Exhibit 99
EXECUTION VERSION
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[Published CUSIP Number: ________________]
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 27, 2005
among
ENGINEERED SUPPORT SYSTEMS, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................1
1.01 Assignment and Allocations.....................................................................1
1.02 Defined Terms..................................................................................3
1.03 Other Interpretive Provisions.................................................................22
1.04 Accounting Terms..............................................................................23
1.05 Rounding......................................................................................23
1.06 References to Agreements and Laws.............................................................23
1.07 Times of Day..................................................................................24
1.08 Letter of Credit Amounts......................................................................24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.....................................................24
2.01 Committed Loans...............................................................................24
2.02 Borrowings, Conversions and Continuations of Committed Loans..................................24
2.03 Letters of Credit.............................................................................26
2.04 Swing Line Loans..............................................................................33
2.05 Prepayments...................................................................................35
2.06 Termination or Reduction of Commitments.......................................................36
2.07 Repayment of Loans............................................................................37
2.08 Interest......................................................................................37
2.09 Fees..........................................................................................37
2.10 Computation of Interest and Fees..............................................................38
2.11 Evidence of Debt..............................................................................38
2.12 Payments Generally............................................................................39
2.13 Sharing of Payments...........................................................................40
2.14 Increase in Commitments.......................................................................41
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY....................................................42
3.01 Taxes.........................................................................................42
3.02 Illegality....................................................................................43
3.03 Inability to Determine Rates..................................................................43
3.04 Increased Cost and Reduced Return; Capital Adequacy...........................................44
3.05 Funding Losses................................................................................44
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3.06 Matters Applicable to all Requests for Compensation...........................................45
3.07 Survival......................................................................................45
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................................45
4.01 Conditions of Initial Credit Extension........................................................45
4.02 Conditions to all Credit Extensions...........................................................47
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................47
5.01 Existence, Qualification and Power; Compliance with Laws......................................47
5.02 Authorization; No Contravention...............................................................48
5.03 Governmental Authorization; Other Consents....................................................48
5.04 Binding Effect................................................................................48
5.05 Financial Statements; No Material Adverse Effect..............................................48
5.06 Litigation....................................................................................48
5.07 No Default....................................................................................49
5.08 Ownership of Property; Liens..................................................................49
5.09 Environmental Compliance......................................................................49
5.10 Insurance.....................................................................................49
5.11 Taxes.........................................................................................49
5.12 ERISA Compliance..............................................................................49
5.13 Subsidiaries..................................................................................50
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................50
5.15 Disclosure....................................................................................50
5.16 Compliance with Laws..........................................................................51
5.17 Intellectual Property; Licenses, Etc..........................................................51
5.18 Off-Balance Sheet Liabilities.................................................................51
5.19 Purchase Agreement............................................................................51
ARTICLE VI AFFIRMATIVE COVENANTS.....................................................................51
6.01 Financial Statements..........................................................................51
6.02 Certificates; Other Information...............................................................52
6.03 Notices.......................................................................................53
6.04 Payment of Obligations........................................................................54
6.05 Preservation of Existence, Etc................................................................54
6.06 Maintenance of Properties.....................................................................54
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6.07 Maintenance of Insurance......................................................................54
6.08 Compliance with Laws and Contractual Obligations..............................................54
6.09 Books and Records.............................................................................55
6.10 Inspection Rights.............................................................................55
6.11 Use of Proceeds...............................................................................55
6.12 Additional Guarantors.........................................................................55
ARTICLE VII NEGATIVE COVENANTS........................................................................55
7.01 Liens.........................................................................................55
7.02 Investments...................................................................................57
7.03 Indebtedness..................................................................................57
7.04 Fundamental Changes...........................................................................58
7.05 Dispositions..................................................................................58
7.06 Restricted Payments...........................................................................59
7.07 Change in Nature of Business..................................................................60
7.08 Transactions with Affiliates..................................................................60
7.09 Burdensome Agreements.........................................................................60
7.10 Use of Proceeds...............................................................................60
7.11 Financial Covenants...........................................................................61
7.12 Off-Balance Sheet Liabilities.................................................................61
7.13 Acquisitions..................................................................................61
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES............................................................62
8.01 Events of Default.............................................................................62
8.02 Remedies Upon Event of Default................................................................64
8.03 Application of Funds..........................................................................64
ARTICLE IX ADMINISTRATIVE AGENT......................................................................65
9.01 Appointment and Authorization of Administrative Agent.........................................65
9.02 Delegation of Duties..........................................................................66
9.03 Liability of Administrative Agent.............................................................66
9.04 Reliance by Administrative Agent..............................................................66
9.05 Notice of Default.............................................................................67
9.06 Credit Decision; Disclosure of Information by Administrative Agent............................67
9.07 Indemnification of Administrative Agent.......................................................68
9.08 Administrative Agent in its Individual Capacity...............................................68
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9.09 Successor Administrative Agent................................................................68
9.10 Administrative Agent May File Proofs of Claim.................................................69
9.11 Guaranty Matters..............................................................................70
9.12 Other Agents; Arrangers and Managers..........................................................70
ARTICLE X MISCELLANEOUS.............................................................................70
10.01 Amendments, Etc...............................................................................70
10.02 Notices and Other Communications; Facsimile Copies............................................71
10.03 No Waiver; Cumulative Remedies................................................................72
10.04 Attorney Costs, Expenses and Taxes............................................................73
10.05 Indemnification by the Borrower...............................................................73
10.06 Payments Set Aside............................................................................74
10.07 Successors and Assigns........................................................................74
10.08 Confidentiality...............................................................................78
10.09 Set-off.......................................................................................78
10.10 Interest Rate Limitation......................................................................79
10.11 Counterparts..................................................................................79
10.12 Integration...................................................................................79
10.13 Survival of Representations and Warranties....................................................79
10.14 Severability..................................................................................79
10.15 Tax Forms.....................................................................................80
10.16 Governing Law.................................................................................81
10.17 Waiver of Right to Trial by Jury..............................................................82
10.18 Entire Agreement..............................................................................82
10.19 USA PATRIOT Act Notice........................................................................82
SIGNATURES.....................................................................................................S-1
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.09 Environmental Violations
5.13 Subsidiaries and Other Equity Investments
5.18 Off-Balance Sheet Liabilities
7.03 Existing Indebtedness
7.05(a) Sale and Leaseback Transactions Not Subject to Limitations on
Dispositions
7.05(b) Real Property Permitted to Be Sold
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Committed Loan Note
C-2 Swing Line Note
D Compliance Certificate
E Assignment and Assumption
F Guaranty
G Opinion Matters
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
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into as of January 27, 2005, among ENGINEERED SUPPORT SYSTEMS, INC., a
Missouri corporation (the "Borrower"), each lender from time to time party
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hereto (collectively, the "Lenders" and individually, a "Lender"), and BANK
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OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
PRELIMINARY STATEMENTS
A. The Borrower, certain of the Lenders and the Administrative
Agent are parties to that certain Credit Agreement dated as of April 23,
2003 (the "Existing Credit Agreement") pursuant to which the Lenders agreed
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to make certain credit facilities available to the Borrower in accordance
with the terms thereof.
B. The Borrower, the Lenders and the Administrative Agent desire to
amend and restate the Existing Credit Agreement in its entirety on the terms
and conditions set forth herein (the "Amendment and Restatement").
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In consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the Borrower, the Lenders and the Administrative Agent agree to amend and
restate the Existing Credit Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 ASSIGNMENT AND ALLOCATIONS. In order to facilitate the
Amendment and Restatement and otherwise to effectuate the desires of the
Borrower, the Administrative Agent and the Lenders:
(a) The parties hereto agree that (i) each of the Commitments (as
defined in the Existing Credit Agreement) shall, subject to the terms
hereof, constitute a Commitment hereunder. As of the close of business on
the date immediately preceding the Closing Date, the Commitments, the Pro
Rata Shares (as defined in the Existing Credit Agreement) of the Lenders (as
defined in the Existing Credit Agreement) and the Total Outstandings (as
defined in the Existing Credit Agreement) outstanding under the Existing
Credit Agreement were as follows:
Revolving Credit Lender's Applicable Outstanding Amount
Lender Commitment Commitment Percentage of Loans
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Bank of America, N.A. $22,000,000 17.600000000% $0
Harris Trust and Savings Bank $16,600,000 13.280000000% $0
Union Planters Bank, N.A. $16,600,000 13.280000000% $0
U.S. Bank, N.A. $16,600,000 13.280000000% $0
Wells Fargo Bank, N.A. $16,600,000 13.280000000% $0
LaSalle Bank National Association $16,600,000 13.280000000% $0
Fifth Third Bank, Indiana $12,000,000 9.600000000% $0
The Northern Trust Company $8,000,000 6.400000000% $0
TOTAL $125,000,000 100.000000% $0
(ii) each of the Letters of Credit under the Existing Credit Agreement shall
constitute a Letter of Credit hereunder, and (iii) each outstanding Swing
Line Loan (as defined in the Existing Credit Agreement) shall constitute an
outstanding Swing Line Loan hereunder.
(b) Simultaneously with the Closing Date, the parties hereby agree
that the Commitments of each Lender shall be as set forth in Schedule 2.01
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and the Total Outstandings under the Existing Credit Agreement shall be
reallocated in accordance with such Commitments and the requisite
assignments shall be deemed to be made in such amounts by and between the
Lenders and from each Lender to each other Lender, with the same force and
effect as if such assignments were evidenced by applicable Assignments and
Assumptions (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement. Notwithstanding anything to the contrary in Section 10.01
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of the Existing Credit Agreement or this Agreement, no other documents or
instruments, including any Assignment and Assumption, shall be executed, and
no fees otherwise provided for in such section as payable to the
Administrative Agent in connection with assignments will be payable, in
connection with these assignments (all of which requirements are hereby
waived), and such assignments shall be deemed to be made with all applicable
representations, warranties and covenants as if evidenced by an Assignment
and Assumption. On the Closing Date, the Lenders shall make full cash
settlement with the Administrative Agent, as the Administrative Agent may
direct or approve, with respect to all assignments, reallocations and other
changes in Commitments and Total Outstandings such that after giving effect
to such settlements each Lender's Pro Rata Shares shall be as set forth in
Schedule 2.01.
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(c) The Borrower, the Administrative Agent and the Lenders hereby
agree that upon the effectiveness of this Agreement, the terms and
provisions of the Existing Credit Agreement shall be and hereby are amended
and restated in their entirety by the terms, conditions and provisions of
this Agreement, and the terms and provisions of the Existing Credit
Agreement, except as otherwise expressly provided herein, shall be
superseded by this Agreement.
Notwithstanding this amendment and restatement of the Existing
Credit Agreement, including anything in this Section 1.01, and in any
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related Loan Documents (as defined in the Existing Credit Agreement and
referred to herein, individually or collectively, as the "Existing Loan
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Documents"), (i) all of the indebtedness, liabilities and obligations owing
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by any Person under the Existing Credit Agreement shall continue as
Obligations hereunder, (ii) all of the indebtedness, liabilities and
obligations owing by any Person under the Existing Loan Documents other than
the Existing Credit Agreement shall continue under the corresponding such
amended or amended and restated Loan Document and (iii) each of this
Agreement and the Notes and any other Loan Document (as defined herein) that
is amended or amended and restated in connection with this Agreement is
given as a substitution of, and not as a payment of, the indebtedness,
liabilities and obligations of the Borrower and the Guarantors under the
Existing Credit Agreement or any Existing Loan Document, and neither the
execution and delivery of such documents nor the consummation of any other
transaction contemplated hereunder is, or is intended to constitute, a
novation or termination of the Existing Credit Agreement or of any of the
other Existing Loan Documents or any obligations incurred thereunder. Upon
the effectiveness of this Agreement, all Loans owing by the Borrower and
outstanding under the Existing Credit Agreement shall continue as Loans
hereunder and shall constitute advances hereunder, and all Letters of Credit
outstanding under the Existing Credit Agreement and any of the Existing Loan
Documents shall continue as Letters of Credit hereunder. On and after the
Closing Date, all outstanding Base Rate Loans (as defined in the Existing
Credit Agreement) shall continue as Base Rate Loans hereunder, all
outstanding Eurodollar Rate Loans (as defined in the Existing Credit
Agreement) shall continue as Eurodollar Rate Loans hereunder and the
Interest Periods for all Eurodollar Rate Loans outstanding under the
Existing Credit Agreement on the Effective Date shall remain in effect
without renewal, interruption or extension as Eurodollar Rate Loans under
this Agreement; provided that if any Loans outstanding under the Existing
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Credit Agreement are assigned or terminated pursuant to this Section 1.01 on
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a day other than the last day of an Interest Period, the Borrower shall not
be required to compensate the Lenders pursuant to Section 3.05 as if such
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assignment constituted a prepayment of such Loans; provided, further that on
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and after the Closing Date, the Applicable Rate and fees applicable to Loans
and Letters of Credit hereunder shall apply without regard to any margins or
fees otherwise applicable thereto under the Existing Credit Agreement prior
to the Closing Date.
1.02 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means the acquisition of (a) a controlling equity or
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other ownership interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity or other ownership interest or
upon exercise of an option or warrant for, or conversion of securities into,
such equity or other ownership interest, or
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(b) assets of another Person which constitute all or any material part of
the assets of such Person or of a line or lines of business conducted by
such Person.
"Acquisition Adjustments" means the adjustments to certain
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financial terms and computations more particularly described in Section 1.04(c).
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"Administrative Agent" means Bank of America in its capacity as
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administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
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address and, as appropriate, account as set forth on Schedule 10.02, or such
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other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative
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Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
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directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Control" means the possession, directly or indirectly, of the power to
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direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
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Without limiting the generality of the foregoing, a Person shall be deemed
to be Controlled by another Person if such other Person possesses, directly
or indirectly, power to vote 10% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the
equivalent.
"Agent-Related Persons" means the Administrative Agent, together
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with its Affiliates (including, in the case of Bank of America in its
capacity as the Administrative Agent, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders
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and on the Closing Date is $200,000,000 in aggregate principal amount.
"Agreement" means this Amended and Restated Credit Agreement, as it
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may hereafter be amended, supplemented, restated or otherwise modified from
time to time.
"Amendment and Restatement" has the meaning set forth in the
-------------------------
Preliminary Statements hereto.
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"Applicable Rate" means the following percentages per annum, based
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upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b):
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4
APPLICABLE RATE
Eurodollar
Rate +
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Pricing Letters of
Level Consolidated Leverage Ratio Commitment Fee Credit Base Rate +
- -----------------------------------------------------------------------------------------------
1 < 1.50:1 0.175% 0.625% 0.0%
2 > 1.50:1 but < 2.00:1 0.200% 0.875% 0.0%
-
3 > 2.00:1 but < 2.50:1 0.250% 1.125% 0.0%
-
4 > 2.50:1 0.300% 1.375% 0.00%
-
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the
third Business Day immediately following the date a Compliance Certificate
is required to be delivered pursuant to Section 6.02(b); provided, however,
--------------- -------- -------
that if a Compliance Certificate is not delivered when due in accordance
with such Section, then Pricing Level 4 shall apply as of the fifth Business
Day after the date on which such Compliance Certificate was required to have
been delivered. The Applicable Rate in effect from the Closing Date through
delivery of the Compliance Certificate for the period ending January 31,
2005 shall be Pricing Level 1.
"Arranger" means Banc of America Securities LLC, in its capacity as
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sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
-------------------------
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
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disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses
and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of
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any capital lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation,
the capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease were accounted for as a
capital lease.
"Audited Financial Statements" means the audited consolidated
----------------------------
balance sheet of the Borrower and its Subsidiaries for the fiscal year ended
October 31, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of the
Borrower and its Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the
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Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.06, and (c)
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the date of termination of the commitment of each Lender to make Loans and
of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant
to Section 8.02.
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"Bank of America" means Bank of America, N.A. and its successors.
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"BAS" means Banc of America Securities LLC and its successors.
---
"Base Rate" means for any day a fluctuating rate per annum equal to
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the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base
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Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
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Rate.
"Borrower" has the meaning specified in the introductory paragraph
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hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing,
---------
as the context may require.
"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks are authorized to close under the Laws of, or
are in fact closed in, the state where the Administrative Agent's Office is
located and, if such day relates to any Eurodollar Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks
in the London interbank eurodollar market.
"Capital Expenditures" means, for any period and with respect to
--------------------
any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
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"Change of Control" means, with respect to any Person, an event or
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series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire
(such right, an "option right"), whether such right is exercisable
------------
immediately or only after the passage of time), directly or
indirectly, of 25% or more of the equity securities of such Person
entitled to
6
vote for members of the board of directors or equivalent governing
body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to
acquire pursuant to any option right); or
(b) during any period of 18 consecutive months, a majority
of the members of the board of directors or other equivalent
governing body of such Person cease to be composed of individuals
(i) who were members of that board or equivalent governing body on
the first day of such period, (ii) whose election or nomination to
that board or equivalent governing body was approved by individuals
referred to in clause (i) above (including such individuals
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retiring from such membership and thereby creating an open seat on
such board or body to be filled by such election or nomination)
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing
body was approved by individuals referred to in clauses (i) and (ii)
----------- ----
above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
----------- ------------
individual whose initial nomination for, or assumption of office
as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of
one or more directors by or on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in
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Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in
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the case of Section 4.01(b), waived by the Person entitled to receive the
---------------
applicable payment).
"Code" means the Internal Revenue Code of 1986.
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"Commitment" means, as to each Lender, its obligation to (a) make
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Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
------------
participations in L/C Obligations, and (c) purchase participations in Swing
Line Loans, in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name on Schedule 2.01
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or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to
time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
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Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
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"Committed Loan" has the meaning specified in Section 2.01.
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"Committed Loan Note" means a promissory note made by the Borrower
-------------------
in favor of a Lender evidencing Committed Loans made by such Lender,
substantially in the form of Exhibit C-1.
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"Committed Loan Notice" means a notice of (a) a Committed
---------------------
Borrowing, (b) a conversion of Committed Loans from one Type to the other,
or (c) a continuation of Eurodollar
7
Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
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substantially in the form of Exhibit A.
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"Compliance Certificate" means a certificate substantially in the
----------------------
form of Exhibit D.
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"Consolidated EBITDA" means, for any period, for the Borrower and
-------------------
its Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus (a) the following to the extent deducted in
----
calculating such Consolidated Net Income: (i) Consolidated Interest Charges
for such period, (ii) the provision for federal, state, local and foreign
income taxes payable by the Borrower and its Subsidiaries for such period,
and (iii) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income, subject in connection with the
calculation of the Consolidated Leverage Ratio pursuant to Section 7.11(c)
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only to Acquisition Adjustments.
"Consolidated EBITDAR" means, for any period, for the Borrower and
--------------------
its Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted in
----
calculating such Consolidated Net Income: (a) Consolidated Interest Charges
for such period, (b) the provision for federal, state, local and foreign
income taxes payable by the Borrower and its Subsidiaries for such period,
(c) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income, and (d) Consolidated Rent Expense
for such period.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
----------------------------------------
the Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the ratio of (a) Consolidated EBITDAR minus
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(without duplication) Capital Expenditures (excluding in the determination
of Capital Expenditures for this calculation all Costs of Acquisition) minus
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(without duplication) taxes paid by the Borrower and its Subsidiaries in
cash for such period to (b) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to the Borrower
--------------------------
and its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (a) Consolidated
Interest Charges, (b) dividends, and (c) Consolidated Rent Expense for such
period, all determined on a consolidated basis in accordance with GAAP.
"Consolidated Funded Indebtedness" means, as of any date of
--------------------------------
determination, for the Borrower and its Subsidiaries on a consolidated
basis, the sum of (a) the outstanding principal amount of all obligations,
whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness
in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other than the
----------- ---
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred
to in clauses (a) through (f) above of any partnership or joint venture
----------- ---
(other than a joint venture that is itself a
8
corporation or limited liability company) in which the Borrower or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to the Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the
-----------------------------
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related
expenses of the Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP, (b) the portion of Consolidated Rent Expense for such
period under capital leases that is treated as interest in accordance with
GAAP and (c) the amount of payments in respect of Synthetic Lease
Obligations that are in the nature of interest.
"Consolidated Leverage Ratio" means, as of any date of
---------------------------
determination, the ratio of (a) Consolidated Funded Indebtedness as of such
date to (b) Consolidated EBITDA for the period of the four fiscal quarters
most recently ended for which the Borrower has delivered financial
statements pursuant to Section 6.01(a) or (b).
--------------- ---
"Consolidated Net Income" means, for any period, for the Borrower
-----------------------
and its Subsidiaries on a consolidated basis, the net income of the Borrower
and its Subsidiaries (excluding extraordinary gains but including
extraordinary losses) for that period.
"Consolidated Net Worth" means, as of any date of determination,
----------------------
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders'
Equity of the Borrower and its Subsidiaries on that date.
"Consolidated Rent Expense" means, for any period, for the Borrower
-------------------------
and its Subsidiaries on a consolidated basis, the portion of rent expense of
the Borrower and its Subsidiaries with respect to such period that is not
included in (a) Consolidated Interest Charges or (b) depreciation and
amortization expense.
"Contractual Obligation" means, as to any Person, any provision of
----------------------
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of
-------
"Affiliate."
"Cost of Acquisition" means, with respect to any Acquisition, as at
-------------------
the date of entering into any agreement therefor, the sum of the following
---
(without duplication): (a) the value of the capital stock, warrants or
options to acquire capital stock of the Borrower or any Subsidiary to be
transferred in connection therewith, (b) the amount of any cash and fair
market value of other property (excluding property described in clause (a)
----------
and the unpaid principal amount of any debt instrument) given as
consideration, (c) the amount (determined by using the face amount or the
amount payable at maturity, whichever is greater) of any Indebtedness
incurred, assumed or acquired by the Borrower or any Subsidiary in
connection with such Acquisition, (d) all additional purchase price amounts
in the form of earnouts and other contingent obligations that should be
recorded on the financial statements of the Borrower and its Subsidiaries in
accordance with GAAP, (e) all amounts paid in respect of covenants not to
compete, consulting agreements
9
that should be recorded on financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, (f) the aggregate fair market value of
all other consideration given by the Borrower or any Subsidiary in
connection with such Acquisition, and (g) reasonable estimated out-of-pocket
transaction costs for the services and expenses of attorneys, accountants
and other consultants incurred in effecting such transaction, and other
similar transaction costs so incurred and capitalized in accordance with
GAAP. For purposes of determining the Cost of Acquisition for any
transaction, the capital stock of the Borrower shall be valued (I) in the
case of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc. ("NASDAQ")
------
or is listed on a national securities exchange, the average of the last
reported bid and ask quotations or the last prices reported thereon, and
(II) with respect to any other shares of capital stock, as determined by the
Board of Directors of the Borrower and, if requested by the Administrative
Agent, determined to be a reasonable valuation by the independent public
accountants referred to in Section 6.01(a).
---------------
"Credit Extension" means each of the following: (a) a Borrowing and
----------------
(b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United
------------------
States, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
-------
Default or that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate
------------
plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c)
- ---- ----
2% per annum; provided, however, that with respect to a Eurodollar Rate
-------- -------
Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2%
per annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund
-----------------
any portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease
----------- -------
or other disposition (including any sale and leaseback transaction) of any
property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or
any rights and claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
------ -
10
"Domestic Subsidiary" means any Subsidiary that is organized under
-------------------
the laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
----------------- ----------------
"Environmental Laws" means any and all Federal, state, local, and
------------------
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or
-----------------------
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any other
Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
-----
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
-----------
Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"ESP" means Engineered Specialty Plastics, Inc.
---
"ESP Companies" means ESP, Associated Products Inc. - U.S.A., and
-------------
Lifetime Faucets, Inc.
11
"ESP Transaction" means the sale by the Borrower of the ESP
---------------
Companies effected by a sale of all of the issued and outstanding capital
stock of Associated Products, Inc. - U.S.A. pursuant to the Stock Purchase
and Sale Agreement between the Borrower and Powerscourt Group, Inc.
substantially in the form previously delivered to the Administrative Agent.
"Eurodollar Base Rate" has the meaning set forth in the definition
--------------------
of Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to a
---------------
Eurodollar Rate Loan, a rate per annum determined by the Administrative
Agent pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
----------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period with respect
--------------------
to a Eurodollar Rate Loan:
(a) the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or
---------
other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time)
at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period; or
(b) if such rate referenced in the preceding clause (a) is
----------
not available at such time for any reason, then the "Eurodollar
Base Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the
London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
-----------------------------
Interest Period, the reserve percentage (expressed as a decimal, carried out
to five decimal places) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency liabilities").
The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
12
"Eurodollar Rate Loan" means a Committed Loan that bears interest
--------------------
at a rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
---------------- ------------
"Existing Credit Agreement" has the meaning set forth in Recital A
-------------------------
hereto.
"Federal Funds Rate" means, 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
on such day, as published by the Federal Reserve Bank on the Business Day
next succeeding such day; provided that (a) if such day is not a Business
--------
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate (rounded upward, if necessary, to a whole multiple of 1/100
of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated December 23, 2004,
----------
among the Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
-------------- -------------------
"FRB" means the Board of Governors of the Federal Reserve System of
---
the United States.
"GAAP" means generally accepted accounting principles in the United
----
States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment
of the accounting profession in the United States, that are applicable to
the circumstances as of the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state
----------------------
or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" means, as to any Person, any (a) any obligation,
---------
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct
or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of
the payment or performance of such Indebtedness or other obligation, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or
13
other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation
of the payment or performance thereof or to protect such obligee against
loss in respect thereof (in whole or in part), or (b) any Lien on any assets
of such Person securing any Indebtedness or other obligation of any other
Person, whether or not such Indebtedness or other obligation is assumed by
such Person. The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in
good faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means, collectively, all Material Domestic
----------
Subsidiaries of the Borrower.
"Guaranty" means that certain Guaranty Agreement dated as of the
--------
date hereof among the Guarantors and the Administrative Agent substantially
in the form of Exhibit F, as supplemented from time to time by the execution
---------
and delivery of Guaranty Joinder Agreements pursuant to Section 6.12, as
------------
from time to time the same may be otherwise supplemented or amended,
modified, amended and restated or replaced.
"Guaranty Joinder Agreement" means each Guaranty Joinder Agreement,
--------------------------
substantially in the form thereof attached to the Guaranty, executed and
delivered by a Guarantor to the Administrative Agent pursuant to Section 6.12,
------------
as amended, modified, supplemented, amended and restated or replaced.
"Hazardous Materials" means all explosive or radioactive substances
-------------------
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time,
------------
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap
Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business);
14
(e) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or
other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of
any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. The amount of any
capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such
date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
----------------------- -------------
"Indemnitees" has the meaning set forth in Section 10.05.
----------- -------------
"Intangible Assets" means assets that are considered to be
-----------------
intangible assets under GAAP, including customer lists, goodwill, computer
software, copyrights, trade names, trademarks, patents, franchises,
licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base
---------------------
Rate Loan, the last day of each Interest Period applicable to such Loan and
the Maturity Date; provided, however, that if any Interest Period for a
-------- -------
Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing
Line Loan), the last Business Day of each March, June, September and
December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the
---------------
period commencing on the date such Eurodollar Rate Loan is disbursed or
converted to or continued as a Eurodollar Rate Loan and ending on the date
one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice; provided that:
--------
(a) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Business Day;
(b) any Interest Period that begins on the last 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 Business Day of the
calendar month at the end of such Interest Period; and
15
(c) no Interest Period shall extend beyond the Maturity
Date.
"Investment" means, as to any Person, any direct or indirect
----------
acquisition or investment by such Person, whether by means of (a) the
purchase or other acquisition of capital stock or other securities of
another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit.
For purposes of covenant compliance, the amount of any Investment shall be
the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.17.
--------- ------------
"IRS" means the United States Internal Revenue Service.
---
"Laws" means, collectively, all international, foreign, Federal,
----
state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
-----------
funding of its participation in any L/C Borrowing in accordance with its Pro
Rata Share.
"L/C Borrowing" means an extension of credit resulting from a
-------------
drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit,
--------------------
the issuance thereof or extension of the expiry date thereof, or the renewal
or increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of
----------
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, as at any date of determination, the
---------------
aggregate undrawn amount of all outstanding Letters of Credit plus the
----
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph
------
hereto and, as the context requires, includes the L/C Issuer and the Swing
Line Lender.
"Lending Office" means, as to any Lender, the office or offices of
--------------
such Lender described as such in such Lender's Administrative Questionnaire,
or such other office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.
16
"Letter of Credit" means any letter of credit issued hereunder. A
----------------
Letter of Credit may be a commercial letter of credit or a standby letter of
credit.
"Letter of Credit Application" means an application and agreement
----------------------------
for the issuance or amendment of a Letter of Credit in the form from time to
time in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
--------------------------------
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $25,000,000.
-------------------------
The Letter of Credit Sublimit is part of, and not in addition to, the
Aggregate Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment,
----
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, and any financing lease having substantially the
same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower
----
under Article II in the form of a Committed Loan or a Swing Line Loan.
----------
"Loan Documents" means this Agreement, each Note, the Fee Letter,
--------------
and the Guaranty.
"Loan Parties" means, collectively, the Borrower and each
------------
Guarantor.
"Material Adverse Effect" means (a) a material adverse change in,
-----------------------
or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), or condition (financial or otherwise) of
the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Material Domestic Subsidiary" means, at any time, any Domestic
----------------------------
Subsidiary having at such time total assets or total revenue for the
immediate prior four fiscal quarters in excess of $30,000,000, based to the
extent applicable upon the Borrower's most recent annual or quarterly
financial statements delivered to the Administrative Agent pursuant to
Section 6.01; provided, that at any time, the combined total assets or total
- ------------ --------
revenue for the immediate prior four fiscal quarters of all Material
Domestic Subsidiaries shall not be less than 90% of the consolidated total
assets or consolidated total revenue for the immediate prior four fiscal
quarters of the Borrower and its Subsidiaries, and, accordingly, other
Domestic Subsidiaries as selected by the Borrower not otherwise qualifying
as Material Domestic Subsidiaries shall nonetheless be designated Material
Domestic Subsidiaries in order to satisfy such thresholds.
"Maturity Date" means January 27, 2010.
-------------
"Multiemployer Plan" means any employee benefit plan of the type
------------------
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is
17
obligated to make contributions, or during the preceding five plan years,
has made or been obligated to make contributions.
"Note" means a Committed Loan Note or a Swing Line Note.
----
"Obligations" means all advances to, and debts, liabilities,
-----------
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless
of whether such interest and fees are allowed claims in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any Person
-----------------------------
as of any date of determination thereof, without duplication and to the
extent not included as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP: (a) with respect to any
asset securitization transaction (including any accounts receivable purchase
facility) (i) the unrecovered investment of purchasers or transferees of
assets so transferred, including and (ii) any other payment, recourse,
repurchase, hold harmless, indemnity or similar obligation of such Person or
any of its Subsidiaries in respect of assets transferred or payments made in
respect thereof, other than limited recourse provisions that are customary
for transactions of such type and that neither (x) have the effect of
limiting the loss or credit risk of such purchasers or transferees with
respect to payment or performance by the obligors of the assets so
transferred nor (y) impair the characterization of the transaction as a true
sale under applicable Laws (including Debtor Relief Laws); (b) the monetary
obligations under any financing lease or so-called "synthetic," tax
retention or off-balance sheet lease transaction which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
characterized as indebtedness; (c) the monetary obligations under any sale
and leaseback transaction which does not create a liability on the
consolidated balance sheet of such Person and its Subsidiaries; or (d) any
other monetary obligation arising with respect to any other transaction
which (i) upon the application of any Debtor Relief Law to such Person or
any of its Subsidiaries, would be characterized as indebtedness or (ii) is
the functional equivalent of or takes the place of borrowing but which does
not constitute a liability on the consolidated balance sheet of such Person
and its Subsidiaries (for purposes of this clause (d), any transaction
----------
structured to provide tax deductibility as interest expense of any dividend,
coupon or other periodic payment will be deemed to be the functional
equivalent of a borrowing).
"Organization Documents" means, (a) with respect to any
----------------------
corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with
its formation or organization with the applicable Governmental Authority in
the jurisdiction of its formation or
18
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (a) with respect to Committed Loans and
------------------
Swing Line Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments
of Committed Loans and Swing Line Loans, as the case may be, occurring on
such date; and (b) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
----------- ----------------
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Pension Plan" means any "employee pension benefit plan" (as such
------------
term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by the
Borrower or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of
a multiple employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding five plan
years.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined
----
in Section 3(3) of ERISA) established by the Borrower or, with respect to
any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate.
"Pro Rata Share" means, with respect to each Lender at any time, a
--------------
fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Commitment of such
Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if the commitment of each
--------
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, then the Pro Rata
------------
Share of each Lender shall be determined based on the Pro Rata Share of such
Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof. The initial Pro
Rata Share of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such
- -------------
Lender becomes a party hereto, as applicable.
"Purchase Agreement" means that certain Purchase Agreement by and
------------------
among the Borrower, Spacelink International LLC, Spacelink International
Ltd. and Satcomsolutions LLC, including all schedules, exhibits and similar
addenda thereto.
"Register" has the meaning set forth in Section 10.07(c).
-------- ----------------
19
"Reportable Event" means any of the events set forth in
----------------
Section 4043(c) of ERISA, other than events for which the 30 day notice period
has been waived.
"Request for Credit Extension" means (a) with respect to a
----------------------------
Borrowing, conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"Required Lenders" means, as of any date of determination, Lenders
----------------
having more than 50% of the Aggregate Commitments or, if the commitment of
each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, Lenders
------------
holding in the aggregate more than 50% of the Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed "held" by
such Lender for purposes of this definition); provided that the Commitment
--------
of, and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Responsible Officer" means the chairman of the board of directors,
-------------------
vice chairman of the board of directors, chief executive officer, president,
chief financial officer, treasurer, assistant treasurer, controller or
secretary of a Loan Party. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution
------------------
(whether in cash, securities or other property) with respect to any capital
stock or other equity interest of the Borrower or any Subsidiary, or any
payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such capital
stock or other equity interest or of any option, warrant or other right to
acquire any such capital stock or other equity interest.
"SEC" means the Securities and Exchange Commission, or any
---
Governmental Authority succeeding to any of its principal functions.
"Shareholders' Equity" means, as of any date of determination,
--------------------
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated
------------------------
as of January 7, 2005, by and between Prospective Computer Analysts
Incorporated, Edward Wenger, The Lauren Wenger 2004 GRAT, The Eric Wenger
2004 GRAT, The Mitchell Wenger 2004 GRAT and the Borrower, including all
schedules, exhibits and similar addenda thereto.
"Subsidiary" of a Person means a corporation, partnership, joint
----------
venture, limited liability company or other business entity of which a
majority of the shares of securities or other interests
20
having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
-------------
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity
index swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of
the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a "Master Agreement"), including any
----------------
such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
----------------------
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s)
----------
determined as the mark-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by
----------
the Swing Line Lender pursuant to Section 2.04.
------------
"Swing Line Borrowing" means a borrowing of a Swing Line Loan
--------------------
pursuant to Section 2.04.
------------
"Swing Line Lender" means Bank of America in its capacity as
-----------------
provider of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
---------------
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
----------------------
pursuant to Section 2.04(b), which, if in writing, shall be substantially in
---------------
the form of Exhibit B.
---------
21
"Swing Line Note" means a promissory note made by the Borrower in
---------------
favor of the Swing Line Lender evidencing Swing Line Loans made by the Swing
Line Lender, substantially in the form of Exhibit C-2.
-----------
"Swing Line Sublimit" means an amount equal to the lesser of (a)
-------------------
$15,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a
--------------------------
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to
accounting treatment).
"Threshold Amount" means $5,000,000.
----------------
"Total Outstandings" means the aggregate Outstanding Amount of all
------------------
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a
----
Base Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
--------------------------
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Pension Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
------------- ----
"United States Governmental Authority" means the United States or
------------------------------------
any agency, authority, instrumentality, regulatory body, court,
administrative tribunal or central bank of the United States.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
------------------- ------------------
1.03 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or
in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein", "hereto", "hereof" and "hereunder"
------ ------ ------ ---------
and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears.
22
(iii) The term "including" is by way of example and not
---------
limitation.
(iv) The term "documents" includes any and all
---------
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether
in physical or electronic form.
(c) 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".
----------------
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.04 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time
to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed
------
herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
--------
requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) With respect to any Acquisition consummated on or after the
Closing Date, for each of the four periods of four fiscal quarters of the
Borrower ending next following the date of any Acquisition, Consolidated
EBITDA with respect to the Consolidated Leverage Ratio shall include the
results of operations of the Person or assets so acquired on a historical
pro forma basis which is reasonably satisfactory to the Administrative Agent.
1.05 ROUNDING. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding-up
if there is no nearest number).
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that
23
such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to
any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.07 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Central time (daylight or
standard, as applicable).
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face
amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a
"Committed Loan") to the Borrower from time to time, on any Business Day
--------------
during the Availability Period, in an aggregate amount not to exceed at any
time outstanding the amount of such Lender's Commitment; provided, however,
-------- -------
that after giving effect to any Committed Borrowing, (a) the Total
Outstandings shall not exceed the Aggregate Commitments, and (b) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
----
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing
- ----
Line Loans shall not exceed such Lender's Commitment. Within the limits of
each Lender's Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01, prepay under
------------
Section 2.05, and reborrow under this Section 2.01. Committed Loans may be
- ------------ ------------
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans
from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrower's irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 10:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar
Rate Loans to Base Rate Committed Loans, and (ii) on the requested date of
any Borrowing of Base Rate Committed Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(b) must be confirmed promptly by
---------------
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans
shall be in a principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
----------------
2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall
- -------
be in a principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan
24
Notice (whether telephonic or written) shall specify (1) whether the
Borrower is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (2) the requested date of the Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (3) the principal amount
of Committed Loans to be borrowed, converted or continued, (4) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to
be converted, and (5) if applicable, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of Committed
Loan in a Committed Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last
day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion
to, or continuation of Eurodollar Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its
Pro Rata Share of the applicable Committed Loans, and if no timely notice of
a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 12:00 noon on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is
------------
the initial Credit Extension, Section 4.01), the Administrative Agent shall
------------
make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of
the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Committed
-------- -------
Loan Notice with respect to such Borrowing is given by the Borrower, there
are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of
such Borrowing shall be applied, first, to the payment in full of any such
-----
L/C Borrowings, second, to the payment in full of any such Swing Line Loans,
------
and third, to the Borrower as provided above.
-----
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may
be continued or converted only on the last day of an Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no Loans may
be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower
and the Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
25
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all
continuations of Committed Loans as the same Type, there shall not be more
than eight (8) Interest Periods in effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
-------------------------------
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.03, (1) from time to time
------------
on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b)
--------------
below, and (2) to honor drafts under the Letters of Credit; and (B)
the Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower; provided that the L/C
--------
Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated
to participate in any Letter of Credit if as of the date of such
L/C Credit Extension, (x) the Total Outstandings would exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of
----
the Outstanding Amount of all L/C Obligations, plus such Lender's
----
Pro Rata Share of the Outstanding Amount of all Swing Line Loans
would exceed such Lender's Commitment, or (z) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon
and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing
such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in
good faith deems material to it;
(B) subject to Section 2.03(b)(iii), the expiry
--------------------
date of such requested Letter of Credit would occur more
than twelve months after the date of issuance or last
renewal, unless the Required Lenders have approved such
expiry date;
26
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry
date; or
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer.
(iii) The L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuer would have no obligation
at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of
Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of
a Letter of Credit Application, appropriately completed and signed
by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the
Administrative Agent not later than 10:00 a.m. at least four
Business Days (or such later date and time as the L/C Issuer may
agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to
be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (w) the Letter of Credit to be amended; (x) the
proposed date of amendment thereof (which shall be a Business Day);
(y) the nature of the proposed amendment; and (z) such other
matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the
Borrower and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. Upon receipt by the L/C
Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the
terms hereof, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the
L/C Issuer's usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter
27
of Credit in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Letter of Credit.
-----
(iii) If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit");
-----------------------------
provided that any such Auto-Renewal Letter of Credit must permit
--------
the L/C Issuer to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the "Nonrenewal Notice Date") in each such
----------------------
twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the
L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the
renewal of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however,
-------- -------
that the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer has determined that it would have no obligation at such
time to issue such Letter of Credit in its renewed form under the
terms hereof (by reason of the provisions of Section 2.03(a)(ii) or
-------------------
otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is two Business
Days before the Nonrenewal Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied.
------------
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with
respect thereto or to the beneficiary thereof, the L/C Issuer will
also deliver to the Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
------------------------------------------------------
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrower and the Administrative Agent
thereof. Not later than 10:00 a.m. on the date of any payment by
the L/C Issuer under a Letter of Credit (each such date, an "Honor
-----
Date"), the Borrower shall reimburse the L/C Issuer through the
----
Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing
(the "Unreimbursed Amount"), and the amount of such Lender's Pro
-------------------
Rata Share thereof. In such event, the Borrower shall be deemed to
have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but
------------
subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other
------------
than the delivery of a Committed Loan Notice). Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section
-------
28
2.03(c)(i) may be given by telephone if immediately confirmed in
----------
writing; provided that the lack of such an immediate confirmation
--------
shall not affect the conclusiveness or binding effect of such
notice.
(ii) Each Lender (including the Lender acting as L/C
Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make
------------------
funds available to the Administrative Agent for the account of the
L/C Issuer at the Administrative Agent's Office in an amount equal
to its Pro Rata Share of the Unreimbursed Amount not later than
12:00 noon on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available
--------------------
shall be deemed to have made a Base Rate Committed Loan to the
Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be
------------
satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of
the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such
event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
-------------------
deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
------------
(iv) Until each Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C
---------------
Issuer for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall
---------------
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Lender's obligation to
-------- -------
make Committed Loans pursuant to this Section 2.03(c) is subject to
---------------
the conditions set forth in Section 4.02 (other than delivery by
------------
the Borrower of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
--------------- -------
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
-----------
Lender (acting through the
29
Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
-----------
(d) Repayment of Participations.
---------------------------
(i) At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.03(c), if the Administrative Agent receives for the
---------------
account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance
was outstanding) in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
------------------
required to be returned under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by
-------------
the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to
--------------------
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time
against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the
30
transmission or otherwise of any document required in order to make
a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee
of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the Borrower's instructions or other
irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
------------------
paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None
of the L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that
-------- -------
this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants
or assignees of the L/C Issuer, shall be liable or responsible for any of
the matters described in clauses (i) through (v) of Section 2.03(e);
----------- --- ---------------
provided, however, that anything in such clauses to the contrary
- -------- -------
notwithstanding, the Borrower may have a claim against the L/C Issuer, and
the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of
31
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
---------------
(i) if the L/C Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit
may for any reason remain outstanding and partially or wholly undrawn, the
Borrower shall immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations (in an amount equal to such Outstanding Amount
determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be). For purposes hereof, "Cash
----
Collateralize" means to pledge and deposit with or deliver to the
- -------------
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the
foregoing.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
------------------------------
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit),
(i) the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance shall
---
apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
---------------------
Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a Letter of Credit fee for each Letter of Credit equal to the
Applicable Rate times the daily maximum amount available to be drawn under
-----
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). Such letter of credit fees shall be computed
on a quarterly basis in arrears. Such letter of credit fees shall be due and
payable on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily maximum amount of each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
--------------------------------------------------------------
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
- ----------
account a fronting fee with respect to each Letter of Credit equal to 0.125%
per annum times the daily maximum amount available to be drawn under such
-----
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit). In addition, the Borrower shall pay directly to the
L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and
32
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and, if then outstanding,
quarterly in arrears on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, and on the Letter of Credit Expiration
Date and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
------------------------------------------
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
--------------
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
-----
Line Loan") to the Borrower from time to time on any Business Day during the
- ---------
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any Swing Line
-------- -------
Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments,
and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
----
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount
----
of all Swing Line Loans shall not exceed such Lender's Commitment, and
provided, further, that the Borrower shall not use the proceeds of any Swing
- -------- -------
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.04, prepay under Section 2.05, and reborrow
------------ ------------
under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
------------
Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in
an amount equal to the product of such Lender's Pro Rata Share times the
-----
amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made
--------------------
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must
be received by the Swing Line Lender and the Administrative Agent not later
than 12:00 noon on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by telephone or
in writing) from the Administrative Agent (including at the request of any
Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing
(A) directing the Swing Line Lender not to make such Swing Line Loan as a
result of the limitations set forth in the proviso to the first
33
sentence of Section 2.04(a), or (B) that one or more of the applicable
---------------
conditions specified in Article IV is not then satisfied, then, subject to
----------
the terms and conditions hereof, the Swing Line Lender will, not later than
2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice,
make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing
Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
-------------------------------
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Committed Loan in
an amount equal to such Lender's Pro Rata Share of the amount of
Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and
------------
multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing
------------
Line Lender shall furnish the Borrower with a copy of the
applicable Committed Loan Notice promptly after delivering such
notice to the Administrative Agent. Each Lender shall make an
amount equal to its Pro Rata Share of the amount specified in such
Committed Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line
Lender at the Administrative Agent's Office not later than 12:00
noon on the day specified in such Committed Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Lender that so makes funds
-------------------
available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
-------
2.04(c)(i), the request for Base Rate Committed Loans submitted by
----------
the Swing Line Lender as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund its
risk participation in the relevant Swing Line Loan and each
Lender's payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
------------------
payment in respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
--------------- -------
2.04(c)(i), the Swing Line Lender shall be entitled to recover from
----------
such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum
equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest
error.
34
(iv) Each Lender's obligation to make Committed Loans or
to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and
---------------
unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of
the foregoing; provided, however, that each Lender's obligation to
-------- -------
make Committed Loans pursuant to this Section 2.04(c) is subject to
---------------
the conditions set forth in Section 4.02. No such funding of risk
------------
participations shall relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations.
---------------------------
(i) At any time after any Lender has purchased and funded
a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Pro Rata Share of
such payment (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's
risk participation was funded) in the same funds as those received
by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.06 (including pursuant to any
-------------
settlement entered into by the Swing Line Lender in its
discretion), each Lender shall pay to the Swing Line Lender its Pro
Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the
request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line
-----------------------------------------
Lender shall be responsible for invoicing the Borrower for interest on the
Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or
risk participation pursuant to this Section 2.04 to refinance such Lender's
------------
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. Upon demand of the
--------------------------------------
Swing Line Lender, the Borrower shall make all payments of principal and
interest in respect of the Swing Line Loans directly to the Swing Line
Lender.
2.05 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Committed Loans in whole or
in part without premium or penalty; provided that (i) such notice must be
--------
received by the Administrative Agent not later than 10:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and
(B) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of
35
Eurodollar Rate Loans shall be in a principal amount of $3,000,000 or a
whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of
Base Rate Committed Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Committed
Loans to be prepaid. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by
all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the
------------
Committed Loans of the Lenders in accordance with their respective Pro Rata
Shares.
(b) The Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Swing Line
--------
Lender and the Administrative Agent not later than 12:00 noon on the date of
the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided, however, that the Borrower shall not be
-------- -------
required to Cash Collateralize the L/C Obligations pursuant to this Section
-------
2.05(c) unless after the prepayment in full of the Committed Loans and Swing
- -------
Line Loans the Total Outstandings exceed the Aggregate Commitments then in
effect.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (a)
--------
any such notice shall be received by the Administrative Agent not later than
10:00 a.m. five Business Days prior to the date of termination or reduction,
(b) any such partial reduction shall be in an aggregate amount of $5,000,000
or any whole multiple of $1,000,000 in excess thereof, (c) the Borrower
shall not terminate or reduce the Aggregate Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments, and (d) if, after
giving effect to any reduction of the Aggregate Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. All
commitment fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such
termination.
36
2.07 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of Committed Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) demand by the Swing Line Lender for repayment and (ii) the
Maturity Date.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
--------------
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
----
Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall
----
bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
----
the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Furthermore, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may
be specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i)
---------------
and (j) of Section 2.03:
--- ------------
(a) Commitment Fee. The Borrower shall pay to the Administrative
--------------
Agent for the account of each Lender in accordance with its Pro Rata Share,
a commitment fee equal to the Applicable Rate times the actual daily amount
-----
by which the Aggregate Commitments exceed the sum of (i) the Outstanding
Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly
----------
in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate
during any quarter, the actual daily amount shall be
37
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arranger and the
----------
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's
"prime rate" shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it
--------
is made shall, subject to Section 2.12(a), bear interest for one day.
---------------
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender (including the Swing Line
Lender) made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a Committed
Loan Note (or in the case of the Swing Line Lender, a Swing Line Note),
which shall evidence such Lender's Committed Loans (or in the case of the
Swing Line Lender, the Swing Line Loans) in addition to such accounts or
records. Each Lender (or the Swing Line Lender) may attach schedules to its
Committed Loan Note (or in the case of the Swing Line Lender, the Swing Line
Note) and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and
records maintained
38
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than
1:00 p.m. on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 1:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made
by it to the Administrative Agent hereunder, that the Borrower or such
Lender, as the case may be, will not make such payment, the Administrative
Agent may assume that the Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in fact
made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent
the portion of such assumed payment that was made available to such
Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such
amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds at the Federal Funds Rate from
time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent
the amount thereof in immediately available funds, together with
interest thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date
such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the Federal
-------------------
Funds Rate from time to time in effect. If such Lender pays such
amount to the Administrative Agent, then such amount shall
constitute such Lender's Committed Loan included in the applicable
Borrowing. If such Lender does not pay such
39
amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent may make a demand therefor upon the Borrower,
and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the
applicable Borrowing. The Borrower may, subject to the provisions
of Section 2.04, utilize the proceeds of a Swing Line Loan to make
------------
such payment to the Administrative Agent. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower
with respect to any amount owing under this subsection (c) shall be
--------------
conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
----------
Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article IV are not satisfied or
----------
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(e) The obligations of the Lenders hereunder to make Committed
Loans and to fund participations in Letters of Credit and Swing Line Loans
are several and not joint. The failure of any Lender to make any Committed
Loan or to fund any such participation on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on
such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans
made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it, any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b)
purchase from the other Lenders such participations in the Committed Loans
made by them and/or such subparticipations in the participations in L/C
Obligations or Swing Line Loans held by them, as the case may be, as shall
be necessary to cause such purchasing Lender to share the excess payment in
respect of such Committed Loans or such participations, as the case may be,
pro rata with each of them; provided, however, that if all or any portion of
-------- -------
such excess payment is thereafter recovered from the purchasing Lender under
any of the circumstances described in Section 10.06 (including pursuant to
-------------
any settlement entered into by the purchasing Lender in its discretion),
such purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered, without further interest thereon.
40
The Borrower agrees that any Lender so purchasing a participation from
another Lender may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off, but subject to
Section 10.09) with respect to such participation as fully as if such Lender
- -------------
were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders
following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender
were the original owner of the Obligations purchased.
2.14 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower
may, from time to time, request an increase in the Aggregate Commitments by
a minimum principal amount (for all such requests) of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof, but in no event exceeding
$100,000,000. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period
within which each Lender is requested to respond (which shall in no event be
less than ten Business Days from the date of delivery of such notice to the
Lenders). Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share
of such requested increase. Any Lender not responding within such time
period shall be deemed to have declined to increase its Commitment. The
Administrative Agent shall notify the Borrower and each Lender of the
Lenders' responses to each request made hereunder. To achieve the full
amount of a requested increase, the Borrower may also invite additional
Eligible Assignees acceptable to the Administrative Agent and the Borrower
to become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with
this Section, the Administrative Agent and the Borrower shall determine the
effective date (the "Increase Effective Date") and the final allocation of
-----------------------
such increase. The Administrative Agent shall promptly notify the Borrower
and the Lenders of the final allocation of such increase and the Increase
Effective Date. As a condition precedent to such increase, the Borrower
shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan
---------
Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.14, the
------------
representations and warranties contained in subsections (a) and (b) of
--------------- ---
Section 5.05 shall be deemed to refer to the most recent statements
- ------------
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
------------
and (B) no Default exists. The Borrower shall prepay any
41
Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
------------
necessary to keep the outstanding Committed Loans ratable with any revised
Pro Rata Shares arising from any nonratable increase in the Commitments
under this Section.
(c) This Section shall supersede any provisions in Sections 2.13 or
-------------
10.01 to the contrary.
- -----
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings
or similar charges, and all liabilities with respect thereto, excluding, in
---------
the case of the Administrative Agent and each Lender, taxes imposed on or
measured by its overall net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent or such Lender, as
the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by any Laws to deduct any
-----
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), each
of the Administrative Agent and such Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under
any Loan Document or from the execution, delivery, performance, enforcement
or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
-----------
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time
interest is paid, such additional amount that the Administrative Agent or
such Lender specifies is necessary to preserve the after-tax yield (after
factoring in all taxes, including
42
taxes imposed on or measured by net income) that the Administrative Agent or
such Lender would have received if such Taxes or Other Taxes had not been
imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01(c) and (iii) any liability
---------------
(including additions to tax, penalties, interest and expenses) arising
therefrom or with respect thereto, in each case whether or not such Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. Payment under this subsection (d) shall be made
--------------
within 30 days after the date the Lender or the Administrative Agent makes a
demand therefor.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, then, on notice thereof by such Lender to
the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Committed
Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies
the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the
Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such Lender may
not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted
such request into a request for a Committed Borrowing of Base Rate Loans in
the amount specified therein.
43
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Loans
or (as the case may be) issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this subsection (a) any
--------------
such increased costs or reduction in amount resulting from (i) Taxes or
Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the
------------
basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized in the determination
of the Eurodollar Rate, then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has
the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect
to capital adequacy and such Lender's desired return on capital), then from
time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
3.05 FUNDING LOSSES. Subject to Section 1.01, upon demand of any
------------
Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Borrower;
including any loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such
funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded
------------
each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in
determining the Eurodollar Rate for such Loan by a matching
44
deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount
-----------
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
3.07 SURVIVAL. All of the Borrower's obligations under this Article
-------
III shall survive termination of the Aggregate Commitments and repayment of
- ---
all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer
of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance satisfactory to the Administrative
Agent and its legal counsel:
(i) executed counterparts of this Agreement and the
Guaranty, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) a Committed Loan Note executed by the Borrower in
favor of each Lender and a Swing Line Note executed by the Borrower
in favor of the Swing Line Lender;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to
which such Loan Party is a party;
(iv) such documents and certifications as the
Administrative Agent may reasonably require to evidence that each
Loan Party is duly organized or formed, and is validly existing, in
good standing and qualified to engage in business in its
jurisdiction of organization;
(v) a favorable opinion of Wittner, Poger, Spewak, Maylack
& Spooner, P.C., counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth
in Exhibit G and such other matters concerning the Loan Parties and
---------
the Loan Documents as the Required Lenders may reasonably request;
45
(vi) a certificate of a Responsible Officer of each Loan
Party either (A) attaching copies of all consents, licenses and
approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan
Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect,
or (B) stating that no such consents, licenses or approvals are so
required, and (C) as to the matters described in Section 4.01(e);
---------------
(vii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
--------
4.02(a) and (b) have been satisfied, and (B) that there is no
------- ---
event, circumstance, action, suit, investigation or proceeding
pending or, to the best of the Borrower's knowledge, threatened in
any court or before any arbitrator or Governmental Authority since
October 31, 2004 that has had or could be reasonably expected to
have, either individually or in the aggregate, a Material Adverse
Effect;
(viii) evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained and is
in effect;
(ix) the Audited Financial Statements of the Borrower and
its Subsidiaries, all audited and opined on by
PricewaterhouseCoopers LLP and prepared in conformity with GAAP;
and
(x) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C Issuer,
the Swing Line Lender or the Required Lenders reasonably may
require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before February 1,
2005.
(e) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) there shall not exist any pending or threatened
action, suit, investigation or other arbitral, administrative or
judicial proceeding in any court or before any arbitrator or
Governmental Authority, which, if adversely determined, could
reasonably be expected to (A) result in a Material Adverse Effect
or (B) affect any transaction contemplated hereby or the ability of
the Borrower or any of its Subsidiaries or any other Guarantor to
perform its obligations under the Loan Documents;
(ii) the Administrative Agent shall have received
information satisfactory to it and its counsel regarding
litigation, tax, accounting, labor, pension liabilities (actual or
contingent), real estate leases, material contracts, debt
agreements, property ownership,
46
environmental matters, contingent liabilities and management of the
Borrower and its Subsidiaries; and
(iii) the Borrower shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (A) any applicable
law, rule, regulation, order or decree of any Governmental
Authority or arbitral authority or (B) any agreement, document or
instrument to which the Borrower or any Subsidiary is a party or by
which any of them or their properties is bound.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Committed Loans to the other
Type, or a continuation of Eurodollar Rate Loans) is subject to the
following conditions precedent:
(a) The representations and warranties of the Borrower and each
other Loan Party contained in Article V or any other Loan Document, or which
---------
are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct on and as of the date of
such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall
be true and correct as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in
------------
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
- --------------- --- ------------
recent statements furnished pursuant to clauses (a) and (b), respectively,
----------- ---
of Section 6.01.
------------
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Eurodollar Rate Loans to Base Rate
Committed Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
----------------
and (b) have been satisfied on and as of the date of the applicable
---
Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent
and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party (a) is a corporation or limited liability company duly organized
or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business and
(ii) execute, deliver and perform
47
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is
in compliance with all Laws; except in each case referred to in clause
------
(b)(i), (c) or (d), to the extent that failure to do so could not reasonably
- ------ --- ---
be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of
any of such Person's Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any
Law.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval,
consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable
against each Loan Party that is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities
for taxes, material commitments and Indebtedness.
(b) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate, that
has had or could reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Borrower after due and
diligent investigation, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower
or any of its Subsidiaries or against any of their properties or revenues
that
48
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby or (b)
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Borrower and its Subsidiaries is subject
to no Liens, other than Liens permitted by Section 7.01.
------------
5.09 ENVIRONMENTAL COMPLIANCE. To Borrower's knowledge, the
Borrower and its Subsidiaries' respective businesses, operations and
properties are not in violation of any existing Environmental Laws, except
for such violations that are set forth on Schedule 5.09 hereof and except
-------------
for such violations that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.
5.11 TAXES. The Borrower and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be
filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the
Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto
and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding
49
waiver or an extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to
have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability at any fiscal
year end of the Borrower except that which both (A) could not reasonably be
expected to have a Material Adverse Effect and (B) is not reasonably
determined by the Administrative Agent to be materially disadvantageous to
the Lenders; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Sections 4201 or 4243
of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject
to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. The Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity
-------------
investments in any other corporation or entity other than those specifically
disclosed in Part(b) of Schedule 5.13.
-------------
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or
as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the
FRB), or extending credit for the purpose of purchasing or carrying margin
stock.
(b) None of the Borrower, any Person Controlling the Borrower, or
any Subsidiary (i) is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to be
registered as an "investment company" under the Investment Company Act of
1940.
5.15 DISCLOSURE. The Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder
50
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, with respect to
--------
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of the Borrower and each Subsidiary
is in compliance in all respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights")
---------
that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the
best knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Borrower or any Subsidiary infringes
upon any rights held by any other Person. No claim or litigation regarding
any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
5.18 OFF-BALANCE SHEET LIABILITIES. Neither the Borrower nor any
Subsidiary has any Off-Balance Sheet Liabilities other than those identified
on Schedule 5.18.
-------------
5.19 PURCHASE AGREEMENT. The Purchase Agreement and copies of all
material documents with respect thereto delivered to the Administrative
Agent pursuant to Section 6.02(f) have not been altered, amended or
---------------
otherwise changed or supplemented in any respect materially adverse to the
Borrower, the Administrative Agent or any of the Lenders since the Closing
Date.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, the Borrower shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03
------------- ---- ----
and 6.11) cause each Subsidiary to:
----
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in
form and detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the
51
end of such fiscal year, and the related consolidated statements of income
or operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent certified
public accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event within 45 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
such fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting
the financial condition, results of operations, shareholders' equity and
cash flows of the Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of
footnotes.
As to any information contained in materials furnished pursuant to Section
-------
6.02(d), the Borrower shall not be separately required to furnish such
- -------
information under clause (a) or (b) above, but the foregoing shall not be in
---------- ---
derogation of the obligation of the Borrower to furnish the information and
materials described in subsections (a) and (b) above at the times specified
--------------- ---
therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
---------------
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default under the financial covenants set forth herein or, if any such
Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
---------------- ---
Certificate signed by a Responsible Officer of the Borrower;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of the Borrower by independent accountants in
connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower,
52
and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file
with the SEC under Section 13 or 15(d) of the Securities Exchange Act of
1934, and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent
or any Lender may from time to time reasonably request; and
(f) on or before February 14, 2005, a copy of the Purchase
Agreement and copies of all material documents with respect thereto,
certified by a Responsible Officer of the Borrower as being true, correct
and complete.
Documents required to be delivered pursuant to Section 6.01(a) or
---------------
(b) or Section 6.02(d) (to the extent any such documents are included in
- --- ---------------
materials otherwise filed with the SEC) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the
Borrower's website on the Internet at the website address listed on Schedule
--------
10.02; or (ii) 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 6.02(c)
---------------
to the Administrative Agent and each of the Lenders. Except for such
Compliance Certificates, 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.
6.03 NOTICES. Promptly notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
53
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of
the occurrence referred to therein and stating what action the Borrower has
taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of
- ---------------
this Agreement and any other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a)
all tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves
in accordance with GAAP are being maintained by the Borrower or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing
under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
------------ ----
action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of
its business in good working order and condition, ordinary wear and tear
excepted and (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than
30 days' prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance.
6.08 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS. Comply in
all material respects with the requirements of:
(a) all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (i) such requirement of Law or order, write, injunction or decree is
being contested in good faith by appropriate proceedings diligently
54
conducted; or (ii) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect; and
(b) all Contractual Obligations, except where the failure to comply
therewith could not reasonably be expected to have a Material Adverse
Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the
case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative
- -------- -------
Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance
notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
capital expenditures, Acquisitions permitted hereunder, and for working
capital and other general corporate purposes not in contravention of any Law
or of any Loan Document.
6.12 ADDITIONAL GUARANTORS. Notify the Administrative Agent at the
time that any Person becomes a Material Domestic Subsidiary, and promptly
thereafter (and in any event within 30 days), cause such Person to (a)
become a Guarantor by executing and delivering to the Administrative Agent a
Guaranty Joinder or such other document as the Administrative Agent shall
deem appropriate for such purpose, and (b) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of
------------- ----
Section 4.01(a) and favorable opinions of counsel to such Person (which
- ---------------
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form,
----------
content and scope reasonably satisfactory to the Administrative Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, the Borrower shall not, nor shall
it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
55
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof or Liens that are
insignificant, individually and in the aggregate, to the Borrower and any
Subsidiary in terms of the assets to which they attach or the Indebtedness
which they secure, and any renewals or extensions thereof, provided that the
--------
property covered thereby is not increased and any renewal or extension of
the obligations secured or benefited thereby is permitted by Section 7.03(b);
---------------
(c) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of the
applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits and liens on the property of the Borrower or its
Subsidiaries to secure (i) the non-delinquent performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation), (ii)
contingent obligations in connection with performance bonds, surety bonds
and appeal bonds and (iii) other non-delinquent obligations of a like nature
incurred in the ordinary course of business, including Liens created or
incurred in connection with government purchase contracts; provided that all
such Liens (other than Liens created or incurred in connection with
government purchase contracts) in the aggregate could not reasonably be
expected to cause a Material Adverse Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) or securing appeal or
---------------
other surety bonds related to such judgments;
(i) Liens securing Indebtedness permitted under Section 7.03(e);
---------------
provided that (i) such Liens do not at any time encumber any property other
- --------
than the property financed by such Indebtedness and (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition; and
(j) Liens securing other obligations of the Borrower and its
Subsidiaries not to exceed in the aggregate at any one time outstanding the
Threshold Amount.
56
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form
of cash equivalents or short-term marketable debt securities;
(b) advances to officers, directors and employees of the Borrower
and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes including the payment of premiums on split level life
insurance;
(c) Investments of the Borrower in any Guarantor and Investments of
any Guarantor in the Borrower or in another Guarantor;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss;
(e) Guarantees permitted by Section 7.03;
------------
(f) Acquisitions permitted under Section 7.13;
------------
(g) Investments consisting of notes issued by the buyer of the ESP
Companies in favor of the Borrower in connection with the ESP Transaction,
not to exceed the aggregate principal amount of $5,000,000; and
(h) other Investments not exceeding the Threshold Amount in the
aggregate in any fiscal year of the Borrower.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions
- -------------
thereof; provided that the amount of such Indebtedness is not increased at
--------
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder;
(c) Guarantees of the Borrower or any Guarantor in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any other
Guarantor;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
--------
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not
57
for purposes of speculation or taking a "market view"; and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets
within the limitations set forth in Section 7.01(i); provided, however, that
--------------- -------- -------
the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed the Threshold Amount; and
(f) unsecured Indebtedness in an aggregate principal amount not to
exceed $100,000,000, provided that the terms of such Indebtedness are not
--------
more restrictive than the terms of the Loan Documents.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except that,
so long as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that
--------
the Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries, provided that when any wholly-owned Subsidiary is
--------
merging with another Subsidiary, the wholly-owned Subsidiary shall be the
continuing or surviving Person, and provided further that when a Guarantor
-------- -------
is merging with another Subsidiary, the Guarantor shall be the continuing or
surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to
another Subsidiary; provided that if the transferor in such a transaction is
--------
a wholly-owned Subsidiary, then the transferee must either be the Borrower
or a wholly-owned Subsidiary, and provided further that if the transferor in
-------- -------
such a transaction is a Guarantor, then the transferee must be either the
Borrower or a Guarantor.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that
(i) such property is exchanged for credit against the purchase price of
similar replacement property or (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement
property;
(d) Dispositions of property by any Subsidiary to the Borrower or
to a wholly-owned Subsidiary; provided that if the transferor of such
--------
property is a Guarantor, the transferee thereof must either be the Borrower
or a Guarantor;
58
(e) Dispositions permitted by Section 7.04;
---------
(f) Dispositions by the Borrower and its Subsidiaries of property
pursuant to sale-leaseback transactions, provided that the book value of all
--------
property so Disposed of, other than pursuant to sale and leaseback
transactions set forth on Schedule 7.05(a), shall not exceed the Threshold
----------------
Amount from and after the Closing Date;
(g) Dispositions by the Borrower and its Subsidiaries of the real
property set forth on Schedule 7.05(b);
----------------
(h) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 7.05; provided that (i) at the time of such
------------ --------
Disposition, no Default shall exist or would result from such Disposition
and (ii) the aggregate book value of all property Disposed of in reliance on
this clause (h) in any fiscal year shall not exceed the Threshold Amount;
----------
provided, however, that any Disposition pursuant to clauses (a) through (h)
- -------- ------- ----------- ---
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to
do so, except that:
(a) each Subsidiary may make Restricted Payments to the Borrower
and to wholly-owned Subsidiaries (and, in the case of a Restricted Payment
by a non-wholly-owned Subsidiary, to the Borrower and any Subsidiary and to
each other owner of capital stock or other equity interests of such
Subsidiary on a pro rata basis based on their relative ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common equity interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or
otherwise acquire shares of its common stock or other common equity
interests or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of
its common stock or other common equity interests;
(d) the Borrower may declare or pay cash dividends to its
stockholders; and
(e) the Borrower may purchase, redeem or otherwise acquire shares
of its capital stock or warrants, rights or options to acquire any such
shares for cash in an aggregate amount not to exceed 50% of Consolidated Net
Income of the Borrower and its Subsidiaries at any time during any period of
four complete fiscal quarters of the Borrower and during which such
declaration, payment, purchase, redemption or acquisition shall occur, and
computed on a cumulative consolidated basis with all other such transactions
by the Borrower during the same such four complete fiscal quarters; provided
--------
that immediately after giving effect to such proposed action, no Default
would exist (determined with respect to Section 7.11 on a pro forma basis as
------------
of the last day of the previous fiscal quarter).
59
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by
the Borrower and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of the Borrower, whether or not in the ordinary
course of business, other than on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm's length
transaction with a Person other than an Affiliate, except:
(a) employment or severance agreements entered into by the Company
or any of its Subsidiaries in the ordinary course of business;
(b) transactions between or among the Company and/or its
Subsidiaries in the ordinary course of business;
(c) the payment of reasonable directors' fees and benefits,
provided that the amount of such fees and benefits paid to any Affiliate
does not exceed the amount of such fees and benefits paid to any Person who
is not otherwise an Affiliate of the Company;
(d) payments permitted pursuant to Section 7.06 and transactions
------------
permitted pursuant to Section 7.02;
------------
(e) the provision of officers' and directors' indemnification and
insurance in the ordinary course of business to the extent permitted by
applicable law; and
(f) the payment of employee salaries, bonuses and employee benefits
in the ordinary course of business.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or
any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the
Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person; provided, however, that
-------- -------
this clause (iii) shall not prohibit any negative pledge incurred or
------------
provided in favor of any holder of Indebtedness permitted under Section 7.03(e)
---------------
solely to the extent any such negative pledge relates to the property
financed by or the subject of such Indebtedness; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose.
60
7.11 FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at any
time to be less than the sum of (a) $265,000,000, and (b) an amount equal to
50% of the sum, to the extent positive, of (i) Consolidated Net Income
earned in each full fiscal quarter of the Borrower ending after October 31,
2004 and (ii) other comprehensive income (loss) in each full fiscal quarter
of the Borrower ending after October 31, 2004 and (c) an amount equal to
100% of the aggregate net cash proceeds from the issuance and sale of
capital stock or other equity interests of the Borrower or any Subsidiary
(other than issuances to the Borrower or a wholly-owned Subsidiary),
including upon any conversion of debt securities of the Borrower into such
capital stock or other equity interests.
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter
of the Borrower to be less than 3.00 to 1.00.
(c) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio during any period of four fiscal quarters of the Borrower to be
greater than 2.75 to 1.00.
7.12 OFF-BALANCE SHEET LIABILITIES. Create, incur, assume or suffer
to exist any Off-Balance Sheet Liabilities, except Off-Balance Sheet
Liabilities outstanding on the date hereof and listed on Schedule 5.19.
-------------
7.13 ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (a) the Person to be (or whose
assets are to be) acquired does not oppose such Acquisition and the line or
lines of business of the Person to be acquired are the same or similar to
the lines of business then conducted by the Borrower and its Subsidiaries,
(b) no Default or Event of Default shall have occurred and be continuing
either immediately prior to or immediately after giving effect to such
Acquisition and, if the Cost of Acquisition for such Acquisition together
with any series of related Acquisitions is equal to or greater than
$50,000,000, the Borrower shall have furnished to the Administrative Agent
(i) (A) historical financial statements as of the end of the most recently
completed fiscal year of the target, which shall be audited, and its most
recent interim fiscal quarter, if applicable, and (B) pro forma historical
financial statements as of the end of the most recently completed fiscal
year of the Borrower and its most recent interim fiscal quarter, if
applicable, giving effect to such Acquisition and (ii) a certificate in the
form of Exhibit D prepared on a historical pro forma basis as of the date of
---------
the Audited Financial Statements or, if later, as of the most recent date
for which financial statements have been furnished pursuant to Section
-------
6.01(a) or (b) giving effect to such Acquisition, which certificate shall
- ------- ---
demonstrate that no Default or Event of Default would exist immediately
after giving effect thereto, (c) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into a wholly-owned Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired, the
acquiror shall be a wholly-owned Subsidiary), (d) after the consummation of
the Acquisition each Subsidiary that is a Material Domestic Subsidiary shall
have complied with the provisions of Section 6.12, and (e) the Costs of
------------
Acquisition incurred with respect to such Acquisition, excluding the
Acquisition contemplated by the Purchase Agreement and the Stock Purchase
Agreement, (i) together with
61
any series of related Acquisitions shall not exceed $100,000,000 and (ii)
together with all other Acquisitions during the 12-month period ending on
the date of such Acquisition in the aggregate shall not exceed $300,000,000.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay
-----------
(i) when and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any commitment or
other fee due hereunder, or (iii) within five days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe
------------------
any term, covenant or agreement contained in any of Section 6.01, 6.02,
------------ ----
6.03, 6.05, 6.10, 6.11 or 6.12 or Article VII; or
- ---- ---- ---- ---- ---- -----------
(c) Other Defaults. Any Loan Party fails to perform or observe any
--------------
other covenant or agreement (not specified in subsection (a) or (b) above)
-------------- ---
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
------------------------------
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document, or
in any document delivered in connection herewith or therewith shall be
incorrect or misleading when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
-------------
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than the Threshold Amount, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other
event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
62
any Termination Event (as so defined) under such Swap Contract as to which
the Borrower or any Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
---------------------------
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for
60 calendar days, or an order for relief is entered in any such proceeding;
or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
----------------------------------
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against
all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
---------
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or
(B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is
not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
-----
or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
----------------------------
after its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases
to be valid, enforceable and in full force and effect; or any Loan Party
contests in any manner the validity or enforceability of any Loan Document;
or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or
63
(k) Change of Control. There occurs any Change of Control with
-----------------
respect to the Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the
following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of
- -------- -------
an order for relief with respect to the Borrower under the Bankruptcy Code
of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or
any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become
------------
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
-------------
any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
-----
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent in
-----------
its capacity as such;
Second, to payment of that portion of the Obligations constituting
------
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in
- -----------
this clause Second payable to them;
------
64
Third, to payment of that portion of the Obligations constituting
-----
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this clause
Third payable to them;
- -----
Fourth, to payment of that portion of the Obligations constituting
------
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Fourth held
------
by them;
Fifth, to the Administrative Agent for the account of the L/C
-----
Issuer, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
----
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
---------------
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
-----
shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters
of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Obligations, if any, in the order set forth
above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Article IX with respect to
----------
any acts taken or omissions suffered by the L/C Issuer in connection with
Letters of
65
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as
fully as if the term "Administrative Agent" as used in this Article IX and
----------
in the definition of "Agent-Related Person" included the L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby (except for its own gross negligence
or willful misconduct in connection with its duties expressly set forth
herein), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan
Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan
Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to
its 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 Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders.
66
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall
------------
be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except
with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative
- ------------ -------- -------
Agent has received any such direction, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable or in the
best interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent to and acceptance of any
assignment or review of the affairs of any Loan Party or any Affiliate
thereof, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Loan Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.
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9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
-------- -------
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that
-------- -------
no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Loan Party
or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate)
and acknowledge that the Administrative Agent shall be under no obligation
to provide such information to them. With respect to its Loans, Bank of
America shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms "Lender" and
"Lenders" include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among
the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be consented to by the Borrower at all
times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no
successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting
as such successor administrative agent shall succeed to all the rights,
powers
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and duties of the retiring Administrative Agent, L/C Issuer and Swing Line
Lender and the respective terms "Administrative Agent", "L/C Issuer" and
"Swing Line Lender" shall mean such successor administrative agent, Letter
of Credit issuer and swing line lender, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated and the retiring L/C Issuer's and Swing Line Lender's rights,
powers and duties as such shall be terminated, without any other or further
act or deed on the part of such retiring L/C Issuer or Swing Line Lender or
any other Lender, other than the obligation of the successor L/C Issuer to
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04
---------- --------------
and 10.05 shall inure to its benefit as to any actions taken or omitted to
-----
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective and the Lenders
shall perform all of the duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
9.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C 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 or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
L/C 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 2.03(i) and (j), 2.09 and 10.04) allowed in such
---------------- --- ---- -----
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding 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, 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 2.09 and 10.04.
------------- -----
69
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf
of any Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations 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.
9.11 GUARANTY MATTERS. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to
release any Guarantor from its obligations under the Guaranty pursuant to
this Section 9.12.
------------
9.12 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "documentation agent," "co-agent", "book
manager", "lead manager", "arranger", "lead arranger" or "co-arranger" shall
have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to
all Lenders as such. Without limiting the foregoing, none of the Lenders or
other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure
by the Borrower or any other Loan Party therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
--------
however, that no such amendment, waiver or consent shall:
- -------
(a) waive any condition set forth in Section 4.01(a) without the
---------------
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) without the written
------------
consent of such extending or increasing Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
70
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the
second proviso to this Section 10.01) any fees or other amounts payable
-------------
hereunder or under any other Loan Document, without the written consent of
each Lender directly affected thereby; provided, however, that only the
-------- -------
consent of the Required Lenders shall be necessary (i) to amend the
definition of "Default Rate" or to waive any obligation of the Borrower to
pay interest at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would
------------ ------------
alter the pro rata sharing of payments required thereby without the written
consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or
(g) release all or substantially all of the Guarantors from the
Guaranty without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall,
-------- -------
unless in writing and signed by the L/C Issuer in addition to the Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Letter of Credit Application relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to
the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; (iv) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the
consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, and all notices
--------------
and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such
Person on Schedule 10.02 or to such other address, facsimile
--------------
71
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in
its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be
given or made upon the earlier to occur of (i) actual receipt by the
relevant party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by
telephone; and (D) if delivered by electronic mail (which form of delivery
is subject to the provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications to the
- -------- -------
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to
Article II shall not be effective until actually received by such Person. In
- ----------
no event shall a voicemail message be effective as a notice, communication
or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
---------------------------------------------------
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on all Loan Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and signatures
be confirmed by a manually-signed original thereof; provided, however, that
-------- -------
the failure to request or deliver the same shall not limit the effectiveness
of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
------------------------------
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section
-------
6.02, and to distribute Loan Documents for execution by the parties thereto,
- ----
and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
--------------------------------------------
Administrative Agent and the Lenders shall be entitled to rely and act upon
any notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify each Agent-Related Person
and each Lender from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on
behalf of the Borrower. All telephonic notices to and other communications
with the Administrative Agent may be recorded by the Administrative Agent,
and each of the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right,
72
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a)
to pay or reimburse the Administrative Agent for all costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to
pay or reimburse the Administrative Agent and each Lender for all costs and
expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other
Loan Documents (including all such costs and expenses incurred during any
"workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall include
all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by
the Administrative Agent and the cost of independent public accountants and
other outside experts retained by the Administrative Agent or any Lender.
All amounts due under this Section 10.04 shall be payable within ten
-------------
Business Days after demand therefor. The agreements in this Section shall
survive the termination of the Aggregate Commitments and repayment of all
other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER. Whether or not the
transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and the
L/C Issuer and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from
-----------
and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time be imposed on, incurred by or asserted against any
such Indemnitee by any third party or by the Borrower or any other Loan
Party in any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) any Commitment, Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower, any Subsidiary or
any other Loan Party, or any Environmental Liability related in any way to
the Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower or any other Loan Party
(including any investigation of, preparation for, or defense of any pending
or threatened claim, investigation, litigation or
73
proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"), in all cases,
-----------------------
whether or not caused by or arising, in whole or in part, out of the
negligence of the Indemnitee; provided that such indemnity shall not, as to
--------
any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court
of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
The Borrower agrees that no Indemnitee shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it or any of its
Subsidiaries, security holders or creditors as a result for any action taken
or not taken by it arising out of, related to or taken in connection with
any Loan Document or the consummation of the transactions contemplated
hereby or the actual or proposed use of Loan or Letter of Credit proceeds,
except to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have directly resulted from
the gross negligence or willful misconduct of such Indemnitee, and in no
event shall any Indemnitee be liable thereto for special, consequential,
punitive or indirect damages. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials
obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee have any
liability for any special, punitive, indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 10.05 shall be payable
within ten ------------- Business Days after demand therefor. The agreements
in this Section shall survive the resignation of the Administrative Agent,
the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and
such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding
under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment
had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to
the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
--------------
74
accordance with the provisions of subsection (d) of this Section, or (iii)
--------------
by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted
--------------
assignment or transfer by any party hereto shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection
(d) of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
--------------
Obligations and in Swing Line Loans) at the time owing to it); provided that
--------
(i) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to
--------------
a Lender, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, except that this clause (ii) shall
not apply to rights in respect of Swing Line Loans; (iii) any assignment of
a Commitment must be approved by the Administrative Agent, the L/C Issuer
and the Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c)
--------------
of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04
------------- ---- ---- -----
and 10.05 with respect to facts and circumstances occurring prior to the
-----
effective date of such assignment). Upon request, the Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of
75
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.
--------------
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
--------
Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of
-----------
such Lender's rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall
- --------
remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the L/C Issuer and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
--------
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 10.01 that directly affects such
-------------
Participant. Subject to subsection (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01,
-------------
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
- ---- ----
interest by assignment pursuant to subsection (b) of this Section. To the
--------------
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.09 as though it were a Lender, provided such
-------------
Participant agrees to be subject to Section 2.13 as though it were a Lender.
------------
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have
------------ ----
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 3.01 unless the Borrower is notified of the participation sold to
------------
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 10.15 as though it were a Lender.
-------------
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under
its Note, if any) to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve
76
Bank; provided that no such pledge or assignment shall release such Lender
--------
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate
-----------------
of a Lender; (c) an Approved Fund; and (d) any other Person (other
than a natural person) approved by (i) the Administrative Agent,
the L/C Issuer and the Swing Line Lender, and (ii) unless an Event
of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
--------
notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"Fund" means any Person (other than a natural person) that
----
is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in
the ordinary course of its business.
"Approved Fund" means any Fund that is administered or
-------------
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
(h) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Commitment and Loans pursuant
to subsection (b) above, Bank of America may, (i) upon 30 days' notice to
--------------
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days'
notice to the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrower to
-------- -------
appoint any such successor shall affect the resignation of Bank of America
as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
resigns as L/C Issuer, it shall retain all the rights and obligations of the
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make
Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing
---------------
Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
---------------
(i) Electronic Execution of Assignments. The words "execution",
-----------------------------------
"signed", "signature", and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce
77
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
(including any self-regulatory authority, such as the National Association
of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For purposes of this Section,
"Information" means all information received from any Loan Party relating to
-----------
any Loan Party or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party, provided that,
--------
in the case of information received from a Loan Party after the date hereof,
such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person
would accord to its own confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of
any Event of Default, each Lender is authorized at any time and from time to
time, without prior notice to the Borrower or any other Loan Party, any such
notice being waived by the Borrower (on its own behalf and on behalf of each
Loan Party) to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final)
at any time held by, and other indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Loan Parties
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or
not the Administrative Agent or such Lender shall have made demand under
this Agreement or any other Loan Document and although such Obligations may
be contingent or unmatured or denominated in a currency different from that
of the applicable deposit or indebtedness. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
-------- -------
such notice shall not affect the validity of such set-off and application.
78
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the "Maximum Rate"). If
------------
the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrower. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term
of the Obligations hereunder.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict
between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided that the
--------
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a
conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document
or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied
upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan
or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.
10.14 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
79
10.15 TAX FORMS. (a) (i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
-------
Lender") shall deliver to the Administrative Agent, prior to receipt of any
- ------
payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender and entitling it to an exemption from, or reduction of, withholding
tax on all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Foreign Lender is entitled
to an exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time
to time, each such Foreign Lender shall (A) promptly submit to the
Administrative Agent such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time
by the relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement, (B) promptly notify the Administrative
Agent of any change in circumstances which would modify or render invalid
any claimed exemption or reduction, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid any requirement of applicable Laws that the
Borrower make any deduction or withholding for taxes from amounts payable to
such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act for
its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination of
the Administrative Agent (in the reasonable exercise of its discretion), (A)
two duly signed completed copies of the forms or statements required to be
provided by such Lender as set forth above, to establish the portion of any
such sums paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly signed
completed copies of IRS Form W-8IMY (or any successor thereto), together
with any information such Lender chooses to transmit with such form, and any
other certificate or statement of exemption required under the Code, to
establish that such Lender is not acting for its own account with respect to
a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
------------
Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS
Form W-8IMY pursuant to this Section 10.15(a) or (B) if such Lender shall
---------------- ---
have failed to satisfy the foregoing provisions of this Section 10.15(a);
----------------
provided that if such Lender shall have satisfied the requirement of this
- --------
Section 10.15(a) on the date such Lender became a Lender or ceased to act
- ----------------
for its own account with respect to any payment under any of the Loan
Documents,
80
nothing in this Section 10.15(a) shall relieve the Borrower of its
----------------
obligation to pay any amounts pursuant to Section 3.01 in the event that, as
------------
a result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender or other Person for the account of which such Lender
receives any sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower is not required to pay
additional amounts under this Section 10.15(a).
----------------
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable back-up withholding tax imposed by
the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any
tax or other amount from payments made to or for the account of any Lender,
such Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and
expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section shall survive the termination
of the Aggregate Commitments, repayment of all other Obligations hereunder
and the resignation of the Administrative Agent.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF MISSOURI applicable to agreements
made and to be performed entirely within such State; PROVIDED THAT THE
--------
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
MISSOURI SITTING IN MISSOURI OR OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. THE BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
81
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. THE BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
represent the final agreement among the parties and may not be contradicted
by evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements among the parties.
10.19 USA PATRIOT ACT NOTICE. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the
Company that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the "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 or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act
and the Borrower agrees to provide the Administrative Agent and the Lenders
with any such information as the Administrative Agent or any Lender may
reasonably request.
[SIGNATURE PAGES FOLLOW.]
82
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed as of the date first above
written.
ENGINEERED SUPPORT SYSTEMS, INC.
By: /s/ Gary C. Gerhardt
-----------------------------------------------
Gary C. Gerhardt, Vice Chairman, Chief
Financial Officer and Assistant Secretary
- Signature Page 1 -
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ David A. Johanson
---------------------------
Name: David A. Johanson
--------------------------
Title: Vice President
-------------------------
- Signature Page 2 -
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Jason R. Hickey
----------------------------
Name: Jason R. Hickey
--------------------------
Title: Senior Vice President
-------------------------
- Signature Page 3 -
HARRIS TRUST AND SAVINGS BANK, as a Lender
By: /s/ Danjuma Gibson
----------------------------
Name: Danjuma Gibson
--------------------------
Title: Vice President
-------------------------
- Signature Page 4 -
UNION PLANTERS BANK, N.A., as a Lender
By: /s/ Anne D. Silvestri
----------------------------
Name: Anne D. Silvestri
--------------------------
Title: Vice President
-------------------------
- Signature Page 5 -
U.S. BANK, N.A., as a Lender
By: /s/ Dick L. Martin
----------------------------
Name: Dick L. Martin
--------------------------
Title: V.P.
-------------------------
- Signature Page 6 -
FIFTH THIRD BANK (SOUTHERN INDIANA), as a Lender
By: /s/ Shawn D. Hagan
----------------------------
Name: Shawn D. Hagan
--------------------------
Title: Vice President
-------------------------
- Signature Page 7 -
WELLS FARGO BANK, N.A., as a Lender
By: /s/ Kevin L. Handley
----------------------------
Name: Kevin L. Handley
--------------------------
Title: Vice President
-------------------------
- Signature Page 8 -
NATIONAL CITY BANK OF THE MIDWEST, as a Lender
By: /s/ Eric Hartman
----------------------------
Name: Eric Hartman
--------------------------
Title: Vice President
-------------------------
- Signature Page 9 -
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Fredric W. McClendon
----------------------------
Name: Fredric W. McClendon
--------------------------
Title: Vice President
-------------------------
- Signature Page 10 -
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
- ----------------------------------------------------------------------------------------------------------
Bank of America, N.A. $40,000,000 20.000000000%
Harris Trust and Savings Bank $25,000,000 12.500000000%
U.S. Bank, N.A. $25,000,000 12.500000000%
Wells Fargo Bank, N.A. $25,000,000 12.500000000%
National City Bank of the Midwest $25,000,000 12.500000000%
Union Planters Bank, N.A. $22,000,000 11.000000000%
Fifth Third Bank (Southern Indiana) $19,000,000 9.500000000%
The Northern Trust Company $19,000,000 9.500000000%
Total $200,000,000 100.000000000%