall be deemed to be amended accordingly. All
such additional Commitments and Term Loans shall be secured equally and ratably
with the other Loans hereunder.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the Closing Date, the adoption
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
in any such law, rule, regulation, policy, guideline or directive or in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or any LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) imposes or 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 or any LC
Issuer (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances),
or
(ii) imposes any other condition the result of which is to increase the
cost to any Lender, any applicable Lending Installation or any LC
Issuer of making, funding or maintaining its Commitment or
Eurodollar Loans or of issuing or participating in Facility LCs,
or reduces any amount receivable by any Lender or any applicable
Lending Installation or any LC Issuer in connection with its
Commitment or Eurodollar Loans or Facility LCs (including
participations therein), or requires any Lender or any applicable
Lending Installation or any LC Issuer to make any payment
calculated by reference to the amount of Commitment or Eurodollar
Loans or Facility LCs (including participations
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therein) held or interest or LC Fees received by it, in each case,
by an amount deemed material by such Lender or such LC Issuer, as
applicable,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer of making or maintaining its
Eurodollar Loans or Commitment or of issuing or participating in Facility LCs,
as applicable, or to reduce the return received by such Lender or applicable
Lending Installation or LC Issuer in connection with such Eurodollar Loans or
Commitment, or Facility LCs (including participations therein), but in all
events, excluding any increase in cost or reduction in return with respect to
taxes and amounts relating thereto (payment with respect to which shall be
governed solely and exclusively by Section 3.5), then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender or
LC Issuer, the Borrower shall pay such Lender or LC Issuer such additional
amount or amounts as will compensate such Lender or LC Issuer for such increased
cost or reduction in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or any LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or such LC Issuer, any Lending Installation of such Lender or such
LC Issuer or any corporation controlling such Lender or such LC Issuer is
increased by a material amount as a result of a Change, but excluding any
adoption, change or interpretation or administration or compliance with respect
to taxes and amounts relating thereto (payment with respect to which shall be
governed solely and exclusively by Section 3.5), then, within 15 days of demand,
accompanied by the written statement required by Section 3.6, by such Lender or
such LC Issuer, the Borrower shall pay such Lender or such LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or such LC Issuer determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Revolving Loans and issue or participate in Facility LCs, as
applicable, hereunder (after taking into account such Lender's or such LC
Issuer's policies as to capital adequacy). In determining such additional
amounts, each Lender will act reasonably and in good faith and will use
allocation and attribution methods which are reasonable. "Change" means (i) any
change after the Closing Date in the Risk-Based Capital Guidelines or (ii) any
adoption of, or change in, or change in the interpretation or administration of
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the Closing Date which affects the amount of capital required or expected
to be maintained by any Lender or any LC Issuer or any Lending Installation or
any corporation controlling any Lender or any LC Issuer. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the Closing Date, 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 Closing Date.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If (x) any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or (y) prior to the commencement of any Interest Period
with respect to a Eurodollar Loan the Required
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Lenders determine that (i) the interest rate applicable to Eurodollar Advances
does not accurately reflect the cost of making or maintaining Eurodollar
Advances, or (ii) no reasonable basis exists for determining the Eurodollar Base
Rate, then such Lender shall promptly give notice to the Borrower and the Agent
(by telephone, promptly confirmed in writing) and thereafter, the Agent shall
suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances on the
respective last days of the then current Interest Periods with respect to such
Revolving Loans or within such earlier period as required by law, subject to the
payment of any funding indemnification amounts required by Section 3.4 until
such time as the Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such initial notice no longer exist, and any Notice
of Borrowing or Notice of Conversion/Continuation given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by way
of conversion) shall be deemed rescinded by the Borrower.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar 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 Eurodollar
Advance is not made or continued, or a Floating Rate Advance is not converted
into a Eurodollar Advance, on the date specified by the Borrower for any reason
other than default by the Lenders, or a Eurodollar Advance is not prepaid on the
date specified by the Borrower for any reason, the Borrower will indemnify each
Lender for any reasonable loss or cost incurred by it resulting therefrom,
including, without limitation, any reasonable loss or cost in liquidating or
employing deposits acquired to fund or maintain such Eurodollar Advance, but
excluding any loss or cost relating to taxes and amounts relating thereto
(payment with respect to which shall be governed solely and exclusively by
Section 3.5).
3.5. TAXES. (i) Except as provided in this Section 3.5, all payments by
the Borrower to or for the account of any Lender or the Agent hereunder or under
any Note shall be made free and clear of and without deduction for any and all
Taxes. If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.5) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Agent the original copy of a receipt
evidencing payment thereof or, if a receipt cannot be obtained with reasonable
efforts, such other evidence of payment as is reasonably acceptable to the
Agent, in each case within 30 days after such payment is made.
(ii) In addition, the Borrower shall pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or
under any Note or Facility LC Application or from the execution or
delivery of, or otherwise with respect to, this Agreement, any
Note, any Facility LC Application, or any other Loan Document
("Other Taxes").
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(iii) The Borrower shall indemnify the Agent and each Lender for the
full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable
under this Section 3.5) paid by the Agent or such Lender as a
result of its Commitment, any Credit Extensions made by it
hereunder, any Facility LC issued or participated in by it
hereunder, or otherwise in connection with its participation in
this Agreement and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. Payments
due under this indemnification shall be made within 30 days of the
date the Agent or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender and the Agent that is not a United States Person (as
such term is defined in Section 7701(a)(30) of the Code for United
States federal income tax purposes) (each a "Non-U.S. Lender")
agrees that it will, not more than ten Business Days after the
date on which it becomes a party to this Agreement (but in any
event before a payment is due to it hereunder), (i) deliver to
each of the Borrower and the Agent two (2) duly completed copies
of United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor forms, certifying in either case that such Non-U.S.
Lender is entitled to receive payments under this Agreement or
under any Note without deduction or withholding of any United
States federal income taxes, or (ii) in the case of a Non-U.S.
Lender that is fiscally transparent, deliver to the Agent and the
Borrower two (2) duly completed copies of a United States Internal
Revenue Service Form W-8IMY or successor form together with the
applicable accompanying duly completed copies of United States
Internal Revenue Service applicable Forms W-8 or W-9 or successor
forms, as the case may be, in each case establishing that each
beneficial owner of the payments to be made under this Agreement
or any Note is entitled to receive payments under this Agreement
or any Note without deduction or withholding of any United States
federal income taxes, and applicable withholding statements, or
(iii) any other applicable form, certificate or document
specifically requested by the Borrower or the Agent and prescribed
by the United States Internal Revenue Service establishing as to
such Lender's, the Agent's or such beneficial owner's, as the case
may be, entitlement to such exemption from United States
withholding tax with respect to all payments to be made hereunder
or under any Note. Each Lender and the Agent that is United States
person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. federal income tax purposes (other than each such
Lender and the Agent, as the case may be, that is treated as an
exempt recipient based on the indicators described in U.S.
Treasury Regulation Section 1.6049-4(c)(1)(ii)) shall deliver at
the time(s) and in the manner(s) described above with respect to
the other Internal Revenue Service Forms, to the Borrower and the
Agent, two (2) accurate and complete original signed copies of
Internal Revenue Service Form W-9 (or successor form) certifying
that such person is exempt from United States backup withholding
tax on payments made hereunder or on any Note. Each Lender and the
Agent further undertakes to deliver to each of the Borrower and
the Agent renewals or additional copies of such form (or any
successor form) (x) on or before the date that such form expires
or becomes obsolete, (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it,
and (z) from time to time upon reasonable request
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by the Borrower or the Agent. All forms or amendments described in
the preceding sentence shall certify that such Lender, the Agent
or such applicable beneficial owner, as the case may be, is
entitled to receive payments under this Agreement or under any
Note without deduction or withholding of any United States federal
income taxes, and in the case where such Lender has delivered a
Form W-8IMY (or successor form), such Lender delivers all forms or
amendments, including duly completed United States Internal
Revenue Service applicable Forms W-8s or W-9s (or successor
forms), in each case establishing that each beneficial owner of
the payments to be made under this Agreement or any Note is
entitled to receive payments under this Agreement or any Note
without deduction or withholding of any United States federal
income taxes, and applicable withholding statements, 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, the Agent or such
applicable beneficial owner, as the case may be, from duly
completing and delivering any such form or amendment with respect
to it and such applicable beneficial owner and such Lender or the
Agent, as the case may be, advises the Borrower and the Agent that
it and such applicable beneficial owner is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Lender or the Agent has failed to
provide the Borrower and the Agent with an appropriate form
referred to in clause (iv) above in each case establishing that
the Agent or such Lender, and in the case where such Lender has
delivered a Form W-8IMY (or successor form), each beneficial owner
of the payments to be made under this Agreement or any Note, is
entitled to receive payments under this Agreement or any Note
without deduction or withholding of any United States Federal
income taxes (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Lender or the Agent, as applicable, shall not
be entitled to any increase in payments or to indemnification
under this Section 3.5 with respect to Taxes imposed by the United
States as a result of such failure; PROVIDED that, should a Lender
or the Agent, as the case may be, which is otherwise exempt from
or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under
clause (iv) above, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover
such Taxes.
(vi) Any Lender or Agent that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without
withholding or at
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a reduced rate. For any period during which a Lender or the Agent,
as applicable, has failed to provide the Borrower and the Agent
with such properly completed and executed documentation, such
Lender or the Agent, as applicable, shall not be entitled to any
increase in payments or to indemnification under this Section 3.5.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent or
the Borrower did not properly withhold tax from amounts paid to or
for the account of any Lender or beneficial owner (because the
appropriate form was not delivered or properly completed, because
such Lender failed to notify the Agent and the Borrower of a
change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender or
beneficial owner shall indemnify the Agent and the Borrower fully
for all amounts paid, directly or indirectly, by the Agent or the
Borrower, as the case may be, as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Agent under
this subsection, together with all costs and expenses related
thereto (including attorneys fees of attorneys for the Agent). The
obligations of the Lenders under this Section 3.5(vii) shall
survive the payment of the Obligations and termination of this
Agreement.
(viii) If any Lender or the Agent determines that it has actually
received any refund of Taxes paid by the Borrower for such Lender
or the Agent pursuant to this Section 3.5, such Lender or the
Agent shall reimburse the Borrower in an amount equal to such
refund, after tax, and net of all expenses incurred by such Lender
or Agent in connection with such refund.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. Each Lender shall notify
the Borrower of any event occurring after the Closing Date entitling such Lender
to compensation under Section 3.1, 3.2, 3.4 or 3.5 as promptly as practicable,
but in any event within 45 days, after such Lender obtains actual knowledge
thereof; provided that if any Lender fails to give such notice within 45 days
after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable under Sections 3.1, 3.2, 3.4 or 3.5 in respect
of any costs resulting from such event, only be entitled to payment for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice. Together with each notice required by the previous sentence,
any Lender requesting compensation shall deliver a certificate of such Lender to
the Borrower (with a copy to the Agent) as to the amount due, if any, under
Section 3.1, 3.2, 3.4 or 3.5. Such written certificate shall (i) 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 and (ii) set forth that it is the policy or general practice of
such Lender to request compensation for comparable costs in similar
circumstances under comparable provisions of other credit agreements for
comparable customers. Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Revolving Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written certificate of any Lender
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shall be payable within fifteen (15) days after receipt by the Borrower of such
written certificate. The obligations of the Borrower under Sections 3.1, 3.2,
3.4 and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
3.7. ALTERNATIVE LENDING INSTALLATION. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, reasonably disadvantageous to such Lender. A
Lender's designation of an alternative Lending Installation shall not affect the
Borrower's rights under Section 2.19 to replace a Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS OF COMMITMENTS. This Agreement shall not become
effective, nor shall any Lender be required to make any Credit Extension
hereunder, unless all legal matters incident to the making of the initial Credit
Extension shall be satisfactory to the Lenders and their counsel and on or
before June 30, 2003 the following conditions precedent have been satisfied or
waived by the Required Lenders and the Borrower has furnished to the Agent with
sufficient copies for the Lenders:
4.1.1 Copies of the articles or certificate of incorporation (or
the equivalent thereof) of each Credit Party, in each case, together with
all amendments thereto, and a certificate of good standing, each certified
by the appropriate governmental officer in its jurisdiction of
organization.
4.1.2 Copies, certified by the Secretary or Assistant Secretary
(or the equivalent thereof) of each Credit Party, in each case, of its
by-laws and of its Board of Directors' resolutions and of resolutions or
actions of any other body authorizing the execution of the Loan Documents
to which such Credit Party is a party.
4.1.3 An incumbency certificate, executed by the Secretary or
Assistant Secretary (or the equivalent thereof) of each Credit Party which
shall identify by name and title and bear the signatures of the Authorized
Officers and any other officers of each such Credit Party authorized to
sign the Loan Documents to which it is a party, upon which certificate the
Agent and the Lenders shall be entitled to rely until informed of any
change in writing by the applicable Credit Party.
4.1.4 A certificate reasonably acceptable to the Agent, signed
by the chief financial officer of the Parent, stating that on the initial
Credit Extension Date (a) no Default or Unmatured Default has occurred and
is continuing, (b) all of the representations and warranties in Article V
shall be true and correct in all material respects as of such date and (c)
except as disclosed in the Identified Disclosure Documents, no material
adverse change in the business, condition (financial or otherwise),
operations, Properties or prospects of the Parent and its Subsidiaries
taken as
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a whole, or the Borrower and its Subsidiaries taken as a whole, has
occurred since December 31, 2001.
4.1.5 An initial compliance certificate, dated as of the Closing
Date and reflecting calculations as of December 31, 2002, in substantially
the form of Exhibit B hereto.
4.1.6 Written opinions of the Credit Parties' US counsel, in
form and substance reasonably satisfactory to the Agent and addressed to
the Lenders, in substantially the form of Exhibit A hereto.
4.1.7 Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender or its registered
assigns.
4.1.8 Evidence satisfactory to the Agent that the Existing
Credit Agreement shall have been or shall simultaneously on the Closing
Date be terminated (except for those provisions that expressly survive the
termination thereof), all loans outstanding and other amounts owed to the
lenders or agents thereunder shall have been, or shall simultaneously with
the initial Advance hereunder, be paid in full, and all liens and security
interests granted in connection therewith shall have been or shall
simultaneously on the Closing Date be terminated.
4.1.9 A certificate of value, solvency and other appropriate
factual information in form and substance reasonably satisfactory to the
Agent and Arranger from the chief financial officer or treasurer of the
Parent (on behalf of the Parent and its Subsidiaries) in his or her
representative capacity supporting the conclusions that as of the initial
Credit Extension Date the Parent and its Subsidiaries on a consolidated
basis are Solvent and will be Solvent subsequent to incurring the
Indebtedness contemplated under the Loan Documents.
4.1.10 Evidence satisfactory to the Agent that the Borrower has
paid to the Agent and the Arranger the fees agreed to in the fee letter
dated February 10, 2003, among the Agent, the Arranger and the Borrower.
4.1.11 Such other documents as any Lender or its counsel may have
reasonably requested, including, without limitation, those documents set
forth in Exhibit F hereto.
4.2. EACH CREDIT EXTENSION. The Lenders shall not (except as otherwise
set forth in Section 2.4.4 with respect to Revolving Loans extended for the
purpose of repaying Swing Line Loans) be required to make any Credit Extension
unless on the applicable Credit Extension Date:
4.2.1 There exists no Default or Unmatured Default.
4.2.2 The representations and warranties contained in Article V
are true and correct in all material respects as of such Credit Extension
Date 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 have been true and correct in all material respects on and
as of such earlier date.
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Each Borrowing Notice, request for issuance of a Facility LC or Swing Line
Borrowing Notice, as the case may be, or request for issuance of a Facility LC,
with respect to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 4.2.1 and
4.2.2 have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Parent and the Borrower represents and warrants to each Lender
and the Agent as of each of (i) the Closing Date, (ii) the date of the initial
Credit Extension hereunder (if different from the Closing Date) and (iii) each
date as required by Section 4.2:
5.1. EXISTENCE AND STANDING. Each of the Parent and its Subsidiaries
(i) is a corporation, partnership (in the case of Subsidiaries other than the
Borrower only) or limited liability company duly incorporated or organized, as
the case may be, validly existing and (to the extent such concept applies to
such entity) in good standing under the laws of its jurisdiction of
incorporation or organization, (ii) has all requisite corporate, partnership or
limited liability company power and authority, as the case may be, to own,
operate and encumber its Property and (iii) is qualified to do business and is
in good standing (to the extent such concept applies to such entity) in all
jurisdictions where the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would reasonably be
expected to have a Material Adverse Effect.
5.2. AUTHORIZATION AND VALIDITY. Each Credit Party has the requisite
corporate, partnership or limited liability company, as the case may be, power
and authority and legal right to execute and deliver the Loan Documents to which
it is a party and to perform its obligations thereunder. The execution and
delivery by each Credit Party of the Loan Documents to which it is a party and
the performance of its obligations thereunder have been duly authorized by
requisite corporate, partnership or limited liability company, as the case may
be, proceedings, and the Loan Documents to which each Credit Party is a party
constitute legal, valid and binding obligations of such Credit Party enforceable
against such Credit Party in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyances, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally; (ii) general equitable principles
(whether considered in a proceeding in equity or at law); and (iii) requirements
of reasonableness, good faith and fair dealing.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by any Credit Party of the Loan Documents to which it is a party, nor
the consummation by such Credit Party of the transactions therein contemplated,
nor compliance by such Credit Party with the provisions thereof will violate (i)
any applicable law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on such Credit Party or (ii) such Credit Party's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or
other management agreement, as the case may be, or (iii) the provisions of any
indenture or material instrument or agreement to which such Credit Party is a
party or is subject, or by which it, or its Property, may be bound or affected,
or conflict with, or constitute a default under, or result in or require, the
creation or
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imposition of any Lien in, of or on the Property of such Credit Party pursuant
to the terms of any such indenture or material instrument or agreement (other
than any Lien of the Agent on behalf of the Holders of Secured Obligations).
Other than the filing of UCC financing statements and intellectual
property-related filings in the applicable filing offices to perfect the Liens
of the Agent in favor of the Holders of Secured Obligations granted pursuant to
the Loan Documents, no order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or public body or
authority, or any subdivision thereof, which has not been obtained by any Credit
Party, is required to be obtained by such Credit Party in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Credit Parties of the Obligations
or the legality, validity, binding effect or enforceability of any of the Loan
Documents except where the failure to so make or obtain, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
5.4. FINANCIAL STATEMENTS. The December 31, 2001 consolidated financial
statements of the Parent and its Subsidiaries heretofore delivered to the Agent
and the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present in all material respects the consolidated financial condition and
operations of the Parent 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, 2001, except as
disclosed in the Identified Disclosure Documents, there has been no change in
the business, condition (financial or otherwise), operations, Properties or
prospects of the Parent and its Subsidiaries taken as a whole, or the Borrower
and its Subsidiaries taken as a whole, which would reasonably be expected to
have a Material Adverse Effect.
5.6. TAXES. The Parent, the Borrower and the 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 shown to be due thereon or pursuant
to any assessment received by the Parent, the Borrower or any Subsidiaries,
except in respect of such taxes, if any, (i) as are being contested in good
faith and as to which adequate reserves have been provided in accordance with
Agreement Accounting Principles and as to which no Lien exists (except as
permitted by Section 6.15.1) or (ii) as to which the failure to file such return
or pay such taxes would not reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, the United States income tax returns of the
Parent, the Borrower and the Subsidiaries have been audited by the Internal
Revenue Service through the fiscal year ended December 31, 1998, and, as of the
Closing Date, no Liens have been filed and no claims are being asserted with
respect to such taxes shown to be due on such returns. The charges, accruals and
reserves on the books of the Parent, the Borrower and the Subsidiaries in
respect of any taxes or other governmental charges are adequate under Agreement
Accounting Principles.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their executive officers, threatened against the Parent,
the Borrower or any Subsidiaries which would reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or
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delay the making of any Revolving Loans. As of December 31, 2001, other than any
liability incident to any litigation, arbitration or proceeding which would not
reasonably be expected to have a Material Adverse Effect, none of the Parent,
the Borrower or any Subsidiary had any contingent obligations required to be
reflected on the Parent's consolidated balance sheet in accordance with
generally accepted accounting principles, and not provided for or disclosed in
the financial statements referred to in Section 5.4, in an aggregate amount in
excess of $10,000,000.
5.8. SUBSIDIARIES. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Parent as of the Closing Date, setting forth their
respective jurisdictions of organization and the percentage of their respective
capital stock or other ownership interests owned by the Parent or other
Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts
are relevant with respect to such ownership interests) duly authorized and
issued and are fully paid and non-assessable.
5.9. ERISA. During the twelve consecutive month period prior to the
Closing Date, the date of the initial Credit Extension and the date of any
subsequent Credit Extension, (i) no formal step has been taken to terminate any
Plan, other than a standard termination under Section 4041(b) of ERISA and (ii)
no contribution failure has occurred with respect to any Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA. During the twelve consecutive
month period prior to the Closing Date, the date of the initial Credit Extension
and the date of any subsequent Credit Extension, neither the Parent nor any
other member of the Controlled Group has incurred, or is reasonably expected to
incur, pursuant to Section 4201 of ERISA, any withdrawal liability to
Multiemployer Plans that would reasonably be expected to exceed in the aggregate
$20,000,000. Each Plan complies with all applicable requirements of law and
regulations except with respect to non-compliance that would not reasonably be
expected to have a Material Adverse Effect. During the twelve consecutive month
period prior to the Closing Date, the date of the initial Credit Extension and
the date of any subsequent Credit Extension, neither the Parent nor any other
member of the Controlled Group has withdrawn from any Multiemployer Plan within
the meaning of Title IV of ERISA or initiated steps to do so, and, to the
knowledge of the Parent, no steps have been taken to reorganize or terminate,
within the meaning of Title IV of ERISA, any Multiemployer Plan which
withdrawal, reorganization or termination would reasonably be expected to exceed
in the aggregate $20,000,000.
5.10. ACCURACY OF INFORMATION. The written information, exhibits or
reports furnished by the Parent, the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents (other than projected and pro forma information), considered as a
whole, do not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not materially
misleading. The projected and pro forma financial information furnished by or on
behalf of the Parent, the Borrower or any Subsidiary to the Agent or any Lender
in connection with the negotiation of, or compliance with, the Loan Documents,
were prepared in good faith based upon assumptions believed to be reasonable at
the time.
5.11. REGULATION U. Neither the Parent, the Borrower nor any Subsidiary
is engaged principally, or as one of its important activities, in the business
of extending credit for the
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purpose, whether immediate, incidental or ultimate of buying or carrying margin
stock (as defined in Regulation U), and after applying the proceeds of each
Credit Extension, margin stock (as defined in Regulation U) constitutes less
than 25% of the value of those assets of the Parent, the Borrower and the
Subsidiaries which are subject to any limitation on sale, pledge, or any other
restriction hereunder.
5.12. COMPLIANCE WITH LAWS. The Parent, the Borrower and the
Subsidiaries have complied with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property, except to
the extent any failure to so comply, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
5.13. OWNERSHIP OF PROPERTIES. The Parent, the Borrower and the
Subsidiaries have good title, free of all Liens other than those permitted by
Section 6.15, to all of the assets reflected in the Parent's most recent
consolidated financial statements provided to the Agent, as owned by the Parent,
the Borrower and the Subsidiaries except (i) assets sold or otherwise
transferred as permitted under Section 6.12 and (ii) to the extent the failure
to hold such title would not reasonably be expected to have a Material Adverse
Effect.
5.14. PLAN ASSETS; PROHIBITED TRANSACTIONS. None of the Credit Parties
is an entity deemed to hold "plan assets" within the meaning of 29 C.F.R.
Section 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of
ERISA) which is subject to Title I of ERISA or any plan (within the meaning of
Section 4975 of the Code), and assuming the accuracy of the representations and
warranties made in Section 9.12 and in any assignment made pursuant to
Section 12.3.3, neither the execution of this Agreement nor the making of
Revolving Loans hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.15. ENVIRONMENTAL MATTERS. To the knowledge of the Borrower, no facts,
circumstances or conditions currently exist with respect to the Parent and its
Subsidiaries that would reasonably be expected to result in the Parent or such
Subsidiary incurring liability under Environmental Law that would reasonably be
expected to have a Material Adverse Effect. Neither the Parent, 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 Environmental
Laws or are 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
would reasonably be expected to have a Material Adverse Effect.
5.16. INVESTMENT COMPANY ACT. Neither the Parent, the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.17. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Parent, the
Borrower nor any Subsidiary is a "holding company", or an "affiliate" of a
"holding company", or a "subsidiary
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company" of a "holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
5.18. INSURANCE. The Parent maintains, and has caused the Borrower and
each Subsidiary to maintain, with financially sound and reputable insurance
companies insurance on their Property in such amounts, subject to such
deductibles and self-insurance retentions and covering such properties and risks
as is consistent with sound business practice for Persons engaged in the same or
similar business and which are similarly situated to the Borrower.
5.19. SOLVENCY. After giving effect to (i) the Credit Extensions to be
made on the Closing Date or such other date as Credit Extensions requested
hereunder are made, (ii) the other transactions contemplated by this Agreement
and the other Loan Documents, and (iii) the payment and accrual of all
transaction costs with respect to the foregoing, the Parent and its Subsidiaries
taken as a whole are Solvent.
5.20. COLLATERAL DOCUMENTS. The Collateral Documents create, as security
for the obligations purported to be secured thereby, a valid and enforceable
interest in and Lien on all of the Properties covered thereby in favor of the
Agent, and upon the filing of any financing statements, notices or mortgages
contemplated thereby in the offices specified therein, such Liens shall be
superior to and prior to the right of all third Persons (other than Liens
permitted under Section 6.15, PROVIDED that nothing herein shall be deemed to
constitute an agreement to subordinate any of the Liens of the Agent under the
Loan Documents to any Liens otherwise permitted under Section 6.15 (other than
Permitted Priority Liens)) and subject to no other Liens (other than Liens
permitted under Section 6.15).
5.21. NO DEFAULT OR UNMATURED DEFAULT. No Default or Unmatured Default
has occurred and is continuing.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Parent and the Borrower will maintain,
for itself and each Subsidiary, a system of accounting established and
administered in accordance with generally accepted accounting principles, and
the Borrower will furnish to the Agent (which shall furnish copies to the
Lenders via IntraLinks or other similar password protected, restricted internet
site):
6.1.1 Within 90 days after the close of each of the Parent's
fiscal years (commencing with the fiscal year ending December 31, 2003),
financial statements prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, statements of income
and statements of cash flows, accompanied by (a) an audit opinion,
unqualified as to scope, of a nationally recognized firm of independent
public accountants or other independent public accountants reasonably
acceptable to the
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Required Lenders and (b) a certificate of said accountants that, in the
course of their examination necessary for their opinion, they have obtained
no knowledge of any Default under any of Sections 6.21 through 6.24 insofar
as such Sections relate to accounting matters, or if, in the opinion of
such accountants, any Default shall exist, stating the nature and status
thereof.
6.1.2 Within 45 days after the close of the first three (3)
quarterly periods of each of the Parent's fiscal years, for the Parent and
its Subsidiaries, consolidated unaudited balance sheets as at the close of
each such period and consolidated statements of income and a statement of
cash flows for the period from the beginning of such fiscal year to the end
of such quarter, all certified as to fairness of presentation, in all
material respects, compliance with Agreement Accounting Principles by its
chief financial officer, controller or treasurer.
6.1.3 Together with (i) the financial statements required under
Sections 6.1.1 and 6.1.2, a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer, controller or
treasurer showing the calculations necessary to determine compliance with
this Agreement, which certificate shall also state that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof, and (ii) each compliance certificate
described in clause (i) relating to the financial statements required under
Section 6.1.1, supplements to the schedules to the Security Agreement and
the Intellectual Property Security Agreements reflecting any matter
hereafter arising which, if existing or occurring at the Closing Date,
would have been required to be set forth on the schedules delivered as of
the Closing Date, PROVIDED that notwithstanding that any such supplement
may disclose the existence or occurrence of events, facts or circumstances
which are either prohibited by the terms of this Agreement or any other
Loan Documents or which result in the material breach of any representation
or warranty, such supplement shall not be deemed either an amendment
thereof or a waiver of such breach unless expressly consented to in writing
by Agent and the requisite number of Lenders under Section 8.2, and no such
amendments, except as the same may be consented to in a writing which
expressly includes a waiver, shall be or be deemed a waiver by the Agent or
any Lender of any Default disclosed therein, and any items disclosed in any
such supplemental disclosures shall be included in the calculation of any
limits, baskets or similar restrictions contained in this Agreement or any
of the other Loan Documents.
6.1.4 Within 60 days after the close of each of the Parent's
fiscal years, a copy of the plan and forecast consisting of a projected
balance sheet, income statements and cash flow statements, and any
narrative prepared with respect thereto, of the Parent and its Subsidiaries
for the upcoming fiscal year prepared in such detail as shall be reasonably
satisfactory to the Agent.
6.1.5 Within 270 days after the close of each fiscal year of the
Parent, if applicable, a copy of the actuarial report showing the funding
status of each Single Employer Plan as of the valuation date occurring in
such fiscal year, certified by an actuary enrolled under ERISA.
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6.1.6 As soon as possible and in any event within 10 days after
(i) the inception of any formal step to terminate any Plan, other than a
standard termination under Section 4041(b) of ERISA, (ii) a contribution
failure with respect to any Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA, or (iii) the making of any application under
Section 303 of ERISA for the waiver of the minimum funding requirements
under Section 302(a) of ERISA, notice of any such event and the action
which the Parent proposes to take with respect thereto.
6.1.7 As soon as possible and in any event within 10 days after
receipt by the Parent, the Borrower or any Subsidiary, a copy of (a) any
notice or claim to the effect that the Parent, the Borrower or any
Subsidiary is or may be liable to any Person as a result of the release by
the Parent, the Borrower, any Subsidiary, or any other Person of any toxic
or hazardous waste or substance into the environment, and (b) any notice
alleging any violation of any Environmental Law by the Parent, the Borrower
or any Subsidiary, which, in either case, would reasonably be expected to
have a Material Adverse Effect.
6.1.8 Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Parent, the Borrower or any Subsidiary publicly files
with the SEC.
6.1.9 On or before April 1, 2003, financial statements prepared
in accordance with Agreement Accounting Principles on a consolidated basis
for itself and its Subsidiaries for the fiscal year ending December 31,
2002, including balance sheets as of the end of such period, statements of
income and statements of cash flows, accompanied by an audit opinion,
unqualified as to scope, of a nationally recognized firm of independent
public accountants or other independent public accountants reasonably
acceptable to the Required Lenders.
6.1.10 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 Parent and the Borrower will, and will cause
each Subsidiary to, use the proceeds of the Credit Extensions for general
corporate purposes, including, without limitation, for working capital,
Permitted Acquisitions, repayment of Indebtedness outstanding under the Existing
Credit Agreement and the Senior Subordinated Notes, Permitted Share Repurchases
and to pay fees and expenses incurred in connection with this Agreement. The
Borrower shall use the proceeds of Credit Extensions in compliance with all
applicable legal and regulatory requirements and any such use shall not result
in a violation of any such requirements, including, without limitation,
Regulation U and X.
6.3. NOTICE OF DEFAULT. Within five (5) Business Days after an
Authorized Officer becomes aware thereof, the Borrower will give notice in
writing to the Lenders of the occurrence of (i) any Default or Unmatured Default
and (ii) any other development, financial or otherwise, which would reasonably
be expected to have a Material Adverse Effect.
6.4. CONDUCT OF BUSINESS. The Parent and the Borrower will, and will
cause each Subsidiary to, carry on and conduct its business in substantially the
same fields of enterprise as
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conducted by the Parent or its Subsidiaries as of the Closing Date and those
reasonably related thereto and reasonable extensions thereof, and do all things
necessary (subject to Section 6.11) to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and remain
qualified to do business and remain in good standing (to the extent such concept
applies to such entity) in all jurisdictions where the nature of the business
conducted by it makes such qualification necessary and where failure to so
qualify would reasonably be expected to have a Material Adverse Effect.
6.5. TAXES. The Parent and the Borrower will, and will cause each
Subsidiary to, timely file complete and correct United States federal and
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except (i) those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside in accordance with Agreement Accounting Principles and with respect to
which no Lien exists or (ii) those taxes, assessments, charges and levies which
by reason of the amount involved or the remedies available to the applicable
taxing authority would not reasonably be expected to have a Material Adverse
Effect.
6.6. INSURANCE. The Parent and the Borrower will, and will cause each
Subsidiary to, maintain with financially sound and reputable insurance companies
insurance on their Property in such amounts, subject to such deductibles and
self-insurance retentions, and covering such properties and risks as is
consistent with sound business practice for Persons engaged in the same or
similar business and which similarly situated to the Borrower, and the Borrower
will furnish to the Agent upon request full information as to the insurance
carried. The Borrower shall deliver to the Agent endorsements in form and
substance acceptable to the Agent (x) to all policies covering risk of loss or
damage to tangible property of the Parent, the Borrower and each Guarantor
naming the Agent as loss payee and (y) to all general liability and other
liability policies naming the Agent as an additional insured. In the event the
Parent, the Borrower or any Subsidiary at any time or times hereafter shall fail
to obtain or maintain any of the policies or insurance required herein or to pay
any premium in whole or in part relating thereto, then the Agent, without
waiving or releasing any obligations or resulting Default hereunder, may at any
time or times thereafter (but shall be under no obligation to do so) obtain and
maintain such policies of insurance and pay such premiums. All sums so disbursed
by the Agent shall constitute part of the Obligations, payable as provided in
this Agreement.
6.7. COMPLIANCE WITH LAWS. The Parent and 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
including, without limitation, all Environmental Laws and Section 302 and
Section 906 of the Sarbanes-Oxley Act of 2002, except where the failure to do
so, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
6.8. MAINTENANCE OF PROPERTIES. Subject to Section 6.12, the Parent and
the Borrower will, and will cause each Subsidiary to, do all things necessary to
maintain, preserve, protect and keep its Property used in the operation of its
business in good repair, working order and condition (ordinary wear and tear and
casualty excepted), and make all necessary and proper
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repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times, except where the failure to do
so, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
6.9. INSPECTION; KEEPING OF BOOKS AND RECORDS. The Parent and the
Borrower will, and will cause each Subsidiary to, permit upon two (2) Business
Days' prior written notice to the Borrower (except when a Default or Unmatured
Default has occurred and is continuing, in which case no prior notice will be
required) the Agent and the Lenders (after notice to and coordination with, the
Agent), by their respective representatives and agents, to inspect any of the
Property, books and financial records of the Parent, the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Parent, the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Parent, 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 Agent or any Lender may designate.
The exercise of the rights under the preceding sentence (i) by or on behalf of
any Lender shall, unless occurring at a time when a Default or Unmatured Default
shall be continuing, be at such Lender's expense and (ii) by or on behalf of the
Agent, other than the first such inspection occurring during any calendar year
or any inspections occurring at a time when a Default or Unmatured Default is
continuing, shall be at the Agent's expense; all other such inspections shall be
at the Borrower's expense. The Parent and the Borrower shall keep and maintain,
and cause each of the Subsidiaries to keep and maintain, in all material
respects, complete, accurate and proper books of record and account in which
entries in conformity with Agreement Accounting Principles shall be made of all
dealings and transactions in relation to their respective businesses and
activities. If a Default has occurred and is continuing, the Parent and the
Borrower, upon the Agent's request, shall turn over copies of any such records
to the Agent or its representatives.
6.10. DIVIDENDS. The Parent and the Borrower will not, nor will they
permit any Subsidiary to, declare or pay any dividend or make any distribution
on its capital stock (other than dividends payable in its own capital stock) or
redeem, repurchase or otherwise acquire or retire any of its capital stock at
any time outstanding, except that (i) any Subsidiary of the Borrower may declare
and pay dividends or make distributions to the Borrower or to any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a
Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long
as the Borrower or its respective Subsidiary which owns the equity interest or
interests in the Subsidiary paying such dividends receives at least its
proportionate share thereof, (iii) the Borrower may declare or make any dividend
of the capital stock of TOPCO to the Parent, (iv) the Borrower may declare and
make dividends or distributions to the Parent to enable the Parent to, and the
Parent may (a) pay any income, franchise or like taxes, (b) pay its operating
expenses (including, without limitation, legal, accounting, reporting, listing
and similar expenses) in an aggregate amount not exceeding $2,000,000 in any
fiscal year and (c) so long as no Default or Unmatured Default shall be
continuing or result therefrom, repurchase its common stock and warrants and/or
redeem or repurchase vested management options, in each case, from directors,
officers and employees of the Parent and its Subsidiaries, and (v) so long as no
Default or Unmatured Default shall be continuing or result therefrom, the
Borrower make distributions to the Parent and the Parent may redeem, repurchase,
acquire or retire an amount of its capital stock in the aggregate, calculated as
of the date such distribution is made, up to the greater of (a) $50,000,000 and
(b) an amount equal to (x) $50,000,000 PLUS (y) 25% of Consolidated Net Income
(or MINUS 25% of any loss) in
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each fiscal quarter beginning with the fiscal quarter ending June 30, 2003; all
such permitted amounts actually paid under this clause (v) during any period
being the "Permitted Share Repurchase Amount" for such period.
6.11. MERGER. The Parent and the Borrower will not, nor will they permit
any Subsidiary to, merge or consolidate with or into any other Person, except
that:
6.11.1 A Guarantor may merge into (i) the Borrower, PROVIDED the
Borrower shall be the continuing or surviving corporation, or (ii) another
Guarantor or any other Person that becomes a Guarantor promptly upon the
completion of the applicable merger or consolidation.
6.11.2 A Subsidiary that is not a Guarantor and not required to
be a Guarantor may merge or consolidate with or into any other Person;
PROVIDED, HOWEVER, that if the equity interests of such Subsidiary have
been pledged to the Agent as Collateral, then such merger or consolidation
shall not be permitted unless such Subsidiary is the surviving entity of
such merger or consolidation or the equity interest of the surviving entity
have been pledged to the Agent as Collateral or such merger or
consolidation is approved in writing by the Agent prior to the consummation
thereof.
6.11.3 The Borrower or any Subsidiary of the Borrower may
consummate any merger or consolidation in connection with any Permitted
Acquisition; PROVIDED that in any such merger or consolidation to which the
Borrower is a party, the Borrower shall be the continuing or surviving
corporation.
6.12. SALE OF ASSETS. The Parent and the Borrower will not, nor will
they permit any Subsidiary to, lease, sell, transfer or otherwise dispose of its
Property to any other Person, except:
6.12.1 Sales of inventory in the ordinary course of business.
6.12.2 A disposition of assets (i) by the Parent or any
Subsidiary to any Credit Party, (ii) by a Subsidiary that is not a
Guarantor and not required to be a Guarantor to any other Subsidiary, (iii)
subject to Section 6.26, by any Credit Party to any Foreign Subsidiary and
(iv) subject to Section 6.27, by any Credit Party to TOPCO.
6.12.3 A disposition of (i) obsolete property, property no longer
used in the business of the Parent, the Borrower or any Subsidiary or other
assets in the ordinary course of business of the Parent, the Borrower or
any Subsidiary and (ii) the properties identified on Schedule 6.12.
6.12.4 A disposition of assets for an aggregate purchase price of
up to $225,000,000 at any one time outstanding pursuant to, and in
accordance with, Receivables Purchase Facilities unless (a) a Default has
occurred and is continuing under Sections 7.6 or 7.7, or (b) the Agent
shall have given written notice to the Borrower prohibiting dispositions
under this Section 6.12 following the occurrence of a Default under clauses
(i), (ii) or, solely with respect to interest, (iii) of Section 7.2.
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6.12.5 Transfers of condemned Property to the respective
governmental authority or agency that has condemned the same (whether by
deed in lieu of condemnation or otherwise), and the transfer of Properties
that have been subject to a casualty to the respective insurer (or its
designee) of such Property as part of an insurance settlement.
6.12.6 The license or sublicense of software, trademarks, and
other intellectual property which do not materially interfere with the
business of the Parent and its Subsidiaries, taken as a whole.
6.12.7 Consignment arrangements (as consignor or consignee) or
similar arrangements for the sale of goods in the ordinary course of
business of the Parent and its Subsidiaries, taken as a whole.
6.12.8 The discount or sale, in each case without recourse and in
the ordinary course of business, of receivables more than 90 days overdue
and arising in the ordinary course of business, but only in connection with
the compromise or collection thereof consistent with customary industry
practice (and not as part of any bulk sale or financing of receivables).
6.12.9 Leases or subleases or licenses of real property to other
Persons not materially interfering with the business of the Parent and its
Subsidiaries, taken as a whole.
6.12.10 Leases, sales or other dispositions of its Property that
(i) are for consideration consisting at least seventy-five percent (75%) of
cash, (ii) are for not less than fair market value, and (iii) together with
all other Property of the Parent, the Borrower and the Subsidiaries
previously leased, sold or disposed of (other than dispositions otherwise
permitted by this Section 6.12) as permitted by this Section 6.12.10 during
the twelve-month period ending with the month in which any such lease, sale
or other disposition occurs, do not exceed $30,000,000 in the aggregate.
6.13. INVESTMENTS AND ACQUISITIONS. The Parent and the Borrower will
not, nor will they permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances to, and other
Investments in, Subsidiaries), or to create any Subsidiary or to become or
remain a partner in any partnership or joint venture, or to make any Acquisition
of any Person, except:
6.13.1 Cash and Cash Equivalent Investments.
6.13.2 Existing Investments in Subsidiaries and other Investments
in existence on the Closing Date and described in Schedule 6.13 and any
renewal or extension of any such Investments that does not increase the
amount of the Investment being renewed or extended as determined as of such
date of renewal or extension.
6.13.3 Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business.
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6.13.4 Investments consisting of intercompany loans permitted
under Section 6.14.6.
6.13.5 Acquisitions meeting the following requirements or
otherwise approved by the Required Lenders (each such Acquisition
constituting a "Permitted Acquisition"):
(i) as of the date of the consummation of such Acquisition, no Default
or Unmatured Default shall have occurred and be continuing or
would result from such Acquisition, and the representation and
warranty contained in Section 5.11 shall be true both before and
after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to
a negotiated acquisition agreement approved by the board of
directors or other applicable governing body of the seller or
entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or
reasonably related to one or more of the lines of business in
which the Parent, the Borrower and the Subsidiaries are engaged on
the Closing Date;
(iv) as of the date of the consummation of such Acquisition, all
material governmental and corporate approvals required in
connection therewith shall have been obtained;
(v) the Purchase Price for each such Acquisition together with the
Purchase Price of all other Permitted Acquisitions shall not
exceed an amount equal to (a) $125,000,000 during any period of
twelve consecutive months; and (b) $350,000,000 during the period
beginning on the Closing Date and ending on the Facility
Termination Date;
(vi) with respect to each Permitted Acquisition with respect to which
the Purchase Price shall be greater than $50,000,000, not less
than ten (10) days prior to the consummation of such Permitted
Acquisition, the Borrower shall have delivered to the Agent a pro
forma consolidated balance sheet, income statement and cash flow
statement of the Parent and the Subsidiaries (the "Acquisition Pro
Forma"), based on the Parent's most recent financial statements
delivered pursuant to Section 6.1 and taking into account such
Permitted Acquisition (including, for purposes of Consolidated
EBITDA, factually supportable and identifiable costs savings and
expenses), the funding of all Credit Extensions in connection
therewith (and the use of the proceeds thereof) and the repayment
of any Indebtedness in connection with such Permitted Acquisition,
and such Acquisition Pro Forma shall reflect that, on a pro forma
basis, the Parent would have been in compliance with the financial
covenants set forth in Sections 6.21 through 6.23, inclusive, for
the four fiscal quarter period reflected in the compliance
certificate most recently delivered to the Agent pursuant to
Section 6.1.3 prior to the consummation of such Permitted
Acquisition (giving effect to each of the adjustments described
above as if made on the first day of such period); and
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(vii) prior to, or with respect to clauses (A) and (B) below,
concurrently with, the consummation of, each such Permitted
Acquisition, the Borrower shall deliver to the Agent a
documentation, information and certification package in form and
substance reasonably acceptable to the Agent, including, without
limitation;
(A) in the case of an Acquisition by or of a Domestic
Subsidiary, the Collateral Documents necessary for the
perfection of a first priority security interest (subject
to Liens permitted under Section 6.15, PROVIDED that
nothing herein shall be deemed to constitute an agreement
to subordinate any of the Liens of the Agent under the
Loan Documents to any Liens otherwise permitted under
Section 6.15 (other than Permitted Priority Liens)) in all
of the assets to be acquired or the equity interests and
assets of the entity to be acquired, or, in the case of
the Acquisition of a Material Foreign Subsidiary, all of
the applicable Collateral Documents required by
Section 6.25, together with opinions of counsel, if
requested by the Agent, in each case in form and substance
reasonably acceptable to the Agent;
(B) a supplement to the Guaranty if the Permitted Acquisition
is an Acquisition of equities and the target company would
qualify as a Domestic Subsidiary after the Acquisition but
will not be merged with the Borrower or any existing
Domestic Subsidiary;
(C) with respect to each Permitted Acquisition the Purchase
Price of which shall be greater than $50,000,000, the
financial statements of the target entity, if any,
delivered by the seller(s) to the purchaser;
(D) a copy of the acquisition agreement for such Acquisition,
together with drafts of the material schedules thereto;
(E) a copy of all documents, instruments and agreements with
respect to any Indebtedness to be incurred or assumed in
connection with such Acquisition; and
(F) such other documents or information as shall be reasonably
requested by the Agent or any Lender.
6.13.6 Investments constituting promissory notes and other
non-cash consideration received in connection with any transfer of assets
permitted under Section 6.12.10.
6.13.7 Customer advances not to exceed $10,000,000 at any one
time outstanding.
6.13.8 Extensions of trade credit in the ordinary course of
business consistent with the Parent's, the Borrower's and the Subsidiaries'
past practices.
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6.13.9 Investments constituting Rate Management Transactions
permitted under Section 6.17.
6.13.10 Subject to Section 6.27, additional Investments in TOPCO.
6.13.11 Subject to Section 6.26, the creation or formation of new
Subsidiaries (as opposed to the Acquisition of new Subsidiaries), so long
as all applicable requirements under Section 6.25 shall have been, or
concurrently therewith are, satisfied.
6.13.12 Investments constituting expenditures for any purchase or
other acquisition of any asset which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Parent and its
Subsidiaries prepared in accordance with Agreement Accounting Principles to
the extent otherwise permitted under this Agreement.
6.13.13 Investments by (i) the Parent and its Subsidiaries in any
Credit Party, (ii) any Subsidiary which is not a Guarantor and is not
required to be a Guarantor in any other Subsidiary which is not a Guarantor
and is not required to be a Guarantor and (iii) subject to Section 6.26,
any Credit Party in any Foreign Subsidiary.
6.13.14 Deposits made in the ordinary course of business and
referred to in Sections 6.15.4, 6.15.6 and 6.15.7.
6.13.15 Investments in connection with any Receivables Purchase
Facility permitted under this Agreement.
6.13.16 Additional Investments in an amount not to exceed
$20,000,000 at any one time outstanding.
6.14. INDEBTEDNESS. The Parent and the Borrower will not, nor will they
permit any Subsidiary to, create, incur or suffer to exist any Indebtedness,
except:
6.14.1 The Obligations.
6.14.2 Indebtedness existing on the Closing Date and described in
Schedule 6.14, and any replacement, renewal, refinancing or extension of
any such Indebtedness that (i) does not exceed the aggregate principal
amount (plus accrued interest and any applicable premium and associated
fees and expenses) of the Indebtedness being replaced, renewed, refinanced
or extended, (ii) does not have a Weighted Average Life to Maturity at the
time of such replacement, renewal, refinancing or extension that is less
than the Weighted Average Life to Maturity of the Indebtedness being
replaced, renewed, refinanced or extended and (iii) does not rank at the
time of such replacement, renewal, refinancing or extension senior to the
Indebtedness being replaced, renewed, refinanced or extended.
6.14.3 Indebtedness arising under Rate Management Transactions;
6.14.4 Amounts owing under Receivables Purchase Facilities which
in the aggregate at any time do not exceed $225,000,000.
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6.14.5 Secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by the Parent, the Borrower or any
Subsidiary after the Closing Date to finance the acquisition of assets used
in its business, if (i) such Indebtedness does not exceed the lower of the
fair market value or the cost of the applicable fixed assets (and related
services purchased and ancillary expenses incurred in connection therewith)
on the date acquired, (ii) such Indebtedness does not exceed $25,000,000 in
the aggregate outstanding at any time, and (iii) any Lien securing such
Indebtedness is permitted under Section 6.15 (such Indebtedness being
referred to herein as "Permitted Purchase Money Indebtedness").
6.14.6 Indebtedness arising from intercompany loans and advances
made by (i) the Parent or any Subsidiary to any Credit Party, (ii) any
Subsidiary that is not a Guarantor to any other Subsidiary that is not a
Guarantor, (iii) subject to Section 6.26, any Credit Party to any Foreign
Subsidiary or (iv) subject to Section 6.27, any Credit Party to TOPCO;
PROVIDED that all such Indebtedness shall be expressly subordinated to the
Secured Obligations.
6.14.7 Indebtedness incurred or assumed by the Parent, the
Borrower or any Subsidiary in connection with a Permitted Acquisition but
not created in contemplation of such event.
6.14.8 Indebtedness constituting Contingent Obligations otherwise
permitted by Section 6.19.
6.14.9 Indebtedness under (i) performance bonds and surety bonds
and (ii) bank overdrafts outstanding for not more than two (2) Business
Days, in each case incurred in the ordinary course of business.
6.14.10 To the extent the same constitutes Indebtedness,
obligations in respect of earn-out arrangements permitted pursuant to a
Permitted Acquisition.
6.14.11 Subordinated Indebtedness (including (a) senior
subordinated debentures or notes (which may be guaranteed by the Parent and
the Borrower's Subsidiaries) issued to finance the Purchase Price of any
Permitted Acquisition and (b) Indebtedness of the Borrower and its
Subsidiaries owing to the seller in any Permitted Acquisition) in an
aggregate outstanding principal amount not to exceed $125,000,000 MINUS the
aggregate outstanding principal amount of the Senior Subordinated Notes at
any time, so long as (i) no Default or Unmatured Default shall be
continuing as of the date of issuance thereof and the Borrower shall have
delivered to the Agent a pro forma consolidated balance sheet, income
statement and cash flow statement of the Parent and the Subsidiaries (the
"Debt Incurrence Pro Forma"), based on the Parent's most recent financial
statements delivered pursuant to Section 6.1 and taking into account the
issuance of such Indebtedness (and the use of the proceeds thereof), and
such Debt Incurrence Pro Forma shall reflect that, on a pro forma basis,
the Parent would have been in compliance with the financial covenants set
forth in Sections 6.21, 6.22 and 6.23 for the four fiscal quarter period
reflected in the compliance certificate most recently delivered to the
Agent pursuant to Section 6.1.3 prior to the issuance and use of the
proceeds of such
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Indebtedness (giving effect to the issuance of such Indebtedness (and the
use of the proceeds thereof) as if made on the first day of such period)
and (ii) such subordinated Indebtedness is unsecured, shall have a maturity
date no earlier than the Facility Termination Date, shall not provide for
any voluntary or mandatory principal prepayments or amortization prior to
the Facility Termination Date, and shall have terms in respect of interest
rate, covenants, defaults and subordination reasonably acceptable to the
Agent.
6.14.12 Additional Indebtedness (including Indebtedness arising
from agreements with any governmental authority or public subdivision or
agency thereof relating to the construction of buildings, and the purchase
and installation of equipment, to be used in the business of the Parent and
its Subsidiaries) in an aggregate outstanding principal amount not to
exceed $40,000,000 at any time.
6.15. LIENS. The Parent and the Borrower will not, nor will they permit
any Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Parent, the Borrower or any Subsidiary, except:
6.15.1 Liens, if any, securing Secured Obligations.
6.15.2 Liens for taxes, assessments or governmental charges or
levies on its Property to the extent non-payment of such taxes is otherwise
permitted by this Agreement.
6.15.3 Liens imposed by law, such as landlords', wage earners',
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 45 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.15.4 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.
6.15.5 Liens existing on the Closing Date and described in
Schedule 6.15.
6.15.6 Deposits securing liability to insurance carriers under
insurance or self-insurance arrangements.
6.15.7 Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business.
6.15.8 Easements, reservations, rights-of-way, restrictions,
survey exceptions and other similar encumbrances and minor title
imperfections as to real property of the Parent, the Borrower and the
Subsidiaries which, in the aggregate, are not material in
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amount and that do not materially interfere with the ordinary conduct of
the business of the Parent, the Borrower or such Subsidiary conducted at
the property subject thereto.
6.15.9 Liens arising by reason of any judgment, decree or order
of any court or other governmental authority, but only to the extent and
for an amount and for a period not resulting in Default under Section 7.8.
6.15.10 Liens arising in connection with a Receivables Purchase
Facility permitted under Section 6.14.4.
6.15.11 Liens existing on any specific fixed asset of any
Subsidiary of the Borrower at the time such Subsidiary becomes a Subsidiary
and not created in contemplation of such event.
6.15.12 Liens on any specific fixed asset securing Indebtedness
incurred or assumed for the purpose of financing or refinancing all or any
part of the cost of acquiring or constructing such asset; PROVIDED that
such Lien attaches to such asset concurrently with or within six (6) months
after the acquisition or completion or construction thereof.
6.15.13 Liens existing on any specific fixed asset of any
Subsidiary of the Borrower at the time such Subsidiary is merged or
consolidated with or into the Borrower or any other Subsidiary and not
created in contemplation of such event.
6.15.14 Liens existing on any specific fixed asset prior to the
acquisition thereof by the Borrower or any Subsidiary and not created in
contemplation thereof; PROVIDED that such Liens do not encumber any other
property or assets, other than improvements thereon and proceeds thereof.
6.15.15 Liens arising out of the refinancing, extension, renewal
or refunding of any Indebtedness secured by any Lien permitted under
Sections 6.15.5 and 6.15.11 through 6.15.14; PROVIDED that (i) such
Indebtedness is not secured by any additional assets, other than
improvements thereon and proceeds thereof, and (ii) the amount of such
Indebtedness secured by any such Lien is not increased.
6.15.16 Liens securing Permitted Purchase Money Indebtedness;
PROVIDED that such Liens shall not apply to any property of the Parent, the
Borrower or any Subsidiary other than that purchased with the proceeds of
such Permitted Purchase Money Indebtedness other than improvements thereon
and proceeds thereof.
6.15.17 Liens in respect of Capitalized Lease Obligations to the
extent permitted hereunder and Liens arising under any equipment, furniture
or fixtures leases or Property consignments to the Parent, the Borrower or
any Subsidiary for which the filing of a precautionary financing statement
is permitted under the Collateral Documents.
6.15.18 Licenses, leases or subleases granted to others in the
ordinary course of business consistent with the Parent's, the Borrower's
and the Subsidiaries' past practices
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that do not materially interfere with the conduct of the business of the
Parent, the Borrower and the Subsidiaries taken as a whole.
6.15.19 Statutory and contractual landlords' Liens under leases to
which the Parent, the Borrower or any Subsidiary is a party.
6.15.20 Liens in favor of a banking institution arising as a
matter of applicable law encumbering deposits (including the right of
set-off) held by such banking institutions incurred in the ordinary course
of business and which are within the general parameters customary in the
banking industry.
6.15.21 Liens in favor of customs and revenue authorities arising
as a matter of applicable law to secure the payment of customs' duties in
connection with the importation of goods.
6.15.22 Any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement.
6.15.23 Liens not otherwise permitted under this Section 6.15 to
the extent attaching to Properties and assets with an aggregate fair market
value not in excess of, and securing liabilities not in excess of
$15,000,000, in the aggregate at any one time outstanding.
6.16. AFFILIATES. Except as otherwise permitted by this Agreement, the
Parent and the Borrower will not enter into, directly or indirectly, or permit
any Subsidiary to enter into, directly or indirectly, any transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate (other than the Parent
and, subject to Section 6.26 and Section 6.27, its Subsidiaries) except in the
ordinary course of business and pursuant to the reasonable requirements of the
Parent's, the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Parent, the Borrower or such
Subsidiary than the Parent, the Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction, except that any Affiliate who is an
individual may serve as a director, officer, employee or consultant of the
Parent or any of its Subsidiaries and may receive reasonable compensation for
his or her services in such capacity.
6.17. FINANCIAL CONTRACTS. The Parent and the Borrower will not, nor
will they permit any Subsidiary to, enter into or remain liable upon any Rate
Management Transactions except for those entered into (i) by the Borrower and it
Subsidiaries in the ordinary course of business for bona fide hedging purposes
and not for speculative purposes and (ii) by any SPV in connection with a
Receivables Purchase Facility permitted hereunder.
6.18. SUBSIDIARY COVENANTS. The Parent and the Borrower will not, and
will not permit any Subsidiary (other than any SPV) to, create or otherwise
cause to become effective any consensual encumbrance or restriction of any kind
on the ability of any Subsidiary (other than any SPV) (i) to pay dividends or
make any other distribution on its stock, (ii) to pay any Indebtedness or other
obligation owed to the Parent, the Borrower or any Subsidiary, (iii) to make
loans or advances or other Investments in the Parent, the Borrower or any
Subsidiary, or (iv) to sell, transfer or otherwise convey any of its property to
the Parent, the Borrower or any
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Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (a) this Agreement and the other Loan Documents, (b) the 1998
Indenture, (c) customary provisions restricting subletting or assignment of any
lease governing any leasehold interest of the Parent or any of its Subsidiaries,
(d) customary provisions restricting assignment of any licensing agreement or
other contract entered into by Parent and its Subsidiaries in the ordinary
course of business, (e) restrictions on the transfer of any asset pending the
close of the sale of such asset and (f) restrictions on the transfer of any
assets subject to a Lien permitted by Section 6.15.
6.19. CONTINGENT OBLIGATIONS. The Parent and the Borrower will not, nor
will they permit any Subsidiary to, make or suffer to exist any Contingent
Obligation (including, without limitation, any Contingent Obligation with
respect to the obligations of a Subsidiary), except Contingent Obligations
arising with respect to (i) this Agreement and the other Loan Documents, (ii)
customary indemnification obligations in favor of purchasers in connection with
asset dispositions permitted hereunder, (iii) customary indemnification
obligations under such Person's charter and bylaws (or equivalent formation
documents), (iv) indemnities in favor of the Persons issuing title insurance
policies insuring the title to any property, (v) guarantees of (a) real property
leases and (b) personal property Operating Leases, in each case entered into in
the ordinary course of business by the Parent or any of the Subsidiaries, (vi)
other Contingent Obligations constituting guarantees of Indebtedness permitted
under Section 6.14, PROVIDED that to the extent such Indebtedness is
subordinated to the Secured Obligations each such Contingent Obligation shall be
subordinated to the Secured Obligations on terms reasonably acceptable to the
Agent, and (vii) non-financial indemnities and guarantees of performance made in
the ordinary course of business by the Parent or any Subsidiary that would not,
individually or in the aggregate, have a Material Adverse Effect.
6.20. AMENDMENTS TO AGREEMENTS. The Parent and the Borrower will not,
and will not permit any Subsidiary to, amend, modify, supplement or waive any
provision of the 1998 Indenture or the Senior Subordinated Notes issued
thereunder, except for supplemental indentures contemplated under the 1998
Indenture to reflect the guarantee obligations of new or acquired Subsidiaries.
6.21. LEVERAGE RATIO. The Parent and the Borrower will not permit the
ratio (the "Leverage Ratio"), determined as of the end of each of its fiscal
quarters, of (i) Consolidated Funded Indebtedness to (ii) Consolidated EBITDA
for the then most-recently ended four fiscal quarters to be greater than 3.00 to
1.00. The Leverage Ratio shall be calculated as of the last day of each fiscal
quarter of the Parent based upon (a) for Consolidated Funded Indebtedness,
Consolidated Funded Indebtedness as of the last day of each such fiscal quarter
and (b) for Consolidated EBITDA, the actual amount as of the last day of each
fiscal quarter for the most recently ended four consecutive fiscal quarters;
PROVIDED that the Leverage Ratio shall be calculated, with respect to Permitted
Acquisitions, on a pro forma basis reasonably satisfactory to the Agent, broken
down by fiscal quarter in the Parent's reasonable judgment.
6.22. FIXED CHARGE COVERAGE RATIO. The Parent and the Borrower will not
permit the ratio (the "Fixed Charge Coverage Ratio"), determined as of the end
of each of its fiscal quarters for the then most-recently ended four fiscal
quarters of (i) Consolidated EBITDA during such period PLUS Consolidated Rentals
during such period MINUS Consolidated Capital Expenditures during such period
(PROVIDED that Capitalized Lease Obligations shall be deducted only to the
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extent of payments actually made during such period) to (ii) Consolidated
Interest Expense paid in cash during such period PLUS scheduled amortization of
the principal portion of Consolidated Indebtedness during such period (other
than (i) amounts owing in connection with Receivables Purchase Facilities
permitted hereunder and (ii) scheduled term loan payments under the Existing
Credit Agreement and scheduled principal payments in respect of any industrial
development/revenue bonds of the Parent or any of its Subsidiaries in each case
paid prior to the Closing Date) PLUS Consolidated Rentals for such period PLUS
income taxes paid in cash during such period PLUS all dividends and
distributions paid by the Parent during such period (other than the "Permitted
Share Repurchase Amount" for such period), all calculated for the Parent and its
Subsidiaries (other than TOPCO) on a consolidated basis, to be less than (a)
1.20 to 1.00 as of March 31, 2003, June 30, 2003 and September 30, 2003, and (b)
1.25 to 1.00 as of the end of each fiscal quarter thereafter; PROVIDED that the
Fixed Charge Coverage Ratio shall be calculated, with respect to Permitted
Acquisitions, on a pro forma basis reasonably satisfactory to the Agent, broken
down by fiscal quarter in the Parent's reasonable judgment.
6.23. MINIMUM CONSOLIDATED NET WORTH. The Parent and the Borrower will
at all times maintain Consolidated Net Worth of not less than (i) 450,000,000
MINUS (ii) amounts expended by Parent in connection with repurchases or
redemptions of its capital stock under Section 6.10 PLUS (iii) 50% of
Consolidated Net Income (if positive) earned in each fiscal quarter beginning
with the fiscal quarter ending June 30, 2003, PLUS (iv) 50% of the Net Cash
Proceeds resulting from issuances of the Parent's or any Subsidiary's capital
stock.
6.24. CAPITAL EXPENDITURES. The Parent and the Borrower will not, nor
will they permit any Subsidiary to expend, for Consolidated Capital Expenditures
in the acquisition of fixed assets in any fiscal year in the aggregate for the
Parent and its Subsidiaries, in excess of (i) $75,000,000 for the period from
January 1, 2003 through December 31, 2003; and (ii) $75,000,000 for the period
from January 1 through December 31 for each fiscal year thereafter, plus any
amount permitted to be expended in the immediately preceding fiscal year
(pursuant to the absolute dollar limitation for such preceding fiscal year and
not pursuant to any carryover provision from a prior fiscal year) but not
expended.
6.25. SUBSIDIARY COLLATERAL DOCUMENTS; SUBSIDIARY GUARANTORS. The Parent
and the Borrower shall execute or shall cause to be executed:
(i) on the date any Person becomes a Subsidiary of the Parent, if such
Subsidiary is a Domestic Subsidiary, (a) a supplement to the Security
Agreement in favor of the Agent for the benefit of the Holders of Secured
Obligations with respect to all of the equity interests of such Person
owned by the Parent and its Domestic Subsidiaries; (b) a supplement to the
Guaranty pursuant to which such Domestic Subsidiary (other than an SPV)
shall become a Guarantor; (c) a supplement to the Security Agreement
pursuant to which such Domestic Subsidiary (other than an SPV) shall become
a grantor thereunder and the other documents required thereby; (d)
Intellectual Property Security Agreements with respect to such Domestic
Subsidiary's (other than an SPV) intellectual property; and (e) Collateral
Documents in respect of such Domestic Subsidiary's (other than an SPV) real
property (other than leased property) with a fair market value greater than
or equal to $2,000,000, in each case to provide the Agent with a first
priority perfected security interest therein and Lien thereon (subject to
Liens permitted under Section 6.15, PROVIDED
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that nothing herein shall be deemed to constitute an agreement to
subordinate any of the Liens of the Agent under the Loan Documents to any
Liens otherwise permitted under Section 6.15 (other than Permitted Priority
Liens));
(ii) on the date any Person becomes a Material Foreign Subsidiary, as soon
as practicable but in any event within thirty (30) days following the date
on which such Person became a Material Foreign Subsidiary, a pledge
agreement or share mortgage in favor of the Agent for the benefit of the
Holders of Secured Obligations with respect to 65% of all of the
outstanding equity interests of such Material Foreign Subsidiary; PROVIDED,
HOWEVER, in the event that any such Material Foreign Subsidiary is a
Wholly-Owned Subsidiary of a Guarantor in connection with which all of the
requirements of clause (i) above have been satisfied, and the activities of
such Guarantor are limited to owning the equity interests of its
Subsidiaries, then, the Agent, at its option, may waive the requirement for
the pledge of any of the equities of such Material Foreign Subsidiary under
this clause (ii); PROVIDED, FURTHER, that if at any time any Material
Foreign Subsidiary issues or causes to be issued equity interests, such
that the aggregate amount of the equity interests of Material Foreign
Subsidiary pledged to the Agent for the benefit of the Holders of Secured
Obligations is less than 65% of all of the outstanding equity interests of
such Person, the Parent shall (A) promptly notify the Agent of such
deficiency and (B) deliver or cause to be delivered any agreements,
instruments, certificates and other documents as the Agent may reasonably
request all in form and substance reasonably satisfactory to the Agent in
order to cause all of the equities of such Material Foreign Subsidiary
owned by the Parent and its Subsidiaries (but not in excess of 65% of all
of the outstanding equities thereof) to be pledged to the Agent for the
benefit of the Holders of Secured Obligations; and
(iii) in either such case the Parent and the Borrower shall deliver or
cause to be delivered to the Agent all such pledge agreements, guarantees,
security agreements and other Collateral Documents, together with
appropriate corporate resolutions and other documentation (including
opinions, if reasonably requested by the Agent, UCC financing statements
(and the Parent and the Borrower hereby authorize the preparation and
filing of all necessary UCC financing statements), real estate title
insurance policies, environmental reports, the stock certificates
representing the equities subject to such pledge, stock powers with respect
thereto executed in blank, and such other documents as shall be reasonably
requested to perfect the Lien of such pledge) in each case in form and
substance reasonably satisfactory to the Agent, and the Agent shall be
reasonably satisfied that it has a first priority perfected pledge of or
charge over the Collateral related thereto.
6.26. FOREIGN SUBSIDIARY INVESTMENTS. The Parent and the Borrower will
not, nor will they permit any other Credit Party to, enter into or suffer to
exist Foreign Subsidiary Investments at any time in an aggregate amount greater
than (i) for all Foreign Subsidiary Investments in Canadian Subsidiaries, the
sum of (a) $40,000,000 PLUS (b) the aggregate amount of all receivables
attributable to Canadian operations of the Parent and its Subsidiaries and
transferred to such Canadian Subsidiaries in connection with the initial
capitalization thereof, PROVIDED that the excess over $25,000,000 of all such
Foreign Subsidiary Investments described in clause (a) above shall be evidenced
by an intercompany note issued to a Credit Party in respect of which
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the Agent shall have a first priority security interest under the Collateral
Documents, or (ii) for all other Foreign Subsidiary Investments, $13,000,000.
6.27. TOPCO INVESTMENTS. So long as TOPCO shall not be a Guarantor, the
Parent and the Borrower will not, nor will they permit any other Credit Party
to, enter into or suffer to exist TOPCO Investments at any time in an aggregate
amount greater than $1,000,000.
6.28. MORTGAGES. On or before the sixtieth (60th) day after the Closing
Date, the Parent and the Borrower shall deliver, or cause to be delivered,
Collateral Documents in respect of each Domestic Subsidiary's real property
(other than leased property and other than real property located in the State of
New York) with a fair market value greater than or equal to $2,000,000, together
with appropriate corporate resolutions and other documentation (including
opinions, real estate title insurance policies and, to the extent reasonably
requested by the Agent, surveys) in each case in form and substance reasonably
satisfactory to the Agent, and the Agent shall be reasonably satisfied that it
has a first priority perfected Lien on such real property (subject to Liens
permitted under Section 6.15, PROVIDED that nothing herein shall be deemed to
constitute an agreement to subordinate any of the Liens of the Agent under the
Loan Documents to any Liens otherwise permitted under Section 6.15 (other than
Permitted Priority Liens)).
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 Parent, the Borrower or any Subsidiary to the Lenders or the Agent under
or in connection with this Agreement, any Credit Extension, or any certificate
or information delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made or
deemed made.
7.2. Nonpayment of (i) principal of any Revolving Loan when due, (ii)
any Reimbursement Obligation within one Business Day after the same becomes due,
or (iii) interest upon any Revolving Loan or any Commitment Fee, LC Fee or other
Obligations under any of the Loan Documents within five (5) Business Days after
such interest, fee or other Obligation becomes due.
7.3. The breach by (i) the Parent or the Borrower of any of the terms
or provisions of any of Sections 6.2 or 6.3 or any of Sections 6.10 through
6.16, inclusive, Sections 6.18 through 6.24, inclusive, Sections 6.26 or 6.27 or
(ii) by any Credit Party of any of the terms or provisions of any of
Section 4.1.1 (to the extent that the non-compliance therewith by such Credit
Party would independently give rise to a Default under clause (i) of this
Section 7.3), 4.1.3 or clauses (i) or (ii) of Section 4.1.4 of the Security
Agreement.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) or any other Credit Party
of any of the terms or provisions of this Agreement or any other Loan Document
to which it is a party which is not remedied within (i) five (5) Business Days
after the occurrence thereof with respect to any
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breach of Section 6.1 and (ii) thirty (30) days after written notice from the
Agent or any Lender to the Borrower of any other such breach.
7.5. Failure of the Parent, the Borrower or any Subsidiary to pay when
due any Material Indebtedness (beyond the applicable grace period with respect
thereto, if any); or the default by the Parent, the Borrower or any Subsidiary
in the performance (beyond the applicable grace period with respect thereto, if
any) of any term, provision or condition contained in any agreement under which
Material Indebtedness is outstanding, or any other event shall occur or
condition exist, the effect of which default, event or condition is to cause, or
to permit the holder(s) of such Material Indebtedness or the lender(s) under any
such agreement to cause, such Material Indebtedness to become due prior to its
stated maturity or any commitment to lend under any such agreement to be
terminated prior to its stated expiration date; or any Material Indebtedness of
the Parent, the Borrower or any Subsidiary shall be declared to be due and
payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment or specified mandatory prepayment) prior to the stated
maturity thereof; or the Parent, the Borrower or any Subsidiary shall not pay,
or admit in writing its inability to pay, its debts generally as they become
due.
7.6. Any Credit Party or any Material Foreign Subsidiary 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 a general 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 Substantial Portion of its Property, (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, (v) take any
corporate or partnership action to authorize or effect any of the foregoing
actions set forth in this Section 7.6 or (vi) fail to contest on a timely basis
in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Credit Party
or any Material Foreign Subsidiary, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for such Credit Party or such Material
Foreign Subsidiary or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against any Credit Party or any
Material Foreign Subsidiary and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. The Parent, the Borrower or any Subsidiary shall fail within 60
days to pay, bond or otherwise discharge one or more (i) judgments or orders for
the payment of money in excess of $10,000,000 (or the equivalent thereof in
currencies other than Dollars) in the aggregate, or (ii) nonmonetary judgments
or orders which, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, which judgment(s), in any such case, is/are
not (a) stayed on appeal or otherwise being appropriately contested in good
faith or (b) paid in full or otherwise fully covered (subject to any applicable
deductible) by third-party insurers under the Parent's or any Subsidiary's
insurance policies.
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7.9. Any formal step is taken to terminate any Plan, other than a
standard termination under Section 4041(b) of ERISA, or a contribution failure
has occurred with respect to any Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA.
7.10. Any Change in Control shall occur.
7.11. The Parent or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred,
pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Parent or any other member of the Controlled
Group as withdrawal liability (determined as of the date of such notification),
exceeds $20,000,000.
7.12. The Parent or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Parent and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased, in the aggregate, over the
amounts contributed to such Multiemployer Plans for the respective plan years of
such Multiemployer Plans immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $20,000,000.
7.13. The Parent, the Borrower or any Subsidiary shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Parent, the Borrower or any Subsidiary or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or
clause (ii), has resulted in liability to the Parent, the Borrower or any
Subsidiary in an amount equal to $20,000,000 or more, which liability is not
paid, bonded or otherwise discharged within 60 days or which is not stayed on
appeal and being appropriately contested in good faith.
7.14. Any Loan Document shall fail to remain in full force or effect
against any Credit Party party thereto (except to the extent such Credit Party
has been released from its obligations thereunder in accordance with this
Agreement or such other Loan Document or such Loan Document has expired or
terminated in accordance with its terms) or any Credit Party shall assert that
its obligations thereunder are discontinued, invalid or unenforceable for any
reason (other than those enumerated in the first parenthetical above); the Liens
created by the Collateral Documents shall at any time not constitute a valid and
perfected Lien on the Collateral intended to be covered thereby (to the extent
perfection by filing, registration, recordation, or possession is required
herein or therein) in favor of the Agent, having the priority contemplated by
the Collateral Documents (except to the extent such Liens have been released in
accordance with this Agreement or such other Loan Document)
7.15. An event (such event, an "Off-Balance Sheet Trigger Event") shall
occur which (i) permits the investors or purchasers in respect of Off-Balance
Sheet Liabilities of the Parent, any Subsidiary or any SPV to require the
amortization or liquidation of such Off-Balance Sheet
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Liabilities as a result of the non-payment of any Off-Balance Sheet Liability
having an aggregate outstanding principal amount (or similar outstanding
liability) greater than or equal to $25,000,000 and (x) such Off-Balance Sheet
Trigger Event shall not be remedied or waived within the later to occur of the
tenth day after the occurrence thereof or the expiry date of any grace period
related thereto under the agreement evidencing such Off-Balance Sheet
Liabilities, or (y) such investors shall require the amortization or liquidation
of such Off-Balance Sheet Liabilities as a result of such Off-Balance Sheet
Trigger Event, or (ii) causes the replacement or substitution of the Parent, any
Subsidiary or any SPV as the servicer under the agreements evidencing such
Off-Balance Sheet Liabilities; PROVIDED, HOWEVER, that this Section 7.15 shall
not apply on any date with respect to (a) any voluntary request by the Parent,
any Subsidiary or any SPV for an above-described amortization or liquidation so
long as the aforementioned investors or purchasers cannot independently require
on such date such amortization or liquidation or (b) any scheduled amortization
or liquidation at the stated maturity of the facility evidencing such
Off-Balance Sheet Liabilities.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION. (i) If any Default described in Section 7.6 or 7.7
occurs with respect to any Credit Party, the obligations of the Lenders to make
Revolving Loans hereunder and the obligation and power of the LC Issuers to
issue Facility LCs shall automatically terminate and the Secured Obligations
shall immediately become due and payable without any election or action on the
part of the Agent, any LC Issuer or any Lender, and the Borrower will be and
become thereby unconditionally obligated, without any further notice, act or
demand, to pay the Agent an amount in immediately available funds, which funds
shall be held in the Facility LC Collateral Account, equal to (x) the amount of
LC Obligations at such time MINUS (y) the amount or deposit in the Facility LC
Collateral Account at such time which is free and clear of all rights and claims
of third parties and has not been applied against the Obligations (the
"Collateral Shortfall Amount"). If any other Default occurs, the Required
Lenders (or the Agent with the consent of the Required Lenders) may (a)
terminate or suspend the obligations of the Lenders to make Loans hereunder and
the obligation and power of the LC Issuers to issue Facility LCs, or declare the
Secured Obligations to be due and payable, or both, whereupon, in the case of a
termination, the Secured Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives and/or (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under
this Agreement, make demand on the Borrower to pay, and the Borrower will
forthwith upon such demand and without any further notice or act pay to the
Agent the Collateral Shortfall Amount which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
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(iii) The Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to the payment
of the Secured Obligations and any other amounts as shall from time to time have
become due and payable by the Borrower to the Lenders or the LC Issuers under
the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Secured Obligations have been paid in full in cash (or, with
respect to any Reimbursement Obligations, the Facility LCs have been returned
and cancelled or back-stopped to the Agent's reasonable satisfaction) and the
Aggregate Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.
(v) If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans and the obligation
and power of the LC Issuers to issue Facility LCs hereunder as a result of any
Default (other than any Default as described in Section 7.6 or 7.7 with respect
to any Credit Party) 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 Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Parent 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 Parent or
the Borrower hereunder or thereunder or waiving any Default hereunder or
thereunder; PROVIDED, HOWEVER, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:
8.2.1 Extend the Facility Termination Date, extend the final
maturity of any Revolving Loan or extend the expiry date of any Facility LC
in respect of which the requirements of Section 2.20.11 shall not have been
satisfied to a date after the Facility Termination Date, or postpone any
regularly scheduled payment of principal of any Revolving Loan or forgive
all or any portion of the principal amount thereof, or any Reimbursement
Obligation related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement Obligations related
thereto (other than (x) a waiver of the application of the default rate of
interest or LC Fees pursuant to Section 2.11 hereof and (y) any reduction
of the amount of or any extension of the payment date for the mandatory
payments required under Section 2.2 or other modification of Section 2.2 to
reflect the issuance of Term Loans hereunder, in each case which shall only
require the approval of the Required Lenders).
8.2.2 Other than to reflect the issuance of Term Loans hereunder
on a ratable basis, reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definition of "Pro Rata Share".
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8.2.3 Except as provided in Section 2.21, increase the amount of
the Commitment of any Lender hereunder or the commitment to issue Facility
LCs, or permit the Borrower to assign its rights or obligations under this
Agreement.
8.2.4 Amend this Section 8.2 other than to reflect the issuance
of Term Loans hereunder.
8.2.5 Other than in connection with a transaction permitted
under this Agreement, release the Agent's Lien on all or substantially all
of the Collateral.
8.2.6 Other than in connection with a transaction permitted
under this Agreement, release the Parent or any Guarantor from its
obligations under the Guaranty.
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 the fee required under Section 12.3.3 without obtaining the consent of any
other party to this Agreement. No amendment of any provision of this Agreement
relating to the Swing Line Lender or any Swing Line Loan shall be effective
without the written consent of the Swing Line Lender. No amendment of any
provision of this Agreement relating to any LC Issuer shall be effective without
the written consent of such LC Issuer.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the
LC Issuers 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 Credit Extension notwithstanding the
existence of a Default or Unmatured Default or the inability of the Borrower to
satisfy the conditions precedent to such Credit Extension 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, or by the Agent with the consent of, the requisite number
of 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, the
LC Issuers and the Lenders until all of the Secured Obligations (other than
contingent indemnity claims) have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Parent and the Borrower contained in this Agreement shall survive the making
of the Credit Extensions herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, neither any LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
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9.3. 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.
9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Parent, the Agent, the LC Issuers and
the Lenders and supersede all prior agreements and understandings among the
Borrower, the Parent, the Agent, the LC Issuers and the Lenders relating to the
subject matter thereof other than those contained in the fee letter described in
Section 10.13 which shall survive and remain in full force and effect during the
term of this Agreement.
9.5. 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, PROVIDED, HOWEVER, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6. EXPENSES; INDEMNIFICATION.
(i) The Borrower shall reimburse the Agent and the Arranger for any
reasonable out-of-pocket expenses (including reasonable outside
attorneys' and paralegals' fees and expenses of and fees for other
advisors and professionals engaged by the Agent or the Arranger
and, unless a Default shall be continuing, with the consent of the
Borrower), but excluding any costs, charges or expenses with
respect to taxes and amounts relating thereto (payment with
respect to which shall be governed solely and exclusively by
Section 3.5), paid or incurred by the Agent or the Arranger in
connection with the investigation, preparation, negotiation,
documentation, execution, delivery, syndication, distribution
(including, without limitation, via the internet), review,
amendment, modification and administration of the Loan Documents.
The Borrower also agrees to reimburse the Agent, the Arranger, the
LC Issuers and the Lenders for any out-of-pocket expenses
(including outside attorneys' and paralegals' fees and expenses of
outside attorneys and paralegals for the Agent, the Arranger, the
LC Issuers and the Lenders, but only to the extent such fees and
disbursements were incurred by attorneys in a single law firm (and
any replacement or successor firm thereof) selected by the Agent),
but excluding any costs, charges or expenses with respect to taxes
and amounts relating thereto (payment with respect to which shall
be governed solely and exclusively by Section 3.5), paid or
incurred by the Agent, the Arranger, any LC Issuer or any Lender
in connection with the collection and enforcement of the Loan
Documents.
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(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, each LC Issuer, each Lender, their respective
affiliates, and each of their 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, the Arranger, any LC Issuer, any Lender or any affiliate is
a party thereto, and all outside attorneys' and paralegals' fees
and expenses of outside attorneys and paralegals of the party
seeking indemnification), but excluding any losses, claims,
damages, penalties, judgments, liabilities and expenses with
respect to taxes and amounts related thereto (payment with respect
to which shall be governed solely and exclusively by Section 3.5),
which any of them may pay or incur arising out of or relating to
this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension
hereunder except to the extent that they have resulted from the
gross negligence or willful misconduct or solely by reason of the
breach of the express terms of this Agreement of the party seeking
indemnification. The obligations of the Borrower under this
Section 9.6 shall survive the termination of this Agreement.
9.7. 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, to the
extent that the Agent deems necessary.
9.8. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used in the calculation of any financial covenant or test shall
be interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles.
9.9. 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.
9.10. NONLIABILITY OF LENDERS. The relationship between the Borrower on
the one hand and the Lenders, the LC Issuers and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent (except to the
limited extent as provided by Section 12.3.4 relating to maintaining the
Register), the Arranger, the LC Issuers nor any Lender shall have any fiduciary
responsibilities to the Borrower or any other Credit Party. Neither the Agent,
the Arranger, the LC Issuers nor any Lender undertakes any responsibility to the
Borrower or any other Credit Party to review or inform any Credit Party of any
matter in connection with any phase of any Credit Party's business or
operations. Each of the Parent and the Borrower agrees that neither the Agent,
the Arranger, the LC Issuers nor any Lender shall have liability to the Parent
or the Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by the Parent or the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-
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appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of, or solely by reason
of the breach of the express terms of the Loan Documents by, the party from
which recovery is sought. Neither the Agent, the Arranger, the LC Issuers nor
any Lender shall have any liability with respect to, and each of the Parent and
the Borrower hereby waives, releases and agrees not to sue for, any special,
indirect, consequential or punitive damages suffered by the Parent, the Borrower
or any Subsidiary in connection with, arising out of, or in any way related to
the Loan Documents or the transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence in accordance with its respective customary practices (but in any
event in accordance with reasonable confidentiality practices), except for
disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, for use solely in connection with the transactions contemplated
hereby, (ii) to legal counsel, accountants, and other professional advisors to
such Lender or to a Transferee who are expected to be involved in the evaluation
of such information in connection with the transactions contemplated hereby, in
each case which have been informed as to the confidential nature of such
information, (iii) to regulatory officials having jurisdiction over it, (iv) to
any Person as required by law, regulation, or legal process in respect of which,
to the extent permitted by applicable law, such Lender shall have used
commercially reasonable efforts to give the Borrower reasonable prior notice and
the opportunity to contest such disclosure, (v) of information that presently or
hereafter becomes available to such Lender on a non-confidential basis from a
source other than the Parent and its Subsidiaries and other than as a result of
disclosure not otherwise permitted by this Section 9.11, (vi) to any Person in
connection with any legal proceeding to which such Lender is a party, (vii) to
such Lender's direct or indirect contractual counterparties in credit derivative
transactions or to legal counsel, accountants and other professional advisors to
such counterparties, in each case which have been informed as to the
confidential nature of such information and agree to be bound by this
Section 9.11 or other similar terms of confidentiality, (viii) permitted by
Section 12.4 and (ix) to rating agencies if requested or required by such
agencies in connection with a rating relating to the Credit Extensions
hereunder. Notwithstanding anything to the contrary set forth herein or in any
other agreement to which the parties hereto are parties or by which they are
bound, the obligations of confidentiality contained herein and therein (the
"Confidentiality Obligations"), as they relate to the transactions contemplated
by this Agreement, shall not apply to the "tax structure" or "tax treatment" of
the transactions contemplated by this Agreement (as these terms are used in
Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations
(the "Confidentiality Regulation") promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended); and each party hereto (and any
employee, representative, or agent of any party hereto) may disclose to any and
all persons, without limitation of any kind, the "tax structure" and "tax
treatment" of the transactions contemplated by this Agreement (as these terms
are defined in the Confidentiality Regulation). In addition, each party hereto
acknowledges that it has no proprietary or exclusive rights to any tax matter or
tax idea related to the transactions contemplated by this Agreement.
9.12. LENDERS NOT UTILIZING PLAN ASSETS. Each Lender and Designated
Lender represents and warrants that none of the consideration used by such
Lender or Designated Lender to make its Loans constitutes for any purpose of
ERISA or Section 4975 of the Code assets of
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any "plan" as defined in Section 3(3) of ERISA or Section 4975 of the Code and
the rights and interests of such Lender or Designated Lender in and under the
Loan Documents shall not constitute such "plan assets" under ERISA.
9.13. NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for herein.
9.14. DISCLOSURE. The Borrower, the Parent and each Lender, including
the LC Issuers, hereby acknowledge and agree that each Lender and/or its
Affiliates from time to time may hold investments in, make other loans to or
have other relationships with the Borrower and its Affiliates.
9.15. PERFORMANCE OF OBLIGATIONS. Each of the Parent and the Borrower
agrees that the Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on any Collateral to the extent the same would constitute a Default
hereunder if actually levied or imposed and (ii) after the occurrence and during
the continuance of a Default make any payment or perform any act required of the
Parent, the Borrower or any Subsidiary under any Loan Document or take any other
action which the Agent in its discretion deems necessary or desirable to protect
or preserve the Collateral, including, without limitation, any action to (x)
effect any repairs or obtain any insurance called for by the terms of any of the
Loan Documents and to pay all or any part of the premiums therefor and the costs
thereof and (y) pay any rents payable by the Parent, the Borrower or any
Subsidiary which are more than 30 days past due, or as to which the landlord has
given notice of termination, under any lease. The Agent shall use its best
efforts to give the Borrower notice of any action taken under this Section 9.15
prior to the taking of such action or promptly thereafter provided the failure
to give such notice shall not affect the Borrower's obligations in respect
thereof. The Borrower agrees to pay the Agent, upon demand, the principal amount
of all funds advanced by the Agent under this Section 9.15, together with
interest thereon at the rate from time to time applicable to Floating Rate Loans
from the date of such advance until the outstanding principal balance thereof is
paid in full. If the Borrower fails to make payment in respect of any such
advance under this Section 9.15 within one (1) Business Day after the date the
Borrower receives written demand therefor from the Agent, the Agent shall
promptly notify each Lender and each Lender agrees that it shall thereupon make
available to the Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such advance. If such funds are not
made available to the Agent by such Lender within one (1) Business Day after the
Agent's demand therefor, the Agent will be entitled to recover any such amount
from such Lender together with interest thereon at the Federal Funds Effective
Rate for each day during the period commencing on the date of such demand and
ending on the date such amount is received. The failure of any Lender to make
available to the Agent its Pro Rata Share of any such unreimbursed advance under
this Section 9.15 shall neither relieve any other Lender of its obligation
hereunder to make available to the Agent such other Lender's Pro Rata Share of
such advance on the date such payment is to be made nor increase the obligation
of any other Lender to make such payment to the Agent. All outstanding principal
of, and interest on, advances made under this Section 9.15 shall constitute
Obligations secured by the Collateral until paid in full by the Borrower.
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ARTICLE X
THE AGENT
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any of the Holders of Secured Obligations by reason of this
Agreement or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Holders of Secured Obligations,
(ii) is a "representative" of the Holders of Secured Obligations within the
meaning of the term "secured party" as defined in the New York Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders, for itself and on behalf of its
Affiliates as Holders of Secured Obligations, hereby agrees to assert no claim
against the Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Holder of Secured Obligations
hereby waives.
10.2. POWERS. 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 or fiduciary 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 Parent, the Borrower, any
Subsidiary or any Lender or Holder of Secured Obligations 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 to the extent such action or
inaction is determined in a final, non-appealable judgment by a court of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person or solely by reason of the breach of the express terms
thereof by such Person.
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 (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) 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; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any
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other instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any Collateral; or
(g) the financial condition of the Parent, the Borrower, any Subsidiary or any
guarantor of any of the Obligations or of any of the Parent's, the Borrower's,
such Subsidiary's or any such guarantor's respective Subsidiaries. The Agent
shall have no duty to disclose to the Lenders information that is not required
to be furnished by the Parent or the Borrower to the Agent at such time, but is
voluntarily furnished by the Parent or the Borrower to the Agent (either in its
capacity as Agent or in its individual capacity).
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 (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such approval), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders (or all of the Lenders in
the event that and to the extent that this Agreement expressly requires such
approval). The Agent shall 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 the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's 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 the Lenders' Pro Rata
Shares of the Aggregate Commitment (or, if the Aggregate Commitment has been
terminated, of the Aggregate Outstanding Credit Exposure) (i) for any amounts
not reimbursed by the Borrower for which the Agent is entitled to reimbursement
by any Credit Party 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 (including, without limitation, for any expenses incurred by the Agent
in connection with any dispute between the Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
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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 (including, without limitation, for any
such amounts incurred by or asserted against the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders),
or the enforcement of any of the terms of the Loan Documents or of any such
other documents, PROVIDED that (i) no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Agent and (ii) any indemnification
required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Secured Obligations and termination of this Agreement.
10.9. NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions 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 and
its Affiliates 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 Parent, the
Borrower or any Subsidiary in which the Parent, 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.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Parent or 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, the Arranger 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.
10.12. 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. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
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resignation or removal, the Required Lenders shall, with the prior written
approval of the Borrower (which approval shall be required only so long as no
Default shall be continuing), 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 forty-five 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.
Notwithstanding the previous sentence, the Agent may at any time without the
consent of the Borrower or any Lender, appoint any of its Affiliates which is a
commercial bank as a successor Agent hereunder. If the Agent has resigned or
been removed and no successor Agent has been appointed, the Lenders may perform
all the duties of the Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. 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 $500,000,000. 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 or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent shall be
discharged from any further duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal 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. In the
event that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 10.12, then the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate
or other analogous rate of the new Agent.
10.13. AGENT AND ARRANGER FEES. The Borrower agrees to pay to the Agent
and the Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Agent and the Arranger pursuant to that certain letter agreement
dated February 10, 2003, or as otherwise agreed in writing from time to time.
10.14. DELEGATION TO AFFILIATES. The Parent, the Borrower and the Lenders
agree that the Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection with this Agreement
shall be entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. COLLATERAL DOCUMENTS. (a) Each Lender authorizes the Agent to
enter into each of the Collateral Documents to which it is a party and to take
all action contemplated by such documents. Each Lender agrees that no Holder of
Secured Obligations (other than the Agent) shall have the right individually to
seek to realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised solely by
the Agent for the benefit of the Holders of Secured Obligations upon the terms
of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any
Person as collateral security for the Secured Obligations, the Agent is hereby
authorized to execute and
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deliver on behalf of the Holders of Secured Obligations any Loan Documents
necessary or appropriate to grant and perfect a Lien on such Collateral in favor
of the Agent on behalf of the Holders of Secured Obligations.
(c) The Lenders hereby authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment and satisfaction
of all of the Obligations (other than contingent indemnity obligations and Rate
Management Obligations) at any time arising under or in respect of this
Agreement or the Loan Documents or the transactions contemplated hereby or
thereby; (ii) as permitted by, but only in accordance with, the terms of the
applicable Loan Document; or (iii) if approved, authorized or ratified in
writing by the Required Lenders, unless such release is required to be approved
by all of the Lenders hereunder. Upon request by the Agent at any time, the
Lenders will confirm in writing the Agent's authority to release particular
types or items of Collateral pursuant to this Section 10.15.
(d) Upon any sale or transfer of assets constituting Collateral
which is permitted pursuant to the terms of any Loan Document, or consented to
in writing by the Required Lenders or all of the Lenders, as applicable, and
upon at least three (3) Business Days' prior written request by the Borrower to
the Agent, the Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
Liens granted to the Agent for the benefit of the Holders of Secured Obligations
herein or pursuant hereto upon the Collateral that was sold or transferred;
PROVIDED, HOWEVER, that (i) the Agent shall not be required to execute any such
document on terms which, in the Agent's opinion, would expose the Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall
not in any manner discharge, affect or impair the Secured Obligations or any
Liens upon (or obligations of the Borrower or any Credit Party) all interests
retained by the Borrower or any Credit Party, including (without limitation) the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral.
10.16. QUEBEC SECURITY. For greater certainty, and without limiting the
powers of the Agent hereunder or under any of the other Loan Documents, each of
the Lenders hereby acknowledges that the Agent shall, for purposes of holding
any security granted by the Borrower on the Borrower's property pursuant to the
laws of the Province of Quebec to secure payment of any bond (the "Bond"), be
the holder of an irrevocable power of attorney (FONDE DE POUVOIR) (within the
meaning of the CIVIL CODE OF QUEBEC) for all present and future Lenders and in
particular for all present and future holders of the Bond. Each of the Agent and
the Lenders hereby irrevocably constitutes, to the extent necessary, the Agent
as the holder of an irrevocable power of attorney (FONDE DE POUVOIR) (within the
meaning of Article 2692 of the CIVIL CODE OF QUEBEC) in order to hold security
granted by the Borrower in the Province of Quebec to secure the Bond. Each
Lender hereby further constitutes and appoints the Agent as mandatary in order
to hold the Bond for and on behalf of the Lenders. Each eligible assignee
hereunder shall be deemed to have confirmed and ratified the constitution of the
Agent as the holder of such irrevocable power of attorney (FONDE DE POUVOIR) and
the constitution and appointment of the Agent as mandatary to hold the Bonds for
and on behalf of the Lender by the execution of the relevant Assignment
Agreement. Notwithstanding the provisions of Section 32 of the AN ACT RESPECTING
THE SPECIAL POWERS OF LEGAL PERSONS (Quebec), the Agent may acquire and be the
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holder of the Bond. The Borrower hereby acknowledges that the Bonds constitute a
title of indebtedness, as such term is used in Article 2692 of the CIVIL CODE OF
QUEBEC.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and continues, 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
owing by any Lender or any Affiliate of any Lender to or for the credit or
account of any Credit Party may be offset and applied toward the payment of the
Secured Obligations then due and owing to such Lender, and each Lender shall
endeavor to give notice of any such set-off to the Borrower, PROVIDED that the
failure of any Lender to give such notice shall not in any way limit any
Lender's rights under this Section 11.1.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Outstanding Credit Exposure held by
the other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. 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 respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS; DESIGNATED LENDERS.
12.1.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the
Borrower, the Parent, the Agent and the Lenders and their respective
successors and assigns permitted hereby, except that (i) neither the Parent
nor the Borrower shall have any right to assign its rights or obligations
under the Loan Documents without the prior written consent of each Lender,
(ii) any assignment by any Lender must be made in compliance with
Section 12.3, and (iii) any transfer by Participants must be made in
compliance with Section 12.2. Any attempted assignment or transfer by any
party not made in compliance with this Section 12.1 shall be null and void,
unless such attempted assignment or transfer is treated as a participation
in accordance with Section 12.3.2. The parties to this Agreement
acknowledge that clause (ii) of this Section 12.1 relates only to absolute
assignments and this Section 12.1 does not prohibit assignments creating
security
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interests, including, without limitation, (x) any pledge or assignment by
any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank, (y) in the case of a Lender which is a
Fund, any pledge or assignment of all or any portion of its rights under
this Agreement and any Note to its trustee in support of its obligations to
its trustee or (z) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to direct or
indirect contractual counterparties in credit derivative transactions
relating to the Revolving Loans; PROVIDED, HOWEVER, that no such pledge or
assignment creating a security interest shall release the transferor Lender
from its obligations hereunder unless and until the parties thereto have
complied with the provisions of Section 12.3. The Agent may treat the
Person which made any Revolving Loan or which holds any Note as the owner
thereof for all purposes hereof unless and until such Person complies with
Section 12.3; PROVIDED, HOWEVER, that the Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made
any Revolving Loan or which holds any Note to direct payments relating to
such Revolving Loan or Note to another Person. Any assignee of the rights
to any Revolving Loan or any Note agrees by acceptance of such assignment
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 owner of the rights to
any Revolving Loan (whether or not a Note has been issued in evidence
thereof), shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Revolving Loan.
12.1.2 DESIGNATED LENDERS.
(i) Subject to the terms and conditions set forth in this
Section 12.1.2, any Lender may from time to time elect to
designate an Eligible Designee to provide all or any part of the
Revolving Loans to be made by such Lender pursuant to this
Agreement; PROVIDED that the designation of an Eligible Designee
by any Lender for purposes of this Section 12.1.2 shall be subject
to the approval of the Agent (which consent shall not be
unreasonably withheld or delayed). Upon the execution by the
parties to each such designation of an agreement in the form of
Exhibit E hereto (a "Designation Agreement") and the acceptance
thereof by the Agent, the Eligible Designee shall become a
Designated Lender for purposes of this Agreement. The Designating
Lender shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Revolving Loans to be
made by the Designating Lender pursuant to the terms of this
Agreement and the making of the Revolving Loans or portion thereof
shall satisfy the obligations of the Designating Lender to the
same extent, and as if, such Revolving Loan was made by the
Designating Lender. As to any Revolving Loan made by it, each
Designated Lender shall have all the rights a Lender making such
Revolving Loan would have under this Agreement and otherwise;
PROVIDED, (x) that all voting rights under this Agreement shall be
exercised solely by the Designating Lender, (y) each Designating
Lender shall remain solely responsible to the other parties hereto
for its obligations under this Agreement, including the
obligations of a Lender in respect of Revolving Loans made by its
Designated Lender and (z) no Designated Lender shall be entitled
to reimbursement under Article III hereof for any amount which
would exceed the amount that would have been payable by the
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Borrower to the Lender from which the Designated Lender obtained
any interests hereunder. No additional Notes shall be required
with respect to Revolving Loans provided by a Designated Lender;
PROVIDED, HOWEVER, to the extent any Designated Lender shall
advance funds, the Designating Lender shall be deemed to hold the
Notes in its possession as an agent for such Designated Lender to
the extent of the Revolving Loan funded by such Designated Lender.
Such Designating Lender shall act as administrative agent for its
Designated Lender and give and receive notices and communications
hereunder. Any payments for the account of any Designated Lender
shall be paid to its Designating Lender as administrative agent
for such Designated Lender and neither the Borrower nor the Agent
shall be responsible for any Designating Lender's application of
such payments. In addition, any Designated Lender may (1) with
notice to, but without the consent of the Borrower or the Agent,
assign all or portions of its interests in any Revolving Loans to
its Designating Lender or to any financial institution consented
to by the Agent and, so long as no Default shall be continuing,
the Borrower, providing liquidity and/or credit facilities to or
for the account of such Designated Lender and (2) subject to
advising any such Person that such information is to be treated as
confidential in accordance with Section 9.11, disclose on a
confidential basis any non-public information relating to its
Revolving Loans to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity
enhancement to such Designated Lender. In addition, each such
Designating Lender that elects to designate an Eligible Designee
and such Eligible Designee becomes a Designated Lender, (i) shall
keep a register for the registration relating to each such
Revolving Loan, specifying such Designated Lender's name, address
and entitlement to payments of principal and interest with respect
to such Revolving Loan and each transfer thereof and the name and
address of each transferees and (ii) shall collect, prior to the
time such Designated Lender receives payment with respect to such
Revolving Loans from each such Designated Lender, the appropriate
forms, certificates, and statements described in Section 3.5 (and
updated as required by Section 3.5) as if such Designated Lender
were a Lender under Section 3.5.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting
against, any Designated Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law
for one year and a day after the payment in full of all
outstanding senior indebtedness of any Designated Lender; PROVIDED
that the Designating Lender for each Designated Lender hereby
agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage and expense arising out of its
inability to institute any such proceeding against such Designated
Lender. This Section 12.1.2 shall survive the termination of this
Agreement.
12.2. PARTICIPATIONS.
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding
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Credit Exposure of such Lender, any Note held by such Lender, 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 owner of its Outstanding Credit
Exposure and the holder of any Note issued to it in evidence thereof 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. In addition, each
such Lender that sells any participating interest to a Participant under
this Section 12.2.1, (i) shall keep a register for the registration
relating to each such participation, specifying such Participant's name,
address and entitlement to payment of principal and interest with respect
to such participation and each transfer thereof and the name and address of
each transferee, and (ii) shall collect prior to the time such Participant
receives payments with respect to such participation, from each such
Participant the appropriate forms, certificates and statements described in
Section 3.5 (and updated as required by Section 3.5) as if such Participant
were a Lender under Section 3.5.
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 Credit Extension
or Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of Section 8.2.
12.2.3 BENEFIT OF CERTAIN PROVISIONS. Each of the Parent and 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. Each of the Parent and the Borrower further agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.2, 3.4 and
3.5 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to Section 12.3, provided that (i) a Participant
shall not be entitled to receive any greater payment under Section 3.1,
3.2, 3.4 or 3.5 than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for its own
account, unless the sale of such interest to such Participant is made with
the prior written consent of the Borrower, and (ii) each Participant agrees
to comply with the provisions of Section 3.5 to the same extent as if it
were a Lender.
12.3. ASSIGNMENTS.
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12.3.1 PERMITTED ASSIGNMENTS. Any Lender may 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 evidenced by an agreement substantially in the form of Exhibit C or in
such other form as may be agreed to by the parties thereto (each such
agreement, an "Assignment Agreement"). Each such assignment with respect to
a Purchaser which is not a Lender or an Affiliate of a Lender or an
Approved Fund shall, unless otherwise consented to in writing by the
Borrower and the Agent, either be in an amount equal to the entire
applicable Outstanding Credit Exposure of the assigning Lender or (unless
each of the Agent and, prior to the occurrence and continuance of a
Default, the Borrower, otherwise consents) be in an aggregate amount not
less than $5,000,000. The amount of the assignment shall be based on the
Outstanding Credit Exposure subject to the assignment, determined as of the
date of such assignment or as of the "Trade Date," if the "Trade Date" is
specified in the Assignment Agreement.
12.3.2 CONSENTS. The consent of the Borrower shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender,
an Affiliate of a Lender or an Approved Fund (other than a Lender or
Affiliate of a Lender or an Approved Fund that becomes a Lender solely by
means of the settlement of a credit derivative), PROVIDED that the consent
of the Borrower shall not be required if (i) a Default has occurred and is
continuing or (ii) if such assignment is in connection with the physical
settlement of any Lender's obligations to direct or indirect contractual
counterparties in credit derivative transactions relating to the Revolving
Loans; PROVIDED that the assignment without the Borrower's consent pursuant
to clause (ii) shall not increase the Borrower's liability under
Section 3.5. The consent of the Agent shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund (other than a Lender or Affiliate
of a Lender or an Approved Fund that becomes a Lender solely by means of
the settlement of a credit derivative). Any consent required under this
Section 12.3.2 shall not be unreasonably withheld or delayed.
12.3.3 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of
an Assignment Agreement, together with any consents required by
Sections 12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the Agent
by the assigning Lender or the Purchaser for processing such assignment
(unless such fee is waived by the Agent or unless such assignment is made
to such assigning Lender's Affiliate), such assignment shall become
effective on the effective date specified in such assignment. The
Assignment Agreement shall contain a representation and warranty by the
Purchaser to the effect that none of the funds, money, assets or other
consideration used to make the purchase and assumption of the Commitment
and Outstanding Credit Exposure under the applicable Assignment Agreement
constitutes "plan assets" as defined under ERISA and that the rights,
benefits 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 or on behalf of the
Lenders and shall have all the rights, benefits and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party thereto, and the transferor Lender shall be released from any further
obligations with respect to the Outstanding Credit Exposure assigned to
such Purchaser
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without any further consent or action by the Borrower, the Parent, the
Lenders or the Agent. In the case of an assignment covering all of the
assigning Lender's rights, benefits and obligations under this Agreement,
such Lender shall cease to be a Lender hereunder but shall continue to be
entitled to the benefits of, and subject to, those provisions of this
Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the Loan Documents. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 12.3 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 12.2. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12.3.3, the
transferor Lender, the Agent and the Borrower shall, if the transferor
Lender or the Purchaser desires that its Revolving Loans be evidenced by
Notes, make appropriate arrangements so that, upon cancellation and
surrender to the Borrower of the Notes (if any) held by the transferor
Lender, new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender, if applicable, and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments (or, if the Facility
Termination Date has occurred, their respective Outstanding Credit
Exposure), as adjusted pursuant to such assignment. Each Purchaser shall
not be entitled to receive any greater payment under Section 3.5 than the
transferor Lender would have received had such transfer not occurred.
12.3.4 REGISTER. The Agent, acting solely for this purpose as an
agent of the Borrower (and the Borrower hereby designates the Agent to act
in such capacity), shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a
register (the "Register") for the recordation of (a) the names and
addresses of the Lenders and the Commitments of each Lender pursuant to the
terms hereof, (b) the date and the amount of each Revolving Loan made
hereunder, the Type thereof and the Interest Period (in the case of a
Eurodollar Advance) with respect thereto, and the amount of any principal
or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder, (c) the original stated amount of each Facility
LC and the amount of LC Obligations (including specifying Reimbursement
Obligations) outstanding at any time, (d) whether a Lender is an original
lender or the assignee of another Lender pursuant to an assignment under
this Section 12.3 and the effective date and amount of each Assignment
Agreement delivered to and accepted by it and the parties thereto pursuant
to Section 12.3, (e) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof, and (f) all other
appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest. The entries
in the Register shall be conclusive, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
12.4. DISSEMINATION OF INFORMATION. Each of the Parent and the Borrower
authorizes each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest
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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 Parent, the Borrower and the
Subsidiaries; PROVIDED that each Transferee and prospective Transferee agrees to
be bound by Section 9.11 of this Agreement.
12.5. TAX CERTIFICATIONS. If any interest in any Loan Document is
transferred to any Transferee, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv) and (vi).
12.6. REIMBURSEMENT OBLIGATIONS. For purposes of this Article XII, with
respect to each Letter of Credit, if an LC Issuer transfers its rights with
respect to the Borrower's obligation to pay Reimbursement Obligations in respect
of such Letter of Credit, such LC Issuer shall give notice of such transfer to
the Agent for notation in the Register.
ARTICLE XIII
NOTICES
13.1. NOTICES. Except as otherwise permitted by Section 2.14, all
notices, requests and other communications to any party hereunder shall be in
writing (including electronic transmission, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of the Parent, the
Borrower, the Lenders, the LC Issuers, or the Agent, at its address or facsimile
number set forth on the signature pages hereof or, (y) in the case of any party,
at such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered (or, in the case
of electronic transmission, received) at the address specified in this Section;
PROVIDED that notices to the Agent under Article II shall not be effective until
received.
13.2. CHANGE OF ADDRESS. The Borrower, the Parent, the Agent, any LC
Issuer 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 Parent, the Agent, the
LC Issuers and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
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ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION AND OTHER THAN SECTION 10.16 OF THIS
AGREEMENT) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS, INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS, OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2. CONSENT TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN THE STATE, COUNTY AND CITY OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH PARTY
HERETO 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 ANY PARTY HERETO TO
BRING PROCEEDINGS AGAINST ANY OTHER PARTY HERETO OR ANY HOLDER OF SECURED
OBLIGATIONS IN THE COURTS OF ANY OTHER JURISDICTION; PROVIDED THAT EACH OF THE
PARENT AND THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY ANY OF THE AGENT, ANY LC ISSUER, ANY
LENDER OR AN OTHER HOLDER OF SECURED OBLIGATIONS IN ANY PROCEEDING BROUGHT BY
SUCH PERSON TO (1) REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR (2) TO ENFORCE
A JUDGEMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE PARENT, THE AGENT, EACH LC
ISSUER, EACH LENDER, AND EACH OTHER HOLDER OF SECURED OBLIGATIONS 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.
The remainder of this page is intentionally blank
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IN WITNESS WHEREOF, the Borrower, the Parent, the Lenders, the LC Issuers
and the Agent have executed this Agreement as of the date first above written.
UNITED STATIONERS SUPPLY CO.,
as the Borrower
By:
---------------------------------------
Name: Brian S. Cooper
Title: Senior Vice President, Treasurer
and Assistant Secretary
Address: 2200 East Golf Road
Des Plaines, Illinois 60016
Attention: General Counsel
Telephone: (847) 699-5000
FAX: (847) 699-1805
With a copy to:
Attention: Treasurer
Telephone: (847) 627-2170
FAX: (847) 699-0027
SIGNATURE PAGE TO
UNITED STATIONERS SUPPLY CO. FIVE-YEAR REVOLVING CREDIT AGREEMENT
<Page>
UNITED STATIONERS INC.,
as a Credit Party
By:
---------------------------------------
Name: Brian S. Cooper
Title: Senior Vice President and
Treasurer
Address: 2200 East Golf Road
Des Plaines, Illinois 60016
Attention: General Counsel
Telephone: (847) 699-5000
FAX: (847) 699-1805
With a copy to:
Attention: Treasurer
Telephone: (847) 627-2170
FAX: (847) 699-0027
SIGNATURE PAGE TO
UNITED STATIONERS SUPPLY CO. FIVE-YEAR REVOLVING CREDIT AGREEMENT
<Page>
BANK ONE, NA, (MAIN OFFICE CHICAGO),
individually, as an LC Issuer, and as Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
1 Bank One Plaza
Chicago, Illinois 60670
Attention:
--------------------------------
Telephone: (312)
FAX: (312)
SIGNATURE PAGE TO
UNITED STATIONERS SUPPLY CO. FIVE-YEAR REVOLVING CREDIT AGREEMENT
<Page>
COMMITMENT SCHEDULE
<Table>
<Caption>
LENDER COMMITMENT
----------------------------------------- -----------------
Bank One, NA $ 31,500,000.00
PNC Bank, N.A. $ 25,000,000.00
Standard Federal Bank N.A. $ 25,000,000.00
U.S. Bank National Association $ 25,000,000.00
Comerica Bank $ 22,000,000.00
KeyBank National Association $ 22,000,000.00
Transamerica Business Capital Corporation $ 22,000,000.00
Associated Bank, N.A. $ 15,000,000.00
Fifth Third Bank $ 15,000,000.00
First Bank $ 15,000,000.00
Union Bank of California $ 15,000,000.00
Bank of Scotland $ 10,000,000.00
Hibernia National Bank $ 10,000,000.00
The Northern Trust Company $ 10,000,000.00
Oak Brook Bank $ 7,500,000.00
RZB Finance LLC $ 5,000,000.00
</Table>
<Page>
PRICING SCHEDULE
<Table>
<Caption>
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
- --------------- --------- --------- --------- --------- -------
EURODOLLAR RATE 1.25% 1.50% 1.75% 2.00% 2.25%
FLOATING RATE 0.0% 0.0% 0.25% 0.50% 0.75%
</Table>
<Table>
<Caption>
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
RATE STATUS STATUS STATUS STATUS STATUS
- --------------- --------- --------- --------- --------- -------
COMMITMENT FEE 0.250% 0.275% 0.300% 0.350% 0.400%
</Table>
The Applicable Margin and Applicable Fee Rate shall be determined
based upon Level IV (or such higher Status as shall be reflected on any
interim Financials) until the delivery of the Financials for the fiscal
period ending on September 30, 2003.
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements
of the Borrower delivered pursuant to Section 6.1.1 or 6.1.2, together with
the compliance certificate delivered pursuant to Section 6.1.3 related
thereto.
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Parent referred to in the most recent Financials, the
Leverage Ratio is less than or equal to 1.25 to 1.00.
"Level II Status" exists at any date if, as of the last day of
the fiscal quarter of the Parent referred to in the most recent Financials,
(i) the Parent has not qualified for Level I Status and (ii) the Leverage
Ratio is less than or equal to 1.75 to 1.00.
"Level III Status" exists at any date if, as of the last day of
the fiscal quarter of the Parent referred to in the most recent Financials,
(i) the Parent has not qualified for Level I Status or Level II Status and
(ii) the Leverage Ratio is less than or equal to 2.25 to 1.00.
"Level IV Status" exists at any date if, as of the last day of
the fiscal quarter of the Parent referred to in the most recent Financials,
(i) the Parent has not qualified for Level I Status, Level II Status or
Level III Status and (ii) the Leverage Ratio is less than or equal to 2.75
to 1.00.
"Level V Status" exists at any date if the Parent has not
qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"Status" means Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
<Page>
The Applicable Margin and Applicable Fee Rate shall be determined
in accordance with the foregoing table based on the Parent's Status as
reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Margin or Applicable Fee Rate shall be effective five (5)
Business Days after the Agent has received the applicable Financials. If
the Borrower fails to deliver the Financials to the Agent at the time
required pursuant to Section 6.1, then the Applicable Margin and Applicable
Fee Rate shall be the highest Applicable Margin and Applicable Fee Rate set
forth in the foregoing table until five (5) days after such Financials are
so delivered.
2