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Exhibit 10.1
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of April 30, 2004
among
THE TIMBERLAND COMPANY
THE LENDERS LISTED ON SCHEDULE 1 HERETO
FLEET NATIONAL BANK, as Administrative Agent
with
BANC OF AMERICA SECURITIES LLC, as Arranger and Sole Book Runner
and
WACHOVIA SECURITIES INC., as Co-Arranger
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TABLE OF CONTENTS
<Table>
1. DEFINITIONS AND RULES OF INTERPRETATION..........................................................1
1.1. DEFINITIONS...........................................................................1
1.2. RULES OF INTERPRETATION..............................................................15
2. THE REVOLVING CREDIT FACILITY...................................................................16
2.1. COMMITMENT TO LEND...................................................................16
2.2. FACILITY FEE.........................................................................17
2.3. CHANGE OF TOTAL COMMITMENT...........................................................17
2.4. LOAN ACCOUNT.........................................................................18
2.5. INTEREST ON REVOLVING CREDIT LOANS...................................................18
2.6. REQUESTS FOR REVOLVING CREDIT LOANS; REQUEST FOR EXTENSION OF FINAL MATURITY DATE....18
2.7. CONVERSION OPTIONS...................................................................19
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.....................19
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN.............................20
2.7.3. EURODOLLAR RATE LOANS.....................................................20
2.7.4. APPLICABILITY OF CONVERSION AND CONTINUATION PROVISIONS TO SWING
LINE LOANS............................................................... 20
2.8. FUNDS FOR REVOLVING CREDIT LOANS.....................................................21
2.8.1. FUNDING PROCEDURES........................................................21
2.8.2. ADVANCES BY ADMINISTRATIVE AGENT..........................................21
2.9. OPTIONAL PREPAYMENTS.................................................................22
2.10. MANDATORY REPAYMENTS.................................................................22
3. THE SWING LINE..................................................................................22
3.1. THE SWING LINE LOANS.................................................................22
3.2. NOTICE OF BORROWING..................................................................23
3.3. INTEREST ON SWING LINE LOANS.........................................................23
3.4. REPAYMENT OF SWING LINE LOANS........................................................24
3.4.1. FUNDING BY THE BORROWER...................................................24
3.4.2. FUNDING WITH REVOLVING CREDIT LOANS.......................................24
3.5. LOAN ACCOUNT.........................................................................25
4. LETTERS OF CREDIT...............................................................................25
4.1. LETTER OF CREDIT COMMITMENTS.........................................................25
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT.....................................25
4.1.2. LETTER OF CREDIT APPLICATIONS.............................................26
4.1.3. TERMS OF LETTERS OF CREDIT................................................26
4.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS......................................26
4.1.5. PARTICIPATIONS OF LENDERS.................................................27
</Table>
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<Table>
4.1.6. NOTICE TO ADMINISTRATIVE AGENT............................................27
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.............................................27
4.3. LETTER OF CREDIT PAYMENTS............................................................28
4.4. OBLIGATIONS ABSOLUTE.................................................................29
4.5. RELIANCE BY ISSUER...................................................................30
4.6. LETTER OF CREDIT FEES................................................................30
5. CERTAIN GENERAL PROVISIONS......................................................................31
5.1. CLOSING FEES.........................................................................31
5.2. ADMINISTRATIVE AGENT'S FEE...........................................................31
5.3. FUNDS FOR PAYMENTS...................................................................31
5.3.1. PAYMENTS TO ADMINISTRATIVE AGENT..........................................31
5.3.2. NO OFFSET, ETC............................................................31
5.3.3. NON-U.S. LENDERS..........................................................32
5.4. COMPUTATIONS.........................................................................33
5.5. INABILITY TO DETERMINE EURODOLLAR RATE...............................................33
5.6. ILLEGALITY...........................................................................33
5.7. ADDITIONAL COSTS, ETC................................................................34
5.8. CAPITAL ADEQUACY.....................................................................35
5.9. CERTIFICATE..........................................................................35
5.10. INDEMNITY............................................................................36
5.11. INTEREST AFTER DEFAULT...............................................................36
5.11.1. OVERDUE AMOUNTS...........................................................36
5.11.2. AMOUNTS NOT OVERDUE.......................................................36
5.12. REPLACEMENT OF LENDERS...............................................................36
6. SUBSIDIARY GUARANTY.............................................................................37
6.1. SUBSIDIARY GUARANTY..................................................................37
6.2. RELEASE OF GUARANTORS................................................................37
7. REPRESENTATIONS AND WARRANTIES..................................................................37
7.1. CORPORATE AUTHORITY..................................................................37
7.1.1. INCORPORATION; GOOD STANDING..............................................37
7.1.2. AUTHORIZATION.............................................................38
7.1.3. ENFORCEABILITY............................................................38
7.2. GOVERNMENTAL APPROVALS...............................................................38
7.3. FINANCIAL STATEMENTS. ...............................................................39
7.4. NO MATERIAL ADVERSE CHANGES, ETC.....................................................39
7.5. FRANCHISES, PATENTS, COPYRIGHTS, ETC.................................................39
7.6. LITIGATION...........................................................................39
7.7. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.........................................39
7.8. TAX STATUS...........................................................................39
7.9. NO EVENT OF DEFAULT..................................................................40
7.10. HOLDING COMPANY AND INVESTMENT COMPANY ACTS..........................................40
7.11. EMPLOYEE BENEFIT PLANS AND GUARANTEED PENSION PLANS..................................40
</Table>
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<Table>
7.12. ENVIRONMENTAL COMPLIANCE.............................................................40
7.13. SUBSIDIARIES, ETC....................................................................40
7.14. DISCLOSURE...........................................................................41
7.15. FOREIGN ASSETS CONTROL REGULATIONS, ETC..............................................41
8. AFFIRMATIVE COVENANTS...........................................................................41
8.1. PUNCTUAL PAYMENT.....................................................................41
8.2. RECORDS AND ACCOUNTS.................................................................41
8.3. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION...................................42
8.4. NOTICES OF DEFAULTS..................................................................43
8.5. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES...........................................44
8.6. INSURANCE............................................................................44
8.7. TAXES................................................................................44
8.8. INSPECTION OF PROPERTIES AND BOOKS, ETC..............................................45
8.9. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS...............................45
8.10. USE OF PROCEEDS AND MARGIN STOCK.....................................................45
8.10.1. GENERAL...................................................................45
8.10.2. REGULATIONS U AND X.......................................................45
8.10.3. INELIGIBLE SECURITIES.....................................................45
8.10.4. MISCELLANEOUS.............................................................46
8.11. NEW GUARANTORS.......................................................................46
8.12. FURTHER ASSURANCES...................................................................46
9. CERTAIN NEGATIVE COVENANTS......................................................................46
9.1. RESTRICTIONS ON INDEBTEDNESS.........................................................46
9.1.1. RESTRICTIONS ON GUARANTEES................................................46
9.1.2. RESTRICTIONS ON BORROWED MONEY INDEBTEDNESS...............................47
9.2. RESTRICTIONS ON LIENS................................................................47
9.3. RESTRICTIONS ON INVESTMENTS..........................................................49
9.4. RESTRICTED PAYMENTS..................................................................50
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS......................................51
9.5.1. MERGERS AND ACQUISITIONS..................................................51
9.5.2. DISPOSITION OF ASSETS.....................................................52
9.6. DERIVATIVE TRANSACTIONS..............................................................53
9.7. BUSINESS ACTIVITIES..................................................................53
9.8. FISCAL YEAR..........................................................................53
9.9. TRANSACTIONS WITH AFFILIATES.........................................................53
10. FINANCIAL COVENANTS.............................................................................53
10.1. FIXED CHARGE COVERAGE RATIO..........................................................54
10.2. LEVERAGE RATIO.......................................................................54
10.3. MINIMUM OBLIGOR EBITDA...............................................................54
11. CLOSING CONDITIONS..............................................................................54
11.1. LOAN DOCUMENTS.......................................................................54
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS..............................................54
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<Table>
11.3. CORPORATE OR OTHER ACTION............................................................54
11.4. INCUMBENCY CERTIFICATE...............................................................54
11.5. OPINION OF COUNSEL...................................................................55
11.6. PAYMENT OF FEES......................................................................55
12. CONDITIONS TO ALL BORROWINGS....................................................................55
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT............................................55
12.2. NO LEGAL IMPEDIMENT..................................................................55
12.3. PROCEEDINGS AND DOCUMENTS............................................................56
13. EVENTS OF DEFAULT; ACCELERATION; ETC............................................................56
13.1. EVENTS OF DEFAULT AND ACCELERATION...................................................56
13.2. TERMINATION OF COMMITMENTS...........................................................58
13.3. REMEDIES.............................................................................58
14. THE ADMINISTRATIVE AGENT........................................................................59
14.1. AUTHORIZATION........................................................................59
14.2. EMPLOYEES AND AGENTS.................................................................59
14.3. NO LIABILITY.........................................................................59
14.4. NO REPRESENTATIONS...................................................................60
14.4.1. GENERAL...................................................................60
14.4.2. CLOSING DOCUMENTATION, ETC................................................60
14.5. PAYMENTS.............................................................................60
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT..........................................60
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT......................................61
14.5.3. DELINQUENT LENDERS........................................................61
14.6. PURCHASERS OF LETTER OF CREDIT PARTICIPATIONS........................................62
14.7. INDEMNITY............................................................................62
14.8. ADMINISTRATIVE AGENT AS LENDER.......................................................62
14.9. RESIGNATION..........................................................................62
14.10. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.......................................63
14.11. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT......................................63
15. ASSIGNMENT AND PARTICIPATION....................................................................64
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS..................................................64
15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.......................64
15.3. REGISTER.............................................................................65
15.4. PARTICIPATIONS.......................................................................66
15.5. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER.................................66
15.6. MISCELLANEOUS ASSIGNMENT PROVISIONS..................................................67
15.7. ASSIGNMENT BY BORROWER...............................................................68
16. PROVISIONS OF GENERAL APPLICATIONS..............................................................68
16.1. SETOFF...............................................................................68
16.2. EXPENSES.............................................................................69
16.3. INDEMNIFICATION......................................................................70
</Table>
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<Table>
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION........................................71
16.4.1. CONFIDENTIALITY...........................................................71
16.4.2. PRIOR NOTIFICATION........................................................72
16.4.3. OTHER.....................................................................72
16.5. SURVIVAL OF COVENANTS, ETC...........................................................72
16.6. NOTICES..............................................................................72
16.7. GOVERNING LAW........................................................................73
16.8. HEADINGS.............................................................................74
16.9. COUNTERPARTS.........................................................................74
16.10. ENTIRE AGREEMENT, ETC................................................................74
16.11. WAIVER OF JURY TRIAL.................................................................74
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC...................................................75
16.13. USA PATRIOT ACT......................................................................76
16.14. SEVERABILITY.........................................................................76
</Table>
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EXHIBITS
EXHIBIT A Form of Loan Request
EXHIBIT B Form of Swing Line Loan Request
EXHIBIT C Form of Compliance Certificate
EXHIBIT D Form of Assignment and Acceptance
SCHEDULES
SCHEDULE 1 Lenders and Commitments
SCHEDULE 1-A Existing Letters of Credit
SCHEDULE 7.6 Litigation
SCHEDULE 7.13 Existing Subsidiaries
SCHEDULE 9.2 Existing Liens
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of April
30, 2004 by and among THE TIMBERLAND COMPANY (the "BORROWER"), a Delaware
corporation having its principal place of business at 200 Domain Drive,
Stratham, New Hampshire, and FLEET NATIONAL BANK, a national banking
association, and the other lending institutions listed on SCHEDULE 1 hereto and
FLEET NATIONAL BANK, as administrative agent for itself and such other lending
institutions.
WHEREAS, the Borrower, the lenders thereto and the Administrative Agent
(f/k/a Fleet National Bank) entered into a Revolving Credit Agreement dated as
of May 3, 2001 (the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Lenders and the Administrative Agent have agreed with the
Borrower to amend and restate the Existing Credit Agreement;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent
agree that as of the Closing Date (as defined below) the Existing Credit
Agreement is amended and restated in its entirety as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
ADJUSTMENT DATE. With respect to any quarter, the fifth Business Day
following the Administrative Agent's receipt of the Compliance Certificate
required to be delivered pursuant to Section 8.3(c) for such quarter; PROVIDED,
HOWEVER, that in the event that the Borrower fails to deliver any Compliance
Certificate to the Administrative Agent within the time period set forth in
Section 8.3(c), the Adjustment Date shall be the fifth Business Day following
the date on which such Compliance Certificate was required to be delivered
pursuant to Section 8.3(c).
ADMINISTRATIVE AGENT. Fleet, acting as administrative agent for the Lenders
and each other Person appointed as the successor Administrative Agent in
accordance with Section 14.9.
ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent's office located at
100 Federal Street, Boston, Massachusetts 02110, or at such other location as
the Administrative Agent may designate from time to time.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. Bingham McCutchen LLP or such other
counsel as may be approved by the Administrative Agent.
AFFECTED LENDER. See Section 5.12.
AFFILIATE. Any Person that would be considered to be an affiliate of any
other Person under Rule 144(a) of the Rules and Regulations of the Securities
and
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Exchange Commission, as in effect on the date hereof, if such other Person
were issuing securities.
APPLICABLE MARGIN. For each period commencing on an Adjustment Date through
the date immediately preceding the next Adjustment Date (each a "RATE ADJUSTMENT
PERIOD"), the Applicable Margin shall be the applicable margin set forth below
with respect to the Fixed Charge Coverage Ratio, as determined for the Reference
Period of the Borrower and its Subsidiaries ending on the fiscal quarter ended
immediately prior to the applicable Rate Adjustment Period.
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STANDBY DOCUMENTARY
FIXED CHARGE PRIME RATE EURODOLLAR LETTER OF LETTER OF
COVERAGE LOANS RATE LOANS CREDIT CREDIT FACILITY
LEVEL RATIO FEES FEES FEE
- ------------- -------------------- ---------- ---------- --------- ----------- --------
I Greater than or
equal to 6.50:1.00 0.000% 0.500% 0.500% 0.250% 0.125%
II Less than 6.50:1.00
but greater than or 0.000% 0.600% 0.600% 0.300% 0.150%
equal to 4.75:1.00
III Less than 4.75:1.00
but greater than or 0.000% 0.800% 0.800% 0.400% 0.200%
equal to 3.50:1.00
IV Less than 3.50:1.00 0.000% 1.000% 1.000% 0.500% 0.250%
</Table>
Notwithstanding the foregoing, (a) for the Revolving Credit Loans
outstanding, Standby Letter of Credit Fees, Documentary Letter of Credit Fees
and the Facility Fee the Applicable Margin shall be based on the Compliance
Certificate for the fiscal quarter most recently ended, provided that until the
delivery of the Compliance Certificate for the fiscal quarter ending June 30,
2004, the Applicable Margin shall be the Applicable Margin set forth in Level II
above, and (b) if the Borrower fails to deliver any Compliance Certificate
pursuant to Section 8.3(c) hereof then, for the period commencing on the next
Adjustment Date to occur subsequent to such failure through the date immediately
following the date on which such Compliance Certificate is delivered, the
Applicable Margin shall be the Applicable Margin set forth in Level IV above.
APPLICABLE PENSION LEGISLATION. At any time, any pension or retirement
benefits legislation (be it national, federal, provincial, territorial or
otherwise) then applicable to the Borrower or any of its Subsidiaries.
ARRANGER. Banc of America Securities LLC.
ASSET SALE. Any one or series of related transactions in which the Borrower
or any of its Subsidiaries conveys, sells or otherwise disposes of any of its
properties, businesses or assets (including the sale or issuance of capital
stock of any Subsidiary other than to the Borrower or any Subsidiary of the
Borrower) whether owned on the Closing Date or thereafter acquired.
ASSIGNMENT AND ACCEPTANCE. See Section 15.1.
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BALANCE SHEET DATE. December 31, 2003.
BORROWED MONEY INDEBTEDNESS. Any of (a) the indebtedness of the Borrower
and its Subsidiaries, on a consolidated basis, relating to (i) the borrowing of
money or the obtaining of credit, including the issuance of notes or bonds and
unpaid reimbursement obligations under letters of credit or banker's acceptances
or similar facilities, (ii) the deferred purchase price of assets (other than
trade payables incurred in the ordinary course of business), (iii) in respect of
any Synthetic Leases or any Capitalized Leases, and (b) Guarantees of
indebtedness of the type referred to in clause (a) of this definition of another
Person.
BORROWER. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
CAPITAL EXPENDITURES. Amounts paid or indebtedness incurred by the Borrower
or any of its Subsidiaries in connection with (i) additions to property, plant
and equipment and other capital expenditures of the Borrower or any of its
Subsidiaries that are (or would be required to be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP, and (ii) without duplication, obligations with respect to Capitalized
Leases and Synthetic Leases (had the Synthetic Lease been treated for accounting
purposes as a Capitalized Lease) incurred by the Borrower or any of its
Subsidiaries during such period.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CAPITAL STOCK. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
CHANGE OF CONTROL. Either (a) an event or series of events by which any
person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934) (other than Sidney W. Swartz, his heirs or any
trusts created by or for any of the foregoing, the Swartz Family Charitable
Trust and The Sidney W. Swartz 1982 Family Trust) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act), directly OR indirectly, of fifty one
percent (51%) or more of the voting power to elect a majority of
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the Board of Directors of the Borrower; or (b) during any period of twelve (12)
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period shall cease to constitute a majority of the board
of directors of the Borrower other than by voluntary resignation, death or
retirement.
CLOSING DATE. The first date on which the conditions set forth in Section
11 have been satisfied.
CLOSING FEE. See Section 5.1.
CO-ARRANGER. Wachovia Securities Inc.
CODE. The Internal Revenue Code of 1986.
COMMITMENT. With respect to each Lender, the amount set forth on SCHEDULE 1
hereto as the amount of such Lender's commitment to make Revolving Credit Loans
to, and to participate in the issuance, extension, amendment and renewal of
Letters of Credit for the account of, the Borrower, as the same may be increased
or reduced from time to time pursuant to the terms hereof; or if such commitment
is terminated pursuant to the provisions hereof, zero.
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1 hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders to make Revolving Credit Loans and to
participate in the issuance, extension, amendment and renewal of Letters of
Credit for the account of the Borrower.
COMPLIANCE CERTIFICATE. See Section 8.3(c).
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.
CONSOLIDATED EBITDA. With respect to any fiscal period, an amount equal to
the sum of (a) consolidated earnings (or losses) from the operations of the
Borrower and its Subsidiaries for such fiscal period, after all operating
expenses and other proper charges but before payment or provision for any income
taxes or interest expenses for such fiscal period, PLUS (b) in each case to the
extent deducted in the calculation of consolidated earnings (or loss) from the
operations of the Borrower and its Subsidiaries for such fiscal period and
without duplication, depreciation and amortization for such period, all as
determined in accordance with GAAP.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with GAAP.
CONSOLIDATED RENTAL EXPENSE. All obligations of the Borrower or any of its
Subsidiaries under any rental agreements or leases of real property, other than
(a) obligations that can be terminated by the giving of notice without liability
to the Borrower or such Subsidiary in excess of the liability for rent due as of
the date on which such notice is given and under which no penalty or premium is
paid as a
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result of any such termination, and (b) obligations in respect of Capitalized
Leases and Synthetic Leases.
CONSOLIDATED TOTAL FUNDED DEBT. With respect to the Borrower and its
Subsidiaries, the aggregate amount of Borrowed Money Indebtedness of the
Borrower and its Subsidiaries.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period in accordance with GAAP
(including payments consisting of interest in respect of any Capitalized Lease
or any Synthetic Lease).
CONVERSION REQUEST. A notice given by the Borrower to the Administrative
Agent of the Borrower's election to convert or continue a Loan in accordance
with Section 2.7.
CREDIT AGREEMENT. This Amended and Restated Revolving Credit Agreement,
including the Schedules and Exhibits hereto, as originally executed, or if this
Amended and Restated Revolving Credit Agreement is further amended, varied or
supplemented from time to time, as so amended, varied or supplemented.
DEFAULT. Any event described in Section 13 (other than an event described
in Section 13.1(d)) which would constitute, after the giving of notice or the
lapse of time required pursuant to such Section 13, an Event of Default.
DELINQUENT LENDER. See Section 14.5.3.
DERIVATIVE TRANSACTIONS. Every obligation of the Borrower or any of its
Subsidiaries under any forward contract, futures contract, swap, option or other
financing agreement or arrangement (including, without limitation, caps, floors,
collars and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices.
DETERMINATION DATE. See Section 2.6(b).
DISTRIBUTION. (a) The declaration or payment by the Borrower of any
dividend on or in respect of any shares of any class of Capital Stock of the
Borrower, other than dividends payable solely in shares of common stock of the
Borrower or stock splits; (b) the purchase (including purchases related to the
Borrower's employee stock purchase plans and stock option plans), redemption,
defeasance, retirement or other acquisition by the Borrower of any shares of any
class of Capital Stock of the Borrower, directly or indirectly through a
Subsidiary of the Borrower or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose), other than
any such purchase, redemption or acquisition in exchange for shares of common
stock of the Borrower; or (c) the return of capital by the Borrower to its
shareholders as such.
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DOCUMENTARY LETTER OF CREDIT FEE. See Section 4.6.
DOLLARS or $. Dollars in lawful currency of the United States of America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender designated as
such in SCHEDULE 1 hereto; thereafter, such other office of such Lender, if any,
located within the United States that will be making or maintaining Prime Rate
Loans.
DRAWDOWN DATE. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with Section 2.7.
EBITDA. With respect to any fiscal period of any Person, an amount equal to
the sum of (a) earnings (or loss) from the operations of such Person for such
fiscal period, after all operating expenses and other proper charges but before
payment or provision for any income taxes or interest expense for such fiscal
period, PLUS (b) in each case to the extent deducted in the calculation of such
Person's earnings (or loss) from the operations for such fiscal period and
without duplication, depreciation and amortization for such period, all as
determined in accordance with GAAP.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
ENVIRONMENTAL LAWS. Any and all federal, state, local and foreign statutes,
laws, judicial decisions, regulations, ordinances, rules, judgments, orders,
decrees, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances or wastes into the
environment, including without limitation, ambient air, surface water, ground
water or land, or otherwise relating to 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.
EQUITY RELATED PURCHASE OBLIGATION. Any (a) derivatives or other
transactions with any financial institution, commodities or stock exchange or
clearinghouse (a "DERIVATIVES COUNTERPARTY") obligating the Borrower or any of
its Subsidiaries to make payments to such Derivatives Counterparty as a result
of any change in market value of any Capital Stock of the Borrower or such
Subsidiary and (b) irrevocable obligations to purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock issued by such Person or
any rights measured by the value of such Capital Stock.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
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ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "EUROCURRENCY
LIABILITIES" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Lender designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate of interest equal to (a) the arithmetic average of the rates per
annum for the Reference Lender (rounded upwards to the nearest 1/16 of one
percent) of the rate at which the Reference Lender's Eurodollar Lending Office
is offered Dollar deposits two Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations of such Eurodollar Lending Office
are customarily conducted, for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to the
amount of the Eurodollar Rate Loan of the Reference Lender to which such
Interest Period applies, DIVIDED BY (b) a number equal to 1.00 MINUS the
Eurocurrency Reserve Rate, if applicable, at the time such Eurodollar Rate Loan
was requested.
EURODOLLAR RATE LOANS. Revolving Credit Loans bearing interest calculated
by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See Section 13.1.
EXECUTIVE ORDER. See Section 7.15.
EXISTING CREDIT AGREEMENT. As defined in the preamble hereto.
EXISTING LETTERS OF CREDIT. Collectively, the letters of credit listed on
SCHEDULE 1-A hereto issued under the Existing Credit Agreement.
FACILITY FEE. See Section 2.2.
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FACTORABLE RECEIVABLES. Accounts receivable of the Borrower and its
Subsidiaries that (a) arise from the sales of inventory, (b) are produced in the
ordinary course of business and (c) are not contingent upon any further
performance (other than product guarantees) by the Borrower or any of its
Subsidiaries.
FEE LETTER. The fee letter, dated as of March 10, 2004, among the Borrower,
the Administrative Agent and the Arranger, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
FEES. Collectively, the Facility Fee, the Letter of Credit Fees, the
Administrative Agent's fee and the Closing Fee.
FINAL MATURITY DATE. April 30, 2007, as the same may be extended pursuant
to Section 2.6 hereof, but in no event later than April 30, 2008.
FINANCIAL AFFILIATE. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary is engaging in any of the activities permitted by
Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. Section 1843).
FIXED CHARGE COVERAGE RATIO. For any Reference Period, the ratio of (a)
Consolidated EBITDA for such period PLUS Consolidated Rental Expense for such
period MINUS Capital Expenditures made by the Borrower and its Subsidiaries
during such period to (b) Consolidated Total Interest Expense for such period
PLUS Consolidated Rental Expense for such period.
FLEET. Fleet National Bank and its successors.
FOREIGN ASSETS CONTROL REGULATION. See Section 7.15.
GAAP OR GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Principles that are
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time.
GOVERNING DOCUMENTS. With respect to any Person, its certificate or
articles of incorporation, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its Capital Stock.
GOVERNMENTAL AUTHORITY. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
GUARANTEE. With respect to any Person, the act of guaranteeing, or any act
having the economic effect of guaranteeing or otherwise acting as surety for,
any obligation (other than endorsements for collection or deposit in the
ordinary course of business) (the "PRIMARY OBLIGATION") of another Person (the
"PRIMARY OBLIGOR"), in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase of) any security for the
payment of such
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primary obligation, (ii) to purchase property, securities or services for the
purpose of assuring the payment of such primary obligation, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
primary obligation. The "AMOUNT" or "PRINCIPAL AMOUNT" of any obligations
Guaranteed by any Person shall be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guaranty or other
contingent obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTORS. Collectively, each Significant Subsidiary of the Borrower
existing on the Closing Date (other than Timberland Europe, Inc.) and each other
Person which is required to be or becomes a guarantor from time to time pursuant
to Section 8.11 hereof or as the Borrower elects. Each such Person shall be a
party to the Subsidiary Guaranty.
HAZARDOUS SUBSTANCES. Hazardous waste, as defined by 42 U.S.C. Section
6903(5), any hazardous substances as defined by 42 U.S.C. Section 9601(14), any
pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws.
INELIGIBLE SECURITIES. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
INTEREST PAYMENT DATE. (a) As to any Prime Rate Loan, the first day of the
next succeeding calendar quarter with respect to interest accrued during the
immediately preceding calendar quarter, including, without limitation, the
calendar quarter which includes the Drawdown Date of such Prime Rate Loan; and
(b) as to any Eurodollar Rate Loan in respect of which the Interest Period is
(i) three (3) months or less, the last day of such Interest Period and (ii) more
than three (3) months, the date that is three (3) months from the first day of
such Interest Period and, in addition, the last day of such Interest Period.
INTEREST PERIOD. (a) With respect to each Revolving Credit Loan which is a
Prime Rate Loan, the period commencing on the Drawdown Date of such Prime Rate
Loan and ending on the last day of each calendar quarter; and
(b) With respect to each Revolving Credit Loan which is a Eurodollar
Rate Loan, the period commencing on the Drawdown Date of such Eurodollar Rate
Loan and ending fourteen (14) days, or one (1), two (2), three (3) or six (6)
months thereafter as determined in accordance with the provisions of this Credit
Agreement;
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PROVIDED that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(ii) if any Interest Period with respect to a Prime Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(iii) if the Borrower shall fail to give notice as provided in
Section 2.7, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Prime Rate Loan and the continuance
of all Prime Rate Loans as Prime Rate Loans on the last day of the then
current Interest Period with respect thereto;
(iv) any Interest Period relating to any Eurodollar Rate Loan
(other than for a Eurodollar Rate Loan that has a fourteen (14) day
Interest Period) that begins on the last Eurodollar Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Eurodollar Business Day of a calendar month; and
(v) any Interest Period that would otherwise extend beyond the
Final Maturity Date shall end on the Final Maturity Date.
INVESTMENT. Any investment in any Person, whether by means of share
repurchase (other than the common stock of the Borrower), capital contribution,
loan, time deposit or otherwise.
ISSUING LENDER. With respect to standby Letters of Credit, the
Administrative Agent, and with respect to documentary Letters of Credit, the
Administrative Agent or any Lender acceptable to the Administrative Agent and
the Borrower. As used herein, the term "ISSUING LENDER" shall refer, as the
context requires, to the Issuing Lender issuing, extending, renewing or amending
any particular Letter of Credit or collectively to each and every Lender which
acts as an Issuing Lender hereunder.
LENDER AFFILIATE. (a) With respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, limited liability
company, trust or legal entity) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by such Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in
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bank loans and similar extensions of credit, any other entity (whether a
corporation, partnership, limited liability company, trust or other legal
entity) that is a fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
LENDERS. Fleet and the other lending institutions listed on SCHEDULE 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Lender pursuant to Section 15.
LETTER OF CREDIT. See Section 4.1.1.
LETTER OF CREDIT APPLICATION. See Section 4.1.1.
LETTER OF CREDIT FEES. Collectively, Standby Letter of Credit Fees and
Documentary Letter of Credit Fees.
LETTER OF CREDIT PARTICIPATION. See Section 4.1.4.
LEVERAGE RATIO. As at any date of determination, the ratio of (a)
Consolidated Total Funded Debt outstanding on such date to (b) Consolidated
EBITDA for the Reference Period ending on such date.
LIEN. Any mortgage, deed of trust, security interest, pledge,
hypothecation, attachment, encumbrance, lien (statutory, judgment or otherwise),
or other security agreement or preferential arrangement that has the practical
effect of creating a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
Capitalized Lease, any Synthetic Lease, any financing lease involving
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction).
LOAN ACCOUNT. With respect to (a) any Revolving Credit Loan, the records or
accounts kept by any Lender with respect to such Revolving Credit Loan and (b)
any Swing Line Loan, the records or accounts kept by the Swing Line Lender with
respect to such Swing Line Loan.
LOAN DOCUMENTS. This Credit Agreement, the Subsidiary Guaranty, the Fee
Letter, the Letter of Credit Applications and the Letters of Credit.
LOAN REQUEST. See Section 2.6.
LOANS. Collectively, the Revolving Credit Loans and the Swing Line Loans.
MATERIAL ADVERSE EFFECT. A material adverse effect on the business or
financial condition, assets, operations or income of the Borrower and its
Subsidiaries, taken as a whole.
MATERIAL DEBT. See Section 13.1(f).
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MATERIAL PLAN(s). A Guaranteed Pension Plan(s) having aggregate Unfunded
Liabilities in excess of $10,000,000.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount that the beneficiaries
may at any time draw under outstanding Letters of Credit, as such aggregate
amount may be reduced from time to time pursuant to the terms of the Letters of
Credit.
MAXIMUM SWING LINE LOAN AMOUNT. See Section 3.1.
MOODY'S. Moody's Investors Services, Inc.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NON-U.S. LENDER. See Section 5.3.3.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Lenders, any Issuing Lender and the
Administrative Agent, individually or collectively, existing on the date of this
Credit Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise,
arising or incurred under this Credit Agreement or any of the other Loan
Documents or in respect of any of the Loans made or Reimbursement Obligations
incurred or any of the Letter of Credit Applications, Letters of Credit or other
instruments at any time evidencing any thereof.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PATRIOT ACT. See Section 16.3.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED ACQUISITION. Any acquisition permitted by Section 9.5.1(b).
PERMITTED FACTORING TRANSACTION. Any sale or other transfer by the Borrower
or any of its Subsidiaries of Factorable Receivables, which sale or transfer
does not involve the creation of any recourse obligation in respect thereof on
the part of the Borrower or any of its Subsidiaries (other than with respect to
matters of title to, and the character of (other than the collectability) of,
the Factorable Receivables so sold or transferred); PROVIDED that the aggregate
principal amount of Factorable Receivables that may be sold or transferred
pursuant to Permitted Factoring Transactions during any fiscal year of the
Borrower shall not exceed $50,000,000.
PERMITTED LIENS. Liens permitted by Section 9.2.
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PERSON. Any individual, corporation, limited liability company partnership,
limited liability partnership, trust, other unincorporated association,
business, or other legal entity, and any Governmental Authority.
PRIME RATE. The higher of (a) the variable annual rate of interest so
designated from time to time by Fleet as its "prime rate", such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (b) one-half of one percent (0.5%) above the
Federal Funds Effective Rate. For the purposes of this definition, "FEDERAL
FUNDS EFFECTIVE RATE" shall mean for any day, the 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, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three (3) funds brokers of recognized standing selected by the
Administrative Agent. Changes in the Prime Rate resulting from any changes in
Fleet's "PRIME RATE" shall take place immediately without notice or demand of
any kind.
PRIME RATE LOANS. Revolving Credit Loans bearing interest calculated by
reference to the Prime Rate.
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
REFERENCE LENDER. Fleet.
REFERENCE PERIOD. As of any date of determination, the period of four (4)
consecutive fiscal quarters of the Borrower and its Subsidiaries ending on such
date, or if such date is not a fiscal quarter end date, the period of four (4)
consecutive fiscal quarters most recently ended (in each case treated as a
single accounting period).
REGISTER. See Section 15.3.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the
Issuing Lender and the Lenders on account of any drawing under any Letter of
Credit as provided in Section 4.2.
REORGANIZATION. The proposed corporate reorganization whereby the
operations of Timberland Europe, Inc. will be transferred to international
finance and trade Subsidiaries.
REPLACEMENT LENDER. See Section 5.12.
REPLACEMENT NOTICE. See Section 5.12.
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REQUIRED LENDERS. As of any date, the Lenders whose aggregate Commitments
total greater than fifty percent (50%) of the Total Commitment.
RESTRICTED PAYMENT. In relation to the Borrower and its Subsidiaries, any
(a) Distribution, (b) payment by the Borrower or its Subsidiaries to the
Borrower's or any Subsidiary's shareholders (or other equity holders), in each
case, other than to the Borrower, or to any Affiliate of the Borrower or any
Subsidiary or any Affiliate of the Borrower's or such Subsidiary's shareholders
(or other equity holders) or (c) Equity Related Purchase Obligation.
REVOLVING CREDIT LOAN(s). Singly, any of, and collectively, all of, the
revolving credit loans made by the Lenders in accordance with their respective
Commitment Percentages to the Borrower as contemplated by Section 2.1 hereof.
SIGNIFICANT SUBSIDIARY. Each Subsidiary of the Borrower which (a) qualifies
as "SIGNIFICANT", as such term is defined under Regulation S-X promulgated by
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, and (b) is organized in the United States of America and the
States (or the District of Columbia) or a territory thereof.
S&P. Standard & Poor's Ratings Group
STANDBY LETTER OF CREDIT FEE. See Section 4.6.
SUBSIDIARY. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
SUBSIDIARY GUARANTY. The Subsidiary Guaranty, dated or to be dated on or
prior to the Closing Date, made by each Significant Subsidiary of the Borrower
(other than Timberland Europe, Inc.) in favor of the Lenders and the
Administrative Agent pursuant to which each such Significant Subsidiary of the
Borrower guaranties to the Lenders and the Administrative Agent the payment and
performance of the Obligations and in form and substance satisfactory to the
Lenders and the Administrative Agent.
SUBSIDIARY LETTERS OF CREDIT. Trade letters of credit issued for the
account of the international Subsidiaries of the Borrower by any of the Lenders
under their respective letter of credit facilities.
SWING LINE LENDER. Fleet or a successor Swing Line Lender.
SWING LINE LOAN. A Revolving Credit Loan made by the Swing Line Lender
pursuant to Section 3.1 hereof.
SWING LINE LOAN MATURITY DATE. See Section 3.2.
SWING LINE LOAN REQUEST. See Section 3.2.
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SYNTHETIC LEASE. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
TOTAL COMMITMENT. The sum of the Commitments of the Lenders, as in effect
from time to time.
TRADING WITH THE ENEMY ACT. See Section 7.15.
TYPE. As to any Revolving Credit Loan, its nature as a Prime Rate Loan or a
Eurodollar Rate Loan.
UNFUNDED LIABILITIES. With respect to any Guaranteed Pension Plan at any
time, the amount by which (if any) (i) the value of all benefit liabilities
under such Guaranteed Pension Plan, determined on a plan termination basis using
all of the assumptions prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (ii) the fair market value of all Guaranteed Pension Plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions), but only to the extent that such excess represents a
potential liability of the Borrower or any ERISA Affiliate to the PBGC or any
other Person under Title IV of ERISA.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which the
Borrower does not reimburse the Issuing Lender and the Lenders on the date
specified in, and in accordance with, Section 4.2.
VOTING STOCK. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
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(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "INCLUDE", "INCLUDES" and "INCLUDING" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in The Commonwealth
of Massachusetts, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial
Code.
(h) Reference to a particular "Section " refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "HEREIN", "HEREOF", "HEREUNDER" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"FROM" means "from and including," the words "TO" and "UNTIL" each mean "to
but excluding," and the word "THROUGH" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Administrative Agent and the Borrower and are the product of
discussions and negotiations among all parties.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time from
the Closing Date to the Final Maturity Date upon notice by the Borrower to the
Administrative Agent given in accordance with Section 2.6, such sums as are
requested by the Borrower up to a maximum aggregate amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Lender's
Commitment MINUS such Lender's Commitment Percentage of the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations; PROVIDED that the sum
of the outstanding amount of the Loans (after giving effect to all amounts
requested) PLUS the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total Commitment at such time. The
Revolving Credit
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Loans shall be made PRO RATA in accordance with each Lender's Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrower that the conditions set forth in
Section 11 and Section 12, in the case of the initial Revolving Credit Loans to
be made on the Closing Date, and Section 12, in the case of all other Revolving
Credit Loans, have been satisfied on the date of such request.
2.2. FACILITY FEE. The Borrower agrees to pay to the Administrative Agent
for the accounts of the Lenders in accordance with their respective Commitment
Percentages a facility fee (the "FACILITY FEE") calculated at the rate per annum
of the Applicable Margin with respect to the Facility Fee as in effect from time
to time on the Total Commitment. The Facility Fee shall be payable quarterly in
arrears on the first day of each calendar quarter for the immediately preceding
calendar quarter (or portion thereof) commencing on the first such date
following the date hereof, with a final payment on the Final Maturity Date or
any earlier date on which the Commitments shall terminate.
2.3. CHANGE OF TOTAL COMMITMENT.
(a) The Borrower shall have the right at any time and from time to time
upon five (5) Business Days prior written notice to the Administrative Agent to
reduce by $5,000,000 or an integral multiple of $1,000,000 in excess thereof or
to terminate entirely the Total Commitment, whereupon the Commitments of the
Lenders shall be reduced PRO RATA in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the Borrower delivered
pursuant to this Section 2.3, the Administrative Agent will notify the Lenders
of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Administrative Agent for the
respective accounts of the Lenders the full amount of any Facility Fee then
accrued to the date of reduction on the amount of the reduction. No reduction or
termination of the Commitments may be reinstated.
(b) So long as no Default or Event of Default shall have occurred and be
continuing, and subject to all terms and conditions set forth herein, the
Borrower may request, by prior written notice to the Administrative Agent, that
the Total Commitment be increased up to $250,000,000. The Borrower may, after
initially requesting the existing Lenders to increase on a pro rata basis their
respective Commitments and after receiving confirmation in writing that such
Lenders do not wish to increase their respective Commitments (or if the
aggregate desired increase in Commitments by the existing Lenders is not
sufficient to satisfy the increase in Total Commitment requested by the
Borrower), solicit one or more commercial banks, other financial institutions or
other Persons satisfactory to the Administrative Agent to become new Lenders;
provided that (a) each Person that becomes a new Lender shall agree to become a
party to, and shall assume and agree to be bound by, this Credit Agreement,
subject to all terms and conditions thereof; (b) no Lender shall have an
obligation to the Borrower to increase its Commitment; and (c) in no event shall
the Total Commitment be increased under this Section 2.3 to an
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amount greater than $250,000,000. Each of the Lenders agrees that after an
increase in the Total Commitment hereunder, the Administrative Agent may,
without further consent of the Lenders, amend SCHEDULE 1 to reflect such
increase and may amend the Credit Agreement and the other Loan Documents to make
such conforming changes to the Credit Agreement and the other Loan Documents as
the Administrative Agent may determine are necessary and adjust the Commitment
Percentage of the Lenders.
2.4. LOAN ACCOUNT. The Revolving Credit Loans and the Obligations of the
Borrower in respect thereof shall be evidenced by this Credit Agreement and the
Loan Account maintained by each Lender with respect to the Revolving Credit
Loans. The Borrower irrevocably authorizes each Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal on such Revolving Credit
Loan, an appropriate notation in such Loan Account reflecting the making of such
Revolving Credit Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Revolving Credit Loans set forth in such Loan Account
shall be PRIMA FACIE evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so recording, any
such amount in such Loan Account shall not limit or otherwise affect the
obligation of the Borrower hereunder to make payments of principal of, or
interest on, the Revolving Credit Loans when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
Section 5.11,
(a) each Revolving Credit Loan which is a Prime Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the Prime Rate PLUS the Applicable Margin with
respect to Prime Rate Loans as in effect from time to time; and
(b) each Revolving Credit Loan which is a Eurodollar Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the Eurodollar Rate determined for such Interest
Period PLUS the Applicable Margin with respect to Eurodollar Rate Loans as
in effect from time to time.
The Borrower promises to pay interest on each Revolving Credit Loan in arrears
on each Interest Payment Date with respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS; REQUEST FOR EXTENSION OF FINAL
MATURITY DATE.
(a) The Borrower shall give to the Administrative Agent written notice in
the form of EXHIBIT A hereto (or telephonic notice confirmed in a writing in the
form of EXHIBIT A hereto) of each Revolving Credit Loan requested hereunder (a
"LOAN
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REQUEST") (a) on or prior to 1:00 p.m. (Boston time) on the proposed Drawdown
Date of any Prime Rate Loan and (b) by 1:00 p.m. (Boston time) on or prior to
the third Eurodollar Business Days prior to the proposed Drawdown Date of any
Eurodollar Rate Loan; PROVIDED that no Eurodollar Rate Loan shall be requested,
and the Lenders shall have no obligation to advance Eurodollar Rate Loans, if a
Default or Event of Default shall have occurred and be continuing. Each such
notice shall specify (i) the principal amount of the Revolving Credit Loan
requested, (ii) the proposed Drawdown Date of such Revolving Credit Loan, (iii)
the Interest Period for such Revolving Credit Loan and (iv) the Type of such
Revolving Credit Loan. Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Lenders thereof. Each Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the Borrower
to accept the Revolving Credit Loan requested from the Lenders on the proposed
Drawdown Date. Each Loan Request for a Prime Rate Loan shall be in a minimum
aggregate amount of $500,000 or an integral multiple of $100,000 in excess
thereof. Each Loan Request for a Eurodollar Rate Loan shall be in a minimum
aggregate amount of $1,000,000 or an integral multiple of $500,000 in excess
thereof.
(b) The Borrower may, provided that no Default or Event of Default has
occurred and is continuing, by written notice to the Administrative Agent given
not less than sixty (60) days prior to the first or the second anniversary of
the Closing Date request that the Final Maturity Date be extended to a date one
year after the then existing Final Maturity Date. The Administrative Agent shall
notify the Lenders of such request promptly after receipt, and request each
Lender to notify the Administrative Agent of its determination to consent or not
to consent to such extension. If each Lender consents to the extension by so
notifying the Administrative Agent in writing no later than thirty (30) Business
Days after receipt of the extension request (the "DETERMINATION DATE"), the
Final Maturity Date shall be extended by such one year period. The determination
with respect to such extension shall be in the sole discretion of each Lender.
Any Lender which fails to give written notice of its consent or non-consent
shall be deemed not to have consented to the extension of the Final Maturity
Date. The Final Maturity Date shall not be extended unless all Lenders consent
to the extension; PROVIDED HOWEVER, that any such non-consenting Lender(s) shall
be replaced with Replacement Lender(s) in accordance with Section 5.12 within
seventy five (75) days after the Determination Date, and, if all remaining
Lenders have consented to the extension, the Final Maturity Date shall be
extended by such one year period.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, PROVIDED that (a)
with respect to any such conversion of a Eurodollar Rate Loan to a Prime
Rate Loan, the Borrower shall give the Administrative Agent at least three
(3) Business Days prior written notice of such election; (b) with respect
to any such conversion of a Prime Rate Loan to a Eurodollar Rate Loan, the
Borrower shall give the Administrative Agent at least three (3) Eurodollar
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Business Days prior written notice of such election; (c) with respect to
any such conversion of a Eurodollar Rate Loan into a Prime Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto and (d) no Revolving Credit Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has occurred and
is continuing. On the date on which such conversion is being made each
Lender shall take such action as is necessary to transfer its Commitment
Percentage of such Revolving Credit Loans to its Domestic Lending Office or
its Eurodollar Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted into a
Revolving Credit Loan of another Type as provided herein, PROVIDED that (i)
any partial conversion of a Prime Rate Loan into a Eurodollar Rate Loan
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
of $500,000 in excess thereof and (ii) any partial conversion of a
Eurodollar Rate Loan into a Prime Rate Loan shall be in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Conversion Request relating to the conversion of a Prime Rate
Loan to a Eurodollar Rate Loan shall be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in Section
2.7.1; PROVIDED that no Eurodollar Rate Loan may be continued as such when
any Event of Default has occurred and is continuing, but shall be
automatically converted to a Prime Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any Event
of Default of which officers of the Administrative Agent active upon the
Borrower's account have actual knowledge. In the event that the Borrower
fails to provide any such notice with respect to the continuation of any
Eurodollar Rate Loan as such, then such Eurodollar Rate Loan shall be
automatically converted to a Prime Rate Loan on the last day of the first
Interest Period relating thereto. The Administrative Agent shall notify the
Lenders promptly when any such automatic conversion contemplated by this
Section 2.7.2 is scheduled to occur.
2.7.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $1,000,000 or a whole multiple of $500,000 in excess thereof.
2.7.4. APPLICABILITY OF CONVERSION AND CONTINUATION PROVISIONS TO
SWING LINE LOANS. Notwithstanding anything to the contrary contained
herein, the provisions of this Section 2.7 shall not apply to Swing Line
Loans.
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2.8. FUNDS FOR REVOLVING CREDIT LOANS.
2.8.1. FUNDING PROCEDURES. Not later than 3:00 p.m. (Boston time) on
the proposed Drawdown Date of any Revolving Credit Loans, each of the
Lenders will make available to the Administrative Agent, at the
Administrative Agent's Office, in immediately available funds, the amount
of such Lender's Commitment Percentage of the amount of the requested
Revolving Credit Loans. Upon receipt from each Lender of such amount, and
upon receipt of the documents required by Section 11 for the Closing Date
and Section 12 thereafter and the satisfaction of the other conditions set
forth therein, to the extent applicable, the Administrative Agent will make
available to the Borrower, in immediately available funds, the aggregate
amount of such Revolving Credit Loans made available to the Administrative
Agent by the Lenders. The failure or refusal of any Lender to make
available to the Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Lender from its several
obligation hereunder to make available to the Administrative Agent the
amount of such other Lender's Commitment Percentage of any requested
Revolving Credit Loans.
2.8.2. ADVANCES BY ADMINISTRATIVE AGENT. The Administrative Agent may,
unless notified to the contrary by any Lender prior to a Drawdown Date,
assume that such Lender has made available to the Administrative Agent on
such Drawdown Date the amount of such Lender's Commitment Percentage of the
Revolving Credit Loans to be made on such Drawdown Date, and the
Administrative Agent may (but it shall not be required to), in reliance
upon such assumption, make available to the Borrower a corresponding
amount. If any Lender makes available to the Administrative Agent such
amount on a date after such Drawdown Date, such Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day included in such
period, TIMES (b) the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans, TIMES (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of
the Administrative Agent submitted to such Lender with respect to any
amounts owing under this paragraph shall be PRIMA FACIE evidence of the
amount due and owing to the Administrative Agent by such Lender. If the
amount of such Lender's Commitment Percentage of such Revolving Credit
Loans is not made available to the Administrative Agent by such Lender
within three (3) Business Days of notice to such Lender and the Borrower
following such Drawdown Date, the Administrative Agent shall be entitled to
recover such
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amount from the Borrower on demand, with interest thereon at the rate per
annum applicable to the Revolving Credit Loans made on such Drawdown Date.
2.9. OPTIONAL PREPAYMENTS. The Borrower shall have the right, at its
election, to repay the outstanding amount of the Revolving Credit Loans, as
a whole or in part, at any time without penalty or premium (including,
without limitation, Section 5.10), PROVIDED that the Borrower shall comply
with Section 5.10 as a result of any Eurodollar Rate Loan being repaid in
whole or in part prior to the last day of the Interest Period relating
thereto. The Borrower shall give the Administrative Agent (a) no later than
11:00 a.m. (Boston time) on the proposed date of prepayment, written notice
of any proposed prepayment pursuant to this Section 2.9 of Prime Rate
Loans, and (b) notice by 11:00 a.m. (Boston time) on the third Eurodollar
Business Day prior to the date of proposed prepayment pursuant to this
Section 2.9 of Eurodollar Rate Loans, in each case specifying the proposed
date of prepayment of Revolving Credit Loans and the principal amount to be
prepaid. Each such partial prepayment of the Revolving Credit Loans shall
be in an integral multiple of $1,000,000 or an integral multiple of
$500,000 in excess thereof, shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment and shall be
applied, in the absence of instruction by the Borrower, FIRST to the
principal of Prime Rate Loans and THEN to the principal of Eurodollar Rate
Loans. Each partial prepayment shall be allocated among the Lenders, in
proportion, as nearly as practicable, to the respective unpaid principal
amount of each Lender's Revolving Credit Loan, with adjustments to the
extent practicable to equalize any prior repayments not exactly in
proportion.
2.10. MANDATORY REPAYMENTS. If at any time the sum of the outstanding
amount of the Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Total Commitment at such time, then
the Borrower shall immediately pay the amount of such excess to the
Administrative Agent for the respective accounts of the Lenders for
application: FIRST, to any Unpaid Reimbursement Obligations; SECOND, to the
Swing Line Loans; THIRD, to the Revolving Credit Loans; and FOURTH, to
provide to the Administrative Agent cash collateral for Reimbursement
Obligations as contemplated by Section 4.2(b) and (c). Each payment of any
Unpaid Reimbursement Obligations or prepayment of Revolving Credit Loans
shall be allocated among the Lenders, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Lender's Revolving Credit Loan,
with adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion. Further, the Borrower promises to
pay on the Final Maturity Date, and there shall become absolutely due and
payable on the Final Maturity Date, all of the Loans outstanding on such
date, together with any and all accrued and unpaid interest thereon.
3. THE SWING LINE.
3.1. THE SWING LINE LOANS. Subject to the terms and conditions
hereinafter set forth, upon notice by the Borrower made to the Swing Line
Lender in
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accordance with Section 3.2 hereof, the Swing Line Lender agrees to lend to
the Borrower Swing Line Loans on any Business Day prior to the Final
Maturity Date in an aggregate principal amount not to exceed $20,000,000
(the "MAXIMUM SWING LINE LOAN AMOUNT"). Each Swing Line Loan shall be in a
minimum amount equal to $500,000 or an integral multiple of $100,000 in
excess thereof. Notwithstanding any other provisions of this Credit
Agreement and in addition to the limit set forth above, at no time shall
the aggregate principal amount of all outstanding Swing Line Loans exceed
the remainder of (i) the Total Commitment then in effect MINUS (ii) the sum
of, without duplication, (A) the aggregate principal amount of all
Revolving Credit Loans outstanding, PLUS (B) the Maximum Drawing Amount,
PLUS (C) all Unpaid Reimbursement Obligations; PROVIDED, HOWEVER, subject
to the limitations set forth in this Section 3.1 from time to time the sum
of the aggregate outstanding Swing Line Loans PLUS all outstanding
Revolving Credit Loans made by the Swing Line Lender may exceed the Swing
Line Lender's Commitment or Commitment Percentage of the Total Commitment
then in effect.
3.2. NOTICE OF BORROWING. When the Borrower desires the Swing Line
Lender to make a Swing Line Loan, the Borrower shall send to the
Administrative Agent and the Swing Line Lender written notice in the form
of EXHIBIT B hereto (or telephonic notice confirmed in a writing in the
form of EXHIBIT B hereto) of each Swing Line Loan requested hereunder (a
"SWING LINE LOAN REQUEST") not later than 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Swing Line Loan. Each such Swing Line Loan
Request shall set forth the principal amount of the proposed Swing Line
Loan and the date on which the proposed Swing Line Loan would mature (the
"SWING LINE LOAN MATURITY DATE") which shall in no event be later than the
earlier of (i) the date which is ten (10) days following the Drawdown Date
of such Swing Line Loan, (ii) the occurrence of a Default or Event of
Default and (iii) the Final Maturity Date. Each Swing Line Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to borrow the Swing Line Loan from the Swing Line Lender on the
proposed Drawdown Date thereof. Upon satisfaction of the applicable
conditions set forth in this Credit Agreement, on the proposed Drawdown
Date the Swing Line Lender shall make the Swing Line Loan available to the
Borrower no later than 3:00 p.m. (Boston time) on the proposed Drawdown
Date by crediting the amount of the Swing Line Loan to the account(s) of
the Borrower specified in the Swing Line Loan Request; PROVIDED that the
Swing Line Lender shall not advance any Swing Line Loans if a Default or an
Event of Default has occurred and is continuing. The Swing Line Lender
shall not be obligated to make any Swing Line Loans at any time when any
Lender is a Delinquent Lender unless the Swing Line Lender has entered into
arrangements reasonably satisfactory to it to eliminate the Swing Line
Lender's risk with respect to such Delinquent Lender, which may include
cash collateralizing such Delinquent Lender's Commitment Percentage of the
outstanding Swing Line Loans and any such additional Swing Line Loans to be
made.
3.3. INTEREST ON SWING LINE LOANS. Except as otherwise provided in
Section 5.11 hereof, each Swing Line Loan shall bear interest for the
period commencing on the Drawdown Date thereof and ending on the Swing Line
Loan Maturity Date with respect thereto at the rate per annum quoted by the
Swing Line Lender upon receipt
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of a Swing Line Loan Request (but which rate shall not exceed the Prime
Rate in effect on the date of quotation). The Borrower promises to pay
interest on each Swing Line Loan in arrears on the Swing Line Loan Maturity
Date with respect thereto.
3.4. REPAYMENT OF SWING LINE LOANS.
3.4.1. FUNDING BY THE BORROWER. The Borrower shall repay each
outstanding Swing Line Loan on the Swing Line Loan Maturity Date. The
Borrower shall have the right, at its election, to prepay the
outstanding amount of each Swing Line Loan, as a whole or in part,
prior to the Swing Line Loan Maturity Date, PROVIDED that the Borrower
shall indemnify the Swing Line Lender and hold the Swing Line Lender
harmless from and against any loss, cost or expense (including loss of
anticipated profits and costs of redeployment of funds) that the Swing
Line Lender may sustain or incur as a consequence of such prepayment
of such Swing Line Loan. The Borrower shall give the Swing Line Lender
written notice of any proposed prepayment of any Swing Line Loan by
not later than 11:00 a.m. (Boston time) on the proposed date of
prepayment, specifying the proposed date of prepayment of such Swing
Line Loans and the principal amount to be prepaid. Each such partial
prepayment of the Swing Line Loans shall be in an amount equal to
$500,000 or an integral multiple of $100,000 in excess thereof and
shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of prepayment.
3.4.2. FUNDING WITH REVOLVING CREDIT LOANS. Upon notice by the
Swing Line Lender on any Business Day on which a Swing Line Loan is
outstanding after the Swing Line Loan Maturity Date, each of the
Lenders hereby agrees to make Revolving Credit Loans constituting
Prime Rate Loans to the Borrower having outstanding Swing Line Loans,
(a) by 3:00 p.m. (Boston time) if such notice is given to the Lenders
by 1:00 p.m. on such Business Day or (b) on the next succeeding
Business Day if such notice is not given by 1:00 p.m. (Boston time) on
such Business Day. Such Revolving Credit Loans shall be in an amount
equal to such Lender's Commitment Percentage of the aggregate amount
of all Swing Line Loans outstanding to the Borrower. The proceeds
thereof shall be applied directly to the Swing Line Lender to repay
the Swing Line Lender for such outstanding Swing Line Loans. Each
Lender hereby absolutely, unconditionally and irrevocably agrees to
make such Revolving Credit Loans notwithstanding (i) that the amount
of such Revolving Credit Loan may not comply with the applicable
minimums set forth herein, (ii) the failure of the Borrower to meet
the conditions set forth in Sections 11 or 12 hereof, (iii) the
occurrence or continuance of a Default or an Event of Default
hereunder, (iv) the date of such Revolving Credit Loan, and (v) the
Total Commitment in effect at such time. In the event that it is
impracticable for such Revolving Credit Loan to be made for any reason
on the date otherwise required above, then each Lender hereby agrees
that it shall forthwith purchase (as of the date such Revolving Credit
Loan would have been made, but adjusted for any payments received from
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the Borrower on or after such date and prior to such purchase) from
the Swing Line Lender, and the Swing Line Lender shall sell to each
Lender, such participations in the Swing Line Loans (including all
accrued and unpaid interest thereon) outstanding as shall be necessary
to cause the Lenders to share in such Swing Line Loans PRO RATA based
on their respective Commitment Percentages (without regard to any
termination of the Total Commitment hereunder) by making available to
the Swing Line Lender an amount equal to such Lender's participation
in the Swing Line Loans; PROVIDED that (A) all interest payable on the
Swing Line Loans shall be for the account of the Swing Line Lender as
a funding and administrative fee until the date as of which the
respective participation is purchased, and (B) at the time any
purchase of such participation is actually made, the purchasing Lender
shall be required to pay the Swing Line Lender interest on the
principal amount of the participation so purchased for each day from
and including the date such Revolving Credit Loan would otherwise have
been made until the date of payment for such participation at the rate
of interest in effect applicable to Prime Rate Loans during such
period.
3.5. LOAN ACCOUNT. The Swing Line Loans and the Obligations of the
Borrower in respect thereof shall be evidenced by this Credit Agreement and
the Loan Account maintained by the Swing Line Lender with respect to the
Swing Line Loans. The Borrower irrevocably authorizes the Swing Line Lender
to make or cause to be made, at or about the time of the Drawdown Date of
any Swing Line Loan or at the time of receipt of any payment of principal
on such Swing Line Loan, an appropriate notation in such Loan Account
reflecting the making of such Swing Line Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Swing Line Loans set
forth in such Loan Account shall be PRIMA FACIE evidence of the principal
amount thereof owing and unpaid to the Swing Line Lender, but the failure
to record, or any error in so recording, any such amount in such Loan
Account shall not limit or otherwise affect the obligation of the Borrower
hereunder to make payments of principal of, or interest on, the Swing Line
Loans when due.
4. LETTERS OF CREDIT.
4.1. LETTER OF CREDIT COMMITMENTS.
4.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by the
Borrower of a letter of credit application on the Issuing Lender's
customary form (a "LETTER OF CREDIT APPLICATION"), the Issuing Lender
on behalf of the Lenders and in reliance upon the agreement of the
Lenders set forth in Section 4.1.4 and upon the representations and
warranties of the Borrower contained herein, agrees, in its individual
capacity, to issue, extend, amend and renew for the account of the
Borrower one or more standby or documentary letters of credit
(individually, a "LETTER OF CREDIT"), in such form as may be requested
from time to time by the Borrower (which may be on behalf of its
Subsidiaries) and agreed to by the Issuing Lender; PROVIDED, HOWEVER,
that, after giving effect
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to such request, (a) the sum of the aggregate Maximum Drawing Amount
and all Unpaid Reimbursement Obligations shall not exceed $125,000,000
at any one time and (b) the sum of (i) the Maximum Drawing Amount on
all Letters of Credit, (ii) all Unpaid Reimbursement Obligations, and
(iii) the amount of all Loans outstanding shall not exceed the Total
Commitment at such time; and PROVIDED, FURTHER, that the sum of the
aggregate Maximum Drawing Amount and all Unpaid Reimbursement
Obligations with respect to standby Letters of Credit shall not exceed
$25,000,000 at any one time. As of the Closing Date, the Existing
Letters of Credit shall be deemed to be Letters of Credit issued
pursuant and subject to the conditions of this Section 4 and the
Borrower hereby affirms its obligations thereunder. For purposes of
determining the Maximum Drawing Amount of any Letter of Credit issued
by the Issuing Lender in a currency other than Dollars at any time,
such Maximum Drawing Amount shall be equal to the Dollar equivalent of
the face amount at such time and shall be determined at the time of
issuance and at the end of each calendar quarter.
4.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Issuing
Lender. In the event that any provision of any Letter of Credit
Application shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the
extent of any such inconsistency, govern.
4.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended, amended or renewed hereunder shall, among other things, (a)
provide for the payment of drafts for honor thereunder when presented
in accordance with the terms thereof and when accompanied by the
documents described therein, and (b) have an expiry date no later than
the date which is ten (10) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one or more
nominated persons, thirty (30) days) prior to the Final Maturity Date.
Each Letter of Credit so issued, extended, amended or renewed shall be
subject to the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500
or any successor version thereto adopted by the Issuing Lender in the
ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit (the "UNIFORM
CUSTOMS") or, in the case of a standby Letter of Credit, either the
Uniform Customs or the International Standby Practices (ISP98),
International Chamber of Commerce Publication No. 590, or any
successor code of standby letter of credit practices among banks
adopted by the Issuing Lender in the ordinary course of its business
as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
4.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS. Each Lender
severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Lender's
Commitment
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Percentage, to reimburse the Issuing Lender on demand for the amount
of each draft paid by the Issuing Lender under each Letter of Credit
to the extent that such amount is not reimbursed by the Borrower
pursuant to Section 4.2 (such agreement for a Lender being called
herein the "LETTER OF CREDIT PARTICIPATION" of such Lender). Letter of
Credit Participations with respect to Letters of Credit payable in a
currency other than Dollars shall be payable in Dollars at the then
prevailing exchange rate determined in each case by the Issuing Lender
at the time any Letter of Credit Participation payment is due to the
Issuing Lender.
4.1.5. PARTICIPATIONS OF LENDERS. Each such payment made by a
Lender shall be treated as the purchase by such Lender of a
participating interest in the Borrower's Reimbursement Obligation
under Section 4.2 in an amount equal to such payment. Each Lender
shall share in accordance with its participating interest in any
interest which accrues pursuant to Section 4.2.
4.1.6. NOTICE TO ADMINISTRATIVE AGENT. At the time of issuance of
each Letter of Credit, the Issuing Lender shall notify the
Administrative Agent of the Maximum Drawing Amount of such Letter of
Credit and the other terms of such Letter of Credit.
4.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Issuing Lender to issue, extend, amend and renew each Letter of Credit and
the Lenders to participate therein, the Borrower hereby agrees to reimburse
or pay to the Issuing Lender, for the account of the Issuing Lender or (as
the case may be) the Lenders, with respect to each Letter of Credit issued,
extended, amended or renewed by the Issuing Lender hereunder,
(a) except as otherwise expressly provided in Section 4.2(b) and
(c) and subject to Section 4.3, on each date that any draft presented
under such Letter of Credit is honored by the Issuing Lender, or the
Issuing Lender otherwise makes a payment with respect thereto, (i) the
amount paid by the Issuing Lender under or with respect to such Letter
of Credit, and (ii) the amount of any taxes, fees, charges or other
costs and expenses whatsoever incurred by the Issuing Lender or any
Lender in connection with any payment made by the Issuing Lender or
any Lender under, or in respect to, such Letter of Credit with notice
to the Borrower; PROVIDED, HOWEVER, if the Issuing Lender notifies the
Borrower after 10:30 a.m. (Boston time) on such date, such amounts
shall be due and payable by 1:00 p.m. (Boston time) on the immediately
succeeding Business Day,
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an
amount equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the Lenders. the Issuing
Lender and the Administrative Agent as cash collateral for all
Reimbursement Obligations, and
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(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 13, an amount equal to
the then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Administrative Agent for the benefit of the
Lenders, the Issuing Lender and the Administrative Agent as cash
collateral for all Reimbursement Obligations.
Each such payment shall be made to the Issuing Lender at the Issuing Lender's
office designated on SCHEDULE 1 hereto in immediately available funds. Interest
on any and all amounts remaining unpaid by the Borrower under this Section 4.2
at any time from the date such amounts become due and payable (whether as stated
in this Section 4.2, by acceleration or otherwise) until payment in full
(whether before or after judgment) shall be payable to the Issuing Lender on
demand at the rate specified in Section 5.11 for overdue principal on the
Revolving Credit Loans. If a drawing under any Letter of Credit is payable in a
currency other than Dollars, the Borrower agrees to pay the Issuing Lender the
equivalent of the amount of such drawing in Dollars, at the Issuing Lender's
then prevailing exchange rate, determined in each case at the time such drawing
is paid by the Issuing Lender.
4.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Issuing Lender
shall notify the Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrower fails to reimburse the Issuing
Lender as provided in Section 4.2, the Issuing Lender may at any time thereafter
notify the Lenders of the amount of any such Unpaid Reimbursement Obligation.
Each Lender shall make available to the Issuing Lender, at the Issuing Lender's
office designated on SCHEDULE 1 hereto, in immediately available funds in
Dollars (determined in accordance with the last sentence of Section 4.2 in the
case of drawings paid in a currency other than Dollars), such Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (a) the average, computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by the
Issuing Lender for federal funds acquired by the Issuing Lender during each day
included in such period, TIMES (b) the amount equal to such Lender's Commitment
Percentage of such Unpaid Reimbursement Obligation, TIMES (c) a fraction, the
numerator of which is the number of days that elapse from and including the date
the Issuing Lender paid the draft presented for honor or otherwise made payment
to the date on which such Lender's Commitment Percentage of such Unpaid
Reimbursement Obligation shall become immediately available to the Issuing
Lender, and the denominator of which is 360. Such amount required to be paid to
the Issuing Lender by the Lenders by the preceding sentence shall be made
available to the Issuing Lender by (i) if the Issuing Lender notifies the
Lenders of such amount by 1:00 p.m. (Boston time) on the date that any draft
under a Letter of Credit is paid, not later than 3:00 p.m. (Boston time) on such
date, and (ii) if the Issuing Lender notifies the Lenders of such amount at any
time after 1:00 p.m. (Boston time) on the date that any draft under a Letter of
Credit is paid, not later than 3:00 p.m. (Boston time) on the next succeeding
Business Day following the
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date of receipt of such notice. The responsibility of the Issuing Lender to the
Borrower and the Lenders shall be only to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity with such Letter of Credit. The Issuing
Lender shall not honor, without the prior consent of the Borrower, any demand
for payment or notice of a drawing under a Letter of Credit for which discrepant
documentation has been presented. The Issuing Lender shall promptly provide the
Borrower with written, electronic or oral notification of the existence and
nature of any such discrepancy. The Borrower shall instruct the Issuing Lender
to honor or dishonor such drawing within three (3) Business Days (or such
additional time as the Issuing Lender shall, in its sole and absolute
discretion, agree) of the Borrower's receipt of notification of such
discrepancy. In addition, all Letters of Credit shall, unless the Issuing Lender
and the Lenders agree otherwise in writing, have a stated expiration date not to
exceed one (1) year from the date of issuance. The stated expiration date of a
Letter of Credit may be after the Final Maturity Date; provided, however, that
for any Letter of Credit outstanding five (5) Business Days prior to the Final
Maturity Date, the Borrower must, on such date, provide to the Administrative
Agent cash collateral in an amount equal to 105% of the Maximum Drawing Amount
of the Letters of Credit outstanding on such date.
4.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Section 4
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against any beneficiary of a Letter of
Credit or any setoff or counterclaim against any Issuing Lender or any Lender
except as otherwise provided in this Credit Agreement. The Borrower further
agrees with the Issuing Lender, the Administrative Agent and the Lenders that
the Issuing Lender, the Administrative Agent and the Lenders shall not be
responsible for, and the Borrower's Reimbursement Obligations under Section 4.2
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, the beneficiary of any Letter of Credit or any
financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrower against the
beneficiary of any Letter of Credit or any such transferee. The Issuing Lender,
the Administrative Agent and the Lenders shall not 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 Letter of Credit,
if done in good faith and without willful misconduct or gross negligence. The
Borrower agrees that any action taken or omitted by the Issuing Lender, the
Administrative Agent or any Lender under or in connection with each Letter of
Credit and the related drafts and documents, if done in good faith and without
willful misconduct or gross negligence, shall be binding upon the Borrower and
shall not result in any liability on the part of the Issuing Lender, the
Administrative Agent or any Lender to the Borrower.
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4.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section 4.4,
the Issuing Lender shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex, electronic
mail 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, if the Issuing Lender shall determine that such advice is
reasonably necessary, upon advice and statements of legal counsel, independent
accountants and other experts selected by the Issuing Lender. The Issuing Lender
shall be fully justified in failing or refusing to take any action under this
Credit 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 may be incurred by it by reason of taking or
continuing to take any such action. The Issuing Lender shall in all cases be
fully protected in acting, or in refraining from acting, under this Credit
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 all future holders of a Letter of Credit Participation.
4.6. LETTER OF CREDIT FEES. The Borrower shall pay to the Administrative
Agent, for the accounts of the Lenders in accordance with their respective
Commitment Percentages, a letter of credit fee with respect to (a) each standby
Letter of Credit (each, a "STANDBY LETTER OF CREDIT FEE") computed for the
period from and including the date of issuance, extension or renewal of such
standby Letter of Credit to the expiry date of such standby Letter of Credit, at
a rate per annum equal to the Applicable Margin per annum with respect to
Standby Letter of Credit Fees MULTIPLIED BY the aggregate face amount of standby
Letters of Credit outstanding and (b) each documentary Letter of Credit (a
"DOCUMENTARY LETTER OF CREDIT FEE"), computed for the period from and including
the date of issuance, extension or renewal of such documentary Letter of Credit
to the expiry date of such documentary Letter of Credit, at a rate per annum
equal to the Applicable Margin per annum with respect to Documentary Letter of
Credit Fees MULTIPLIED BY the aggregate face amount of documentary Letters of
Credit outstanding. Such Letter of Credit Fees shall be payable quarterly in
arrears on the first Business Day of each calendar quarter (or portion thereof)
of the Borrower for the immediately preceding calendar quarter of the Borrower
and on the Final Maturity Date. In addition, the Borrower shall pay to the
Issuing Lender a fronting fee for the account of the Issuing Lender in an amount
agreed upon by the Issuing Lender and the Borrower and based on the face amount
of each standby Letter of Credit, which fronting fee shall be payable in arrears
on the first Business Day of each calendar quarter (or portion thereof) of the
Borrower for the immediately preceding calendar quarter of the Borrower and on
the Final Maturity Date. In respect of each Letter of Credit, the Borrower shall
also pay to the Issuing Lender for the Issuing Lender's own account the Issuing
Lender's customary issuance, amendment, negotiation or document examination and
other administrative fees in such amounts and at such times as agreed upon
between the Borrower and the Issuing Lender when due. For purposes of
calculating fees pursuant to this Section 4.6 with respect to outstanding
Letters of Credit issued in a currency other than Dollars, the face amount of
each such outstanding
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Letter of Credit shall be the Dollar equivalent of such face amount as of the
date any such fees are due and at the end of each calendar quarter.
5. CERTAIN GENERAL PROVISIONS.
5.1. CLOSING FEES. The Borrower agrees to pay to the Administrative Agent
for the accounts of the Lenders on the Closing Date the closing fees and any
other fees due and payable on the Closing Date (the "CLOSING FEE") as set forth
in the Fee Letter.
5.2. ADMINISTRATIVE AGENT'S FEE. The Borrower shall pay to the
Administrative Agent, for the Administrative Agent's own account, an
Administrative Agent's fee as set forth in the Fee Letter.
5.3. FUNDS FOR PAYMENTS.
5.3.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of principal,
interest, Reimbursement Obligations, Fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made on the due
date thereof to the Administrative Agent in Dollars, for the respective
accounts of the Lenders and the Administrative Agent, at the Administrative
Agent's Office or at such other place that the Administrative Agent may
from time to time designate, in each case at or about 1:00 p.m. (Boston
time or other local time at the place of payment) and in immediately
available funds.
5.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or taxing or other authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrower will pay
to the Administrative Agent, for the account of the Lenders or (as the case
may be) the Administrative Agent, on the date on which such amount is due
and payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Lenders or the
Administrative Agent to receive the same net amount which the Lenders or
the Administrative Agent would have received on such due date had no such
obligation been imposed upon the Borrower. The Borrower will deliver
promptly to the Administrative Agent certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect to
payments made by the Borrower hereunder or under such other Loan Document.
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5.3.3. NON-U.S. LENDERS. Each Lender and the Administrative Agent that
is not a U.S. Person as defined in Section 7701(a)(30) of the Code for
federal income tax purposes (a "NON-U.S. LENDER") hereby agrees that, if
and to the extent it is legally able to do so, it shall, prior to the date
of the first payment by the Borrower hereunder to be made to such Lender or
the Administrative Agent or for such Lender's or the Administrative Agent's
account, deliver to the Borrower and the Administrative Agent, as
applicable, such certificates, documents or other evidence, as and when
required by the Code or Treasury Regulations issued pursuant thereto,
including (a) in the case of a Non-U.S. Lender that is a "BANK" for
purposes of Section 881(c)(3)(A) of the Code, two (2) duly completed copies
of Internal Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury Regulations, or
any subsequent versions thereof or successors thereto, properly completed
and duly executed by such Lender or the Administrative Agent establishing
that with respect to payments of principal, interest or fees hereunder it
is (i) not subject to United States federal withholding tax under the Code
because such payment is effectively connected with the conduct by such
Lender or Administrative Agent of a trade or business in the United States
or (ii) totally exempt or partially exempt from United States federal
withholding tax under a provision of an applicable tax treaty and (b) in
the case of a Non-U.S. Lender that is not a "BANK" for purposes of Section
881(c)(3)(A) of the Code, a certificate in form and substance reasonably
satisfactory to the Administrative Agent and the Borrower and to the effect
that (i) such Non-U.S. Lender is not a "BANK" for purposes of Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or submission
made to any governmental authority, any application made to a rating agency
or qualification for any exemption from any tax, securities law or other
legal requirements, (ii) is not a ten percent (10%) shareholder for
purposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled
foreign corporation receiving interest from a related person for purposes
of Section 881(c)(3)(C) of the Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor
forms). Each Lender or the Administrative Agent agrees that it shall,
promptly upon a change of its lending office or the selection of any
additional lending office, to the extent the forms previously delivered by
it pursuant to this section are no longer effective, and promptly upon the
Borrower's or the Administrative Agent's reasonable request after the
occurrence of any other event (including the passage of time) requiring the
delivery of a Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or
in replacement of the forms previously delivered, deliver to the Borrower
and the Administrative Agent, as applicable, if and to the extent it is
properly entitled to do so, a properly completed and executed Form W-8BEN,
Form W-8ECI, Form W-8 or W-9, as applicable (or any successor forms
thereto).
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5.4. COMPUTATIONS. All computations of interest on Prime Rate Loans, Swing
Line Loans and of Fees shall be based on a 365-day year or 366-day year, as the
case may be, and paid for the actual number of days elapsed. All computations of
interest on Eurodollar Rate Loans shall be based on a 360-day year and paid for
the actual number of days elapsed. Except as otherwise provided in the
definition of the term "INTEREST PERIOD" with respect to Eurodollar Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Revolving Credit Loans and the
Swing Line Loans as reflected on the Loan Accounts from time to time shall be
PRIMA FACIE evidence of the principal amount thereof owing and unpaid to
Lenders, but the failure to record, or any error in so recording, any amounts in
the Loan Accounts shall not limit or otherwise affect the obligation of the
Borrower hereunder to make payments of principal of, or interest on, the Loans
when due.
5.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Administrative Agent shall determine or be notified by the Required Lenders that
adequate and reasonable methods do not exist for ascertaining the Eurodollar
Rate that would otherwise determine the rate of interest to be applicable to any
Eurodollar Rate Loan during any Interest Period, the Administrative Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower and the Lenders) to the Borrower and the Lenders. In
such event the Administrative Agent shall notify the Borrower that (a) any Loan
Request or Conversion Request with respect to Eurodollar Rate Loans shall be
automatically withdrawn and shall be deemed a request for Prime Rate Loans, (b)
each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period relating thereto, become a Prime Rate Loan, and (c) the
obligations of the Lenders to make Eurodollar Rate Loans shall be suspended
until the Administrative Agent or the Required Lenders determine that the
circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent or, as the case may be, the Administrative Agent upon the
instruction of the Required Lenders, shall so notify the Borrower and the
Lenders.
5.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Borrower and the other Lenders and thereupon (a) the
commitment of such Lender to make Eurodollar Rate Loans or convert Prime Rate
Loans to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Lender's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if
any, shall be converted automatically to Prime Rate Loans on the last day of
each Interest Period applicable to such Eurodollar Rate Loans or within such
earlier period as may be required by law. The Borrower hereby agrees promptly to
pay the Administrative Agent for the account of such Lender, upon demand by such
Lender, any additional amounts necessary to compensate such Lender for any costs
incurred by such Lender in making any
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conversion in accordance with this Section 5.6, including any interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans hereunder.
5.7. ADDITIONAL COSTS, ETC. If any change in law, which expression, as used
herein, includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other regulatory body
or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender, the Administrative Agent
or any Issuing Lender by any central bank or other fiscal, monetary or other
authority, shall:
(a) subject any Lender, the Administrative Agent or any Issuing
Lender to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Credit Agreement, the other
Loan Documents, any Letters of Credit, such Lender's Commitment or the
Loans (other than taxes based upon or measured by the income or profits of
such Lender, the Administrative Agent or such Issuing Lender), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender,
the Administrative Agent or any Issuing Lender under this Credit Agreement
or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements against assets held by, or deposits in or for the account of,
or loans by, or letters of credit issued by, or commitments of an office of
any Lender or any Issuing Lender, or
(d) impose on any Lender, the Administrative Agent or any Issuing
Lender any other conditions or requirements with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, the Loans, such
Lender's Commitment, or any class of loans, letters of credit or
commitments of which any of the Loans or such Lender's Commitment forms a
part, and the result of any of the foregoing is
(i) to increase the cost to any Lender or any Issuing Lender
of making, funding, issuing, renewing, extending, amending or
maintaining any of the Loans or such Lender's Commitment or any Letter
of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender, the
Administrative Agent or such Issuing Lender hereunder on
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account of such Lender's Commitment, any Letter of Credit or any of
the Loans, or
(iii) to require such Lender, the Administrative Agent or such
Issuing Lender to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable hereunder, the amount of
which payment or foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender, the Administrative Agent
or such Issuing Lender from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Lender,
the Administrative Agent or (as the case may be) the Issuing Lender at any time
and from time to time and as often as the occasion therefor may arise, pay to
such Lender, the Administrative Agent or such Issuing Lender such additional
amounts as will be sufficient to compensate such Lender, the Administrative
Agent or such Issuing Lender for such additional cost, reduction, payment or
foregone interest or Reimbursement Obligation or other sum.
5.8. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive regarding capital
requirements for Lenders or Lender holding companies or any change in the
interpretation or application thereof by a Governmental Authority with
appropriate jurisdiction, or (b) compliance by such Lender or the Administrative
Agent or any corporation controlling such Lender or the Administrative Agent
with any law, governmental rule, regulation, policy, guideline or directive of
any such entity regarding capital adequacy, has the effect of reducing the
return on such Lender's or the Administrative Agent's commitment with respect to
any Loans to a level below that which such Lender or the Administrative Agent
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Administrative Agent's then existing policies
with respect to capital adequacy and assuming full utilization of such entity's
capital) by any amount deemed by such Lender or (as the case may be) the
Administrative Agent to be material, then such Lender or the Administrative
Agent may notify the Borrower of such fact. To the extent that the amount of
such reduction in the return on capital is not reflected in the Prime Rate, the
Borrower agrees to pay such Lender or (as the case may be) the Administrative
Agent for the amount of such reduction in the return on capital as and when such
reduction is determined upon presentation by such Lender or (as the case may be)
the Administrative Agent of a certificate in accordance with Section 5.9 hereof.
Each Lender shall allocate such cost increases among its customers in good faith
and on an equitable basis.
5.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Sections 5.7 or 5.8 and a brief explanation of such amounts
which are due, submitted by any Lender, the Administrative Agent or any Issuing
Lender to the
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Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing.
5.10. INDEMNITY. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss, cost or expense (including loss
of anticipated profits) that such Lender may sustain or incur as a consequence
of (a) default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Rate Loans as and when due and payable, including any
such loss or expense arising from interest or fees payable by such Lender to
banks of funds obtained by it in order to maintain its Eurodollar Rate Loans,
(b) default by the Borrower in making a borrowing or conversion after the
Borrower has given (or is deemed to have given) a Loan Request for, or a
Conversion Request to, a Eurodollar Rate Loan relating thereto in accordance
with Section 2.6 or Section 2.7 or (c) the making of any payment of a Eurodollar
Rate Loan or the making of any conversion of any such Revolving Credit Loan to a
Prime Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by such Lender
to lenders of funds obtained by it in order to maintain any such Loans and costs
of redeployment of funds.
5.11. INTEREST AFTER DEFAULT.
5.11.1. OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law and after giving effect to any applicable grace
period) interest on the Loans and all other overdue amounts payable
hereunder (including Unpaid Reimbursement Obligations) or under any of the
other Loan Documents shall bear interest (or fees in the case of Unpaid
Reimbursement Obligations) compounded monthly and payable on demand at a
rate per annum equal to two percent (2%) above the rate of interest or
Letter of Credit Fee then applicable thereto (or, if no rate of interest is
then applicable thereto, the Prime Rate) until such amount shall be paid in
full (after as well as before judgment).
5.11.2. AMOUNTS NOT OVERDUE. During the continuance of an Event
of Default until such Event of Default has been cured or remedied or such
Event of Default has been waived by the Required Lenders pursuant to
Section 16.12, (a) the principal of the Loans not overdue shall bear
interest at a rate per annum equal to two percent (2%) above the rate of
interest then applicable thereto and (b) the Applicable Margin applicable
to Letter of Credit Fees shall be equal to two percent (2%) above the
Letter of Credit Fee otherwise applicable to such Letter of Credit pursuant
to Section 4.6.
5.12. REPLACEMENT OF LENDERS. If any Lender (an "AFFECTED LENDER") (a)
makes demand upon the Borrower for (or if the Borrower is otherwise required to
pay) amounts pursuant to Sections 5.7 or 5.8, (b) is unable to make or maintain
Eurodollar Rate Loans as a result of a condition described in Section 5.6, (c)
defaults in its obligation to make Loans in accordance with the terms of this
Credit Agreement or purchase any Letter of Credit Participation or (d) elects
not to extend the Final Maturity Date, the Borrower may, so long as no Event of
Default has occurred and is then continuing,
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within ninety (90) days of receipt of such demand, notice (or the occurrence of
such other event causing the Borrower to be required to pay such compensation or
causing Section 5.6 to be applicable), default or election not to extend, as the
case may be, by notice (a "REPLACEMENT NOTICE") in writing to the Administrative
Agent and such Affected Lender (i) request the non-Affected Lenders to acquire
and assume all of the Affected Lender's Loans and Commitment as provided herein,
but none of such Lenders shall be under an obligation to do so; or (ii)
designate a replacement Lender satisfactory to the Administrative Agent and the
Borrower (the "REPLACEMENT LENDER") approved by the Administrative Agent, such
approval not to be unreasonably withheld or delayed. If any satisfactory
Replacement Lender shall be obtained, and/or if any one or more of the
non-Affected Lenders shall agree to acquire and assume all of the Affected
Lender's Loans and Commitment, then such Affected Lender shall assign, in
accordance with Section 15, all of its Commitment, Loans, Letter of Credit
Participations and other rights and obligations under this Credit Agreement and
all other Loan Documents to such Replacement Lender or non-Affected Lenders, as
the case may be, in exchange for payment of the principal amount so assigned and
all interest and fees accrued on the amount so assigned, plus all other
Obligations then due and payable to the Affected Lender; PROVIDED, HOWEVER, that
(A) such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Affected Lender
and such Replacement Lender and/or non-Affected Lenders, as the case may be, and
(B) prior to any such assignment, the Borrower shall have paid to such Affected
Lender all amounts properly demanded and unreimbursed under Sections 5.7 and
5.8. Upon the effective date of such assignment, such institution shall become a
"LENDER" for all purposes under this Credit Agreement and the other Loan
Documents.
6. SUBSIDIARY GUARANTY.
6.1. SUBSIDIARY GUARANTY. The Obligations shall be guaranteed pursuant to
the terms of the Subsidiary Guaranty.
6.2. RELEASE OF GUARANTORS. The parties hereto acknowledge and agree
that, upon the request of the Borrower or any Guarantor, so long as no Default
or Event of Default shall have occurred and be continuing or would result
therefrom, the Administrative Agent on behalf of the Lenders shall
unconditionally release any Guarantor which, following the date hereof, no
longer qualifies as a "SIGNIFICANT SUBSIDIARY" hereunder.
7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the Administrative
Agent as follows:
7.1. CORPORATE AUTHORITY.
7.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower and the
Guarantors (a) is a corporation (or similar business entity) duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, (b) has all requisite corporate
(or the equivalent company) power to own its property and conduct its
business as now conducted and as presently contemplated, and (c) is in good
standing as a foreign corporation (or similar business entity) and is duly
authorized to do business in each jurisdiction where such qualification is
necessary except where a failure to be so qualified would not have a
Material Adverse Effect. Except as would not reasonably be expected to
result in a Material Adverse Effect, each of the Subsidiaries of the
Borrower which are not Guarantors (a) is a corporation (or similar business
entity) duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or formation, (b) has all
requisite corporate (or the equivalent company) power to own its property
and conduct its business as now conducted and as presently contemplated,
and (c) is in good standing as a foreign corporation (or similar business
entity) and is duly authorized to do business in each jurisdiction where
such qualification is necessary.
7.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower or
any Guarantor is or is to become a party and the transactions contemplated
hereby and thereby (a) are within the corporate (or the equivalent company)
authority of such Person, (b) have been duly authorized by all necessary
corporate (or the equivalent company) proceedings, (c) do not and will not
conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which the Borrower or any of the
Guarantors is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower or any of the Guarantors and (d) do not
conflict with any provision of the Governing Documents of, or any material
agreement or other instrument binding upon, the Borrower or any of the
Guarantors.
7.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of the
Guarantors is a party will result in valid and legally binding obligations
of such Person enforceable against it in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and any of the Guarantors of this Credit Agreement and the other
Loan Documents to which the Borrower or any of the Guarantors is a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those
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already obtained except for filings by the Borrower with the Securities and
Exchange Commission.
7.3. FINANCIAL STATEMENTS. There has been furnished to each of the
Lenders consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and consolidated and consolidating
statements of income and consolidated statement of cash flow of the Borrower and
its Subsidiaries for the fiscal year then ended, audited by Deloitte & Touche
LLP. Such balance sheets and statements of income and cash flow have been
prepared in accordance with GAAP and fairly present the financial condition of
the Borrower and its Subsidiaries as at the close of business on the date
thereof and the results of operations for the fiscal year then ended.
7.4. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date there
has been no event or occurrence which has had a Material Adverse Effect.
7.5. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and each of its
Subsidiaries possesses all material franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted.
7.6. LITIGATION. Except as set forth in SCHEDULE 7.6 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower or any of its Subsidiaries before any Governmental
Authority, that (a) would reasonably be expected to have a Material Adverse
Effect or (b) question the validity of this Credit Agreement or any of the other
Loan Documents.
7.7. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of its Subsidiaries is in violation of any provision of its Governing
Documents, or any agreement or instrument to which it may be subject or by which
it or any of its properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a manner
that would reasonably be expected to have a Material Adverse Effect.
7.8. TAX STATUS. The Borrower and its Subsidiaries (a) have made or filed
all federal, state and foreign income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (b)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (c) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction except those being contested
in good faith and by appropriate proceedings, and none of the officers of the
Borrower know of any basis for any such claim.
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7.9. NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
7.10. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
7.11. EMPLOYEE BENEFIT PLANS AND GUARANTEED PENSION PLANS. Each Employee
Benefit Plan and Guaranteed Pension Plan has been maintained and operated in
compliance in all material respects with the provisions of ERISA and all
Applicable Pension Legislation and, to the extent applicable, the Code, except
as would not reasonably be expected to have a Material Adverse Effect. The
Borrower and each of the ERISA Affiliates has fulfilled its obligations under
the minimum funding standards of ERISA and the Code with respect to each
Guaranteed Pension Plan. Neither the Borrower nor any ERISA Affiliate has (i)
sought a waiver of the minimum funding standard under Section 412 of the Code in
respect of any Guaranteed Pension Plan, (ii) failed to make any contribution or
payment to any Guaranteed Pension Plan or Multiemployer Plan or in respect of
any Employee Benefit Plan, or made any amendment to any Guaranteed Pension Plan
or Employee Benefit Plan, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Code or
(iii) incurred any liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
7.12. ENVIRONMENTAL COMPLIANCE. In the ordinary course of its business,
the Borrower conducts an ongoing review of the effect of Environmental Laws on
the business, operations and properties of the Borrower and its Subsidiaries, in
the course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for clean-up or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have
a Material Adverse Effect.
7.13. SUBSIDIARIES, ETC. SCHEDULE 7.13 hereto sets forth, as of the
Closing Date, a true and complete list of the only (i) Subsidiaries of the
Borrower and (ii) Significant Subsidiaries of the Borrower.
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7.14. DISCLOSURE. All information heretofore furnished by the Borrower to
the Administrative Agent or any Lender for purposes of or in connection with
this Credit Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Administrative Agent or
any Lender will be, true and accurate in all material respects on a date as of
which such information is stated or certified. The Borrower has disclosed to the
Administrative Agent and the Lenders in writing any and all facts, other than
general economic conditions, legal standards or regulatory conditions which has
a Material Adverse Effect or would reasonably be likely to result in a Material
Adverse Effect.
7.15. FOREIGN ASSETS CONTROL REGULATIONS, ETC. None of the requesting or
borrowing of the Loans, the requesting or issuance, extension or renewal of any
Letters of Credit or the use of the proceeds of any thereof will violate the
Trading With the Enemy Act (50 U.S.C. Section 1 et seq., as amended) (the
"TRADING WITH THE ENEMY ACT") or any of the foreign assets control regulations
of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as
amended) (the "FOREIGN ASSETS CONTROL REGULATIONS") or any enabling legislation
or executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
"EXECUTIVE ORDER") and (b) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56)). Furthermore, neither the Borrower nor any of its
Subsidiaries or other Affiliates (a) is or will become a "blocked person" as
described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages or will engage in any dealings or
transactions, or be otherwise associated, with any such "blocked person".
8. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Swing Line Loan, Unpaid Reimbursement Obligation or Letter of Credit is
outstanding or any Lender has any obligation to make any Loans or the Issuing
Lender has any obligation to issue, extend, amend or renew any Letters of
Credit:
8.1. PUNCTUAL PAYMENT. The Borrower promises to duly and punctually pay
or cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Facility Fee, the Administrative
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
8.2. RECORDS AND ACCOUNTS. The Borrower will (a) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with GAAP and
(b) maintain adequate accounts and reserves for all taxes (including income
taxes),
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depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves.
8.3. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower
will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries and the
consolidating balance sheet of the Borrower and its Subsidiaries, each as
at the end of such year and, with respect to the consolidated balance sheet
of the Borrower and its Subsidiaries, setting forth in comparative form the
figures for the previous fiscal year, and the related consolidated
statement of income and consolidated statement of cash flow and
consolidating statement of income, all such consolidated and consolidating
statements to be in reasonable detail and prepared in accordance with GAAP,
and with respect to the consolidated statements, setting forth in
comparative form the figures for the previous fiscal year, and audited,
without qualification and without an expression of uncertainty as to the
ability of the Borrower or any of its Subsidiaries to continue as going
concerns, by Deloitte & Touche LLP or by other similar independent
certified public accountants of nationally recognized standing, together
with a written statement from such accountants to the effect that they have
read a copy of this Credit Agreement, and that, in making the examination
necessary to said certification, they have obtained no knowledge of any
Default or Event of Default, or, if such accountants shall have obtained
knowledge of any then existing Default or Event of Default they shall
disclose in such statement any such Default or Event of Default; PROVIDED
that such accountants shall not be liable to the Lenders for failure to
obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries and the unaudited consolidating balance sheet
of the Borrower and its Subsidiaries, each as at the end of such quarter
and, with respect to the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries, setting forth in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year,
and the related consolidated statement of income and consolidated statement
of cash flow and consolidating statement of income for the portion of the
Borrower's fiscal year then elapsed, all in reasonable detail and prepared
in accordance with GAAP, and with respect to the consolidated statements,
setting forth in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year, together with a certification by the
Chief Financial Officer, Chief Accounting Officer or the Treasurer of the
Borrower that the information contained in such financial statements fairly
presents the financial position of the Borrower and its Subsidiaries on the
date thereof (subject to year-end adjustments and addition of footnotes);
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(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
Chief Financial Officer, Chief Accounting Officer or the Treasurer of the
Borrower in substantially the form of EXHIBIT C hereto (a "COMPLIANCE
CERTIFICATE") and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 10;
(d) contemporaneously with the filing or mailing thereof, copies
of all filings containing financial statements or proxy statements filed
with the Securities and Exchange Commission or sent to the stockholders of
the Borrower;
(e) from time to time such other financial data and information
(including any and all financial statements and other supporting financial
documents and schedules including copies of any accountant's management
letters with respect to the business, financial condition and other affairs
of the Borrower or any of its Subsidiaries) as the Administrative Agent or
any Lender may reasonably request.
Documents required to be delivered pursuant to this Section 8.3 (to the
extent any such documents are included in materials otherwise filed with the
Securities and Eschange Commission) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date on which such
documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 8.3(c)
to the Administrative Agent. Except for such Compliance Certificate, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
8.4. NOTICES OF DEFAULTS. The Borrower will promptly notify the
Administrative Agent and each of the Lenders in writing of the occurrence of any
Default or Event of Default, together with a reasonably detailed description
thereof, and the actions the Borrower proposes to take with respect thereto. If
any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under this
Credit Agreement or
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any other note, evidence of indebtedness, indenture or other obligation
evidencing Material Debt to which or with respect to which the Borrower or any
of its Subsidiaries is a party or obligor, whether as principal, guarantor,
surety or otherwise, the Borrower shall forthwith give written notice thereof to
the Administrative Agent and each of the Lenders, describing the notice or
action and the nature of the claimed default.
8.5. LEGAL EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower will do or
cause to be done all things reasonably necessary to preserve and keep in full
force and effect its legal existence and, except as not prohibited hereunder,
those of the Guarantors. The Borrower (i) will cause all of its properties and
those of its Subsidiaries used and useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment, (ii) will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be reasonably
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, and (iii) will, and will
cause each of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by them and in related businesses; PROVIDED that
nothing in this Section 8.5 shall prevent the Borrower from engaging in
transactions not prohibited hereunder or from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect, or from consummating the Reorganization.
8.6. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent.
8.7. TAXES. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its Real Estate, sales and activities, or any part thereof,
or upon the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a Lien or charge upon
any of its property; PROVIDED that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and PROVIDED FURTHER that the Borrower and each Subsidiary of the
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any Lien that may
have attached as security therefor except where the failure to pay would not
reasonably be expected to result in a Material Adverse Effect.
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8.8. INSPECTION OF PROPERTIES AND BOOKS, ETC. The Borrower shall permit
the Lenders, through the Administrative Agent or any of the Lenders' other
designated representatives, to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Administrative Agent
or any Lender may reasonably request.
8.9. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Except as
would not reasonably be expected to result in a Material Adverse Effect, the
Borrower will, and will cause each of its Subsidiaries to, comply with (a) the
applicable laws and regulations wherever its business is conducted, including
all Environmental Laws, (b) the provisions of its Governing Documents, (c) all
agreements and instruments by which it or any of its properties may be bound and
(d) all applicable decrees, orders, and judgments. If any authorization,
consent, approval, permit or license from any officer, agency or instrumentality
of any government shall become necessary or required in order that the Borrower
or any of its Subsidiaries may fulfill any of its obligations hereunder or any
of the other Loan Documents to which the Borrower or such Subsidiary is a party,
the Borrower will, or (as the case may be) will cause such Subsidiary to,
immediately take or cause to be taken all reasonable steps within the power of
the Borrower or such Subsidiary to obtain such authorization, consent, approval,
permit or license and furnish the Administrative Agent and the Lenders with
evidence thereof.
8.10.USE OF PROCEEDS AND MARGIN STOCK.
8.10.1. GENERAL. The Borrower shall use proceeds of the Loans solely
for working capital and general corporate purposes and to fund repurchases
of shares of Capital Stock of the Borrower and acquisitions. The Borrower
will obtain Letters of Credit solely for working capital and general
corporate purposes.
8.10.2. REGULATIONS U AND X. The Borrower covenants and agrees that no
portion of any Loan shall be used, and no portion of any Letter of Credit
shall be obtained, for the purpose of purchasing or carrying any "MARGIN
SECURITY" or "MARGIN STOCK" as such terms are used in Regulations U and X
of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
221 and 224, in violation of Regulations U and X.
8.10.3. INELIGIBLE SECURITIES. No portion of the proceeds of any Loans
is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement period or within
thirty (30) days thereafter, any Ineligible Securities underwritten or
privately placed by a Financial Affiliate.
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8.10.4. MISCELLANEOUS. Notwithstanding anything herein or in any other
Loan Document, there shall be no restrictions on the sale, pledge or
disposition of any margin stock (as defined in Section 8.10.2) or any other
restriction or limitation that would cause margin stock (as defined in
Section 8.10.2) to indirectly secure the Loans or Letters of Credit
hereunder (within the meaning of Regulation U).
8.11. NEW GUARANTORS. The Borrower will promptly notify the Administrative
Agent of the creation or acquisition of each new Significant Subsidiary
(including any Subsidiary which, on or after the Closing Date, becomes a
Significant Subsidiary) and, within ten (10) Business Days after the creation or
acquisition of such Significant Subsidiary or after the date which such
Subsidiary becomes a Significant Subsidiary, the Borrower will cause each new
Significant Subsidiary so created, acquired or otherwise existing on or after
the Closing Date to execute and deliver to the Administrative Agent an
instrument of joinder and accession, in form and substance reasonably
satisfactory to the Administrative Agent, pursuant to which such Significant
Subsidiary shall join the Subsidiary Guaranty as if such Significant Subsidiary
was an original signatory thereto. Further, contemporaneously therewith, the
Borrower and/or such Significant Subsidiary shall execute and/or deliver to the
Administrative Agent such other documentation as the Administrative Agent may
reasonably request in furtherance of the intent of this Section 8.11, including
without limitation documentation of the type required to be supplied by the
Borrower and its Subsidiaries as a condition precedent to the initial Loans made
hereunder pursuant to Section 11.
8.12. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Lenders and the Administrative Agent and
execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
9. CERTAIN NEGATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Swing Line Loan, Unpaid Reimbursement Obligation or Letter of Credit is
outstanding or any Lender has any obligation to make any Loans or the Issuing
Lender has any obligations to issue, extend, amend or renew any Letters of
Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS.
9.1.1. RESTRICTIONS ON GUARANTEES. The Borrower will not, and will not
permit any of its Subsidiaries to, Guarantee the indebtedness or other
obligations of any other Person; provided, however:
(a) the Borrower may Guarantee the indebtedness or other
obligations of the Guarantors and the Guarantors may Guarantee the
indebtedness or other obligations of the Borrower or other Guarantors;
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(b) the Borrower and its Subsidiaries may Guarantee the
indebtedness or other obligations of Subsidiaries of the Borrower which are
not Guarantors so long as at the time of entering into any such Guarantee
the aggregate amount of indebtedness or other obligations Guaranteed by the
Borrower and its Subsidiaries shall not exceed $25,000,000 (or the Dollar
equivalent thereof); and
(c) the Borrower may Guarantee the Subsidiary Letters of Credit.
9.1.2. RESTRICTIONS ON BORROWED MONEY INDEBTEDNESS. The Borrower will
not, and will not permit any of its Subsidiaries to, incur any Borrowed
Money Indebtedness; provided, however, (a) the Borrower and the Guarantors
may incur Borrowed Money Indebtedness so long as the material terms of any
Borrowed Money Indebtedness which is not Borrowed Money Indebtedness
relating to the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business) or in respect of any
Synthetic Leases or any Capitalized Leases are no more restrictive with
respect to covenants and events of default or other material terms than the
terms and conditions set forth in this Credit Agreement with respect to the
Obligations; (b) Subsidiaries of the Borrower may incur Borrowed Money
Indebtedness to the Borrower and its Subsidiaries to the extent permitted
by Section 9.3 and (c) Subsidiaries of the Borrower may incur Borrowed
Money Indebtedness to Persons other than the Borrower or Guarantors so long
as at the time of entering into any such Borrowed Money Indebtedness the
aggregate amount outstanding of such Borrowed Money Indebtedness does not
exceed $25,000,000 (or the Dollar equivalent thereof).
9.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not permit any
of its Subsidiaries to, (a) create or incur or suffer to be created or incurred
or to exist any Lien upon any of its property or assets of any character whether
now owned or hereafter acquired, or upon the income or profits therefrom; (b)
transfer any of such property or assets or the income or profits therefrom for
the purpose of subjecting the same to the payment of indebtedness or performance
of any other obligation in priority to payment of its general creditors; (c)
acquire, or agree or have an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money security agreement,
device or arrangement; or (d) suffer to exist for a period of more than sixty
(60) days after the same shall have been incurred any indebtedness or claim or
demand against it that if unpaid might by law or upon bankruptcy or insolvency,
or otherwise, be given any priority whatsoever over its general creditors;
provided that the Borrower or any of its Subsidiaries may create or incur or
suffer to be created or incurred or to exist:
(i) Liens in favor of the Borrower or any Guarantor on all or part
of the assets of Subsidiaries of the Borrower securing indebtedness owing
by Subsidiaries of the Borrower to the Borrower or such Guarantor;
(ii) Liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or being contested in good faith
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by appropriate proceedings or Liens on properties to secure claims for
labor, material or supplies in respect of obligations not overdue or being
contested in good faith by appropriate proceedings;
(iii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iv) Liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the
Borrower or such Subsidiary shall at the time in good faith be prosecuting
an appeal or proceedings for review and in respect of which a stay of
execution shall have been obtained pending such appeal or review;
(v) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens on properties, in existence less than one hundred twenty
(120) days from the date of creation thereof in respect of obligations not
overdue;
(vi) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens and other minor Liens, PROVIDED that none of such Liens (A)
interferes materially with the use of the property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, and (B)
individually or in the aggregate has a Material Adverse Effect;
(vii) Liens existing on the date hereof and listed on SCHEDULE 9.2
hereto, including any renewals, refinancings and extensions thereof
PROVIDED that (x) the aggregate amount of indebtedness secured by such
Liens is not increased by any such renewal, refinancing or extension and
(y) such indebtedness is not secured by any additional assets;
(viii) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof by
the Borrower or such Subsidiary to secure purchase money indebtedness
incurred in connection with the acquisition of such property or under any
Capitalized Lease, which security interests or mortgages cover only the
real or personal property so acquired; PROVIDED that such purchase money
security interests in or purchase money mortgages do not secure an
aggregate amount of purchase money indebtedness (including purchase money
indebtedness incurred under any Capitalized Lease) in excess of
$50,000,000, which such indebtedness is also permitted hereunder;
(ix) Liens on the Borrower's common stock held in Treasury; and
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(x) other Liens not otherwise permitted hereunder, provided that
such Liens do not secure indebtedness in an aggregate amount outstanding or
committed in excess of $15,000,000, which such indebtedness is also
permitted hereunder.
9.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase
by the Borrower;
(b) demand deposits, certificates of deposit, bank acceptances and
time deposits of (i) United States banks or trust companies having total
assets in excess of $1,000,000,000, (ii) any Lender or (iii) a commercial
bank organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of such country, and having total assets in excess of
$1,000,000,000, PROVIDED that such bank is acting through a branch or
agency located in the country in which it is organized or another country
which is a member of the OECD;
(c) securities commonly known as "COMMERCIAL PAPER" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P-2" if rated by Moody's, and
not less than "A-2" if rated by S&P;
(d) repurchase agreements with respect to securities described in
clause (a) above entered into with an office of a bank or trust company
meeting the criteria specified in clause (b) above;
(e) money market funds which invest only in securities described in
clauses (a), (b), (c) and (d) above;
(f) Investments existing on the date hereof and listed on the
consolidating balance sheet of the Borrower and its Subsidiaries as of the
Balance Sheet Date;
(g) (i) Investments consisting of the Subsidiary Guaranty and (ii)
Investments by the Borrower in any Guarantor or by any Guarantor in the
Borrower or in any other Guarantor;
(h) Investments by the Borrower or any Guarantor in a Permitted
Acquisition so long as (i) in the event of a stock acquisition, the
acquired Person (A) becomes a Guarantor in accordance with Section 8.11 or
is designated as a Guarantor by the Borrower and (B) has positive EBITDA
for the immediately preceding twelve (12) month period prior to the
acquisition date
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or (ii) in the event of an asset acquisition, (A) the assets so acquired
shall have generated positive EBITDA during the twelve (12) month period
immediately preceding the acquisition date or (B) if such assets did not
generate EBITDA (positive or negative) during such twelve (12) month period
immediately preceding the acquisition date, the Borrower projects such
assets would add positive EBITDA for the Borrower for the twelve (12) month
period immediately following the acquisition date;
(i) (A) Investments by the Borrower or any of its Subsidiaries in
Subsidiaries of the Borrower which are not Guarantors (but not including
Investments made in connection with the Reorganization) and (B) Investments
by the Borrower or any Guarantor in a Permitted Acquisition which do not
meet the requirements set forth in clause (h) above, PROVIDED that the
aggregate amount of Investments made after the date hereof pursuant to this
Section 9.3(i) shall not exceed $150,000,000;
(j) Investments made in connection with the Reorganization;
(k) Investments consisting of promissory notes received as proceeds
of asset dispositions permitted by Section 9.5.2;
(l) Investments consisting of loans and advances to employees not
to exceed $5,000,000 in the aggregate at any time outstanding;
(m) sales of inventory among the Borrower and its Subsidiaries in
the ordinary course of business; and
(n) other Investments not otherwise permitted hereunder, PROVIDED
that the aggregate amount of all such Investments outstanding at any time
shall not exceed $20,000,000.
9.4. RESTRICTED PAYMENTS. The Borrower will not make any Restricted
Payments except that the Borrower may make Restricted Payments so long as, on
the date that the Borrower declares, commits to or makes (in the case of
payments not previously declared or committed to) any such Restricted Payment,
(a) no Default or Event of Default has occurred and is continuing or would
result therefrom and (b) the Borrower's Leverage Ratio does not exceed (i)
1.00:1.00 if so declared, committed to or made during the first and fourth
fiscal quarters of any fiscal year of the Borrower and (ii) 1.25:1.00 if so
declared, committed to or made during the second and third fiscal quarters of
any fiscal year of the Borrower. For purposes of calculating the Leverage Ratio
pursuant to this Section 9.4, (A) such calculation shall utilize (w)
Consolidated Total Funded Debt after giving PRO FORMA effect to such Restricted
Payment (to the extent made with Borrowed Money Indebtedness) and (x)
Consolidated EBITDA set forth on the Compliance Certificate most recently
delivered to the Lenders pursuant to Section 8.3(c), and (B) Consolidated Total
Funded Debt shall include (y) future settlement on account of Equity Related
Purchase Obligations reduced by (z) the amount of cash and cash equivalents held
by the Borrower and its Subsidiaries in excess of $10,000,000 (such reduction
not to exceed
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the notional amount of any Equity Related Purchase Obligations). Notwithstanding
anything herein to the contrary, this Section 9.4 shall not restrict the
Borrower's ability to retire shares of its common stock held in Treasury.
9.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
9.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course of
business consistent with past practices or the acquisition of shares of
common stock of the Borrower) except:
(a) the merger or consolidation of one or more of the Subsidiaries
of the Borrower with and into the Borrower, or the merger, amalgamation or
consolidation of two or more Subsidiaries of the Borrower; PROVIDED that if
any of the parties to such merger, amalgamation or consolidation is a
Guarantor, the survivor of such merger, amalgamation or consolidation shall
be a Guarantor or the Borrower unless in connection with the
Reorganization; or
(b) the acquisition of stock or other securities of, or any assets
of, any Person, PROVIDED that:
(i) no Default or Event of Default has occurred and is
continuing or would result from such acquisition;
(ii) such Person is in the same line of business as the
Borrower and its Subsidiaries or a related business;
(iii) the board of directors and (if required by applicable
law) the shareholders, or the equivalent thereof, of the business to
be acquired has approved such acquisition;
(iv) not less than ten (10) days prior to the consummation of
such acquisition, the Borrower shall have delivered to the
Administrative Agent written notice of such acquisition, which notice
shall provide the Administrative Agent with a reasonably detailed
description of such acquisition;
(v) not less than ten (10) days prior to the consummation of
the proposed acquisition, the Borrower shall have delivered (if
applicable) to the Administrative Agent evidence satisfactory to the
Administrative Agent of the calculation of EBITDA for the Person to be
acquired for the immediately preceding twelve (12) month period prior
to the proposed acquisition date;
(vi) not less than ten (10) days prior to the consummation of
the proposed acquisition, the Borrower shall have delivered to the
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Administrative Agent a Compliance Certificate demonstrating PRO FORMA
compliance with the financial covenants set forth in Section 10;
(vii) except as provided in Section 9.5.1(b)((ix) below, in
the event of a stock acquisition, the acquired Person shall become a
wholly-owned Subsidiary (except for director qualifying shares) of the
Borrower and the Borrower and the acquired Person shall comply with
the terms and conditions of Section 8.11 if such Person qualifies as a
Significant Subsidiary hereunder;
(viii) after giving effect to such acquisition, the Borrower
shall be able to borrow at a minimum an additional $25,000,000 of
Revolving Credit Loans; and
(ix) the sum of (i) the aggregate purchase price for all
acquisitions consummated pursuant to this Section 9.5.1 PLUS (ii) the
amount of Investments made by the Borrower or any of its Subsidiaries
in Subsidiaries of the Borrower which are not Guarantors pursuant to
Section 9.3(i) including non-wholly owned Subsidiaries and Investments
in joint ventures, but excluding Investments made in connection with
the Reorganization, shall not exceed $150,000,000; PROVIDED, HOWEVER,
no such restrictions shall apply if (i) in the event of a stock
acquisition, the acquired Person (A) becomes a Guarantor in accordance
with Section 8.11 or is designated as a Guarantor by the Borrower and
(B) has positive EBITDA for the immediately preceding twelve (12)
month period prior to the acquisition date or (ii) in the event of an
asset acquisition, (A) the assets so acquired shall have generated
positive EBITDA during the twelve (12) month period immediately
preceding the acquisition date or (B) if such assets did not generate
EBITDA (positive or negative) during such twelve (12) month period
immediately preceding the acquisition date, the Borrower projects such
assets would add positive EBITDA for the Borrower for the twelve (12)
month period immediately following the acquisition date.
9.5.2. DISPOSITION OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than (a) (i) the sale of inventory, (ii)
the licensing of intellectual property and (iii) the disposition of assets,
in each case in the ordinary course of business consistent with past
practices, (b) the disposition of shares of common stock of the Borrower,
and (c) Asset Sales (including sale leaseback transactions); PROVIDED that
in the case of any such Asset Sale, (i) no Default or Event of Default
shall have occurred and be continuing or would result from such Asset Sale
and (ii) the total net book value of the assets sold or otherwise disposed
of in connection with all Asset Sales shall not exceed an aggregate amount
equal to $50,000,000. Notwithstanding anything herein to the contrary,
except for Permitted Factoring Transactions, the Borrower shall not, and
shall not permit any of its Subsidiaries to, sell or otherwise transfer (A)
accounts or general intangibles for money due or to
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become due, (B) chattel paper, instruments or documents creating or
evidencing a right to payment of money or (C) other receivables
(collectively "RECEIVABLES"), whether pursuant to a purchase facility or
otherwise, other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted
receivables for collection and not as a financing arrangement.
9.6. DERIVATIVE TRANSACTIONS. The Borrower will not, and will not permit
any of its Subsidiaries to, incur or permit to exist any Derivative Transactions
except in connection with the management of interest rate fluctuation risks and
currency and commodity risks of the Borrower or its Subsidiaries in the ordinary
course of business. Notwithstanding the foregoing, the Borrower or any of its
Subsidiaries may incur or permit to exist Derivative Transactions not otherwise
permitted hereunder so long as the aggregate amount of the obligations of the
Borrower or such Subsidiary under such Derivative Transactions shall not exceed
$10,000,000 at any time. The amount of any obligations at any time of
determination represented under any Derivative Transaction shall be the maximum
amount of any termination or loss payment required to be paid by such Person if
such Derivative Transaction were, at the time of determination, to be terminated
by reason of any event of default or early termination event thereunder, whether
or not such event of default or early termination event has in fact occurred.
9.7. BUSINESS ACTIVITIES. The Borrower will not, and will not permit any of
its Subsidiaries to, engage in any type of business other than the businesses
conducted by them on the Closing Date and in related businesses. At no time
shall more than fifty percent (50%) of Consolidated Net Income be derived from
royalties on account of licensing the "Timberland" brand.
9.8. FISCAL YEAR. The Borrower will not, and will not permit any of its
Subsidiaries to, change the date of the end of its fiscal year from December 31
of each year.
9.9. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any such Affiliate or, to the
knowledge of the Borrower, any corporation, partnership, trust or other entity
in which any such Affiliate has a substantial interest or is an officer,
director, trustee or partner, on terms more favorable to such Person than would
have been obtainable on an arm's-length basis in the ordinary course of
business.
10. FINANCIAL COVENANTS.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Swing Line Loan, Unpaid Reimbursement Obligation or Letter of Credit is
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outstanding or any Lender has any obligation to make any Loans or the Issuing
Lender has any obligation to issue, extend, amend or renew any Letters of
Credit:
10.1. FIXED CHARGE COVERAGE RATIO. As of the end of any fiscal quarter, the
Fixed Charge Coverage Ratio for the Reference Period then ended shall not be
less than 3.00:1.00.
10.2. LEVERAGE RATIO. As of the end of any fiscal quarter, the Leverage
Ratio for the Reference Period then ended shall not exceed 1.50:1.00.
10.3. MINIMUM OBLIGOR EBITDA. At any time in which Consolidated Total
Funded Debt equals or exceeds $100,000,000 the Borrower will not permit the sum
of the Borrower's and the Guarantors' combined EBITDA PLUS any cash dividends or
similar cash distributions actually paid to the Borrower and the Guarantors by
any non-Guarantor Subsidiary during such Reference Period for the applicable
Reference Period to be less than $100,000,000.
11. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit Loans,
the Swing Line Lender to make the initial Swing Line Loans and of the Issuing
Lender to issue, extend, amend or renew any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent on or prior to
April 30, 2004:
11.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the
Lenders. The Administrative Agent shall have received a fully executed copy of
each such document.
11.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS. The Administrative Agent, on
behalf of each of the Lenders, shall have received from the Borrower and each of
the Guarantors a copy, certified by a duly authorized officer of such Person to
be true and complete on the Closing Date, of each of its Governing Documents as
in effect on such date of certification.
11.3. CORPORATE OR OTHER ACTION. All corporate (or other) action necessary
for the valid execution, delivery and performance by the Borrower and each of
the Guarantors of this Credit Agreement and the other Loan Documents to which it
is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Lenders shall have been provided to the
Administrative Agent on behalf of the Lenders.
11.4. INCUMBENCY CERTIFICATE. The Administrative Agent, on behalf of each
of the Lenders, shall have received from the Borrower and each of the Guarantors
an incumbency certificate, dated as of the Closing Date, signed by a duly
authorized officer of the Borrower and each of the Guarantors, and giving the
name and bearing a specimen signature of each individual who shall be
authorized: (a) to
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sign, in the name and on behalf of such Person, each of the Loan Documents
to which such Person is or is to become a party; (b) in the case of the
Borrower, to make Loan Requests and Conversion Requests and to apply for Letters
of Credit; and (c) to give notices and to take other action on its behalf under
the Loan Documents.
11.5. OPINION OF COUNSEL.
The Administrative Agent, on behalf of each of the Lenders, shall have
received a favorable legal opinion addressed to the Lenders and the
Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from Ropes and Gray,
counsel to the Borrower and its Subsidiaries;
11.6. PAYMENT OF FEES.
(a) The Borrower shall have paid to the Lenders or the Administrative
Agent, as appropriate, the Fees pursuant to Sections 5.1 and 5.2.
(b) All accrued and due fees under the Existing Credit Agreement shall be
paid to the Administrative Agent for the benefit of the existing lenders as of
the Closing Date.
12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Revolving Credit Loan, the Swing
Line Lender to make any Swing Line Loan and of the Issuing Lender to issue,
extend, amend or renew any Letter of Credit, in each case whether on or after
the Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance of such Letter
of Credit, with the same effect as if made at and as of that time (except (a) to
the extent of changes either (i) resulting from transactions contemplated or not
prohibited by this Credit Agreement and the other Loan Documents or (ii) changes
occurring in the ordinary course of business that singly or in the aggregate do
not constitute a Material Adverse Effect, and (b) to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing. The
Administrative Agent shall have received a certificate of the Borrower signed by
an authorized officer of the Borrower to such effect.
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, amendment, extension or renewal of such Letter of
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Credit or in the reasonable opinion of the Issuing Lender would make it illegal
for the Issuing Lender to issue, extend or renew such Letter of Credit.
12.3. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Administrative
Agent's Special Counsel, and the Lenders, the Administrative Agent and such
counsel shall have received all information and such counterpart originals or
certified or other copies of such documents as the Administrative Agent may
reasonably request.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay any
interest on the Loans, any Fees, or other sums due hereunder or under any
of the other Loan Documents, within three (3) Business Days after the same
shall have become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for
payment,;
(c) the Borrower shall fail to comply with any of its covenants
contained in Sections 8.3(a), (b) or (c), the first sentence of 8.5, 8.9,
8.10, 8.11, 9 or 10;
(d) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this Section 13.1) for
thirty (30) days after written notice of such failure has been given to the
Borrower by the Administrative Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases
or any Synthetic Leases, individually or in the aggregate which exceeds
$10,000,000 ("MATERIAL DEBT"), or fail to observe or perform any material
term, covenant or agreement contained in any agreement for Material Debt
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as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof, or any such holder or holders shall
rescind or shall have a right to rescind the purchase of any such
obligations constituting Material Debt;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of any
substantial part of the assets of the Borrower or any of its Subsidiaries
or shall commence any case or other proceeding relating to the Borrower or
any of its Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law
of any jurisdiction, now or hereafter in effect, or shall take any action
to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within sixty (60) days following the filing
thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any such
case or other proceeding, or a decree or order for relief is entered in
respect of the Borrower or any Subsidiary of the Borrower in an involuntary
case under federal bankruptcy laws as now or hereafter constituted, which
shall not have been dismissed or stayed within sixty (60) days after the
filing thereof;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that, with
other outstanding final judgments, undischarged, against the Borrower or
any of its Subsidiaries exceeds in the aggregate $10,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the
Lenders required thereby, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower or any of its
Subsidiaries party thereto or any of their respective stockholders, or any
court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in accordance with
the terms thereof;
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(k) (i) the Borrower or any ERISA Affiliate shall fail to pay when
due an amount or amounts aggregating in excess of $10,000,000 which it
shall have become liable to pay under Title IV of ERISA; (ii) notice of
intent to terminate a Material Plan shall be filed under Title IV of ERISA
by the Borrower or any ERISA Affiliate, any plan administrator or any
combination of the foregoing; (iii) the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee
to be appointed to administer any Material Plan; (iv) a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; (v) there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause the Borrower and/or any ERISA
Affiliate to incur a current payment obligation in excess of $10,000,000;
or
(l) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement and the other Loan Documents and all Reimbursement Obligations
to be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; PROVIDED that in the event of any
Event of Default specified in Sections 13.1(g) or 13.1(h), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Administrative Agent or any Lender.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 13.1(g) or Section 13.1(h) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the
Lenders shall be relieved of all further obligations to make Loans to the
Borrower and the Issuing Lender shall be relieved of all further obligations to
issue, extend, amend or renew Letters of Credit. If any other Event of Default
shall have occurred and be continuing, the Administrative Agent may and, upon
the request of the Required Lenders, shall, by notice to the Borrower, terminate
the unused portion of the credit hereunder, and upon such notice being given
such unused portion of the credit hereunder shall terminate immediately and each
of the Lenders shall be relieved of all further obligations to make Loans and
the Issuing Lender shall be relieved of all further obligations to issue,
extend, amend or renew Letters of Credit. No termination of the credit hereunder
shall relieve the Borrower or any of its Subsidiaries of any of the Obligations.
13.3. REMEDIES. In case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to Section 13.1, each Lender, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may,
with the consent of the
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Required Lenders but not otherwise, proceed to protect and enforce its rights by
suit in equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Credit
Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations to such Lender are evidenced, including as permitted by applicable
law the obtaining of the EX PARTE appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right of such Lender. No remedy
herein conferred upon any Lender, the Administrative Agent or any Issuing Lender
or purchaser of any Letter of Credit Participation is intended to be exclusive
of any other remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law.
14. THE ADMINISTRATIVE AGENT.
14.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such powers
as are reasonably incident thereto, PROVIDED that no duties or
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of the
Lenders is that of an independent contractor. The use of the term
"ADMINISTRATIVE AGENT" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between the Administrative
Agent and any of the Lenders.
14.2. EMPLOYEES AND AGENTS. The Administrative Agent may exercise its
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the other
Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and all direct reasonable fees and expenses (not to include in any
event any indirect charges such as overhead charges, including in-house legal
services) of any such Persons shall be paid by the Borrower.
14.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver,
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consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Administrative Agent
or such other Person, as the case may be, may be liable for losses due to its
willful misconduct or gross negligence.
14.4. NO REPRESENTATIONS.
14.4.1. GENERAL. The Administrative Agent shall not be responsible for
the execution or validity or enforceability of this Credit Agreement, the
Letters of Credit, any of the other Loan Documents or any instrument at any
time constituting, or intended to constitute, collateral security for the
Loans, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing with
respect to the Loans, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower or any of its Subsidiaries, or be bound to ascertain or inquire as
to the performance or observance of any of the terms, conditions, covenants
or agreements herein or in any instrument at any time constituting, or
intended to constitute, collateral security for the Loans or to inspect any
of the properties, books or records of the Borrower or any of its
Subsidiaries. The Administrative Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the
Borrower shall have been duly authorized or is true, accurate and complete.
The Administrative Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the credit worthiness or
financial conditions of the Borrower or any of its Subsidiaries. Each
Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement.
14.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in Section 11, each Lender that
has executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent or the Arranger
to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the Borrower to
the Administrative Agent hereunder or any of the other Loan Documents for
the account of any Lender shall constitute a payment to such
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Lender. The Administrative Agent agrees promptly to distribute to each
Lender such Lender's PRO RATA share of payments received by the
Administrative Agent for the account of the Lenders except as otherwise
expressly provided herein or in any of the other Loan Documents.
14.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the reasonable
opinion of the Administrative Agent the distribution of any amount received
by it in such capacity hereunder, under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a court
of competent jurisdiction. To the extent that the Administrative Agent
refrains from making any distribution hereunder, it shall make reasonable
efforts to invest any such funds held by it in appropriate short-term
investments for the benefit of the Lenders. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
14.5.3. DELINQUENT LENDERS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) to make available to the Issuing Lender or the
Administrative Agent its PRO RATA share of any Loan or to purchase any
Letter of Credit Participation or (b) to comply with the provisions of
Section 16.1 with respect to making dispositions and arrangements with the
other Lenders, where such Lender's share of any payment received, whether
by setoff or otherwise, is in excess of its PRO RATA share of such payments
due and payable to all of the Lenders, in each case as, when and to the
full extent required by the provisions of this Credit Agreement, shall be
deemed delinquent (a "DELINQUENT LENDER") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from
the Borrower, whether on account of outstanding Loans, Unpaid Reimbursement
Obligations, interest, fees or otherwise, to the remaining nondelinquent
Lenders for application to, and reduction of, their respective PRO RATA
shares of all outstanding Loans and Unpaid Reimbursement Obligations. The
Delinquent Lender hereby authorizes the Administrative Agent to distribute
such payments to the nondelinquent Lenders in proportion to their
respective PRO RATA shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Loans and Unpaid Reimbursement
Obligations of the nondelinquent Lenders, the Lenders' respective PRO RATA
shares of all outstanding Loans and Unpaid Reimbursement Obligations have
returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
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14.6. PURCHASERS OF LETTER OF CREDIT PARTICIPATIONS. The Issuing Lender and
the Administrative Agent may deem and treat the purchaser of any Letter of
Credit Participation as the absolute purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by a
subsequent holder, assignee or transferee.
14.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any reasonable out-of-pocket expenses for
which the Administrative Agent or such affiliate has not been reimbursed by the
Borrower as required by Section 16.2), and liabilities of every nature and
character arising out of or related to this Credit Agreement or any of the other
Loan Documents or the transactions contemplated or evidenced hereby or thereby,
or the Administrative Agent's actions taken hereunder or thereunder, except to
the extent that any of the same shall be directly caused by the Administrative
Agent's bad faith, willful misconduct or gross negligence.
14.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the purchaser of any
Letter of Credit Participations, as it would have were it not also the
Administrative Agent. The Co-Arranger shall not have any obligation, liability,
responsibility or duty under this Credit Agreement other than as a Lender
hereunder.
14.9. RESIGNATION. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent reasonably acceptable to the
Borrower. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Administrative Agent shall be reasonably acceptable
to the Borrower. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent reasonably acceptable to
the Borrower, which shall be a financial institution having a rating of not less
than "A" or its equivalent by S&P. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent both as Administrative Agent and the Swing Line Lender but not as the
issuer of existing Letters of Credit, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent.
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14.10. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial, administrative or like proceeding or any
assignment for the benefit of creditors relative to the Borrower or any of
its Subsidiaries, the Administrative Agent (irrespective of whether the
principal of any Loan, Reimbursement Obligation or Unpaid Reimbursement
Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding, under any such assignment or
otherwise:
(i) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
Reimbursement Obligations or Unpaid Reimbursement Obligations and all
other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims
of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.2, 4.6, 5.1, 5.2 and 16.2)
allowed in such proceeding or under any such assignment; and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
(b) Any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such proceeding or under any
such assignment is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders,
nevertheless to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.2, 4.6, 5.1, 5.2 and 16.2.
(c) Nothing contained herein shall authorize the Administrative Agent to
consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
owed to such Lender or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding or under any such assignment.
14.11. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Lender hereby
agrees that, upon learning of the existence of a Default or an Event of
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Default, it shall promptly notify the Administrative Agent thereof. The
Administrative Agent hereby agrees that upon receipt of any notice under this
Section 14.10 it shall promptly notify the other Lenders of the existence of
such Default or Event of Default.
15. ASSIGNMENT AND PARTICIPATION.
15.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided herein, each
Lender may assign to one or more commercial banks, other financial institutions
or other Persons, all or a portion of its interests, rights and obligations
under this Credit Agreement (including all or a portion of its Commitment
Percentage and Commitment and the same portion of the Loans at the time owing to
it and its participating interest in the risk relating to any Letters of
Credit); PROVIDED that (a) each of the Administrative Agent and, unless an Event
of Default shall have occurred and be continuing, the Borrower shall have given
its prior written consent to such assignment, which consent, in the case of the
Borrower, will not be unreasonably withheld or delayed; (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Credit Agreement; (c) each assignment
(or, in the case of assignments by a Lender to its Lender Affiliates, the
aggregate holdings of such Lender and its Lender Affiliates after giving effect
to such assignments) other than assignments to existing Lenders shall be in an
amount that is equal to (i) such Lender's entire Commitment or an amount equal
to $5,000,000 or an integral multiple of $100,000 in excess thereof or (ii) such
amount as may be mutually agreed upon by the assigning Lender, assignee Lender,
the Administrative Agent and the Borrower; and (d) the parties to such
assignment shall execute and deliver to the Administrative Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of EXHIBIT D hereto (an "ASSIGNMENT AND ACCEPTANCE").
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (y) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (z) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Administrative Agent of the registration fee
referred to in Section 15.3, be released from its obligations under this Credit
Agreement.
15.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the assigning Lender and
the assignee thereunder, as applicable, confirm to and agree with each other and
the other parties hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
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this Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in Section 7.3 and Section 8.3 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Lender, the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Credit Agreement;
(e) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;
(f) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Lender;
(g) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
(h) such assignee acknowledges that it has made arrangements with the
assigning Lender satisfactory to such assignee with respect to its PRO RATA
share of Letter of Credit Fees in respect of outstanding Letters of Credit;
and
(i) such assignee acknowledges that it has complied with the
provisions of Section 5.3.3 to the extent applicable.
15.3. REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
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"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment Percentage of, and principal amount of the Loans owing to and
Letter of Credit Participations purchased by, the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection by the
Borrower and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender agrees
to pay to the Administrative Agent a registration fee in the sum of $3,500. Upon
its receipt of an Assignment and Acceptance executed by the parties to such
assignment, the Administrative Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrower and
the Lenders (other than the assigning Lender).
15.4. PARTICIPATIONS. Upon notice to the Borrower and the Administrative
Agent, each Lender may sell participations to one or more Lenders or other
entities in all or a portion of such Lender's rights and obligations under this
Credit Agreement and the other Loan Documents; provided, however, no such notice
to the Borrower and the Administrative Agent shall be required in the event of a
sale of a participation to such Lender's Affiliate. In the event of any such
grant by a Lender of a participating interest to a participant, such Lender
shall remain responsible for the performance of its obligations hereunder, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. Any agreement pursuant to which any
Lender may grant such a participating interest shall provide that such Lender
shall retain the sole right and responsibility to enforce the Obligations
hereunder, including without limitation the right to approve any amendment,
modification or waiver of any provision of this Credit Agreement; PROVIDED that
such participation agreement may provide that such Lender will not agree to any
amendment, modification or waiver of this Credit Agreement that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Lender as it relates to such participant,
reduce the amount of any Facility Fee or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
15.5. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any assignee
Lender is an Affiliate of the Borrower, then any such assignee Lender shall have
no right to vote as a Lender hereunder or under any of the other Loan Documents
for purposes of granting consents or waivers or for purposes of agreeing to
amendments or other modifications to any of the Loan Documents or for purposes
of making requests to the Administrative Agent pursuant to Section 13.1 or
Section 13.2, and the determination of the Required Lenders shall for all
purposes of this Credit Agreement and the other Loan Documents be made without
regard to such assignee Lender's interest in any of the Loans or Reimbursement
Obligations. If any Lender sells a participating interest in any of the Loans or
Reimbursement Obligations to a participant, and such participant is the Borrower
or an Affiliate of the Borrower,
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then such transferor Lender shall promptly notify the Administrative Agent of
the sale of such participation. A transferor Lender shall have no right to vote
as a Lender hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making requests to
the Administrative Agent pursuant to Section 13.1 or Section 13.2 to the extent
that such participation is beneficially owned by the Borrower or any Affiliate
of the Borrower, and the determination of the Required Lenders shall for all
purposes of this Credit Agreement and the other Loan Documents be made without
regard to the interest of such transferor Lender in the Loans or Reimbursement
Obligations to the extent of such participation. The provisions of this Section
15.5 shall not apply to an assignee Lender or participant which is also a Lender
on the Closing Date or to an assignee Lender or participant which has disclosed
to the other Lenders that it is an Affiliate of the Borrower and which,
following such disclosure, has been excepted from the provisions of this Section
15.5 in a writing signed by the Required Lenders determined without regard to
the interest of such assignee Lender or transferor Lender, to the extent of such
participation, in Loans or Reimbursement Obligations.
15.6. MISCELLANEOUS ASSIGNMENT PROVISIONS.
(a) Any assigning Lender shall retain its rights to be indemnified
pursuant to Section 16.3 with respect to any claims or actions arising prior to
the date of such assignment. If the Reference Lender transfers all of its
interest, rights and obligations under this Credit Agreement, the Administrative
Agent shall, in consultation with the Borrower and with the consent of the
Borrower and the Required Lenders, appoint another Lender to act as the
Reference Lender hereunder. Anything contained in this Section 15 to the
contrary notwithstanding, any Lender may at any time pledge or assign a security
interest in all or any portion of its interest and rights under this Credit
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to (a) any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 and
(b) with respect to any Lender that is a fund that invests in bank loans, to any
lender or any trustee for, or any other representative of, holders of
obligations owed or securities issued by such fund as security for such
obligations or securities or any institutional custodian for such fund or for
such lender. Any foreclosure or similar action by any Person in respect of such
pledge or assignment shall be subject to the other provisions of this Section
15. No such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan Documents, provide
any voting rights hereunder to the pledgee thereof, or affect any rights or
obligations of the Borrower or Administrative Agent hereunder.
(b) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Revolving Credit Loan that such
Granting Lender would otherwise be obligated to make the Borrower pursuant to
Sections
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2.1 and 3.4.2, PROVIDED that (a) nothing herein shall constitute a commitment to
make any Revolving Credit Loan by any SPC and (b) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Revolving Credit Loan
pursuant to the terms hereof. In the event of any such grant to an SPC by a
Granting Lender, such Granting Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Granting Lender in connection with such Granting Lender's rights and obligations
under this Credit Agreement. The making of a Revolving Credit Loan by a SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Revolving Credit Loan were made by the Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any payment
under this Credit Agreement for which a Granting Lender would otherwise be
liable. In furtherance of the foregoing, each party hereto hereby agrees that,
prior to the date that is one (1) year and one (1) day after the later of (i)
the payment in full of all outstanding senior indebtedness of any SPC and (ii)
the Final Maturity Date, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States of America or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 15.6, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the
Administrative Agent, assign all or a portion of its interests in any Revolving
Credit Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Revolving Credit Loans made by such SPC or to support the securities (if any)
issued by such SPC to fund such Revolving Credit Loans and (ii) disclose on a
confidential basis any non-public information relating to its Revolving Credit
Loans (other than financial statements referred to in Sections 7.3 or 8.3) to
any rating agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC. In no event shall the Borrower be
obligated to pay to an SPC that has made a Revolving Credit Loan any greater
amount than the Borrower would have been obligated to pay under this Agreement
if the Granting Lender had made such Revolving Credit Loan.
15.7. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer any
of its rights or obligations under any of the Loan Documents without the prior
written consent of each of the Lenders.
16. PROVISIONS OF GENERAL APPLICATIONS.
16.1. SETOFF. Regardless of the adequacy of any collateral, if any of the
Obligations are due and payable and have not been paid or any Event of Default
shall have occurred, any deposits or other sums credited by or due from any of
the Lenders to the Borrower and any securities or other property of the Borrower
in the possession of such Lender may be applied to or set off by such Lender
without further notice to the Borrower against the payment of Obligations
whether direct, or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, of the Borrower to such Lender; provided however
that such Lender shall
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advise the Borrower and the Administrative Agent promptly after making any set
off.. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that if
any Lender shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim constituting the Obligations owed to such Lender by proceedings against
the Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
and shall retain and apply such amount to the payment of the Obligations owed to
such Lender in excess of its ratable portion of the payments received by all of
the Lenders with respect to the Obligations owed to all of the Lenders, such
Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, PRO TANTO assignment of
claims, subrogation or otherwise as shall result in each Lender receiving in
respect of the Obligations owed it, its proportionate payment as contemplated by
this Credit Agreement; PROVIDED that if all or any part of such excess payment
is thereafter recovered from such Lender, such disposition and arrangements
shall be rescinded and the amount restored to the extent of such recovery, but
without interest.
16.2. EXPENSES. The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein (but in any event not
including any indirect charges such as overhead charges), (b) any taxes
(including any interest and penalties in respect thereto) payable by the
Administrative Agent, any Issuing Lender or any of the Lenders (other than taxes
based upon the Administrative Agent's, any Issuing Lender's or any Lender's net
income) on or with respect to the transactions contemplated by this Credit
Agreement (the Borrower hereby agreeing to indemnify the Administrative Agent,
each Issuing Lender and each Lender with respect thereto), (c) the reasonable
fees, expenses and disbursements of the Administrative Agent's Special Counsel
or any local counsel to the Administrative Agent incurred in connection with the
preparation, syndication, administration or interpretation of the Loan Documents
and other instruments mentioned herein, each closing hereunder, any amendments,
modifications, approvals, consents or waivers hereto or hereunder, or the
cancellation of any Loan Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document for providing for
such cancellation, (d) the fees, reasonable out-of-pocket expenses and
disbursements of the Administrative Agent and the Arranger or any of their
affiliates incurred by the Administrative Agent, the Arranger or such affiliate
in connection with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments mentioned herein (but
in any event not including any indirect charges such as overhead charges), (e)
all reasonable out-of-pocket expenses (including without limitation reasonable
attorneys' fees and costs, which attorneys may not be
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employees of any Lender, any Issuing Lender or the Administrative Agent, and
reasonable consulting, accounting, appraisal, investment bankruptcy and similar
professional fees and charges but in any event not including any indirect
charges such as overhead charges) incurred by any Lender, any Issuing Lender or
the Administrative Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the Borrower or
any of its Subsidiaries or the administration thereof after the occurrence of a
Default or Event of Default and (ii) any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related to any Lender's, any
Issuing Lender's or the Administrative Agent's relationship with the Borrower or
any of its Subsidiaries and (f) all reasonable fees, expenses and disbursements
of any Lender or the Administrative Agent incurred in connection with UCC
searches made on or prior to the Closing Date and after the occurrence and
during the continuance of any Event of Default (but in any event not including
any indirect charges such as overhead charges). The covenants contained in this
Section 16.2 shall survive payment or satisfaction in full of all other
Obligations.
16.3. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, the Arranger, the Co-Arranger, their affiliates, the
Issuing Lender(s) and the Lenders from and against any and all claims, actions
and suits whether groundless or otherwise, and from and against any and all
liabilities, losses, damages and expenses of every nature and character arising
out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any actual
or proposed use by the Borrower or any of its Subsidiaries of the proceeds of
any of the Loans or Letters of Credit, (b) the reversal or withdrawal of any
provisional credits granted by the Administrative Agent upon the transfer of
funds from lock box, bank agency, concentration accounts or otherwise under any
cash management arrangements with the Borrower or any Subsidiary or in
connection with the provisional honoring of funds transfers, checks or other
items, (c) the Borrower or any of its Subsidiaries entering into or performing
this Credit Agreement or any of the other Loan Documents or (d) with respect to
the Borrower and its Subsidiaries and their respective properties and assets,
the violation by any of them of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or threatened
release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of outside counsel incurred in connection with
any such investigation, litigation or other proceeding, but excluding (i) in the
case of the Administrative Agent or any affiliate, director, officer, employee
or representative thereof, claims arising solely as a result of the bad faith,
gross negligence or willful misconduct of the Administrative Agent or any of its
affiliates, directors, officers, employees or representatives, (ii) in the case
of any Lender or any Issuing Lender or any affiliate, director, officer,
employee or representative thereof, claims arising solely as a result of the bad
faith, gross negligence or willful misconduct of such Lender or any of its
affiliates, directors, officers, employees or representatives. In litigation or
the preparation therefor, the Lenders, the Issuing
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Lender(s) and the Administrative Agent and its affiliates shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel, PROVIDED that to the extent the interests of the Administrative Agent
and the Lenders are not in conflict, the Administrative Agent and the Lenders
shall only be entitled to reimbursement of such fees and expenses of only one
(1) counsel. If, and to the extent that the obligations of the Borrower under
this Section 16.3 are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The covenants contained
in this Section 16.3 shall survive payment or satisfaction in full of all other
Obligations.
16.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
16.4.1. CONFIDENTIALITY. Each of the Lenders, the Issuing Lender(s)
and the Administrative Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and representatives, to use
reasonable precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices, and not to
use other than in connection with such Lender's rights hereunder any
non-public information supplied to it by the Borrower or any of its
Subsidiaries pursuant to this Credit Agreement that is identified by such
Person as being confidential at the time the same is delivered to the
Lenders, the Issuing Lender(s) or the Administrative Agent, PROVIDED that
nothing herein shall limit the disclosure of any such information (a) after
such information shall have become public other than through a violation of
this Section 16, or becomes available to any of the Lenders or the
Administrative Agent on a nonconfidential basis from a source not in
violation of its confidentiality obligations other than the Borrower, (b)
to the extent required by statute, rule, regulation or judicial process,
(c) to counsel for any of the Lenders, any Issuing Lender or the
Administrative Agent, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Lender, any Issuing Lender or the
Administrative Agent, or to auditors or accountants, (e) to the
Administrative Agent, any Issuing Lender or any Lender, (f) required to be
disclosed publicly in connection with any litigation to which any one or
more of the Lenders, any Issuing Lender, the Administrative Agent or any
Financial Affiliate is a party, or in connection with the enforcement of
rights or remedies hereunder or under any other Loan Document, (g) to a
Lender Affiliate or a Subsidiary or affiliate of the Administrative Agent,
(h) to any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under
this Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees to be bound by the
provisions of Section 16.4 or (i) with the consent of the Borrower.
Moreover, each of the Administrative Agent, the Lenders and any Financial
Affiliate may, with the prior written consent of the Borrower, refer to any
of the Borrower and its
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Subsidiaries in connection with any advertising, promotion or marketing
undertaken by the Administrative Agent, such Lender or such Financial
Affiliate and, for such purpose, the Administrative Agent, such Lender or
such Financial Affiliate may utilize any trade name, trademark, logo or
other distinctive symbol associated with the Borrower or any of its
Subsidiaries or any of their businesses.
16.4.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders, the Issuing Lender(s)
and the Administrative Agent shall, prior to disclosure thereof, notify the
Borrower of any request for disclosure of any such non-public information
by any governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) or pursuant to legal process.
16.4.3. OTHER. In no event shall any Lender, any Issuing Lender or the
Administrative Agent be obligated or required to return any materials
furnished to it or any Financial Affiliate by the Borrower or any of its
Subsidiaries. The obligations of each Lender under this Section 16 shall
supersede and replace the obligations of such Lender under any
confidentiality letter in respect of this financing signed and delivered by
such Lender to the Borrower prior to the date hereof and shall be binding
upon any assignee of, or purchaser of any participation in, any interest in
any of the Loans or Reimbursement Obligations from any Lender.
16.5. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in any of the other Loan Documents
or in any documents or other papers delivered by or on behalf of the Borrower or
any of its Subsidiaries pursuant hereto shall be deemed to have been relied upon
by the Lenders, the Issuing Lender(s) and the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Lenders of any of the Loans and the
issuance, extension, amendment or renewal of any Letters of Credit, as herein
contemplated, and shall continue in full force and effect so long as any Letter
of Credit or any amount due under this Credit Agreement or any of the other Loan
Documents remains outstanding or any Lender has any obligation to make any Loans
or the Issuing Lender has any obligation to issue, extend, amend or renew any
Letter of Credit, and for such further time as may be otherwise expressly
specified in this Credit Agreement.
16.6. NOTICES. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or any Letter of Credit Applications shall be
in writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telecopy or facsimile and confirmed by delivery via courier or postal
service, addressed as follows:
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(a) if to the Borrower or any Guarantor, at 200 Domain Drive,
Stratham, New Hampshire, Attention: Gregory Saltzberg, Vice President and
Treasurer, or at such other address for notice as the Borrower shall last
have furnished in writing to the Person giving the notice, with a copy to
(i) General Counsel, The Timberland Company, 200 Domain Drive, Stratham,
New Hampshire and (ii) Jane Goldstein, Esq., Ropes & Gray LLP, One
International Place, Boston, Massachusetts 02110;
(b) if to the Administrative Agent, at 40 Broad Street, Boston,
Massachusetts 02110, USA, Attention: Linda H. Thomas, Managing Director, or
such other address for notice as the Administrative Agent shall last have
furnished in writing to the Person giving the notice, with a copy to
Cynthia Barnett, Bingham McCutchen LLP, 150 Federal Street, Boston,
Massachusetts 02110;
(c) if to any Issuing Lender, at such Issuing Lender's address set
forth on SCHEDULE 1 hereto, or such other address for notice as such
Issuing Lender shall have last furnished in writing to the Person giving
the notice; and
(d) if to any Lender, at such Lender's address set forth on SCHEDULE
1 hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other
communication to be made hereunder or under any Letter of Credit Applications,
even if otherwise required to be in writing under other provisions of this
Credit Agreement, may alternatively be made in an electronic record transmitted
electronically under such authentication and other procedures as the parties
hereto may from time to time agree in writing (but not an electronic record),
and such electronic transmission shall be effective at the time set forth in
such procedures. Unless otherwise expressly provided in such procedures, such an
electronic record shall be equivalent to a writing under the other provisions of
this Credit Agreement or any Letter of Credit Applications, and such
authentication, if made in compliance with the procedures so agreed by the
parties hereto in writing (but not an electronic record), shall be equivalent to
a signature under the other provisions of this Credit Agreement or any Letter of
Credit Applications.
16.7. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
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BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN SECTION 16.6. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR
THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
16.8. HEADINGS. The captions in this Credit Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
16.9. COUNTERPARTS. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. Delivery by facsimile by any of the
parties hereto of an executed counterpart hereof or of any amendment or waiver
hereto shall be as effective as an original executed counterpart hereof or of
such amendment or waiver and shall be considered a representation that an
original executed counterpart hereof or such amendment or waiver, as the case
may be, will be delivered.
16.10. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 16.12.
16.11. WAIVER OF JURY TRIAL. THE BORROWER HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE ADMINISTRATIVE AGENT
OR ANY LENDER OR ANY ISSUING LENDER RELATING TO THE ADMINISTRATION OF THE LOANS
OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, the Borrower hereby
waives any
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right it may have to claim or recover in any litigation referred to in the
preceding sentence any (a) consequential damages or any damages other than, or
in addition to, actual damages (other than as a result of the Administrative
Agent's, any Issuing Lender's or any Lender's bad faith, gross negligence or
willful misconduct) and (b) special, exemplary or punitive damages. The Borrower
(i) certifies that no representative, agent or attorney of any Lender, any
Issuing Lender or the Administrative Agent has represented, expressly or
otherwise, that such Lender or the Administrative Agent would not, in the event
of litigation, seek to enforce the foregoing waivers and (ii) acknowledges that
the Administrative Agent, the Issuing Lender(s) and the Lenders have been
induced to enter into this Credit Agreement, the other Loan Documents to which
it is a party by, among other things, the waivers and certifications contained
in this Section 16.11.
16.12. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval required
or permitted by this Credit Agreement to be given by the Lenders may be given,
and any term of this Credit Agreement, the other Loan Documents or any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or any of its Subsidiaries of any
terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrower and the
written consent of the Required Lenders. Notwithstanding the foregoing, no
amendment, modification or waiver shall:
(a) without the written consent of the Borrower and each Lender
directly affected thereby:
(i) reduce or forgive the principal amount of any Revolving
Credit Loans or Reimbursement Obligations, or reduce the rate of
interest on the Revolving Credit Loans or the amount of the Facility
Fee or Letter of Credit Fees (other than interest accruing pursuant to
Section 5.11.2 following the effective date of any waiver by the
Required Lenders of the Default or Event of Default relating thereto);
(ii) increase the amount of such Lender's Commitment or extend
the expiration date of such Lender's Commitment;
(iii) postpone or extend the Final Maturity Date or any other
regularly scheduled dates for payments of principal of, or interest
on, the Revolving Credit Loans or Reimbursement Obligations or any
Fees or other amounts payable to such Lender (it being understood that
(A) a waiver of the application of the default rate of interest
pursuant to Section 5.11.2, and (B) any vote to rescind any
acceleration made pursuant to Section 13.1 of amounts owing with
respect to the Revolving Credit Loans and other Obligations shall
require only the approval of the Required Lenders); and
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(iv) other than pursuant to a transaction permitted by the
terms of this Credit Agreement, release all or substantially all of
the Guarantors from their guaranty obligations under the Subsidiary
Guaranty (other than pursuant to Section 6.2) (excluding, if the
Borrower or any Guarantor becomes a debtor under the federal
Bankruptcy Code, the release of "CASH COLLATERAL", as defined in
Section 363(a) of the federal Bankruptcy Code pursuant to a cash
collateral stipulation with the debtor approved by the Required
Lenders);
(b) without the written consent of all of the Lenders, amend or waive
(i) provisions of this Section 16.12 which require the consent of all of
the Lenders or (ii) the definition of "REQUIRED LENDERS";
(c) without the written consent of the Swing Line Lender, amend or
waive Section 3, the amount or time of payment of the Swing Line Loans or
any other provision adversely affecting the obligations of the Swing Line
Lender with respect to Swing Line Loans;
(d) without the written consent of the Administrative Agent, amend or
waive Section 14, the amount or time of payment of the Administrative
Agent's fee payable for the Administrative Agent's account or any other
provision adversely affecting the rights or obligations of the
Administrative Agent; or
(e) without the written consent of the Issuing Lender, amend or waive
any Letter of Credit Fees payable for the Issuing Lender's account or any
provision adversely affecting the obligations of the Issuing Lender with
respect to Letters of Credit.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent, any Issuing Lender or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
16.13. USA PATRIOT ACT. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "PATRIOT ACT"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
Patriot Act.
16.14. SEVERABILITY. The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall
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not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
[Remainder of Page Intentionally Left Blank]
<Page>
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
THE TIMBERLAND COMPANY
By:
------------------------------
Name:
Title:
FLEET NATIONAL BANK, individually
and as Administrative Agent
By:
------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
------------------------------
Name:
Title:
CITIZENS BANK
By:
------------------------------
Name:
Title:
<Page>
THE NORTHERN TRUST COMPANY
By:
------------------------------
Name:
Title:
SAN PAOLO IMI BANK
By:
------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
------------------------------
Name:
Title:
HSBC BANK USA
By:
------------------------------
Name:
Title:
BANK OF NEW YORK
By:
------------------------------
Name:
Title:
<Page>
US BANK, N.A.
By:
------------------------------
Name:
Title: