Exhibit 10.1
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of May 27, 2008
among
HEICO CORPORATION
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO,
REGIONS BANK and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
SUNTRUST BANK
as Administrative Agent
================================================================================
SUNTRUST ROBINSON HUMPHREY, INC. and J.P. MORGAN SECURITIES, INC.,
as Joint Lead Arrangers and Co-Book Managers
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION...............................................1
Section 1.1. Definitions......................................................1
Section 1.2. Classifications of Loans and Borrowings ........................23
Section 1.3. Accounting Terms and Determination..............................23
Section 1.4. Currency Translations...........................................24
Section 1.5. Terms Generally.................................................24
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS....................................25
Section 2.1. General Description of Facilities ..............................25
Section 2.2. Revolving Loans.................................................25
Section 2.3. Procedure for Revolving Borrowings..............................25
Section 2.4. Swingline Commitment ...........................................26
Section 2.5. Funding of Borrowings...........................................27
Section 2.6. Interest Elections..............................................28
Section 2.7. Optional Reduction and Termination of Commitments...............29
Section 2.8. Repayment of Loans .............................................30
Section 2.9. Evidence of Indebtedness .......................................30
Section 2.10. Optional Prepayments............................................31
Section 2.11. Mandatory Prepayments ..........................................31
Section 2.12. Interest on Loans...............................................31
Section 2.13. Fees ...........................................................32
Section 2.14. Computation of Interest and Fees ...............................33
Section 2.15. Inability to Determine Interest Rates...........................33
Section 2.16. Illegality......................................................34
Section 2.17. Increased Costs ................................................34
Section 2.18. Funding Indemnity...............................................36
Section 2.19. Taxes...........................................................36
Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs ....38
Section 2.21. Letters of Credit...............................................39
Section 2.22. Mitigation of Obligations.......................................44
Section 2.23. Replacement of Lenders .........................................44
Section 2.24. Increase of Commitments; Additional Lenders.....................44
Section 2.25. Extension of Revolving Commitment Termination Date..............46
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT....................48
Section 3.1. Conditions To Effectiveness.....................................48
Section 3.2. Each Credit Event ..............................................50
Section 3.3. Delivery of Documents...........................................51
Section 3.4. Effect of Amendment and Restatement.............................51
ARTICLE IV REPRESENTATIONS AND WARRANTIES.........................................51
Section 4.1. Existence; Power................................................52
Section 4.2. Organizational Power; Authorization ............................52
Section 4.3. Governmental Approvals; No Conflicts ...........................52
Section 4.4. Financial Statements............................................52
Section 4.5. Litigation and Environmental Matters............................53
Section 4.6. Investment Company Act, Etc.....................................53
Section 4.7. Disclosure .....................................................53
Section 4.8. Ownership of Property...........................................53
Section 4.9. Taxes...........................................................54
Section 4.10. Compliance with Laws and Agreements ............................54
Section 4.11. Patents, Trademarks, Licenses, Etc..............................54
Section 4.12. [Reserved]......................................................54
Section 4.13. ERISA...........................................................54
Section 4.14. Solvency........................................................54
Section 4.15. Margin Regulations..............................................55
Section 4.16. Insurance.......................................................55
Section 4.17. Labor Relations.................................................55
Section 4.18. OFAC............................................................55
Section 4.19. Patriot Act.....................................................55
Section 4.20. Subsidiaries....................................................56
ARTICLE V AFFIRMATIVE COVENANTS..................................................56
Section 5.1. Financial Statements and Other Information......................56
Section 5.2. Payment of Obligations..........................................58
Section 5.3. Existence; Conduct of Business..................................58
Section 5.4. Maintenance of Properties; Insurance............................58
Section 5.5. Visitation, Inspection, Etc.....................................58
Section 5.6. Notices of Material Events......................................58
Section 5.7. Books and Records ..............................................60
Section 5.8. Compliance with Laws, Etc.......................................60
Section 5.9. Pledge Agreement................................................60
Section 5.10. ERISA Benefit Plans.............................................61
Section 5.11. [Reserved]......................................................61
Section 5.12. Use of Proceeds and Letters of Credit ..........................61
Section 5.13. Additional Subsidiaries.........................................61
ARTICLE VI FINANCIAL COVENANTS....................................................62
Section 6.1. Total Leverage Ratio............................................62
Section 6.2. Senior Leverage Ratio...........................................62
Section 6.3. Fixed Charge Coverage Ratio.....................................62
ARTICLE VII NEGATIVE COVENANTS.....................................................62
Section 7.1. Indebtedness and Preferred Equity...............................63
Section 7.2. Negative Pledge ................................................64
Section 7.3. Fundamental Changes.............................................65
Section 7.4. Investments, Loans, Etc.........................................66
Section 7.5. Amendment to Governing Documents ...............................67
Section 7.6. Accounting Changes..............................................67
Section 7.7. Capital Expenditures............................................67
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Section 7.8. Restricted Payments.............................................67
Section 7.9. [Reserved]......................................................68
Section 7.10. Transactions with Affiliates....................................68
Section 7.11. Restrictive Agreements..........................................69
Section 7.12. Sale and Leaseback Transactions.................................69
Section 7.13. Hedging Transactions ...........................................69
ARTICLE VIII EVENTS OF DEFAULT.....................................................70
Section 8.1. Events of Default...............................................70
Section 8.2. Application of Proceeds from Collateral ........................72
ARTICLE IX THE ADMINISTRATIVE AGENT................................................73
Section 9.1. Appointment of Administrative Agent ............................73
Section 9.2. Nature of Duties of Administrative Agent........................74
Section 9.3. Lack of Reliance on the Administrative Agent....................75
Section 9.4. Certain Rights of the Administrative Agent .....................75
Section 9.5. Reliance by Administrative Agent................................75
Section 9.6. The Administrative Agent in its Individual Capacity.............75
Section 9.7. Successor Administrative Agent..................................76
Section 9.8. Withholding Tax.................................................76
Section 9.9. Administrative Agent May File Proofs of Claim...................76
Section 9.10. Authorization to Execute other Loan Documents...................77
Section 9.11. Documentation Agent; Syndication Agent..........................77
Section 9.12. Collateral and Guaranty Matters.................................77
ARTICLE X MISCELLANEOUS ...........................................................78
Section 10.1. Notices ........................................................78
Section 10.2. Waiver; Amendments .............................................80
Section 10.3. Expenses; Indemnification.......................................81
Section 10.4. Successors and Assigns..........................................83
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process......87
Section 10.6. WAIVER OF JURY TRIAL............................................87
Section 10.7. Right of Setoff.................................................88
Section 10.8. Counterparts; Integration ......................................88
Section 10.9. Survival........................................................88
Section 10.10.Severability ...................................................89
Section 10.11.Confidentiality ................................................89
Section 10.12.Interest Rate Limitation .......................................90
Section 10.13.Waiver of Effect of Corporate Seal .............................90
Section 10.14.Patriot Act.....................................................90
Section 10.15.Currency Conversion ............................................90
Section 10.16.Exchange Rates..................................................91
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Schedules
- ---------
Schedule I - Applicable Margin and Applicable Commitment Fee
Percentage
Schedule II Commitment Amounts
Schedule 2.21 - Existing Letters of Credit
Schedule 4.5 - Environmental Matters
Schedule 4.20 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
- --------
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Pledge Agreement
Exhibit C - Form of Subsidiary Guaranty Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.6 - Form of Notice of Continuation/Conversion
Exhibit 5.1(e) - Form of Compliance Certificate
iv
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
------------------------------------------------------
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of May 27, 2008, by and among HEICO
CORPORATION, a Florida corporation (the "Borrower"), the several banks and other
financial institutions and lenders from time to time party hereto (the
"Lenders"), SUNTRUST BANK, in its capacity as administrative agent for the
Lenders (the "Administrative Agent"), as issuing bank (the "Issuing Bank") and
as swingline lender (the "Swingline Lender") and JPMORGAN CHASE BANK, N.A., in
its capacity as syndication agent.
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the Lenders and the Administrative Agent
are parties to that certain Amended and Restated Revolving Credit Agreement,
dated as of August 4, 2005, as amended or modified prior to the date hereof (the
"Existing Credit Agreement"), pursuant to which the Lenders established a
$130,000,000 revolving credit facility in favor of the Borrower, with a letter
of credit subfacility and swingline subfacility;
WHEREAS, Borrower has requested that the Lenders increase the
commitments to $300,000,000 and make certain modifications to the Existing
Credit Agreement, which the Lenders are willing to do subject to the terms and
conditions hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree each of the banks and financial
institutions party hereto but not to the Existing Credit Ageement becomes a
Lender hereunder and the Existing Credit Agreement is amended and restated as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
Section 1.1. Definitions. In addition to the other terms defined
herein, the following terms used herein shall have the meanings set forth herein
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Additional Commitment Amount" shall have the meaning given to
such term in Section 2.24.
"Additional Lender" shall have the meaning given to such term in
Section 2.24.
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning set forth in the
introductory paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition of Affiliate, the term "Control" shall mean the power, directly
or indirectly, either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of a Person or (ii) direct or cause the direction of the management
and policies of a Person, whether through the ability to exercise voting power,
by contract or otherwise. The terms "Controlling," "Controlled by," and "under
common Control with" have the meanings correlative thereto. Notwithstanding the
foregoing, Lufthansa Technik AG and its Affiliates shall not be deemed
Affiliates of the Borrower and its Affiliates solely by virtue of Mr. Wolfgang
Mayrhuber, or any other designee of Lufthansa Technik AG, serving as an officer
or director of any such entity.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount is $300,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"Anniversary Date" shall mean each anniversary of the date of this
Agreement.
"Applicable Commitment Fee Percentage" shall mean, as of any date,
with respect to the commitment fee, the percentage per annum determined by
reference to the Total Leverage Ratio in effect on such date as set forth on
Schedule I; provided, that a change in the Applicable Commitment Fee Percentage
resulting from a change in the Total Leverage Ratio shall be effective on the
second Business Day after which the Borrower delivers each of the financial
statements required by Section 5.1(a) and (b) and the Compliance Certificate
required by Section 5.1(e); provided further, that if at any time the Borrower
shall have failed to deliver any such financial statements and/or any such
Compliance Certificate, the Applicable Commitment Fee Percentage shall be at
Level VIII as set forth on Schedule I until such time as such financial
statements and Compliance Certificate are delivered, at which time the
Applicable Commitment Fee Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Commitment Fee Percentage for the
commitment fee from the Closing Date until the financial statements and
Compliance Certificate for the Fiscal Quarter ending July 31, 2008 are required
to be delivered in accordance with Section 5.1(b) shall be at Level II as set
forth on Schedule I. If, during the term of this Agreement any financial
statement or Compliance Certificate delivered hereunder is shown to be
inaccurate, and such inaccuracy, if corrected, would have led to the application
of a higher Applicable Commitment Fee Percentage based upon the pricing grid set
forth on Schedule I (the "Accurate Applicable Commitment Fee Percentage") for
any period that such financial statement or Compliance Certificate covered, then
(i) the Borrower shall immediately deliver to the Administrative Agent a
corrected financial
2
statement or Compliance Certificate, as the case may be, for such period, (ii)
the Applicable Commitment Fee Percentage shall be adjusted such that after
giving effect to the corrected financial statements or Compliance Certificate,
as the case may be, the Applicable Commitment Fee Percentage shall be reset to
the Accurate Applicable Commitment Fee Percentage based upon the pricing grid
set forth on Schedule I for such period as set forth in the foregoing pricing
grid for such period and (iii) the Borrower shall immediately pay to the
Administrative Agent, for the account of the Lenders, the accrued additional
commitment fee owing as a result of such Accurate Applicable Commitment Fee
Percentage for such period. The provisions of this definition shall not limit
the rights of the Administrative Agent and the Lenders with respect to Section
2.12(c) or Article VIII.
"Applicable Lending Office" shall mean, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to
interest on all Revolving Loans outstanding on any date or the letter of credit
fee, as the case may be, a percentage per annum determined by reference to the
Total Leverage Ratio in effect on such date as set forth on Schedule I;
provided, that a change in the Applicable Margin resulting from a change in the
Total Leverage Ratio shall be effective on the second Business Day after which
the Borrower delivers the financial statements required by Section 5.1(a) and
(b) and the Compliance Certificate required by Section 5.1(e); provided further,
that if at any time the Borrower shall have failed to deliver any such financial
statements and/or any such Compliance Certificate when so required, the
Applicable Margin shall be at Level VIII as set forth on Schedule I until such
time as such financial statements and Compliance Certificate are delivered, at
which time the Applicable Margin shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Margin from the Closing Date until
the financial statements and Compliance Certificate for the Fiscal Quarter
ending July 31, 2008 are required to be delivered in accordance with Section
5.1(b) shall be at Level II as set forth on Schedule I. If, during the term of
this Agreement, any financial statement or Compliance Certificate delivered
hereunder is shown to be inaccurate, and such inaccuracy, if corrected, would
have led to the application of a higher Applicable Margin based upon the pricing
grid set forth on Schedule I (the "Accurate Applicable Margin") for any period
that such financial statement or Compliance Certificate covered, then (i) the
Borrower shall immediately deliver to the Administrative Agent a corrected
financial statement or Compliance Certificate, as the case may be, for such
period, (ii) the Applicable Margin shall be adjusted such that after giving
effect to the corrected financial statements or Compliance Certificate, as the
case may be, the Applicable Margin shall be reset to the Accurate Applicable
Margin based upon the pricing grid set forth on Schedule I for such period and
(iii) the Borrower shall immediately pay to the Administrative Agent, for the
account of the Lenders, the accrued additional interest owing as a result of
such Accurate Applicable Margin for such period. The provisions of this
definition shall not limit the rights of the Administrative Agent and the
Lenders with respect to Section 2.12(c) or Article VIII.
3
"Approved Fund" shall mean 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 and that is administered or managed by (i) a Lender, (ii)
an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit A attached hereto or any other form
approved by the Administrative Agent.
"Assuming Lender" shall have the meaning set forth in Section
2.25(c).
"Assumption Agreement" shall have the meaning set forth in Section
2.25(c).
"Availability Period" shall mean the period from the Closing Date
to the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which
the Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%) per annum.
The Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning given in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the
same Class and Type, made, converted or continued on the same date and in the
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia are authorized
or required by law to close, (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan in Dollars or a notice with respect to
any of the foregoing, any day on which banks are not open for dealings in dollar
deposits are carried on in the London interbank market and (iii) if such day
relates to a Borrowing of, a payment or prepayment of principal or interest on,
a conversion of or into, or an Interest Period for, a Eurodollar Loan in Euros
or a notice with respect to any of the foregoing, any day on which the TARGET
payment system is open for the settlement of payments in Euros.
"Calculation Date" means the last Business Day of each Fiscal
Quarter.
4
"Capital Expenditures" shall mean, for any period, without
duplication, (i) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Subsidiaries that are (or would be)
set forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (ii) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means all shares, options, warrants, general or
limited partnership interests, membership interests or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934).
"Change in Control" shall mean, as applied to the Borrower, that,
(a) the Mendelson Reporting Group (as identified in the reports filed with the
U.S. Securities and Exchange Commission) shall cease beneficially to own and
control at least ten (10%) of the combined voting power of all classes of
Capital Stock of the Borrower, or (b) during any period of twelve (12)
consecutive calendar months (i) more than fifty percent (50%) of the members of
the Board of Directors of the Borrower who were members on the first day of such
period shall have resigned or been removed or replaced, other than as a result
of death, disability, or change in personal circumstances (provided, however,
that any change in the size or membership of the Board of Directors of the
Borrower necessary or desirable in the Borrower's reasonable discretion to
comply with applicable laws including, without limitation, the Sarbanes-Oxley
Act of 2002, or the rules and regulations of any securities exchange on which
the securities of the Borrower may be listed shall not be considered in
determining whether a "Change in Control" has occurred so long as such change is
approved by the then existing Board of Directors immediately prior to such
change), or (ii) any Person or "Group" (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, but excluding (A) any employee
benefit or stock ownership plans of the Borrower, and (B) members of the Board
of Directors and executive officers of the Borrower as of the date of this
Agreement, members of the immediate families of such members and executive
officers, and family trusts and partnerships established by or for the benefit
of any of the foregoing individuals) shall have acquired more than fifty percent
(50%) of the combined voting power of all classes of common stock of the
Borrower, except that the Borrower's purchase of its common stock outstanding on
the date hereof which results in one or more of the Borrower's shareholders of
record as of the date of this Agreement controlling more than fifty percent
(50%) of the combined voting power of all classes of the common stock of the
Borrower shall not constitute a Change in Control.
5
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.17(b), by the parent
corporation of such Lender or the Issuing Bank, if applicable) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived
in accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended
and in effect from time to time.
"Collateral" shall mean all Capital Stock of any Loan Party that
is the subject of a Lien granted pursuant to a Loan Document to the
Administrative Agent for the benefit of the Lenders to secure the whole or any
part of the Obligations or any Guarantee.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Compliance Certificate" shall mean a certificate from the
principal executive officer or the principal financial officer of the Borrower,
in his capacity as such, in the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(e).
"Consenting Lender" has the meaning specified in Section 2.25(b).
"Consistent Basis" shall mean, in reference to the application of
GAAP, that the accounting principles observed in the current period are
comparable in all material respects to those applied in the preceding period.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest Expense, (B)
income tax expense determined on a consolidated basis in accordance with GAAP,
(C) depreciation and amortization determined on a consolidated basis in
accordance with GAAP, (D) minority interest expense determined on a consolidated
basis in accordance with GAAP, and (E) non-cash expense for stock options and
all other non-cash charges, determined on a consolidated basis in accordance
with GAAP, in each case for such period.
6
"Consolidated Fixed Charges" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (i) Consolidated
Interest Expense paid in cash for such period, (ii) scheduled principal payments
paid in cash on Consolidated Total Funded Debt during such period, and (iii)
dividends and distributions paid in cash or property other than common stock
during such period to holders of Borrower's capital stock, warrants and related
instruments.
"Consolidated Interest Expense" shall mean, for the Borrower and
its Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the total interest expense, including without limitation the interest
component of any payments in respect of Capital Lease Obligations capitalized or
expensed during such period (whether or not actually paid during such period)
plus the net amount payable (or minus the net amount receivable) with respect to
interest rate Hedging Obligations in accordance with GAAP during such period
(whether or not actually paid or received during such period).
"Consolidated Net Income" shall mean, for the Borrower and its
Subsidiaries for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary and
(iv) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are acquired by the Borrower or any
Subsidiary.
"Consolidated Senior Funded Debt" shall mean, as of any date, all
Consolidated Total Funded Debt minus all Permitted Subordinated Debt.
"Consolidated Total Funded Debt" shall mean and include, without
duplication, the following obligations of the Borrower and any of its
Subsidiaries: (i) any liability or obligation for borrowed money that under GAAP
is required to be shown on the balance sheet as a liability; (ii) Indebtedness
(excluding Hedging Obligations) that is secured by any security interest on
property owned by the Borrower or any Subsidiary (such as capitalized leases,
asset securitization vehicles, conditional sales contracts and similar title
retention arrangements), irrespective of whether or not the Indebtedness secured
thereby shall have been assumed by the Borrower or such Subsidiary; (iii)
Guarantees, endorsements (other than endorsements of negotiable instruments for
collection in the ordinary course of business), and other contingent
liabilities, whether direct or indirect (such as by way of a letter of credit
issued for the account of the Borrower or a Subsidiary) in connection with the
obligations for borrowed money, stock, or dividends of any person; (iv)
obligations under any contract providing for the making of loans, advances, or
capital contributions to any person in order to enable such person primarily to
maintain working capital, net worth, or any other balance sheet condition or to
pay debts, dividends, or expenses; and (v) obligations under any contract which,
in economic effect, is substantially equivalent to a Guarantee of loans,
advances or capital contributions of another person, all as determined with
respect to (i) through (v) above for the Borrower and its Subsidiaries on a
consolidated basis, in accordance with GAAP applied on a Consistent Basis.
7
"Contractual Obligation" of any Person shall mean any provision of
any security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of the
property in which it has an interest is bound.
"Default" shall mean any condition or event that, with the giving
of notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Dollar Equivalent" means, on any date of determination (i) with
respect to any amount denominated in Dollars, such amount, and (ii) with respect
to any amount denominated in any currency other than Dollars, the equivalent in
Dollars of such amount, determined by the Administrative Agent using the
applicable Exchange Rate with respect to such currency at the time in effect
pursuant to Section 10.16 or as otherwise expressly provided herein.
"Domestic Subsidiary" shall mean each Subsidiary that is not a
Foreign Subsidiary.
"EMU Legislation" means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (i) any actual or alleged
violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii)
any actual or alleged exposure to any Hazardous Materials, (iv) the Release or
threatened Release of any Hazardous Materials or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of
8
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Euro" or "E" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation for the introduction of, changeover to or operation of the Euro in
one or more member states.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System or
the European Central Bank (or any Governmental Authority succeeding to any of
their respective principal functions) with respect to eurocurrency funding
denominated in Dollars (currently referred to as "eurocurrency liabilities"
under Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Event of Default" shall have the meaning set forth in Section
8.1.
"Exchange Rate" means on any day, with respect to Euros, the rate
at which such currency may be exchanged into Dollars, as set forth at
approximately 11:00 A.M. on such day on the applicable page of the Bloomberg
Service reporting the exchange rates for such currency.
9
In the event such exchange rate does not appear on the applicable page of such
service, the Exchange Rate shall be determined by reference to such other
publicly available services for displaying currency exchange rates as may be
agreed upon by the Administrative Agent, the Issuing Bank, and the Borrower, or,
in the absence of such agreement, such Exchange Rate shall instead be determined
by the Administrative Agent and Issuing Bank, as applicable, based on current
market spot rates in accordance with the provisions of Section 10.16; provided
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent or Issuing Bank, as applicable, after
consultation with the Borrower, may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
"Excluded Taxes" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its Applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.19(e).
"Executive Summary" shall mean the Confidential Executive Summary
dated April, 2008 relating to the Borrower and the transactions contemplated by
this Agreement and the other Loan Documents.
"Existing Credit Agreement" shall have the meaning given to such
term in the recitals to this Agreement.
"Existing Letters of Credit" means the letters of credit issued
and outstanding under the Existing Credit Agreement as set forth on Schedule
2.21.
"Extension Date" shall have the meaning set forth in Section
2.25(b).
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
10
"Fee Letter" shall mean that certain fee letter, dated as of March
31, 2008, executed by SunTrust Robinson Humphrey, Inc. and SunTrust Bank and
accepted by the Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" shall mean, as of any date, the
ratio of (a) (i) Consolidated EBITDA minus (ii) the actual amount paid by the
Borrower and its Subsidiaries in cash on account of unfinanced Capital
Expenditures and income tax expense to (b) Consolidated Fixed Charges, in each
case measured for the four consecutive Fiscal Quarters ending on or immediately
prior to such date.
"Foreign Currency Sublimit" means $50,000,000.
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(30) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized
under the laws of a jurisdiction other than one of the fifty states of the
United States or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a Consistent Basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made (subject to
11
any limitations on the liability of the guarantor contained in such Guarantee)
or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Materials" shall mean 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.
"Hedging Obligations" shall mean, for any Person, any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions, including without limitation any
promissory notes issued to pay the Net Mark-to-Market Exposure of any Hedging
Transactions that is terminated.
"Hedging Transaction" shall mean, for any Person, (a) any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into by such Person that is a rate swap transaction, swap
option, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option, spot transaction, or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, 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.
"Indebtedness" of any Person shall mean, without duplication (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business and paid in accordance with the historical practices or to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has
12
been assumed by such Person, (ix) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any
Capital Stock of such Person, (x) Off- Balance Sheet Liabilities and (xi) all
Hedging Obligations of such Person. The Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer to the extent required to be consolidated in
accordance with GAAP, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Interest Period" shall mean with respect to (i) any Swingline
Borrowing, such period as the Swingline Lender and the Borrower shall mutually
agree and (ii) any Eurodollar Borrowing, a period of one, two, three or six
months and to the extent available to each Lender, 9 or 12 months; provided,
that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period which 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 such calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank in its capacity as the
issuer of Letters of Credit pursuant to Section 2.21.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $30,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean all applications, agreements and
instruments relating to the Letters of Credit but excluding the Letters of
Credit.
13
"LC Exposure" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender and each Additional Lender that joins this Agreement pursuant
to Sections 2.24 or 2.25.
"Letter of Credit" shall mean any stand-by letter of credit issued
pursuant to Section 2.21 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment and the Existing Letters of Credit.
"LIBOR" shall mean, for any (a) Interest Period with respect to a
Eurodollar Loan in Dollars, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01 Page (or any
successor page) as the London interbank offered rate for deposits in Dollars and
(b) for any Interest Period with respect to any Eurodollar Loan in Euros, the
rate per annum (rounded upwards if necessary, to the nearest 1/100 of 1%)
appearing on Page 248 of the Moneyline Telerate Service (or any successor page)
as the London interbank offered rate for deposits in Euros, in each case at
approximately 11:00 a.m. (London, England time), two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, LIBOR shall be, for any Interest
Period, the rate per annum reasonably determined by the Administrative Agent as
the rate of interest at which Dollar or Euro deposits (as the case may be) in
the approximate amount of the Eurodollar Loan comprising part of such borrowing
would be offered to the Administrative Agent by major banks in the London
interbank Eurodollar market at their request at or about 10:00 a.m. (London,
England time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. With respect to a Eurodollar Loan
in Euros, LIBOR shall mean the EURIBO Rate. Such rates may be adjusted for any
applicable reserve requirements.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of any of
the foregoing or any preference, priority or other security agreement or similar
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the
Subsidiary Guaranty Agreement, the LC Documents, the Fee Letter, all Notices of
Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates,
any Pledge Agreement executed and delivered after the Closing Date, all UCC
financing statements, all stock powers and similar instruments of transfer, any
promissory notes issued hereunder and any and all other instruments, agreements,
certificates and affidavits executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
14
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"Material Adverse Effect" shall mean, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences whether
or not related, resulting in a material adverse change in, or a material adverse
effect on, (i) the business, results of operations, financial condition, assets
or liabilities of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform their respective obligations under the
Loan Documents taken as a whole, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank, Swingline Lender, and the Lenders under
any of the Loan Documents or (iv) the legality, validity or enforceability of
any of the Loan Documents. For the avoidance of doubt, the term "Material
Adverse Effect," wherever it appears in the Loan Documents, shall be construed
to apply to the Borrower and its Subsidiaries taken as a whole and not to the
Borrower or any particular Subsidiary individually.
"Material Indebtedness" shall mean any Indebtedness (other than
the Loans and Letters of Credit) and Hedging Obligations of the Borrower or any
of its Subsidiaries, individually or in an aggregate principal amount exceeding
$10,000,000. For purposes of determining the amount of attributed Indebtedness
from Hedging Obligations, the "principal amount" of any Hedging Obligations at
any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Mark-to-Market Exposure" of any Person shall mean, as of any
date of determination with respect to any Hedging Obligation, the excess (if
any) of all unrealized losses over all unrealized profits of such Person arising
from such Hedging Obligation. "Unrealized losses" shall mean the fair market
value of the cost to such Person of replacing the Hedging Transaction giving
rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Hedging Transaction as of the date of determination (assuming such Hedging
Transaction were to be terminated as of that date).
"Non-Consenting Lender" shall have the meaning specified in
Section 2.25(b).
"Non-Subsidiary Loan Party Net Worth" shall mean, for any
Subsidiary that is not a Subsidiary Loan Party, an amount equal to (A) the total
assets of such Subsidiary that would be reflected on such Subsidiary's
consolidated balance sheet as of such date prepared in accordance with GAAP,
minus (B) the total liabilities of such Subsidiary that would be reflected on
such Subsidiary's consolidated balance sheet as of such date prepared in
accordance with GAAP.
15
"Notice of Conversion/Continuation" shall mean the notice given by
the Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.6(b).
"Notice of Revolving Borrowing" shall have the meaning set forth
in Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning set forth
in Section 2.4.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Obligations" shall mean (a) all amounts owing by the Loan Parties
to the Administrative Agent, the Issuing Bank, any Lender (including the
Swingline Lender) or SunTrust Robinson Humphrey, Inc. as the Lead Arranger
pursuant to or in connection with this Agreement or any other Loan Document or
otherwise with respect to any Loan or Letter of Credit, including without
limitation, all principal, interest (including any interest accruing after the
filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
all reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all reasonable fees and expenses of
counsel to the Administrative Agent, the Issuing Bank and any Lender (including
the Swingline Lender) incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder, and (b)
all Hedging Obligations owed by any Loan Party to any Lender or Affiliate of any
Lender, together with all renewals, extensions, modifications or refinancings of
any of the foregoing.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person that do not create a liability on the
balance sheet of such Person (in accordance with GAAP), (ii) any liability of
such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease
Obligation or (iv) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheet of such Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970,
as amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
16
"Overnight Foreign Currency Rate" shall mean for any amount
payable in Euros, the rate of interest per annum as determined by the
Administrative Agent at which overnight or weekend deposits in Euros (or if such
amount due remains unpaid for more than three Business Days, then for such other
period as the Administrative Agent may elect) for delivery in immediately
available and freely transferable funds would be offered by the Administrative
Agent to major banks in the interbank market upon request of such major banks
for the relevant currency as determined above and in an amount comparable to the
unpaid amount.
"Participant" shall have the meaning set forth in Section 10.4(d).
"Payment Office" shall mean the office of the Administrative Agent
located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen and similar Liens arising by operation of law in the ordinary course
of business for amounts not yet due or which are being contested in good faith
by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are currently being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance with
GAAP;
(vi) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code or common law of
banks or other financial institutions where Borrower or any of its Subsidiaries
maintains deposits (other than deposits intended as cash collateral) in the
ordinary course of business;
17
(vii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; and
(viii) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or materially interfere with the
ordinary conduct of business of the Borrower and its Subsidiaries taken as a
whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States), in each case maturing within thirteen months
from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within 270
days from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 365 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States or any state thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in clause
(iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"Permitted Real Estate Debt" shall mean (i) debt incurred or
assumed by the Borrower or its Subsidiaries which was incurred for the purpose
of financing all or any part of the cost of acquisition or improvement of any
Real Estate after the Closing Date for use in the ordinary course of business of
such Person in compliance with this Agreement and (ii) other debt incurred or
assumed by the Borrower or its Subsidiaries in an amount not in excess of
$25,000,000 at any time outstanding for the Borrower and its Subsidiaries on a
consolidated basis that is secured by Real Estate owned or leased as of the
Closing Date.
"Permitted Subordinated Debt" shall mean any Indebtedness of the
Borrower or any Subsidiary (i) that is expressly subordinated to the Obligations
on terms reasonably
18
satisfactory to the Administrative Agent, (ii) that matures by its terms no
earlier than six months after the Revolving Commitment Termination Date then in
effect with no scheduled principal payments permitted prior to such maturity,
and (iii) that is evidenced by an indenture or other similar agreement that is
in a form reasonably satisfactory to the Administrative Agent.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean any pledge agreement substantially
in the form of Exhibit B, executed by the Borrower or any Subsidiary Loan Party,
in favor of the Administrative Agent for the benefit of the Lenders, pursuant to
which such Loan Parties shall pledge the Capital Stock of their Subsidiaries in
accordance with Section 5.9.
"Pledge Agreement Date" shall mean the first date on which the
Total Leverage Ratio is greater than 3.25:1.00 at the end of any Fiscal Quarter.
"Projections" shall mean the Borrower's forecasted consolidated:
(a) balance sheets; (b) profit and loss statements; and (c) cash flow
statements.
"Pro Rata Share" shall mean, with respect to any Commitment of any
Lender at any time, and all Loans, other Revolving Credit Exposure, or any
payments or prepayments related thereto, a percentage, the numerator of which
shall be such Lender's Commitment (or if such Commitments have been terminated
or expired or the Loans have been declared to be due and payable, such Lender's
Revolving Credit Exposure), and the denominator of which shall be the sum of
such Commitments of all Lenders (or if such Commitments have been terminated or
expired or the Loans have been declared to be due and payable, the Revolving
Credit Exposure of all Lenders).
"Real Estate" shall mean all real property owned or leased by the
Borrower and its Subsidiaries.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
"Regulation T" shall mean Regulation T of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
"Regulation U" shall mean Regulation U of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
19
"Regulation X" shall mean Regulation X of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective managers, administrators,
trustees, partners, directors, officers, employees, agents, advisors or other
representatives of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more
than 50% of the aggregate outstanding Revolving Commitments at such time or if
the Lenders have no Commitments outstanding, then Lenders holding more than 50%
of the Revolving Credit Exposure (in each case determined on the basis of the
Dollar Equivalent of any amounts denominated in Euros).
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reset Date" shall have the meaning set forth in Section 10.16.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section
7.8.
"Revolving Commitment" shall mean, with respect to each Lender,
the Dollar Equivalent of the commitment of such Lender to make Revolving Loans
to the Borrower and to acquire participations in Letters of Credit and Swingline
Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule II, as such Schedule II may be amended
pursuant to Section 2.25, or in the case of a Person becoming a Lender after the
Closing Date, the amount of the assigned "Revolving Commitment" as provided in
the Assignment and Acceptance executed by such Person as an assignee, or the
joinder executed by such Person, in each case as such Revolving Commitment may
subsequently be increased or decreased pursuant to terms hereof.
20
"Revolving Commitment Termination Date" shall mean the earliest of
(i) May 27, 2013, as such date may be extended pursuant to the terms of Section
2.25, (ii) the date on which the Revolving Commitments are terminated pursuant
to Section 2.7 and (iii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
(whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the sum of the outstanding principal amount of the Dollar
Equivalent of such Lender's Revolving Loans, LC Exposure and Swingline Exposure.
"Revolving Loan" shall mean a loan made by a Lender (other than
the Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"Rights Agreement" shall mean that certain Rights Agreement
between the Borrower and SunTrust Bank as Rights Agent, dated as of November 2,
2003.
"S&P" shall mean Standard & Poor's, a Division of the McGraw-Hill
Companies.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of
(i) Consolidated Senior Funded Debt as of such date to (ii) Consolidated EBITDA
for the four consecutive Fiscal Quarters ending on or immediately prior to such
date.
"Significant Subsidiary" shall mean any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such
Regulation S-X is in effect on the date hereof.
"Solvent" means, with respect to any Person, that as of the date
of determination, both (a)(i) the then fair saleable value of the property of
such Person is (y) greater than the total amount of liabilities (including
contingent obligations to the extent required to be reflected as liabilities in
the financial statements of such Person pursuant to GAAP) of such Person and (z)
greater than the amount that will be required to pay the probable liabilities of
such Person's then existing debts as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person's capital is not unreasonably small
in relation to its business or any contemplated or undertaken transaction; and
(iii) such Person does not intend to incur, or believe or reasonably should
believe that it will incur, debts beyond its ability to pay such debts as they
become due and (b) such Person is solvent within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers.
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more
21
than 50% of the equity or more than 50% of the ordinary voting power, or in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (ii) that is, as of such date,
otherwise controlled (whether pursuant to (i) above, by contractual agreement,
or any combination thereof) by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower. For purposes of this definition, "control", with
respect to any Person, shall mean the power, directly or indirectly, to select a
majority of the directors (or other Persons performing similar functions) of
such Person.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement dated as of the date hereof and substantially in the form of Exhibit
C, executed by certain Subsidiaries of the Borrower in favor of the
Administrative Agent for the benefit of the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary that executes or
becomes a party to the Subsidiary Guaranty Agreement.
"Subordinated Debt Documents" shall mean any indenture, agreement
or similar instrument governing any Permitted Subordinated Debt.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $20,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.4, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Rate" shall mean for any Interest Period, the rate
offered by the Swingline Lender and accepted by the Borrower. The Borrower is
under no obligation to accept this rate and the Swingline Lender is under no
obligation to provide it.
"Synthetic Lease" shall mean a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any
Person, the sum of (i) all remaining rental obligations of such Person as lessee
under Synthetic Leases which are
22
attributable to principal and, without duplication, (ii) all rental and purchase
price payment obligations of such Person under such Synthetic Leases assuming
such Person exercises the option to purchase the lease property at the end of
the lease term.
"TARGET" shall mean the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) payment system (or if such payment system
ceases to be operative, such other payment system, (if any) reasonably
determined by the Administrative Agent to be a suitable replacement) for the
settlement of payments in Euros.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Leverage Ratio" shall mean, as of any date, the ratio of
(i) Consolidated Total Funded Debt as of such date to (ii) Consolidated EBITDA
for the four consecutive Fiscal Quarters ending on or immediately prior to such
date, adjusted to include, on a pro forma basis, Consolidated EBITDA of any
Person acquired by the Borrower or its Subsidiaries during such period assuming
the consummation of such acquisition occurred on the first day of such period.
"Uniform Commercial Code" or "UCC" shall mean the Uniform
Commercial Code as in effect from time to time in the State of Florida.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan" ) or by Type (e.g. a "Eurodollar Loan" or "Base Rate
Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also
may be classified and referred to by Class (e.g. "Revolving Borrowing") or by
Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "Revolving
Eurodollar Borrowing").
Section 1.3. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any
provision hereof to eliminate the effect of any change in GAAP on the operation
of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend any provision hereof for such purpose), then such
provision shall be interpreted on the basis of GAAP in effect immediately before
the relevant
23
change in GAAP became effective, until either such notice is withdrawn or such
provision is amended in a manner satisfactory to the Borrower and the Required
Lenders.
Section 1.4. Currency Translations.
----------------------
(a) For purposes of this Agreement and the other Loan
Documents, where the permissibility of a transaction or determinations of
required actions or circumstances depend upon compliance with, or are determined
by reference to, amounts stated in Dollars, such amounts shall be deemed to
refer to Dollars or the Dollar Equivalents and any requisite currency
translation shall be based on the Exchange Rate.
(b) For purposes of all determinations of Revolving Credit
Exposure, LC Exposure and Required Lenders (and the components of each of them),
any amount in any currency other than Dollars shall be deemed to refer to
Dollars or Dollar Equivalents and any requisite currency translation shall be
based on the Exchange Rate. For purposes of all calculations and determinations
hereunder, and all certificates delivered hereunder, all amounts represented by
such terms shall be expressed in Dollars or Dollar Equivalents.
Section 1.5. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
restated, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement (v) all
references to a specific time shall be construed to refer to the time in the
city and state of the Administrative Agent's principal office, unless otherwise
indicated and (vi) the words "material," "in any material respect," "materially"
and words of similar import, wherever they may appear in the Loan Documents,
shall be construed to qualify the obligations or representations and warranties,
as applicable, of the Borrower and its Subsidiaries taken as a whole and not of
the Borrower or any particular Subsidiary, individually. All certifications of
officers of the Borrower and its Subsidiaries shall be deemed to be in their
corporate (and not individual) capacities. All references to time shall, unless
otherwise expressly provided herein, be deemed to refer to Atlanta, Georgia
time.
24
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1. General Description of Facilities. Subject to and
upon the terms and conditions herein set forth, (i) the Lenders hereby establish
in favor of the Borrower a revolving credit facility pursuant to which each
Lender severally agrees (to the extent of such Lender's Revolving Commitment) to
make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.21,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.4, and (iv) each Lender agrees to purchase a participation interest in
the Letters of Credit and the Swingline Loans pursuant to the terms and
conditions hereof; provided, that in no event shall the aggregate principal
amount of the Dollar Equivalent of all outstanding Revolving Loans, Swingline
Loans and outstanding LC Exposure exceed at any time the Aggregate Revolving
Commitment Amount from time to time in effect. Funding of any Revolving Loans
shall be in any combination of Dollars and Euros, as specified by the Borrower
as set forth in Section 2.3; provided, that the Dollar Equivalent amount of the
principal amount of outstanding Revolving Loans and Letters of Credit funded and
issued in Euros determined, with respect to each such Revolving Loans and
Letters of Credit in accordance with Section 10.16 shall at no time exceed the
Foreign Currency Sublimit then in effect.
Section 2.2. Revolving Loans. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Revolving
Loans, ratably in proportion to its Pro Rata Share, to the Borrower, from time
to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Revolving Commitment or (b) the
aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitment Amount. During the Availability Period, the Borrower shall
be entitled to borrow, prepay and reborrow Revolving Loans in accordance with
the terms and conditions of this Agreement; pro- vided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default at the
time of such borrowing or reborrowing
Section 2.3. Procedure for Revolving Borrowings.
-----------------------------------
The Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a "Notice of Revolving Borrowing") (x)
prior to 12:00 noon one (1) Business Day prior to the requested date of each
Base Rate Borrowing, (y) prior to 12:00 noon three (3) Business Days prior to
the requested date of each Eurodollar Borrowing to be funded in Dollars and (z)
prior to 12:00 noon four (4) Business Days prior to the requested date of each
Eurodollar Borrowing to be funded in Euros. Each Notice of Revolving Borrowing
shall be irrevocable and shall specify: (i) whether such Borrowing shall be in
Dollars or Euros, (ii) the aggregate principal amount of such Borrowing, (iii)
the date of such Borrowing (which shall be a Business Day), (iv) the Type of
such Revolving Loan comprising such Borrowing and (v) in the case of a
Eurodollar Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar
Loans, as the Borrower may request provided, however, that any
25
Revolving Borrowing funded in Euros may only be outstanding as Eurodollar Loans.
The aggregate principal amount of each Eurodollar Borrowing shall be not less
than the Dollar Equivalent of $5,000,000 or a larger multiple of $1,000,000, and
the aggregate principal amount of each Base Rate Borrowing shall not be less
than $1,000,000 or a larger multiple of $100,000; provided, that Base Rate Loans
made pursuant to Section 2.4 or Section 2.21(d) may be made in lesser amounts as
provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed ten. Promptly following the receipt of a Notice
of Revolving Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing.
Section 2.4. Swingline Commitment.
---------------------
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided, that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. The Borrower shall be entitled
to borrow, repay and reborrow Swingline Loans in accordance with the terms and
conditions of this Agreement.
(b) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Swingline
Borrowing substantially in the form of Exhibit 2.4 attached hereto ("Notice of
Swingline Borrowing") prior to 12:00 noon on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Swingline
Rate and shall have an Interest Period (subject to the definition thereof) as
agreed between the Borrower and the Swingline Lender. The aggregate principal
amount of each Swingline Loan shall be not less than $100,000 or a larger
multiple of $50,000, or such other minimum amounts agreed to by the Swingline
Lender and the Borrower. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrower in Dollars in immediately available
funds at the account specified by the Borrower in the applicable Notice of
Swingline Borrowing not later than 1:00 p.m. on the requested date of such
Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in
its sole discretion, may, but in no event no less frequently than once each
calendar week shall, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of
26
the Swingline Lender in accordance with Section 2.5, which will be used solely
for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(e) Each Lender's obligation to make a Base Rate Loan pursuant
to Section 2.4(c) or to purchase the participating interests pursuant to Section
2.4(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section 2.4, until such amount has been
purchased in full.
Section 2.5. Funding of Borrowings.
----------------------
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds in the applicable currency by 11:00 a.m. to the Administrative Agent at
the Payment Office; provided, that the Swingline Loans will be made as set forth
in Section 2.4. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts that it receives, in like funds by
the close of business on such proposed date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower's option, by effecting
a wire transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
27
(b) Unless the Administrative Agent shall have been notified by
any Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is to participate that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date in the applicable currency, and the
Administrative Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the greater of the Federal Funds Rate or a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation,
including, without limitation, the Overnight Foreign Currency Rate in the case
of loans denominated in Euros until the second Business Day after such demand
and thereafter at the greater of the Base Rate or a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation including, without limitation, the Overnight Foreign Currency Rate
in the case of loans denominated in Euros. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent
together with accrued interest at the interest rate applicable to the Borrowing.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice
any rights which the Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.6. Interest Elections.
-------------------
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
and shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type (if such Borrowing is permitted to be outstanding as a different
Type under Section 2.3) or to continue such Borrowing, and in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section 2.6. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall NOT apply to Swingline Borrowings, which
may not be converted or continued.
(b) To make an election pursuant to this Section 2.6, the
Borrower shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing substantially in the
form of Exhibit 2.6 attached hereto (a "Notice of
28
Conversion/Continuation") that is to be converted or continued, as the case may
be, (x) prior to 12:00 p.m. at least one (1) Business Day prior to the requested
date of a conversion into a Base Rate Borrowing, (y) prior to 12:00 p.m. at
least three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing funded in Dollars and (z) prior to 12:00 p.m. at least four
(4) Business Days prior to a continuation of a Eurodollar Borrowing funded in
Euros. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of "Interest Period". If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month. The principal amount of any resulting Borrowing
shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base
Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing (after converting, if necessary, the Borrowing into
Dollars using the applicable Exchange Rate in effect on such date). No Borrowing
may be converted into, or continued as, a Eurodollar Borrowing if a Default or
an Event of Default exists, unless the Administrative Agent and each of the
Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest
Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.7. Optional Reduction and Termination of Commitments.
--------------------------------------------------
(a) Unless previously terminated, all Revolving Commitments,
Swingline Commitments and LC Commitments shall terminate on the Revolving
Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.7 shall be in an amount of at
least $3,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be
29
permitted which would reduce the Aggregate Revolving Commitment Amount to an
amount less than the outstanding Revolving Credit Exposures (after converting,
if necessary, any outstanding Loans to their Dollar Equivalent in accordance
with Section 10.16) of all Lenders. Any such reduction in the Aggregate
Revolving Commitment Amount below the sum of the principal amount of the
Swingline Commitment and the LC Commitment shall result in a proportionate
reduction (rounded to the next lowest integral multiple of $100,000) in the
Swingline Commitment or the LC Commitment, as the case may be.
Section 2.8. Repayment of Loans.
-------------------
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon and
Fees related thereto) on the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued and unpaid interest thereon) on the
earlier of (i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Revolving Commitment Termination Date.
Section 2.9. Evidence of Indebtedness. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.6, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.6, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. Absent manifest
error, the entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, that the failure or delay of any Lender or the Administrative Agent in
maintaining or making entries into any such record or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement.
(b) This Agreement evidences the obligation of the Borrower to
repay the Loans and is being executed as a "noteless" credit agreement. However,
at the request of any Lender (including the Swingline Lender) at any time, the
Borrower agrees that it will prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment permitted
hereunder) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
30
Section 2.10. Optional Prepayments. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, without premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent no
later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m.
not less than three (3) Business Days prior to any such prepayment, (ii) in the
case of any prepayment of any Base Rate Borrowing, 11:00 a.m. not less than one
Business Day prior to the date of such prepayment, and (iii) in the case of
Swingline Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each
such notice shall be irrevocable and shall specify the proposed date of such
prepayment and the principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.12(d); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an Interest
Period applicable thereto, the Borrower shall also pay all amounts required
pursuant to Section 2.18. Each partial prepayment of any Loan (other than a
Swingline Loan) shall be not less than the Dollar Equivalent of $1,000,000 or a
larger multiple of $1,000,000. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
Section 2.11. Mandatory Prepayments. If at any time the Dollar
Equivalent of the Revolving Credit Exposure of all Lenders exceeds the Aggregate
Revolving Commitment Amount, as reduced pursuant to Section 2.7 or otherwise,
the Borrower shall immediately repay Swingline Loans and Revolving Loans in an
amount equal to such excess, together with all accrued and unpaid interest on
such excess amount and any amounts due under Section 2.18. Each prepayment
shall be applied first to the Swingline Loans to the full extent thereof, second
to the Base Rate Loans to the full extent thereof, and finally to Eurodollar
Loans to the full extent thereof. If after giving effect to prepayment of all
Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all
Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an
amount in Dollars or Euros, as applicable, equal to such excess plus any accrued
and unpaid fees thereon to be held as collateral for the LC Exposure. Such
account shall be administered in accordance with Section 2.21(g) hereof.
Section 2.12. Interest on Loans.
-----------------
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
the Swingline Rate in effect from time to time.
(c) Notwithstanding clauses (a) and (b) above, while an Event
of Default exists, at the option of the Required Lenders, and after
acceleration, the Borrower shall pay
31
interest ("Default Interest") with respect to all Eurodollar Loans at the rate
otherwise applicable for the then-current Interest Period plus an additional 2%
per annum until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and all other Obligations hereunder (other than
Loans), at the rate in effect for Base Rate Loans, plus an additional 2% per
annum.
(d) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding the date of
any repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each January, April, July and
October and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months on each day which occurs every three
months after the initial date of such Interest Period, and on the Revolving
Commitment Termination Date. Interest on each Swingline Loan shall be payable
quarterly in arrears on the last day of each January, April, July and October,
on maturity date of such Loan, which shall be the last day of the Interest
Period applicable thereto, and on the Revolving Commitment Termination Date.
Interest on any Loan which is converted into a Loan of another Type or which is
repaid or prepaid shall be payable on the date of such conversion or on the date
of any such repayment or prepayment (on the amount repaid or prepaid) thereof.
All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.13. Fees.
----
(a) The Borrower shall pay to the Administrative Agent for its
own account fees in the amounts and at the times previously agreed upon in
writing by the Borrower and the Administrative Agent.
(b) The Borrower agrees to pay in Dollars to the Administrative
Agent for the ratable benefit of the Lenders a commitment fee, which shall
accrue at the Applicable Commitment Fee Percentage per annum (determined daily
in accordance with Schedule I) on the average daily amount of the Dollar
Equivalent of the unused Revolving Commitments of the Lenders during the
Availability Period. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender shall be
deemed used to the extent of the outstanding Revolving Loans and LC Exposure,
but not Swingline Exposure, of such Lender.
(c) The Borrower agrees to pay in Dollars (i) to the
Administrative Agent, for the account of each Lender, a letter of credit fee
with respect to its participation in each Letter of Credit, which shall accrue
at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in
effect on the average daily amount of such Lender's LC Exposure attributable to
such Letter of Credit during the period from and including the date of issuance
of such Letter of Credit to but excluding the date on which such Letter of
Credit expires or is drawn in full
32
(including without limitation any LC Exposure that remains outstanding after the
Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own
account a fronting fee, which shall accrue at the rate of 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Availability Period
(or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. For any Letter of Credit issued in Euros, the fees
shall be converted into Dollars using the applicable Exchange Rate in effect two
(2) Business Days before the issuance date thereof and thereafter five (5)
Business Days before any fee with respect thereto shall be due and payable
hereunder. Notwithstanding the foregoing, if the Required Lenders elect to
increase the interest rate on the Loans to the Default Interest pursuant to
Section 2.12(c), the rate per annum used to calculate the letter of credit fee
pursuant to clause (i) above shall automatically be increased by an additional
2% per annum.
(d) The Borrower shall pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront fees previously agreed upon by the
Borrower and the Administrative Agent, which shall be due and payable on the
Closing Date.
(e) Accrued fees under paragraphs (b) and (c) above shall be
payable quarterly in arrears on the last day of each January, April, July and
October, commencing on July 31, 2008 and on the Revolving Commitment Termination
Date (and if later, the date the Loans and LC Exposure shall be repaid in their
entirety); provided further, that any such fees accruing after the Revolving
Commitment Termination Date shall be payable on demand.
Section 2.14. Computation of Interest and Fees.
--------------------------------
Interest hereunder based on the Base Rate or the Swingline Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other computations of interest and fees
hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be made in good
faith and, except for manifest error, shall be final, conclusive and binding for
all purposes.
Section 2.15. Inability to Determine Interest Rates. If prior to
the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower absent manifest
error) that, by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders of
33
making, funding or maintaining their (or its, as the case may be) Eurodollar
Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to fund Loans in Euros, to make Eurodollar Revolving Loans or to
continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended and (ii) all such affected Loans shall be converted into Base Rate
Loans in Dollars on the last day of the then current Interest Period applicable
thereto unless the Borrower prepays such Loans in accordance with this
Agreement. Unless the Borrower notifies the Administrative Agent at least one
(1) Business Day before the date of any Eurodollar Revolving Borrowing for which
a Notice of Revolving Borrowing or Notice of Continuation/Conversion has
previously been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.
Section 2.16. Illegality. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan or to fund any Loans in Euros and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice
thereof to the Borrower and the other Lenders, whereupon until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or
into Eurodollar Loans, shall be suspended. In the case of the making of a
Eurodollar Revolving Borrowing, such Lender's Revolving Loan shall be made as a
Base Rate Loan as part of the same Revolving Borrowing for the same Interest
Period and if the affected Eurodollar Loan is then outstanding, such Loan shall
be converted to a Base Rate Loan either (i) on the last day of the then current
Interest Period applicable to such Eurodollar Loan if such Lender may lawfully
continue to maintain such Loan to such date or (ii) immediately if such Lender
shall determine that it may not lawfully continue to maintain such Eurodollar
Loan to such date. In the case of the making of a Borrowing in Euros, such
Lender's Loan shall be converted to the Dollar Equivalent of the affected
Borrowing. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different Applicable
Lending Office if such designation would avoid the need for giving such notice
and if such designation would not otherwise be disadvantageous to such Lender in
the good faith exercise of its discretion.
Section 2.17. Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of the
Adjusted LIBO Rate hereunder against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
34
(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any Eurodollar
Loans made by such Lender or any Letter of Credit or any participation therein;
and the result of either of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five (5) Business Days after the date of such notice and
demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section 2.17 shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section 2.17 shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank under this Section 2.17 for any increased costs or reductions
incurred more than twelve (12) months prior to the date that such Lender or the
Issuing Bank, as the case may be, notifies the Borrower of such increased costs
or reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor; provided, further, that if the Change in Law giving rise
to such increased costs or reductions is retroactive, then such twelve-month
period shall be extended to include the period of such retroactive effect.
35
Section 2.18. Funding Indemnity. In the event of (a) the payment
of any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense (other than lost profits) attributable to such event. In
the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (A) the
amount of interest that would have accrued on the principal amount of such
Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate
applicable to such Eurodollar Loan for the period from the date of such event to
the last day of the then current Interest Period therefor (or in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Eurodollar Loan) over (B) the amount of interest that
would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid
or converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount payable
under this Section 2.18, showing a calculation of the amount payable in
reasonable detail to the extent reasonably practicable, submitted to the
Borrower by any Lender (with a copy to the Administrative Agent) shall be
conclusive, absent manifest error.
Section 2.19. Taxes.
-----
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(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 2.19) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within ten (10) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.19) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
36
the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on
its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payments to the Foreign
Lender from the Borrower hereunder qualify as "portfolio interest" exempt from
U.S. withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such Foreign
Lender, a loan agreement entered into in the ordinary course of its trade or
business, within the meaning of that section; (2) the Foreign Lender is not a
10% shareholder of the Borrower within the meaning of Code section 871(h)(3) or
881(c)(3)(B); and (3) the Foreign Lender is not a controlled foreign corporation
that is related to the Borrower within the meaning of Code section 881(c)(3)(C);
or (iv) such other Internal Revenue Service forms as may be applicable to the
Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case of a
Participant, on or before the date such Participant purchases the related
participation). In addition, each such Foreign Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Foreign Lender. Each such Foreign Lender shall promptly notify the
Borrower and the Administrative Agent at any time that it determines that it is
no longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the Internal Revenue
Service for such purpose).
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Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Set-offs.
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(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.17, 2.18 or 2.19, or
otherwise) prior to 12:00 noon on the date when due, in immediately available
funds, free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent
at the Payment Office, except payments to be made directly to the Issuing Bank
or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.17, 2.18 and 2.19 and 10.3 shall be made directly to the
Persons entitled thereto. If the Borrower does not, or is unable for any reason
to, effect payment of a Loan to the Lenders in the applicable currency or if the
Borrower shall default in the payment when due of any payment in such currency,
the Lenders may, at their option, require such payment to be made to the Lenders
in the Dollar Equivalent of such currency determined in accordance with Section
10.16. With respect to any amount due and payable in Euros, the Borrower agrees
to hold the Lenders harmless from any losses, if any, that are incurred by the
Lenders arising from any change in the value of Dollars in relation to such
currency between the date such payment became due and the date of payment
thereof (other than losses incurred by any Lender due to the gross negligence or
willful misconduct of such Lender). The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion (each a "Purchasing Lender") shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
38
Revolving Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered or the Purchasing Lender
is otherwise required to return or restore any such payment, such participations
shall be rescinded and each other Lender shall, promptly after request from the
Administrative Agent or the Purchasing Lender, return to the Purchasing Lender
the purchase price for such participation to the extent of such recovery or the
amount otherwise returned or restored by the Purchasing Lender, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount or amounts due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it hereunder, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
Section 2.21. Letters of Credit.
-----------------
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section 2.21(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, that (i) each Letter of Credit shall expire on the earlier of (A) the
date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is at least one (1) Business Day prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $50,000 or, if denominated in Euros, the Dollar
39
Equivalent of $50,000; and (iii) the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A) the aggregate LC Exposure
would exceed the LC Commitment or (B) the aggregate Revolving Credit Exposure of
all Lenders would exceed the Aggregate Revolving Commitment Amount or (C) the
Dollar Equivalent amount of the principal amount of outstanding Revolving Loans
and Letters of Credit in Euros, determined, with respect to each such Revolving
Loan or Letter of Credit, in accordance with Section 10.16 would exceed in the
aggregate the Foreign Currency Sublimit. Upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation in each Letter of Credit equal to such Lender's Pro Rata Share of
the aggregate amount available to be drawn under such Letter of Credit (i) on
the Closing Date with respect to all Existing Letters of Credit and (ii) on the
date of issuance with respect to all other Letters of Credit. Each issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions that such
Letter of Credit shall be in such form and contain such terms as the Issuing
Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of
Credit as the Issuing Bank shall reasonably require; provided, that in the event
of any conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with a
copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit (1) directing
the Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section 2.21(a)
or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that
40
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements
paid by the Issuing Bank in respect of such drawing, without presentment, demand
or other formalities of any kind. Unless the Borrower shall have notified the
Issuing Bank and the Administrative Agent prior to 12:00 noon on the Business
Day immediately prior to the date on which such drawing is honored that the
Borrower intends to reimburse the Issuing Bank for the amount of such drawing in
funds other than from the proceeds of Revolving Loans, the Borrower shall be
deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the
date on which such drawing is honored in the Dollar Equivalent of the exact
amount due to the Issuing Bank; provided, that for purposes solely of such
Borrowing, the conditions precedent set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of such Borrowing
in accordance with Section 2.3, and each Lender shall make the proceeds of its
Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Issuing Bank in accordance with Section 2.5. The
proceeds of such Borrowing shall be applied directly by the Administrative Agent
to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraphs (d) or (e) of this Section on the due
date therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such
41
due date to the date such payment is made at a rate per annum equal to the
Federal Funds Rate; provided, that if such Lender shall fail to make such
payment to the Issuing Bank within three (3) Business Days of such due date,
then, retroactively to the due date, such Lender shall be obligated to pay
interest on such amount at the rate set forth in Section 2.12(d).
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent
or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the Dollar Equivalent
of the LC Exposure as of such date plus any accrued and unpaid fees thereon;
provided, that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in clause (g) or (h) of
Section 8.1. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Borrower agrees to execute any documents and/or certificates that may be
necessary to effectuate the intent of this paragraph. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest and profits,
if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it had not been reimbursed and to the extent
so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated, with the consent of the Required Lenders, be applied
to satisfy other obligations of the Borrower under this Agreement and the other
Loan Documents. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not so applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(h) Upon the request of any Lender, but no more frequently than
quarterly, the Issuing Bank shall deliver (through the Administrative Agent) to
each Lender and the Borrower a report describing the aggregate Letters of Credit
then outstanding. Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to such Lender any other information reasonably requested by
such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit or
this Agreement;
42
(ii) The existence of any claim, set-off, defense or other right which
the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
or entities for whom any such beneficiary or transferee may be acting), any
Lender (including the Issuing Bank) or any other Person, whether in connection
with this Agreement or the Letter of Credit or any document related hereto or
thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.21, constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise due care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(j) Unless otherwise expressly agreed by the Issuing Bank and
the Borrower when a Letter of Credit is issued and subject to applicable laws,
performance under Letters of
43
Credit by the Issuing Bank, its correspondents, and the beneficiaries thereof
will be governed by (i) either (x) the rules of the "International Standby
Practices 1998" (ISP98) (or such later revision as may be published by the
Institute of International Banking Law & Practice on any date any Letter of
Credit may be issued) or (y) the rules of the "Uniform Customs and Practices for
Documentary Credits" (1993 Revision), International Chamber of Commerce
Publication No. 500 (or such later revision as may be published by the
International Chamber of Commerce on any date any Letter of Credit may be
issued) and (ii) to the extent not inconsistent therewith, the governing law of
this Agreement set forth in Section 10.5.
Section 2.22. Mitigation of Obligations. If any Lender requests
compensation under Section 2.17, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.19, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.17 or Section 2.19, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
Section 2.23. Replacement of Lenders. If any Lender requests
compensation under Section 2.17, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority of the account of
any Lender pursuant to Section 2.19, or if any Lender defaults in its obligation
to fund Loans or participations hereunder, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions set forth in Section 10.4(b) all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender); provided, that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal amount of
all Loans owed to it, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (in the case of such
outstanding principal and accrued interest) and from the Borrower (in the case
of all other amounts) and (iii) in the case of a claim for compensation under
Section 2.17 or payments required to be made pursuant to Section 2.19, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
Section 2.24. Increase of Commitments; Additional Lenders.
-------------------------------------------
(a) So long as no Event of Default has occurred and is
continuing, from time to time after the Closing Date, Borrower may, upon at
least 30 days' written notice to the Administrative Agent (who shall promptly
provide a copy of such notice to each Lender), propose to increase the Aggregate
Revolving Commitments by an amount not to exceed $200,000,000 (the amount of any
such increase, the "Additional Commitment Amount"). Each
44
Lender shall have the right for a period of 15 days following receipt of such
notice, to elect by written notice to the Borrower and the Administrative Agent
to increase its Revolving Commitment by a principal amount equal to its Pro Rata
Share of the Additional Commitment Amount. No Lender (or any successor thereto)
shall have any obligation to increase its Revolving Commitment or its other
obligations under this Agreement and the other Loan Documents, and any decision
by a Lender to increase its Revolving Commitment shall be made in its sole
discretion independently from any other Lender. If any Lender shall fail to
notify the Administrative Agent in writing within 15 days after receipt of such
notice, such Lender shall be deemed to have declined to increase its Revolving
Commitment.
(b) If any Lender shall not elect to increase its Revolving
Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may
designate another bank or other financial institution (which may be, but need
not be, one or more of the existing Lenders) which at the time agrees to, in the
case of any such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an "Additional Lender"),
become a party to this Agreement; provided, however, that any new bank or
financial institution must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld or delayed. The sum of the
increases in the Revolving Commitments of the existing Lenders pursuant to this
subsection (b) plus the Revolving Commitments of the Additional Lenders shall
not in the aggregate exceed the unsubscribed amount of the Additional Commitment
Amount.
(c) An increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.24 shall become effective upon the
receipt by the Administrative Agent of a supplement or joinder in form and
substance satisfactory to the Administrative Agent executed by the Borrower, by
each Additional Lender and by each other Lender whose Revolving Commitment is to
be increased, setting forth the new Revolving Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, and such
evidence of appropriate corporate authorization on the part of the Borrower with
respect to the increase in the Revolving Commitments and such opinions of
counsel for the Borrower with respect to the increase in the Revolving
Commitments as the Administrative Agent may reasonably request.
(d) Upon the acceptance of any such supplement or joinder by
the Administrative Agent, the Aggregate Revolving Commitment Amount shall
automatically be increased by the amount of the Revolving Commitments added
through such supplement or joinder and Schedule II shall automatically be deemed
amended to reflect the Revolving Commitments of all Lenders after giving effect
to the addition of such Revolving Commitments.
(e) Upon the effectiveness of any increase in the aggregate
amount of the Revolving Commitments pursuant to this Section 2.24 that is not
pro rata among all Lenders, (x) within five Business Days, in the case of any
Base Rate Loans then outstanding, and at the end of the then current Interest
Period with respect thereto, in the case of any Eurodollar Loans then
outstanding, the Borrower shall prepay such Loans in their entirety and, to the
extent the Borrower elects to do so and subject to the conditions specified in
Article III, the Borrower shall reborrow Loans from the Lenders in proportion to
their respective Revolving Commitments after giving effect to such increase,
until such time as all outstanding Loans are held by the Lenders in
45
proportion to their respective Commitments after giving effect to such increase
and (y) effective upon such increase, the amount of the participations held by
each Lender in each Letter of Credit then outstanding shall be adjusted
automatically such that, after giving effect to such adjustments, the Lenders
shall hold participations in each such Letter of Credit in proportion to their
respective Revolving Commitments.
Section 2.25. Extension of Revolving Commitment Termination Date.
(a) At least 45 days but not more than 60 days prior to the first or second
Anniversary Date, provided that all of the conditions set forth in Section
3.2(a), (b) and (c) have been met, the Borrower, by written notice to the
Administrative Agent, may request an extension of the Revolving Commitment
Termination Date in effect at such time by one calendar year from the then
scheduled Revolving Commitment Termination Date for no additional fee (other
than documentation costs and other than fees approved in writing by the
Borrower). The Administrative Agent shall promptly notify each Lender of such
request, and each Lender shall in turn, in its sole discretion, at least 20 days
but not more than 30 days prior to the applicable Anniversary Date, notify the
Borrower and the Administrative Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify the Administrative
Agent and the Borrower in writing of its consent to any such request for
extension of the Revolving Commitment Termination Date by the 20th day prior to
the applicable Anniversary Date, such Lender shall be deemed to be a Non-
Consenting Lender (as defined below) with respect to such request. The
Administrative Agent shall notify the Borrower not later than the 20th day prior
to such Anniversary Date of the decision of the Lenders regarding the Borrower's
request for an extension of the Revolving Commitment Termination Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.25, the Revolving
Commitment Termination Date shall, effective as at such next Anniversary Date
(the "Extension Date"), be extended for one calendar year from the then
scheduled Revolving Commitment Termination Date; provided that on each Extension
Date, no Default or Event of Default shall have occurred and be continuing, or
shall occur as a consequence thereof. If Lenders holding at least a majority in
interest of the aggregate Commitments at such time consent in writing to any
such request in accordance with subsection (a) of this Section 2.25, the
Revolving Commitment Termination Date in effect at such time shall, effective as
at the applicable Extension Date, be extended as to those Lenders that so have
consented (each a "Consenting Lender") but shall not be extended as to any other
Lender (each a "Non-Consenting Lender"). To the extent that the Revolving
Commitment Termination Date is not extended as to any Lender pursuant to this
Section 2.25 and the Commitments of such Lender are not assumed in accordance
with subsection (c) of this Section 2.25 on or prior to the applicable Extension
Date, (i) the Commitments of such Non-Consenting Lender shall automatically
terminate in whole on such unextended Revolving Commitment Termination Date
without any further notice or other action by the Borrower, such Lender or any
other Person; (ii) such Non-Consenting Lender shall have received from the
Borrower the aggregate principal amount of, and any interest accrued and unpaid
to the effective date of the such extension on, the outstanding Advances, if
any, of such Non-Consenting Lender plus any accrued but unpaid commitment fees
owing to such Non-Consenting Lender as of such date and all other amounts
payable hereunder to such Non-Consenting Lender; and (iii) such Non-Consenting
Lender's rights under Sections 2.17, 2.18, 2.19, 10.3 and its obligations under
Section 10.5, shall survive the Revolving Commitment Termination Date for such
Lender as to matters occurring prior to
46
such date. It is understood and agreed that no Lender shall have any obligation
whatsoever to agree to any request made by the Borrower for any requested
extension of the Revolving Commitment Termination Date.
(c) If Lenders holding at least 51% of the aggregate
Commitments at any time consent to any such request pursuant to subsection (a)
of this Section 2.25, the Borrower may arrange for one or more Consenting
Lenders or, to the extent that the Consenting Lenders decline to assume any Non-
Consenting Lender's Commitment, Additional Lenders (each such Additional Lender
that accepts an offer to assume a Non-Consenting Lender's Commitment as of the
applicable Extension Date and each Additional Lender that accepts an offer to
participate in a requested Commitment Increase in accordance with Section
2.24(b) being an "Assuming Lender") to assume, effective as of the Extension
Date, any Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without recourse
to or warranty by, or expense to, such Non-Consenting Lender; provided, however,
that if the Borrower makes an offer to any Consenting Lender to assume any Non-
Consenting Lender's Commitment, they shall make such offer to all Consenting
Lenders on a pro rata basis based on their respective Commitments and such Non-
Consenting Lender's Commitment shall be allocated among those Consenting
Lenders which accept such offer on a pro rata basis based on their respective
Commitments, provided further however, that the amount of the Commitment of any
such Assuming Lender as a result of such substitution shall in no event be less
than $5,000,000 unless the amount of the Commitment of such Non- Consenting
Lender is less than $5,000,000, in which case such Assuming Lender shall assume
all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non- Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non- Consenting Lender plus (B) any
accrued but unpaid facility fees owing to such Non-Consenting Lender as of the
effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued and
unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such Non-Consenting
Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 10.4 for such assignment
shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.17,
2.18, 2.19, 10.3 and its obligations under Section 10.5, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Administrative Agent an
assumption agreement, in form and substance satisfactory to the Borrower and the
Administrative Agent (an "Assumption Agreement"), duly executed by such Assuming
Lender, such Non-Consenting Lender, the Borrower and the Administrative Agent
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Administrative Agent as to the increase in
the amount of its Commitment and (C) each Non-
47
Consenting Lender being replaced pursuant to this Section 2.25 shall have
delivered to the Administrative Agent any note or notes held by such Non-
Consenting Lender. Upon the payment or prepayment of all amounts referred to
in clauses (A), (B) and (C) of the immediately preceding sentence, each such
Consenting Lender or Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this Agreement and shall be a
Lender for all purposes of this Agreement, without any further acknowledgment by
or the consent of the other Lenders, and the obligations of each such Non-
Consenting Lender hereunder shall, by the provisions hereof, be released and
discharged.
(d) If all of the Lenders (after giving effect to any
assignments pursuant to subsection (b) of this Section 2.25) consent in writing
to a requested extension (whether by execution or delivery of an Assumption
Agreement or otherwise) not later than one Business Day prior to such Extension
Date, the Administrative Agent shall so notify the Borrower, and, so long as no
Default or Event of Default shall have occurred and be continuing as of such
Extension Date, or shall occur as a consequence thereof, the Revolving
Commitment Termination Date then in effect shall be extended for the additional
one year period described in subsection (a) of this Section 2.25, and all
references in this Agreement and in the other Loan Documents, if any, to the
"Revolving Commitment Termination Date" shall, with respect to each Consenting
Lender and each Assuming Lender for such Extension Date, refer to the Revolving
Commitment Termination Date as so extended. Promptly following each Extension
Date, the Administrative Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Revolving
Commitment Termination Date in effect immediately prior thereto.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
---------------------------------------------------
Section 3.1. Conditions To Effectiveness. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out- of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent) required
to be reimbursed or paid by the Borrower hereunder, under any other Loan
Document and under any agreement with the Administrative Agent or SunTrust
Robinson Humphrey, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following, each to be in form and substance satisfactory to the
Administrative Agent:
48
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent (which
may include telecopy or e-mail transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) the Subsidiary Guaranty Agreement, duly executed by each Domestic
Subsidiary of the Borrower, other than Parts Advantage, LLC and Seal Dynamics
LLC, dated the Closing Date and in form and substance reasonably satisfactory to
the Administrative Agent;
(iii) a certificate of the Secretary or Assistant Secretary of each Loan
Party, attaching and certifying copies of its bylaws and of the resolutions of
its board of directors, or partnership agreement or limited liability company
agreement, or comparable organizational documents and authorizations,
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party and certifying the name, title and true signature of each
officer of such Loan Party executing the Loan Documents to which it is a party;
(iv) certified copies of the articles or certificate of incorporation,
certificate of organization or limited partnership, or other registered
organizational documents of each Loan Party, together with certificates of good
standing or existence, as may be available from the Secretary of State of the
jurisdiction of organization of such Loan Party and each other jurisdiction
where the failure of any Loan Party to be qualified to do business as a foreign
corporation or limited liability company, as the case may be, could reasonably
be expected to have a Material Adverse Effect;
(v) a favorable written opinion of Akerman Senterfitt, counsel to the
Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each
of the Lenders, and covering such matters relating to the Loan Parties, the Loan
Documents and the transactions contemplated herein as the Administrative Agent
shall reasonably request;
(vi) a certificate, dated the Closing Date and signed by a Responsible
Officer, certifying that after giving effect to the funding of any initial
Revolving Credit Advance, (x) no Default or Event of Default exists, (y) all
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct and (z) since the date of the financial
statements of the Borrower described in Section 4.4, there shall have been no
change which has had or could reasonably be expected to have a Material Adverse
Effect;
(vii) if any Revolving Loan will be funded on the Closing Date, a Notice
of Borrowing and funds disbursement agreement each duly executed by the
Borrower;
(viii) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required to be made or obtained under any
Requirement of Law, or by any material Contractual Obligation of each Loan
Party, in connection with the execution, delivery, performance, validity and
enforceability of the Loan Documents or any of the transactions contemplated
thereby, and such consents, approvals, authorizations, registrations, filings
and orders shall be in full force and effect and all applicable waiting periods
shall have expired, and no investigation or inquiry by any Governmental
Authority related thereto shall be ongoing; and
49
(ix) copies of (A) the internally prepared quarterly financial
statements of Borrower and its Subsidiaries on a consolidated basis for the
Fiscal Quarter ending on January 31, 2008, and (B) the audited consolidated
financial statements for Borrower and its Subsidiaries for the Fiscal Years
ending October 31, 2005, 2006 and 2007.
Each Lender shall be deemed to have for purposes of determining
compliance with the conditions specified in this Section 3.1, consented to,
approved or accepted or to be satisfied with, each document or other matter
required hereunder 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 date hereof specifying its objection
thereto.
Section 3.2. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto (except to the extent such representations and warranties
relate solely to an earlier date and except for changes therein expressly
permitted or expressly contemplated by the Loan Documents);
(c) since the date of the financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;
(d) after giving effect to such Borrowing or Letter of Credit,
the Revolving Credit Exposure will not exceed the Aggregate Revolving Commitment
Amount;
(e) the Borrower shall have delivered the required Notice of
Borrowing; and
(f) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal
of any Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b), (c) and (d) of this Section 3.2.
50
Section 3.3. Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory in all respects to the Administrative Agent.
Section 3.4. Effect of Amendment and Restatement. Upon this
Agreement becoming effective pursuant to Section 3.1, from and after the Closing
Date: (a) all terms and conditions of the Existing Credit Agreement and any
other Loan Document other than the Security Documents (as defined in the
Existing Credit Agreement), as amended by this Agreement and the other Loan
Documents being executed and delivered on the Closing Date, shall be and remain
in full force and effect, as so amended, and shall constitute the legal, valid,
binding and enforceable obligations of the Loan Parties party thereto to Lenders
and Administrative Agent; (b) the terms and conditions of the Existing Credit
Agreement shall be amended as set forth herein and, as so amended, shall be
restated in their entirety, but only with respect to the rights, duties and
obligations among Borrower, Lenders and Administrative Agent accruing from and
after the Closing Date; (c) all indemnification obligations of the Loan Parties
under the Existing Credit Agreement or any other Loan Document (as defined in
the Existing Credit Agreement) shall survive the execution and delivery of this
Agreement and shall continue in full force and effect for the benefit of
Lenders, Administrative Agent, and any other Person indemnified under the
Existing Credit Agreement or such other Loan Document at any time prior to the
Closing Date; (d) the Obligations incurred under the Existing Credit Agreement
shall, to the extent outstanding on the Closing Date, continue outstanding under
this Agreement and shall not be deemed to be paid, released, discharged or
otherwise satisfied by the execution of this Agreement, and this Agreement shall
not constitute a refinancing, substitution or novation of such Obligations or
any of the other rights, duties and obligations of the parties hereunder; (e)
any and all references in the Loan Documents to the Existing Credit Agreement
shall, without further action of the parties, be deemed a reference to the
Existing Credit Agreement, as amended and restated by this Agreement, and as
this Agreement shall be further amended or amended and restated from time to
time hereafter; (f) all Liens securing Indebtedness under the Existing Credit
Agreement shall be released; (g) the Borrower shall be authorized to file
Uniform Commercial Code termination statements, terminating UCC financing
statements that name the Administrative Agent as secured party and any Loan
Party as debtor; and (h) the Administrative Agent shall execute and deliver to
the Borrower, at the request and expense of Borrower, such other documents,
instruments and releases as the Borrower may reasonably request (all of which
shall be prepared by Borrower, without recourse or warranty to the
Administrative Agent and otherwise in form and substance reasonably satisfactory
to the Administrative Agent) in order to evidence or give public notice of such
lien terminations and releases.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative Agent
and each Lender as follows:
51
Section 4.1. Existence; Power. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted except where a failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect, (iii)
has all licenses and permits necessary to carry on and conduct its business in
all states and localities wherein it now operates and (iv) is duly qualified to
do business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action. This Agreement has been duly executed and delivered
by the Borrower, and constitutes, and each other Loan Document to which any Loan
Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrower or such Loan Party (as
the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect, (b) will not violate any Requirements of Law
applicable to the Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries, except Liens (if any)
created under the Loan Documents.
Section 4.4. Financial Statements. The Borrower has furnished to
each Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of October 31, 2007 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
prepared by Deloitte & Touche LLP and (ii) the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of January 31, 2008, and the
related unaudited consolidated statements of income and cash flows for the
Fiscal Quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present, in all material respects, the
consolidated financial condition of the Borrower and its Subsidiaries as of such
dates and the consolidated results of operations for such periods in conformity
with GAAP consistently applied, subject to year end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii).
Since October 31, 2007, there have been no changes with respect to the Borrower
and its Subsidiaries which have had or could reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect.
52
Section 4.5. Litigation and Environmental Matters.
------------------------------------
(a) Except as set forth in Schedule 4.5, no litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5, neither
the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim asserting
that the Borrower or any of its Subsidiaries may be liable with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability, for which the Borrower or any of its Subsidiaries could reasonably be
expected to become liable, in each case if the effect thereof could reasonably
be expected to result in a Material Adverse Effect.
Section 4.6. Investment Company Act, Etc. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" or is "controlled" by
an "investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, or (b) otherwise subject
to any other regulatory scheme limiting its ability to incur debt or requiring
any approval or consent from or registration or filing with, any Governmental
Authority in connection therewith.
Section 4.7. Disclosure. No representation or warranty or
statement made by the Borrower or by any Subsidiary Loan Party in the Loan
Documents or in any schedule or exhibit thereto (when taken as a whole and as
modified or supplemented by other written information so furnished), or any
certificate, report, statement or other document made or furnished by the
Borrower or any Subsidiary Loan Party from time to time after the Closing Date
pursuant to the terms of the Loan Documents, contains any misrepresentation or
untrue statement of any material fact or omits to state a material fact or any
fact necessary to make the statements contained herein or therein not materially
misleading. The Executive Summary and the Projections, taken together with all
publicly available information filed by the Borrower with the United States
Securities and Exchange Commission, do not contain any material
misrepresentation or untrue statement of material fact; provided that with
respect to the Projections, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time. There is no fact known to the Borrower which could reasonably be
expected to have a Material Adverse Effect, which has not been set forth or
referred to in the Loan Documents or otherwise disclosed in writing to
Administrative Agent.
Section 4.8. Ownership of Property. Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all of its real
and personal property material to the operation of its business, including all
such properties reflected in the most recent audited consolidated balance sheet
of the Borrower referred to in Section 4.4 or purported to
53
have been acquired by the Borrower or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are material to the business or operations of
the Borrower and its Subsidiaries are valid and subsisting and are in full
force.
Section 4.9. Taxes. The Borrower and, to the extent required,
its Subsidiaries have timely filed or caused to be filed all Federal income tax
returns and all other material tax returns that are required to be filed by
them, and have paid all taxes shown to be due and payable on such returns or on
any assessments made against it or its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority, except where the same are currently being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as the
case may be, has set aside on its books adequate reserves in accordance with
GAAP or except to the extent that the total liability for such taxes does not
exceed $5,000,000, and no controversy in respect of additional taxes of the
Borrower or its Subsidiaries which will have or is reasonably likely to have a
Material Adverse Effect, is pending, or, to the knowledge of the Borrower,
threatened.
Section 4.10. Compliance with Laws and Agreements. The Borrower
and each Subsidiary is in compliance with (a) all Requirements of Law and all
judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.11. Patents, Trademarks, Licenses, Etc. Each of the
Borrower and its Subsidiaries owns, or is licensed, or otherwise has the right,
to use, all patents, trademarks, service marks, trade names, copyrights and
other intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe in any material respect on the
rights of any other Person.
Section 4.12. [Reserved]
Section 4.13. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
Section 4.14. Solvency. After giving effect to the execution and
delivery of the Loan Documents, and the making of the Loans under this
Agreement, the Loan Parties on a consolidated basis are Solvent.
54
Section 4.15. Margin Regulations. None of the proceeds of any of
the Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such terms under Regulation U or for any purpose that violates the
provisions of the Regulations T, U or X. Neither the Borrower nor its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
"margin stock."
Section 4.16. Insurance. The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies which are 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 any applicable Subsidiary operates.
Section 4.17. Labor Relations. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority, except to the extent such proceedings could
not reasonably be expected to have a Material Adverse Effect. All payments due
from the Borrower or any of its Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a liability on the
books of the Borrower or any such Subsidiary, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
Section 4.18. OFAC. No Loan Party (i) is a person whose property
or interest in property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions
prohibited by Section 2 of such executive order, or is otherwise associated with
any such person in any manner violative of Section 2, or (iii) is a person on
the list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury's Office
of Foreign Assets Control regulation or executive order.
Section 4.19. Patriot Act. Each Loan Party is in compliance, in
all material respects, with (i) the Trading with the Enemy Act, as amended, and
each of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001) (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (as amended from time to time, the "Patriot
Act"). No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.
55
Section 4.20. Subsidiaries. Schedule 4.20 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder, any Letter of Credit remains outstanding or any Obligation
remains unpaid or outstanding:
Section 5.1. Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year of Borrower, a copy of the annual audited report for
such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, all in reasonable
detail and reported on by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its Subsidiaries for such Fiscal
Year on a consolidated basis in accordance with GAAP and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after
the end of the first three Fiscal Quarters of the Borrower, an unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Quarter and the related unaudited consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and
the then elapsed portion of such Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding
portion of Borrower's previous Fiscal Year;
(c) Together with delivery of the items required in clause (a),
Borrower's projections of its revenues, expenses, results of operations, cash
flows and financial position for the next Fiscal Year, in such degree of
specificity as may be reasonably requested by Administrative Agent, and
including without limitation projected income statements for each quarter of the
next Fiscal Year for the Borrower and its Subsidiaries;
56
(d) Within thirty (30) days after receipt thereof, copies of
any management audit letters provided to the Borrower by the independent
certified public accountant who prepared Borrower's financial statements;
(e) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Compliance Certificate of the
principal executive officer or the principal financial officer of the Borrower,
(i) certifying as to whether there exists a Default or Event of Default on the
date of such certificate, and if a Default or an Event of Default then exists,
specifying the details thereof and the action which the Borrower has taken or
proposes to take with respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance with the financial covenants set forth in
Article VI and, (iii) specifying any change in the identity of the Subsidiaries
as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries
identified to the Lenders on the Closing Date or as of the most recent Fiscal
Year or Fiscal Quarter, as the case may be;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or the
Required Lenders may reasonably request.
Documents required to be delivered pursuant to Section 5.1(a) or
(b) or Section 5.1(f) (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 earlier of (i) the
date 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
5.01 (ii) the date on which such documents are posted on the Borrower's behalf
on Syndtrak 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) and (iii) the date of delivery of
a paper copy of such documents to the Administrative Agent; provided that: (x)
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 (y) 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 5.1(e) to the Administrative Agent. 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.
57
Section 5.2. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its material obligations and liabilities which, if unpaid, would become a
Lien upon the property (including without limitation all taxes (including
withholding taxes), assessments and other governmental charges, levies and all
other claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
Section 5.3. Existence; Conduct of Business. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently conducted
or such other businesses that are reasonably related thereto; provided, that
nothing in this Section 5.3 shall prohibit the occurrence of any fundamental
change permitted under Section 7.3.
Section 5.4. Maintenance of Properties; Insurance. The Borrower
will, and will cause each of its Subsidiaries to keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent that a failure to do so
could not reasonably be expected to give rise to a Material Adverse Effect (b)
maintain with financially sound and reputable insurance companies, insurance
with respect to its properties and business, and the properties and business of
its Subsidiaries, against loss or damage of the kinds customarily insured
against by companies in the same or similar businesses operating in the same or
similar locations, and (c) at all times shall name Administrative Agent as
additional insured on all liability policies of the Borrower and its
Subsidiaries.
Section 5.5. Visitation, Inspection, Etc. The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent, the Required Lenders, or if any Event of Default has
occurred and is continuing, any Lender, at the expense of the Administrative
Agent and the Lenders if no Event of Default has occurred and is continuing, to
visit and inspect its properties, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with any of its officers, all at such reasonable times during normal
business hours and with prior notice and as often as the Administrative Agent or
the Required Lenders, or if an Event of Default has occurred and is continuing,
any Lender, may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is
continuing, no prior notice shall be required. Any designated representative of
Administrative Agent or any Lender(s) shall agree to be bound by the provisions
of Section 10.11 hereof.
Section 5.6. Notices of Material Events. The Borrower will
furnish to the Administrative Agent prompt written notice of the following:
58
(a) the occurrence of any Default or Event of Default hereunder
in which case such notice shall specify the nature thereof, the period of
existence thereof, and the action that the Borrower proposes to take with
respect thereto;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or, to
the knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) without the waiver or prior written consent of the
Administrative Agent in its sole and absolute discretion, any proposed
acquisition by the Borrower or any Subsidiary, which notice shall be given at
least five (5) days before the proposed closing of any such acquisition with a
total acquisition price of less than $30,000,000 or at least ten (10) days
before the proposed closing of any such acquisition with a total acquisition
price of equal to or more than $30,000,000, or with an acquisition price which
when added to the total acquisition prices of all other acquisitions during any
four consecutive Fiscal Quarters of the Borrower in which the closing of such
transaction will occur will amount to an aggregate of $30,000,000 or more;
(d) without the waiver or prior written consent of the
Administrative Agent in its sole and absolute discretion, any transaction listed
in Section 7.3 (not otherwise covered by clause (c) above), which notice shall
be given at least fifteen (15) days before such transaction is consummated;
(e) any assessment in an amount in excess of $5,000,000 by any
taxing authority for unpaid taxes which are due and payable;
(f) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(g) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000;
(h) the occurrence of any event of default, or the receipt by
Borrower or any of its Subsidiaries of any written notice of an alleged event of
default, with respect to any Material Indebtedness of the Borrower or any of its
Subsidiaries;
(i) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.6 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto. Notwithstanding any contrary
59
provision herein or in any other Loan Document, the Administrative Agent may
(but shall not be required to) waive any notice requirement herein or in any
other Loan Document.
Section 5.7. Books and Records. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
Section 5.8. Compliance with Laws, Etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.9. Pledge Agreement.
----------------
(a) Within 3 Business Days after the Pledge Agreement Date, the
Borrower shall deliver to the Administrative Agent the duly executed Pledge
Agreement, together with (A) original stock certificates (if any) evidencing the
issued and outstanding shares of Capital Stock of each Domestic Subsidiary to
the extent owned directly by the Borrower or any other Domestic Subsidiary Loan
Party, and (B) stock powers or other appropriate instruments of transfer
executed in blank.
(b) Within 30 days after the Pledge Agreement Date (or such
later date as may be consented to by the Administrative Agent), the Borrower
shall deliver to the Administrative Agent copies of favorable UCC, tax and
judgment search reports in all necessary or appropriate jurisdictions and under
all legal and trade names of the Borrower and the Subsidiary Loan Parties
reasonably requested by the Administrative Agent promptly after the Pledge
Agreement Date indicating that there are no prior Liens on any of the Collateral
other than Permitted Encumbrances and other Liens permitted under Section 7.2.
(c) Within 45 days after the Pledge Agreement Date (or such
later date as may be consented to by the Administrative Agent), the Borrower
shall deliver to the Administrative Agent for the benefit of the Administrative
Agent and the Lenders duly executed Pledge Agreements with respect to a pledge
of not more than sixty five percent (65%) of the voting Capital Stock and one
hundred percent (100%) of the non-voting Capital Stock of each Foreign
Subsidiary to the extent directly owned by the Borrower or any Domestic
Subsidiary Loan Party owned directly by the Borrower or any Domestic Subsidiary
Loan Party, together with (A) original stock certificates (if any) evidencing
such Capital Stock that is pledged to the Administrative Agent pursuant to such
Pledge Agreement, (B) stock powers or other appropriate instruments of transfer
executed in blank as may be necessary to pledge such Capital Stock to the
Administrative Agent and such other documents, instruments or agreements as may
be reasonably required under the laws governing such Foreign Subsidiary and (C)
foreign local counsel opinion(s), if reasonably required by the Administrative
Agent. Notwithstanding the foregoing, the Administrative Agent may, in its sole
and absolute discretion, waive any of the foregoing
60
requirements with respect to any Foreign Subsidiary to the extent that the
assets of such Foreign Subsidiary is less than 5% of the consolidated assets of
the Borrower and all of its Subsidiaries as of the last day of the immediately
preceding Fiscal Year and the revenue of such Foreign Subsidiary is less than 5%
of the consolidated revenue of the Borrower and all of its Subsidiaries for the
immediately preceding Fiscal Year.
(d) The Borrower will, and will cause each of the Subsidiary
Loan Parties to, make, execute, endorse, acknowledge and deliver any amendments,
modifications or supplements to, and restatements of, this Agreement and any
other Loan Document, and any other agreements, instruments or documents, and
take any and all such actions, as may from time to time be reasonably requested
by the Administrative Agent to perfect and maintain the validity and priority of
the Liens granted pursuant to any Pledge Agreement and to effect, confirm or
further assure or protect and reserve the interests, rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents (including without limitation, any and all instruments necessary or
appropriate to affect the guarantee of the Obligations by all Guarantors created
or acquired after the date hereof).
Section 5.10. ERISA Benefit Plans. The Borrower and each of its
Subsidiaries will substantially comply with all requirements of ERISA applicable
to it, except to the extent that the failure to so comply shall not result in a
liability to the Borrower and its Subsidiaries in excess of $5,000,000 in the
aggregate. The Borrower and each of its Subsidiaries will furnish to
Administrative Agent as soon as possible and in any event within 10 days after
the Borrower or such Subsidiary or a duly appointed administrator of a plan (as
defined in ERISA) knows or has reason to know that any reportable event, funding
deficiency, or prohibited transaction (as defined in ERISA) with respect to any
plan has occurred, a statement of the chief financial officer of the Borrower
describing in reasonable detail such reportable event, funding deficiency, or
prohibited transaction and any action which the Borrower or such Subsidiary
proposes to take with respect thereto, together with a copy of the notice of
such event given to the PBGC or the Internal Revenue Service or a statement that
said notice will be filed with the annual report of the United States Department
of Labor with respect to such plan if such filing has been authorized.
Section 5.11. [Reserved].
----------
Section 5.12. Use of Proceeds and Letters of Credit. The Borrower
will use the proceeds of all Loans to refinance existing Indebtedness on the
Closing Date, finance working capital needs, permitted acquisitions, capital
expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used for general corporate purposes.
Section 5.13. Additional Subsidiaries. If any Domestic Subsidiary
is acquired or formed after the Closing Date, the Borrower will promptly notify
the Administrative Agent and the Lenders thereof and, within fifteen (15)
Business Days after any such Subsidiary is acquired or formed, will cause such
Subsidiary to become a Subsidiary Loan Party; provided, however, if such
Domestic Subsidiary is non-wholly owned, no such Guarantee shall be required,
and provided that Borrower elects not to cause delivery of such Guaranty, then
any
61
Investment in such non-wholly owned Domestic Subsidiary shall be subject to
Section 7.4 hereof; provided, further, however, that if any non-wholly owned
Subsidiary becomes a wholly owned Subsidiary, the Borrower shall cause such
Subsidiary to become a Subsidiary Loan Party. A Subsidiary shall become an
additional Subsidiary Loan Party by executing and delivering to the
Administrative Agent a supplement to the Subsidiary Guaranty Agreement in form
and substance reasonably satisfactory to the Administrative Agent, accompanied
by (i) all other Loan Documents related thereto, (ii) certified copies of
certificates or articles of incorporation or organization, by-laws, membership
operating agreements, and other organizational documents, appropriate
authorizing resolutions of the board of directors of such Subsidiaries, and
opinions of counsel comparable to those delivered pursuant to Section 3.1(b),
and (iii) such other documents as the Administrative Agent may reasonably
request. No Subsidiary that becomes a Subsidiary Loan Party shall thereafter
cease to be a Subsidiary Loan Party or be entitled to be released or discharged
from its obligations under the Subsidiary Guaranty Agreement. If any Subsidiary
is acquired or formed after the Pledge Agreement Date, the Borrower will deliver
such documents as required by Section 5.9(a) within 10 days in the case of
Domestic Subsidiaries and will deliver such documents as required by Section
5.9(c) within 45 days in the case of Foreign Subsidiaries.
ARTICLE VI
FINANCIAL COVENANTS
-------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder, any Letter of Credit remains outstanding or any Obligation
remains unpaid or outstanding, the Borrower will at all times hereunder, in
accordance with GAAP applied on a Consistent Basis, maintain with respect to the
Borrower and its Subsidiaries, on a consolidated basis:
Section 6.1. Total Leverage Ratio. The Borrower will maintain at
all times a Total Leverage Ratio of not greater than 4.25:1.00.
Section 6.2. Senior Leverage Ratio. The Borrower will maintain
at all times a Senior Leverage Ratio of not greater than 3.25:1.00.
Section 6.3. Fixed Charge Coverage Ratio. The Borrower will
maintain, as of the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending April 30, 2008, a Fixed Charge Coverage Ratio of not less than
2.00:1.00
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder, any Letter of Credit remains outstanding or any Obligation
remains unpaid or outstanding:
62
Section 7.1. Indebtedness and Preferred Equity. The Borrower will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on
the date hereof and set forth on Schedule 7.1 and extensions, renewals,
modifications, refinancings and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal, modification, refinancing or
replacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that such Indebtedness
is incurred prior to or within 180 days after such acquisition or the completion
of such construction or improvements or extensions, renewals, and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
(d) Permitted Real Estate Debt;
(e) Indebtedness of the Borrower owing to any Subsidiary and of
any Subsidiary owing to the Borrower or any other Subsidiary; provided, that any
such Indebtedness that is owed by a Subsidiary that is not a Subsidiary Loan
Party shall be subject to Section 7.4(d) and (e);
(f) Indebtedness of any Person which becomes a Subsidiary or is
otherwise acquired by the Borrower or its Subsidiaries (whether by merger,
consolidation or otherwise) after the date of this Agreement; provided that such
Indebtedness exists at the time that such Person becomes a Subsidiary (or is
otherwise acquired) and is not created in contemplation of or in connection with
such Person becoming a Subsidiary (or being otherwise acquired);
(g) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
provided, that Guarantees by any Loan Party of Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party shall be subject to Section 7.4 (d) and (e);
(h) Indebtedness incurred by any non-wholly owned Subsidiary that
is not a Subsidiary Loan Party of the Borrower so long as the aggregate
principal amount of such Indebtedness committed or incurred by such Subsidiary,
when aggregated with all preferred stock or other preferred equity interests
issued by such Subsidiary pursuant to the following paragraph, does not exceed
the greater of (i) $10,000,000 or (ii) 50% of the Non-Subsidiary Loan Party Net
Worth of such Subsidiary;
(i) Hedging Obligations permitted under Section 7.13; and
63
(j) any other unsecured Indebtedness of the Borrower or any
Subsidiary that is a Loan Party; provided that after giving effect to the
incurrence thereof, the Borrower and its Subsidiaries would be in pro forma
compliance with the Total Leverage Ratio required under Section 6.1.
The Borrower will not, and will not permit any Subsidiary to, issue any
preferred stock or other preferred equity interests that (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii)
is or may become redeemable or repurchaseable by Borrower or such Subsidiary at
the option of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock or any other preferred equity interests described in this paragraph, on or
prior to, in the case of clause (i), (ii) or (iii), the date that is 91 days
after the Revolving Commitment Termination Date; provided, however, that any
non-wholly owned Subsidiary that is not a Subsidiary Loan Party may issue such
preferred stock or other preferred equity interests so long as the aggregate
amount of such preferred stock or other preferred equity interests issued by
such Subsidiary, when aggregated with Indebtedness committed or incurred by such
Subsidiary pursuant to Section 7.1(h) above, does not exceed 50% of the Non-
Subsidiary Loan Party Net Worth of such Subsidiary.
Section 7.2. Negative Pledge. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer or permit to
exist any Lien (but excluding Liens, if any, evidenced by operating leases) on
any of its assets or property now owned or hereafter acquired, except:
(a) Liens securing the Capital Lease Obligations, purchase money
or other Indebtedness, and Permitted Real Estate Debt, in each case, permitted
under Sections 7.1(c) and (d), respectively;
(b) Permitted Encumbrances;
(c) Liens on assets acquired after the date hereof if such Liens
were in place at the time of acquisition, to the extent such acquisition is
permitted pursuant to Section 7.4
(d) Liens set forth on Schedule 7.2;
(e) Liens with respect to Investments consisting of fully
collateralized repurchase agreements constituting Permitted Investments;
(f) Liens not otherwise permitted by this Section 7.2 so long as
neither (i) the aggregate principal amount of the obligations secured thereby
nor (ii) the aggregate fair market value (determined, in the case of each such
Lien, as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $5,000,000 at any one time;
provided that the Borrower shall discharge any such Lien within two (2) Business
Days after a Responsible Officer becomes aware thereof;
(g) Liens securing Indebtedness permitted pursuant to Section
7.1(b); provided that the principal amount of the Indebtedness secured thereby
is not increased and that any such Lien is limited to the assets originally
encumbered thereby;
64
(h) Liens granted to the Borrower or HEICO Aerospace Holdings
Corp. securing loans to Parts Advantage; and
(i) Liens granted by any non-wholly owned Subsidiary that is not a
Subsidiary Loan Party of the Borrower to secure Indebtedness of such Subsidiary
permitted by Section 7.1(h).
Section 7.3. Fundamental Changes. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly:
(a) enter into any one or more mergers, consolidations or
acquisitions unless after giving effect thereto,
(i) no Default or Event of Default has occurred and is
continuing, or would, after giving effect to such transaction, result
therefrom, the representations and warranties set forth in Article IV shall
be true and correct in all material respects, and the Borrower would be in
pro forma compliance with the covenants set forth in Article VI;
(ii) (A) with respect to any merger or consolidation of the
Borrower, the Borrower is the surviving entity, and (B) with respect to any
merger or consolidation of any Subsidiary Loan Party, the surviving entity
is or becomes a Subsidiary Loan Party; and
(iii) any merger or consolidation resulting in an acquisition,
directly or indirectly, of another entity by the Borrower shall be
consensual and shall have been approved by the board of directors of the
entity being acquired.
(b) except to a Loan Party or as otherwise specifically permitted
herein, transfer, sell, assign, lease, or otherwise dispose of all or a
substantial part of its properties or assets or any assets or properties
necessary for the proper conduct of its business to any Person other than to the
Borrower or another Subsidiary Loan Party, other than:
(i) the transfer, sale, assignment, lease or other disposition
of properties or assets constituting all or a substantial part of the
properties or assets of the Borrower or any Subsidiary or necessary for the
proper conduct of the business of the Borrower or any Subsidiary in an
aggregate fair market value in any Fiscal Year not to exceed 5% of the
consolidated assets of the Borrower and its Subsidiaries taken as a whole
as of the last day of the immediately preceding Fiscal Year; and
(ii) the issuance of Capital Stock by a Subsidiary to a
Person other than to Loan Parties in an equity offering or private issuance
to raise equity capital or establish a joint venture; provided that after
giving effect thereto (x) no Event of Default has occurred and is
continuing, (y) the Borrower continues to own and control, directly or
indirectly, more than 50% of the Capital Stock of such Subsidiary and (z)
if such Subsidiary is a Subsidiary Loan Party, such Subsidiary remains a
Subsidiary Loan Party.
(c) change the scope or nature of its business except that the
Borrower may expand its business by internal growth or acquisitions, (A) into
any business substantially similar
65
or related to the types of businesses it or any Subsidiary currently conducts or
(B) into other lines of business, provided that revenues generated from such
other lines of business shall not constitute more than fifteen percent (15%) of
the net sales of the Borrower and its Subsidiaries, on a consolidated basis,
during any Fiscal Quarter and provided that such other businesses or lines of
business singly or in the aggregate could not reasonably be expected to have a
Material Adverse Effect; or
(d) wind up, liquidate, or dissolve itself or its business (except
that if no Default or Event of Default has occurred and is continuing, (i) any
Subsidiary may be liquidated into any Loan Party and (ii) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interest of the Borrower and could not
reasonably be expected to give rise to a Material Adverse Effect); provided that
no Subsdiary Loan Party may liquidate or dissolve under this clause (ii) if
after giving effect thereto all Subsidiary Loan Parties that have liquidated or
dissolved under this clause (ii) would, at the time of liquidation or
dissolution have owned in the aggregate more than 5% of the consolidated assets
of the Borrower and its Subsidiaries taken as a whole as of the last day of the
immediately preceding Fiscal Year); provided, however, nothing contained in this
Section 7.3 shall prohibit or otherwise restrict the ability of a Subsidiary
Loan Party to sell or otherwise transfer its receivables or any other assets to
another Loan Party.
Section 7.4. Investments, Loans, Etc. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any Capital Stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries), together with additional Investments made after the Closing Date
in the Capital Stock of Subsidiaries listed on Schedule 7.4 so long as no Event
of Default has occurred or would result after giving effect to such additional
Investment;
(b) Permitted Investments;
(c) mergers, consolidations or acquisitions made in compliance
with Section 7.3;
(d) Investments made by the Borrower or any of its Subsidiaries in
or to any Loan Party;
66
(e) other Investments made by the Borrower or any of its
Subsidiaries in or to any Person in an aggregate amount not to exceed
$150,000,000; provided, however, that (i) the aggregate amount of Investments
under this clause (e) by Loan Parties in or to Foreign Subsidiaries that are not
Subsidiary Loan Parties (including Guarantees by Loan Parties of Indebtedness of
Foreign Subsidiaries that are not Subsidiary Loan Parties) shall not exceed
$100,000,000 at any time outstanding and (ii) the aggregate amount of
Investments by Loan Parties under this clause (e) in or to Domestic Subsidiaries
that are not Loan Parties (including Guarantees by Loan Parties of Indebtedness
of Domestic Subsidiaries that are not Loan Parties) and in or to other Persons
other than Foreign Subsidiaries shall not exceed $100,000,000 at any time
outstanding;
(f) Investments received in connection with a bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate
outstanding amount of all such loans and advances does not exceed $5,000,000 at
any time;
(h) Capital Expenditures permitted by Section 7.7; and
(i) Hedging Transactions permitted by Section 7.13.
Section 7.5. Amendment to Governing Documents. The Borrower will
not, and will not permit any of its Subsidiaries to, amend, modify or waive any
of its rights in a manner materially adverse to the Lenders or the Borrower
under its certificate of incorporation, bylaws or other organizational
documents.
Section 7.6. Accounting Changes. The Borrower will not, and will
not permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any of its Subsidiaries, except to change the
fiscal year of a Subsidiary to conform its fiscal year to that of the Borrower.
Section 7.7. Capital Expenditures. The Borrower will not make or
be committed to make, or permit any of its Subsidiaries to make or be committed
to make, any Capital Expenditure (excluding acquisitions of businesses), by
purchase or capitalized lease, other than Capital Expenditures which would not
cause the aggregate amount of all such Capital Expenditures, when aggregated
with all Sale and Leaseback Transactions without duplication, calculated at the
end of each Fiscal Quarter for the four consecutive Fiscal Quarters then ended
to exceed the aggregate amount of Thirty-Five Million Dollars ($35,000,000),
unless the Required Lenders shall have given their prior written consent to such
amount of Capital Expenditures and Sale and Leaseback Transactions as is in
excess of $35,000,000 during such four quarter period.
Section 7.8. Restricted Payments. The Borrower will not, and will
not permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any
67
dividend or distribution on any class of its Capital Stock, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, retirement, defeasance or other acquisition of, any
shares of Capital Stock of the Borrower and its Subsidiaries or Indebtedness of
the Borrower or any of its Subsidiaries subordinated to the Obligations of the
Borrower or any Guarantee thereof or any options, warrants, or other rights to
purchase such Capital Stock or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends payable by
the Borrower solely in shares of any class of its common stock, (ii) Restricted
Payments that constitute Investments permitted under Section 7.4 or are made in
connection with mergers, consolidations and acquisitions permitted in Section
7.3, (iii) Restricted Payments made by any Subsidiary to the Borrower or to
another Subsidiary, on at least a pro rata basis with any other shareholders if
such Subsidiary is not wholly owned by the Borrower and other wholly owned
Subsidiaries, (iv) Restricted Payments (including dividends, distributions, and
repurchases, redemptions and other acquisitions of Capital Stock by the
Borrower) paid in cash to the extent that (x) no Default or Event of Default has
occurred and is continuing at the time such Restricted Payment is paid or
redemption is made, and (y) the aggregate amount of all such Restricted Payments
made by the Borrower and its Subsidiaries after the Closing Date does not exceed
50% of the aggregate Consolidated Net Income (if greater than $0) earned during
the period commencing October 31, 2007 through the end of the Fiscal Quarter
immediately preceding the date of determination; (v) the repurchase, redemption
or other acquisition of Capital Stock by the Borrower or any of its Subsidiaries
held by officers, directors or employees (or their transferees, estates or
beneficiaries under their estates), upon their death, disability, retirement,
severance or termination of employment or service; (vi) the repurchase,
redemption or other acquisition of its Capital Stock by the Borrower in an
aggregate amount not to exceed $100,000,000 (in addition to the amount permitted
in clause (iv) above) to the extent that no Default or Event of Default has
occurred and is continuing, or would result therefrom; (vii) the redemption of
the rights issued under the Rights Agreement in an aggregate amount not to
exceed $1,000,000 to the extent no Default or Event of Default has occurred and
is continuing, or would result therefrom; and (viii) the cashless exercise of
options and warrants for shares of Capital Stock.
Section 7.9. Reserved.
---------
Section 7.10. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other material transactions
with, any of its Affiliates, except (a) at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on
an arm's-length basis from unrelated third parties (provided that the foregoing
restriction shall not apply to employment agreements with Affiliates approved in
good faith by the Board of Directors of the Borrower or any compensation or
similar committee of the Board of Directors), (b) transactions between or among
the Borrower and any Subsidiary Loan Party not involving any other Affiliates,
(c) any Restricted Payment permitted by Section 7.8 and (d) customary fees paid
to members of the Board of Directors of the Borrower and its Subsidiaries for
their services as directors not in excess of fees paid to directors who are not
Affiliates of the Borrower or any Subsidiary and (e) transactions with Parts
Advantage, LLC or any other entity that the Borrower or its Subsidiaries has
invested in pursuant to Section 7.4, in each case, entered into in good faith
and in the best interests of the Borrower.
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Section 7.11. Restrictive Agreements. The Borrower will not, and
will not permit any Subsidiary Loan Party to, directly or indirectly, enter
into, incur or permit to exist any agreement that prohibits, restricts or
imposes any condition upon (a) the ability of any Loan Party to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary Loan Party to pay
dividends or other distributions with respect to its Capital Stock, to make or
repay loans or advances to the Borrower or any other Subsidiary Loan Party, to
guarantee Indebtedness of the Borrower or any other Subsidiary Loan Party or to
transfer any of its property or assets to the Borrower or any Subsidiary Loan
Party of the Borrower; provided, that (i) the foregoing shall not apply to
restrictions or conditions imposed by law or by this Agreement or any other Loan
Document, existing operating agreements or shareholders' agreements in respect
of non-wholly owned entities (in the case of this clause, each as in effect on
the date hereof), or agreements governing Indebtedness permitted under Section
7.1(h) to the extent that such restrictions or conditions apply only to the non
- -wholly owned Subsidiary incurring such Indebtedness, (ii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary Loan Party pending such sale, provided such
restrictions and conditions apply only to the Subsidiary Loan Party that is sold
and such sale is permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions and conditions
apply only to the property or assets securing such Indebtedness, (iv) clause (a)
shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof and (v) this Section 7.11 shall not apply to
agreements relating to Investments in joint ventures, equity investments or non-
wholly owned Subsidiaries made in compliance with Section 7.4.
Section 7.12. Sale and Leaseback Transactions. Except as
permitted under Section 7.1(d), the Borrower will not, and will not permit any
of the Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property, real or personal, used or useful
in its business, whether now owned or hereinafter acquired, and thereafter rent
or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property sold or transferred
("Sale and Lease Back Transactions"), other than (i) Sale and Lease Back
Transactions that do not exceed $20,000,000 during any four consecutive Fiscal
Quarters, or $40,000,000 during the period from the Closing Date to the
Revolving Commitment Termination Date and (ii) Sale and Lease Back Transactions
by non-wholly owned Subsidiaries that are not Subsidiary Loan Parties to the
extent permitted by Section 7.1(h).
Section 7.13. Hedging Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Transaction,
other than Hedging Transactions entered into in the ordinary course of business
to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for
the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction
entered into for speculative purposes or of a speculative nature (which shall be
deemed to include any Hedging Transaction under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any Capital Stock or any Indebtedness or (ii)
as a result of changes in the market value of any Capital Stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
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ARTICLE VIII
EVENTS OF DEFAULT
-----------------
Section 8.1. Events of Default. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
affidavit, financial statement or other agreement submitted to the
Administrative Agent or the Lenders by any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove to be
incorrect or misleading in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Section 5.3 (with respect to the Borrower's existence),
Section 5.6(a), or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those referred to in
clauses (a), (b) and (d) above) or any other Loan Document, and such failure
shall remain unremedied for 30 days after notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender; or
(f) any Loan Party (whether as primary obligor or as guarantor or
other surety) shall fail to pay any principal of, or premium or interest on, any
Material Indebtedness that is outstanding, when and as the same shall become due
and payable (whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument evidencing or governing
such Indebtedness, or any Subsidiary that is not a Subsidiary Loan Party
(whether as primary obligor or as guarantor or other surety) shall fail to pay
any principal of, or premium or interest on, any Indebtedness (other than the
Indebtedness evidenced by the Loan Documents) that has an outstanding principal
amount, notional amount, or total amount of Indebtedness in excess of
$15,000,000, when and as the same shall become due and payable
70
(whether at scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument evidencing or governing such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or
(g) the Borrower or any Significant Subsidiary shall (i) commence
a voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section 8.1, (iii) apply
for or consent to the appointment of a custodian, trustee, receiver, liquidator
or other similar official for the Borrower or any such Significant Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Significant Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Significant Subsidiary or for a substantial
part of its assets, and in any such case, such proceeding or petition shall
remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
(i) the Borrower or any Significant Subsidiary shall become unable
to pay, shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) a Change in Control shall occur or exist; or
(k) (i) one or more judgments, decrees or orders for the payment
of money in excess of $20,000,000 in the aggregate shall be rendered against the
Borrower or any Subsidiary (to the extent not paid or fully covered by
insurance, provided that the insurance carrier has acknowledged coverage in form
and substance acceptable to the Administrative Agent), and either (A)
enforcement proceedings shall have been commenced by any creditor upon such
judgment, decree or order or (B) there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment, decree or order, by reason
of a pending appeal or otherwise, shall not be in effect, or (ii) any non-
monetary judgment, decree or order shall be rendered against the Borrower or
any Subsidiary that could reasonably be expected to have a Material Adverse
Effect, and there shall be a period of 30 consecutive days during which a stay
71
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(l) a writ of attachment or garnishment is issued against, or a
lien is imposed by operation of law on, any property of the Borrower or any
Subsidiary, and the lesser of the amount of the claim or the value of the
affected property is in excess of $10,000,000, if the lien is not discharged
within sixty (60) days after it has attached (not counting for this purpose any
period for so long as enforcement thereof is stayed and bonded during appeal
with adequate reserves provided therefor pursuant to GAAP); or
(m) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $10,000,000; or
(n) an Event of Default under any other Loan Document shall occur;
or
(o) any material provision of the Subsidiary Guaranty Agreement,
or, after the Pledge Agreement Date, the Pledge Agreement, shall for any reason
cease to be valid and binding on, or enforceable against, any Subsidiary Loan
Party, or any Subsidiary Loan Party shall so state in writing, or any Subsidiary
Loan Party shall seek to terminate the Subsidiary Guaranty Agreement; then, and
in every such event (other than an event with respect to the Borrower described
in clause (g) or (h) of this Section 8.1) and at any time thereafter during the
continuance of such event, the Administrative Agent may, and upon the written
request of the Required Lenders shall, by notice to the Borrower, take any or
all of the following actions, at the same or different times: (i) terminate the
Commitments, whereupon the Commitment of each Lender shall terminate
immediately, (ii) declare the principal of and any accrued interest on the
Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower,
(iii) exercise all remedies contained in any other Loan Document, and (iv)
exercise any other remedies available at law or in equity; and that, if an Event
of Default specified in either clause (g) or (h) shall occur, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
Section 8.2. Application of Proceeds from Collateral.
Notwithstanding any other provisions of this Agreement, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received
(including by way of set-off) by the Administrative Agent or any Lender on
account of amounts outstanding under any of the Loan Documents or in respect of
any Collateral shall be paid over or delivered as follows: first, to the fees,
indemnities and reimbursable expenses of the Administrative Agent, the Swingline
Lender and the Issuing Bank then due and payable pursuant to any of the Loan
Documents, until the same shall have been paid in full, allocated pro rata in
accordance with the respective unpaid fees, indemnities and
72
expenses; second, to the reimbursable expenses, if any, of the Lenders then due
and payable pursuant to any of the Loan Documents, until the same shall have
been paid in full, allocated pro rata among the Lenders based on their
respective pro rata shares of the unpaid expenses; third, to accrued and unpaid
interest and fees due and payable to the Lenders under the terms of this
Agreement, until the same shall have been paid in full, allocated pro rata among
the Lenders based on their respective pro rata shares of such unpaid interest
and fees; fourth, to the aggregate outstanding principal amount of the Loans,
the LC Exposure and the Net Mark-to-Market Exposure of Hedging Obligations
incurred in connection with this Agreement, until the same shall have been paid
in full, allocated pro rata among the Lenders and those Affiliates of Lenders
that hold Net Mark-to-Market Exposure based on their respective pro rata shares
of the aggregate amount of such Loans, LC Exposure and Net Mark-to-Market
Exposure; provided, however, that all amounts allocated to the contingent LC
Exposure pursuant to clause fourth shall be distributed to the Administrative
Agent, rather than to any Lenders, and held by the Administrative Agent in an
account in the name of the Administrative Agent for the benefit of the Issuing
Bank and the Lenders as cash collateral for such contingent LC Exposure, such
account to be administered in accordance with Section 2.21(g). Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the net
proceeds realized by the Administrative Agent upon a sale or other disposition
of the Collateral of HEICO Aerospace Holdings Corp., or any part thereof, after
deduction of the expenses of retaking, holding, preparing for sale, selling or
the like, and reasonable attorneys' fees and other expenses incurred by the
Administrative Agent shall be applied to payment of (or held as a reserve
against) the Obligations, whether or not then due, and in such order of
application as provided herein, notwithstanding the existence of any other
security interests in the Collateral, subject to the provisions of Article 18 of
that certain Shareholders Agreement dated as of October 30, 1997 by and among
HEICO Aerospace Holdings Corp., the Borrower and Lufthansa Technik AG, as in
effect on the date hereof, or as otherwise amended from time to time in a manner
that is not adverse to the interests of the Lenders and the Administrative
Agent, if applicable and to the extent legally enforceable, and the
Administrative Agent shall account to HEICO Aerospace Holdings Corp. for any
surplus realized upon such sale or other disposition, after satisfaction of all
creditors, and HEICO Aerospace Holdings Corp. shall remain liable for any
deficiency.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Section 9.1. Appointment of Administrative Agent.
------------------------------------
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
set forth in this Article IX shall apply to any such
73
sub-agent or attorney-in-fact and the Related Parties of the Administrative
Agent, any such sub-agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided, that the Issuing Bank shall have all 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 Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
Section 9.2. Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any sub
- -agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to
74
be delivered to the Administrative Agent. The Administrative Agent may consult
with legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.
Section 9.3. Lack of Reliance on the Administrative Agent. Each
of the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent, any
Issuing Bank or any other Lender and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each of the Lenders, the Swingline Lender and the Issuing
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent, any Issuing Bank or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own
decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, posting or other
distribution) believed by it to be genuine and to have been signed, sent or made
by the proper Person. The Administrative Agent may also rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
Section 9.6. The Administrative Agent in its Individual Capacity.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders", or
"Required Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
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Section 9.7. Successor Administrative Agent.
-------------------------------
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within 45 days after written notice is given
of the retiring Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
Section 9.8. Withholding Tax. To the extent required by any
applicable law, the Administrative Agent may withhold from any interest payment
to any Lender an amount equivalent to any applicable withholding tax. If the
Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
that rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative Agent
(to the extent that the Administrative Agent has not already been reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so) fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket
expenses.
Section 9.9. 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
76
Administrative Agent (irrespective of whether the principal of any Loan or any
Revolving Credit Exposure 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 or Revolving
Credit Exposure 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, Issuing Bank and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders, Issuing Bank and the Administrative Agent and its agents and
counsel and all other amounts due the Lenders, Issuing Bank and the
Administrative Agent under Section 10.3) 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
(c) any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the Issuing Bank to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Issuing Bank, 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 Section
10.3.
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 or the
Issuing Bank 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.
Section 9.10. Authorization to Execute other Loan Documents. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
Section 9.11. Documentation Agent; Syndication Agent. Each Lender
hereby designates Regions Bank and Wells Fargo Bank, National Association as Co
- -Documentation Agents and agrees that the Co-Documentation Agents shall have no
duties or obligations under any Loan Documents to any Lender or any Loan Party.
Each Lender hereby designates JPMorgan Chase Bank, N.A. as Syndication Agent and
agrees that the Syndication Agent shall have no duties or obligations under any
Loan Documents to any Lender or any Loan Party.
Section 9.12. Collateral and Guaranty Matters. The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion:
(a) to release any Lien on any property granted to or
held by the Administrative Agent under any Loan Document (i) upon termination of
all Revolving
77
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit (or the cash collateralization of such Letters of Credit on terms
acceptable to the Administrative Agent and the Issuing Bank), (ii) that is sold
or to be sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, or (iii) if approved, authorized or ratified in
writing in accordance with Section 10.2; and
(b) to release any Loan Party from its obligations
under the Subsidiary Guaranty Agreement if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Notices.
-------
(a) Written Notices.
---------------
(i) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
Attention: Thomas S. Irwin
Telecopy Number: (954) 987-8228
With a copy to: Akerman Senterfitt
1 S.E. Third Avenue
28th Floor
Miami, Florida 33131
Attention: Carl Roston, Esq.
Telecopy Number: (305) 374-5095
To the Administrative
Agent or Swingline
Lender: SunTrust Bank
200 S. Orange Ave, 10th Floor
Orlando, Fl. 32801
Attention: William C. Barr, III
Telecopy Number: 407-237-4076
78
With a copy to: SunTrust Bank
Agency Services
303 Peachtree Street, N. E./25th Floor
Atlanta, Georgia 30308
Attention: Ms. Dorris Folsom
Telecopy Number: (404) 658-4906
and
King & Spalding LLP
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Carolyn Z. Alford
Telecopy Number: (404) 572-5100
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
16th Floor
Atlanta, Georgia 30303
Attention: Standby Letter of Credit Dept.
Telecopy Number: (404) 588-8129
To the Swingline
Lender: SunTrust Bank
Agency Services
303 Peachtree Street, N.E./25th Floor
Atlanta, Georgia 30308
Attention: Ms. Dorris Folsom
Telecopy Number: (404) 658-4906
To any other Lender: the address set forth in the Administrative
Questionnaire or the Assignment and Acceptance Agreement executed by such Lender
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Lender shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(ii) Any agreement of the Administrative Agent, the Issuing Bank
or the Lenders herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower. The
Administrative Agent, the Issuing Bank and the Lenders shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
79
Borrower to give such notice and the Administrative Agent, the Issuing Bank and
the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Administrative Agent, the
Issuing Bank and the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans and all other
Obligations hereunder shall not be affected in any way or to any extent by any
failure of the Administrative Agent, the Issuing Bank and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent, the Issuing Bank and the Lenders of a confirmation which
is at variance with the terms understood by the Administrative Agent, the
Issuing Bank and the Lenders to be contained in any such telephonic or facsimile
notice.
(b) Electronic Communications.
-------------------------
(i) Notices and other communications to the Lenders and the Issuing
Bank hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or the Issuing Bank pursuant to Article II unless such
Lender, the Issuing Bank, as applicable, and Administrative Agent have agreed to
receive notices under such Section by electronic communication and have agreed
to the procedures governing such communications. Administrative Agent or
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(ii) Unless Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
Section 10.2. Waiver; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective
80
unless the same shall be permitted by paragraph (b) of this Section 10.2, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance of a Letter of Credit shall not
be construed as a waiver of any Default or Event of Default, regardless of
whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or
the other Loan Documents, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby (except for such payments due pursuant to Section 2.11),
(iv) change Section 2.20(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section 10.2 or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the liability of any
such guarantor under any guaranty agreement, without the written consent of each
Lender; (vii) release all or substantially all Collateral (if any) securing any
of the Obligations, without the written consent of each Lender; provided
further, that no such agreement shall amend, modify or otherwise affect the
rights, duties or obligations of the Administrative Agent, the Swingline Lender
or the Issuing Bank without the prior written consent of such Person.
Notwithstanding anything contained herein to the contrary, this Agreement may be
amended and restated without the consent of any Lender (but with the consent of
the Borrower and the Administrative Agent) if, upon giving effect to such
amendment and restatement, such Lender shall no longer be a party to this
Agreement (as so amended and restated), the Commitments of such Lender shall
have terminated (but such Lender shall continue to be entitled to the benefits
of Sections 2.17, 2.18, 2.19 and 10.3), such Lender shall have no other
commitment or other obligation hereunder and shall have been paid in full all
principal, interest and other amounts owing to it or accrued for its account
under this Agreement.
Section 10.3. Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable, documented, out-of
- -pocket costs and expenses of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents and any amendments, modifications or waivers thereof
81
(whether or not the transactions contemplated in this Agreement or any other
Loan Document shall be consummated), (ii) all reasonable, documented, out-of
- -pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket costs and expenses (including,
without limitation, the reasonable fees, charges and disbursements of outside
counsel and the allocated cost of inside counsel) incurred by the Administrative
Agent, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section 10.3, or in connection with the Loans made or any Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all reasonable fees and time
charges and disbursements for attorneys who may be employees of any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank 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), (iii) the use by any Person of any information or materials obtained
through Syndtrak or any other internet web sites used by the Administrative
Agent to disseminate the information the Borrower is required to deliver to the
Lenders pursuant to the Loan Documents, (iv) any actual or alleged presence or
Release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (v) 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, and
regardless of whether any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) 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 or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder
or under any other Loan Document, in each case so long as the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction. No Indemnitee shall
be liable for any damages arising from the use by others of any information or
other materials obtained through Syndtrak or any other Internet or intranet
website, except as a result of such
82
Indemnitee's gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent, the
Issuing Bank and each of the Lenders harmless from and against, any and all
present and future stamp, documentary, and other similar taxes with respect to
this Agreement and any other Loan Documents, any Collateral described therein,
or any payments due thereunder, and save the Administrative Agent, the Issuing
Bank and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to actual or direct damages) arising out of, in connection with or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the transactions contemplated therein, any Loan or any Letter of Credit or the
use of proceeds thereof.
(f) All amounts due under this Section 10.3 shall be payable
promptly after written demand therefor.
Section 10.4. 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
assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (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 paragraph (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
83
(b) Any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments, Loans, and other Revolving Credit Exposure at
the time owing to it); provided that any such assignment shall be subject to the
following conditions:
(i) Minimum Amounts.
----------------
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitments, Loans and other Revolving Credit Exposure at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
and Revolving Credit Exposure outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the Loans
and Revolving Credit Exposure of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Acceptance, 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) Proportionate Amounts. 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, other
Revolving Credit Exposure or the Commitments assigned.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this Section
and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such assignment
is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person
that is not a Lender with a Commitment; and
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or
more Letters of Credit (whether or not then outstanding), and the consent of the
Swingline Lender (such consent not to be unreasonably withheld or delayed) shall
be required for any assignment in respect of the Revolving Commitments.
(iv) Assignment and Acceptance. The parties to each assignment shall
deliver to the Administrative Agent (A) a duly executed Assignment and
Acceptance, (B) a processing and
84
recordation fee of $3,500, (C) an Administrative Questionnaire unless the
assignee is already a Lender and (D) the documents required under Section 2.20
if such assignee is a Foreign Lender.
(v) No Assignment to Borrower. No such assignment shall be made to
the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section 10.4, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, 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 Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 2.17, 2.18, 2.19 and 10.3 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this Section
10.4. If the consent of the Borrower to an assignment is required hereunder
(including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall be deemed to have given its
consent five Business Days after the date notice thereof has actually been
delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
Information contained in the Register with respect to any Lender shall be
available for inspection by such Lender at any reasonable time and from time to
time upon reasonable prior notice; information contained in the Register shall
also be available for inspection by the Borrower at any reasonable time and from
time to time upon reasonable prior notice. In establishing and maintaining the
Register, Administrative Agent shall serve as Company's agent solely for tax
purposes and solely with respect to the actions described in this Section, and
the Borrower hereby agrees that, to the extent SunTrust Bank serves in such
capacity, SunTrust Bank and its officers, directors, employees, agents, sub
- -agents and affiliates shall constitute "Indemnitees."
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrower, the Administrative Agent, the Swingline Lender or the Issuing
Bank sell participations to any Person (other than a natural person, 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
85
under this Agreement (including all or a portion of its Commitment and/or the
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 Lenders, the Issuing Bank
and the Swingline Lender shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement.
(e) 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, modification or waiver with respect to the following to
the extent affecting such Participant: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date for the termination or reduction of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.20(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section 10.4 or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of each Lender except
to the extent such release is expressly provided under the terms of such
guaranty agreement; or (vii) release all or substantially all collateral (if
any) securing any of the Obligations. Subject to paragraph (e) of this Section
10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18, and 2.19 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 10.4. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.7 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.20 as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.17 and Section 2.19 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 2.19 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 2.19(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank;
86
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.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process.
- -------
(a) This Agreement and the other Loan Documents shall be construed
in accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Florida.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the non-exclusive jurisdiction of the United
States courts located within Broward County in the State of Florida, and of any
state court of the State of Florida located in Broward County and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Florida state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section 10.5 and
brought in any court referred to in paragraph (b) of this Section 10.5. Each of
the parties hereto irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
87
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application. Each Lender and the Issuing Bank agrees to apply all amounts
collected from any such set-off to the Obligations before applying such amounts
to any other Indebtedness or other obligations owed by the Borrower and any of
its Subsidiaries to such Lender or Issuing Bank.
Section 10.8. Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent and its
Affiliates constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements and understandings, oral or written, regarding such subject matters.
Section 10.9. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3
and Article IX shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made
88
herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the other Loan Documents, and the making of the Loans and the
issuance of the Letters of Credit.
Section 10.10. Severability. Any provision of this Agreement or
any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent,
the Issuing Bank and the Lenders agrees to exercise its best efforts to maintain
the confidentiality of any information relating to the Borrower or any of its
Subsidiaries or any of their respective businesses, to the extent designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Borrower or any of its Subsidiaries, except that such information may be
disclosed (i) to any Related Party of the Administrative Agent, the Issuing Bank
or any such Lender including without limitation accountants, legal counsel and
other advisors on a need-to-know basis (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), (ii) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (iii) to the extent requested by any regulatory agency or
authority purporting to have jurisdiction over it (including any self-regulatory
authority such as the National Association of Insurance Commissioners), (iv) to
any other party hereto, to the extent that such information becomes publicly
available other than as a result of a breach of this Section 10.11, or which
becomes available to the Administrative Agent, the Issuing Bank, any Lender or
any Related Party of any of the foregoing on a non-confidential basis from a
source other than the Borrower, (v) in connection with the exercise of any
remedy hereunder or under any other Loan Documents or any suit, action or
proceeding relating to this Agreement or any other Loan Documents or the
enforcement of rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section 10.11, to
(A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, or (B)
any actual or prospective party (or its Related Parties) to any swap or
derivative or similar transaction to which the Borrower or any of its
Subsidiaries is a party, or (viii) with the consent of the Borrower. Any Person
required to maintain the confidentiality of any information as provided for in
this Section 10.11 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 its own
confidential information. Each of the Administrative Agent, the Issuing Bank
and the Lenders acknowledges that (a) the information may include material non
- -public information concerning the Borrower or a Subsidiary of the Borrower, as
the case may be, (b) it has developed reasonable compliance procedures regarding
the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Requirements of Law,
including United States Federal and state securities laws.
89
Section 10.12. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.12 shall be cumulated
and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate or
the Overnight Foreign Currency Rate, as applicable, to the date of repayment (to
the extent permitted by applicable law), shall have been received by such
Lender.
Section 10.13. Waiver of Effect of Corporate Seal. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.
Section 10.14. Patriot Act. The Administrative Agent and each
Lender hereby notifies the Loan Parties that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in accordance
with the Patriot Act. Each Loan Party shall, and shall cause each of its
Subsidiaries to, provide to the extent commercially reasonable, such information
and take such other actions as are reasonably requested by the Administrative
Agent or any Lender in order to assist the Administrative Agent and the Lenders
in maintaining compliance with the Patriot Act.
Section 10.15. Currency Conversion. All payments under this
Agreement or any other Loan Document shall be made in Dollars, except for Loans
funded, or Reimbursement Obligations with respect to Letters of Credit issued,
in Euros, which shall be repaid, including interest thereon, in Euros. If any
payment by the Borrower or the proceeds of any collateral, shall be made in a
currency other than the currency required hereunder, such amount shall be
converted into the currency required hereunder at the rate determined by the
Administrative Agent or the Issuing Bank, as applicable, as the rate quoted by
it in accordance with methods customarily used by such Person for such or
similar purposes as the spot rate for the purchase by such Person of the
required currency with the currency of actual payment through its principal
foreign exchange trading office (including, in the case of the Administrative
Agent, any Affiliate) at approximately 11:00 A.M. (local time at such office)
two Business Days prior to the effective date of such conversion, provided that
the Administrative Agent or the Issuing Bank, as applicable, may obtain such
spot rate from another financial institution actively engaged in foreign
currency exchange if the Administrative Agent or the Issuing Bank, as
applicable, does not then have a spot rate for the required currency. The
parties hereto hereby agree, to the fullest
90
extent that they may effectively do so under applicable law, that (i) if for the
purposes of obtaining any judgment or award it becomes necessary to convert from
any currency other than the currency required hereunder into the currency
required hereunder any amount in connection with the Obligations, then the
conversion shall be made as provided above on the Business Day before the day on
which the judgment or award is given, (ii) in the event that there is a change
in the applicable conversion rate prevailing between the Business Day before the
day on which the judgment or award is given and the date of payment, the
Borrower will pay to the Administrative Agent, for the benefit of the Lenders,
such additional amounts (if any) as may be necessary, and the Administrative
Agent, on behalf of the Lenders, will pay to the Borrower such excess amounts
(if any) as result from such change in the rate of exchange, to assure that the
amount paid on such date is the amount in such other currency, which when
converted at the conversion rate described herein on the date of payment, is the
amount then due in the currency required hereunder, and (iii) any amount due
from the Borrower under this Section 10.15 shall be due as a separate debt and
shall not be affected by judgment or award being obtained for any other sum due.
Section 10.16. Exchange Rates.
--------------
(a) Determination of Exchange Rates. Not later than 2:00 P.M.
(London time) on each Calculation Date or upon the occurrence of an Event of
Default, if any Letters of Credit are outstanding on such date in Euros, the
Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date with respect to Euros and (ii) give notice thereof to the
Lenders and the Borrower. The Exchange Rate so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date or upon the occurrence of an Event of Default (a "Reset Date"),
shall remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than Section 10.15 or any other provision
expressly requiring the use of a current Exchange Rate) be the Exchange Rates
employed in determining the Dollar Equivalent of any amounts of Euros.
(b) Notice of Foreign Currency Loans and Letters of Credit. Not
later than 2:00 P.M. (London time) on each Reset Date and each date on which
Loans and/or Letters of Credit denominated in Euros are made or issued, if any
such Loans and/or Letters of Credit are outstanding on such date, the
Administrative Agent shall (i) determine the Dollar Equivalent of the aggregate
principal amounts of the Loans and Letters of Credit denominated in Euros and
(ii) notify the Lenders and the Borrower of the results of such determination.
(remainder of page left intentionally blank)
91
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
HEICO CORPORATION
By /s/ Thomas S. Irwin
---------------------------------------
Name: Thomas S. Irwin
Title: Executive Vice President,
Chief Financial Officer and Treasurer
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK,
as Administrative Agent, as Issuing Bank,
as Swingline Lender and as a Lender
By /s/ Robert Maddox
---------------------------------------
Name: Robert Maddox
Title: Director
JPMORGAN CHASE BANK, N.A., as
Syndication Agent and as a Lender
By /s/ Robert P. Carswell
---------------------------------------
Name: Robert P. Carswell
Title: Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
REGIONS BANK, as
Co-Documentation Agent and as a Lender
By /s/ Stephen Hanas
---------------------------------------
Name: Stephen Hanas
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Co-Documentation Agent
and as a Lender
By /s/ David Matter
---------------------------------------
Name: David Matter
Title: Regional Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
THE NORTHERN TRUST COMPANY, as a
Lender
By /s/ Rick J. Gomez
---------------------------------------
Name: Rick J. Gomez
Title: Second Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as a Lender
By /s/ Kenneth Beck
---------------------------------------
Name: Kenneth Beck
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
HSBC BANK USA, NATIONAL
ASSOCIATION, as a Lender
By /s/ Tim Shaw
---------------------------------------
Name: Tim Shaw
Title: Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ William C. Davies, Jr.
---------------------------------------
Name: William C. Davies, Jr.
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
MERCANTIL COMMERCEBANK, as a
Lender
By /s/ Alan Hills
---------------------------------------
Name: Alan Hills
Title: Senior Vice President
[SIGNATURE PAGE TO SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT]
Schedule I
APPLICABLE MARGIN AND APPLICABLE COMMITMENT FEE PERCENTAGE
----------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Level Total Funded Debt to Applicable Margin for Applicable Applicable
EBITDA Ratio LIBOR Advances Margin for Base Commitment
Rate Advances Fee Percentage
- -----------------------------------------------------------------------------------------------------------------------------
I < 1.00:1.00 0.625% 0.00% 0.125%
- -----------------------------------------------------------------------------------------------------------------------------
II >= 1.00:1.00 but < 0.750% 0.00% 0.150%
1.50:1.00
- -----------------------------------------------------------------------------------------------------------------------------
III >= 1.50:1.00 but < 0.875% 0.00% 0.175%
2.00:1.00
- -----------------------------------------------------------------------------------------------------------------------------
IV >= 2.00:1.00 but < 1.00% 0.00% 0.20%
2.50:1.00
- -----------------------------------------------------------------------------------------------------------------------------
V >= 2.50:1.00 but < 1.25% 0.00% 0.25%
3.00:1.00
- -----------------------------------------------------------------------------------------------------------------------------
VI >= 3.00:1.00 but < 1.50% 0.00% 0.275%
3.50:1.00
- -----------------------------------------------------------------------------------------------------------------------------
VII >= 3.50:1.00 but < 1.75% 0.00% 0.30%
4.00:1.00
- -----------------------------------------------------------------------------------------------------------------------------
VIII >= 4.00:1.00 2.25% 0.00% 0.35%
- -----------------------------------------------------------------------------------------------------------------------------
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
-------------------------------------------
[Date to be supplied]
Reference is made to the Second Amended and Restated Revolving Credit
Agreement dated as of May __, 2008 (as amended and in effect on the date hereof,
the "Credit Agreement"), among HEICO Corporation, a Florida corporation, the
lenders from time to time party thereto (the "Lenders") and SunTrust Bank, as
Administrative Agent for the Lenders, Issuing Bank and Swingline Lender. Terms
defined in the Credit Agreement are used herein with the same meanings.
The [name of assignor] (the "Assignor") hereby sells and assigns, without
recourse, to [name of assignee] (the "Assignee"), and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth below, the interests set forth below (the "Assigned
Interest") in the Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth below in the Term Loan of
the Assignor on the Assignment Date and the Revolving Commitment of the Assignor
on the Assignment Date and Revolving Loans owing to the Assignor which are
outstanding on the Assignment Date, together with the participations in the LC
Exposure and the Swingline Exposure of the Assignor on the Assignment Date, but
excluding accrued interest and fees to and excluding the Assignment Date. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.19(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (ii) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby, and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries
A-1
or Affiliates or any other Person of any of their respective obligations under
any Credit Document.
The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.1 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued
to but excluding the Effective Date and to the Assignee for amounts which have
accrued from and after the Effective Date, unless otherwise agreed in writing by
the Administrative Agent.
This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart
of a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Florida.
Assignment Date:
Legal Name of Assignor:
Legal Name of Assignee:
A-2
Assignee's Address for Notices:
Effective Date of Assignment:
("Effective Date"):
Percentage Assigned of
Revolving Commitment (set
forth, to at least 8 decimals, as
a percentage of the aggregate
Principal Amount Revolving Commitments of all
Facility Assigned Lenders thereunder)
-------- ---------------- ----------------------------------
Revolving Loans: $ %
A-3
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By: ______________________________
Name:
Title:
[Name of Assignee], as Assignee
By: ______________________________
Name:
Title:
The undersigned hereby consents to the within assignment:(1)
HEICO Corporation, SunTrust Bank, as
a Florida corporation Administrative Agent:
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
- --------------------
(1) Consents to be included to the extent required by Section 10.4(b) of the
Credit Agreement.
EXHIBIT B
FORM OF PLEDGE AGREEMENT
------------------------
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of [Date], by and
among HEICO Corporation, a Florida corporation (the "Borrower"), the
subsidiaries of the Borrower signatory hereto and each other subsidiary of the
Borrower hereafter a party hereto (each a "Subsidiary Pledgor" and collectively,
the "Subsidiaries Pledgors"; Borrower, each Subsidiary Pledgor and each other
Subsidiary hereafter becoming a party hereto shall be collectively known as the
"Pledgors", and individually as "Pledgor"), in favor of SUNTRUST BANK, a Georgia
banking corporation, as administrative agent (the "Administrative Agent"), on
its behalf and on behalf of the other banks and lending institutions (the
"Lenders") from time to time party to the Second Amended and Restated Revolving
Credit Agreement, dated as of May __, 2008, by and among the Borrower, the
Lenders, the Administrative Agent, and SunTrust Bank, as Issuing Bank and as
Swingline Lender (as amended, restated, supplemented, or otherwise modified from
time to time, the "Credit Agreement").
W I T N E S S E T H:
- - - - - - - - - --
WHEREAS, pursuant to the Credit Agreement, the Lenders have established a
revolving credit facility in favor of the Borrower;
WHEREAS, pursuant to the Credit Agreement, each Pledgor is required to enter
into this Pledge Agreement following the Pledge Agreement Date to secure
Obligations, and each Pledgor wishes to fulfill said requirement;
WHEREAS, the Pledgors are the record and beneficial owners of all of the
issued and outstanding shares of common stock listed on Part A of Schedule I
attached hereto (the "Pledged Shares") and are the record and beneficial owners
of all membership interests listed on Part B of Schedule I attached hereto (the
"Pledged Membership Interests"); and
NOW, THEREFORE, in order to induce Lenders to extend the Loans and the
Issuing Bank to issue Letters of Credit and to make the financial accommodations
as provided for in the Credit Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Defined Terms. All capitalized terms used but not otherwise
defined herein have the meanings given to them in the Credit Agreement.
Section 2. Pledge. Each Pledgor hereby pledges to the Administrative
Agent, for its benefit and the benefit of Lenders (the Administrative Agent and
Lenders are collectively referred to herein as the "Secured Parties" and each a
"Secured Party") and grants to the Administrative Agent, for the benefit of the
Secured Parties, a first priority security interest in all of such Pledgor's
right, title and interest in, to and under the following property, whether now
owned by or owing to, or hereafter acquired by or arising in favor of such
Pledgor (collectively,
the "Pledged Collateral"); provided, however, the Pledged Collateral shall not
include more than 65% of the issued and outstanding equity interests in any
Foreign Subsidiary:
(a) The Pledged Shares, Pledged Membership Interests and the
certificates representing the Pledged Shares and any Pledged Membership
Interests, and, except as expressly provided for in Section 8 hereof, all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares and the Pledged Membership Interests;
(b) Any stock or other securities acquired by any Pledgor or such
Pledgor's designees with respect to, incident to or in lieu of the Pledged
Shares or with respect to, incident to or in lieu of the Pledged Collateral (x)
due to any dividend, stock-split, stock dividend or distribution on dissolution,
or partial or total liquidation, or for any other reason, (y) in connection with
a reduction of capital, capital surplus or paid-in-surplus or (z) in connection
with any spin-off, split-off, reclassification, readjustment, merger,
consolidation, sale of assets, combination of shares or any other plan of
distribution affecting of the those companies listed on Schedule I;
(c) Any subscription or other rights or options issued in connection
with the Pledged Shares, and, if exercised by any Pledgor, all new shares or
other securities so acquired by such Pledgor, which shall promptly be assigned
and delivered to the Administrative Agent and held under the terms of this
Pledge Agreement in the same manner as the Pledged Shares originally pledged
hereunder;
(d) Any and all proceeds, monies, income and benefits arising from or
by virtue of, and all dividends and distributions (cash or otherwise) payable or
distributable with respect to, all or any of the Pledged Shares or other
securities and rights and interests described in this Section 2, except as
expressly provided for in Section 8 hereof; and
(e) Any rights or interests of Pledgor as a member in each limited
liability company listed on Part B of Schedule I (the "LLCs"), whether now owned
or hereafter acquired, including all rights granted under the limited liability
company agreements of such LLCs.
Notwithstanding any contrary provisions herein, this Agreement shall be
subject in all respects to the terms and conditions of (i) the Shareholders
Agreement, dated as of October 30, 1997, among HEICO Aerospace Holdings Corp.,
HEICO Aerospace Corporation all of the shareholders of HEICO Aerospace Holdings
Corp. (the "HEICO Aerospace JV Agreement"), (ii) the Limited Liability Company
Agreement of Parts Advantage, LLC, dated as of March 1, 2001, between HEICO
Aerospace Holdings Corp. and PMA Investment Subsidiary, Inc. (the "Parts
Advantage JV Agreement"), (iii) the Shareholders' Agreement dated as of
September 9, 2005 by and among HEICO Electronic Technologies Corp, the other
shareholders set forth on Appendix I thereto and HVT Group, Inc, a Delaware
corporation (the "HVT JV Agreement"); the Amended and Restated Limited Liability
Company Agreement of Seal Dynamics LLC effective as of November 1, 2005 among
HEICO Aerospace Holdings Corp., DJS holdings Inc. and PTR Capital LLC (the "Seal
Dynamics JV Agreement"), the Limited Liability Company Agreement of Sierra
Microwave Technology, LLC effective December 4, 2003 between HEICO Electronic
7
Technologies Corp and Sierra Microwave Technology, Inc. (the "Sierra Microwave
Technology JV Agreement"), the Operating Agreement of Sunshine Avionics LLC
effective February 8, 2008 between HEICO Aerospace Holdings Corp., and Sunshine
Avionics Corp. (the "Sunshine Avionics JV Agreement"), the Limited Liability
Company Agreement of Prime Air Acquisition LLC effective as of September 21,
2006 between HEICO Aerospace Holdings Corp. and Prime Air, Inc. (the "Prime Air
JV Agreement") and (iv) the Stock Option Agreement, dated as of October 12,
2001, between Aviation Facilities, Inc. and AFI Acquisition Corp. (together with
the HEICO Aerospace JV Agreement, the Parts Advantage JV Agreement, the HVT JV
Agreement, the Seal Dynamics JV Agreement, the Sierra Microwave Technology JV
Agreement, the Sunshine Avionics JV Agreement and the Prime Air JV Agreement,
the "JV Agreements"). In the event of any conflict or inconsistency between any
provisions of this Agreement and any provisions of the JV Agreements, the
provisions of the JV Agreements shall control.
Section 3. Security For Secured Obligations. This Pledge Agreement and the
Pledged Collateral secure the prompt payment, in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations, including without limitation (i) all Obligations of Borrower under
the Credit Agreement and the other Loan Documents (whether for principal,
interest, fees, expenses, indemnity or reimbursement payments, or otherwise),
(ii) with respect to the Subsidiary Pledgors, all obligations of each such
Subsidiary Pledgor under the Subsidiary Guaranty Agreement and all other Loan
Documents to which such Pledgor is a party to (whether for principal, interest,
fees, expenses, indemnity or reimbursement payments, or otherwise), (iii) all
renewals, extensions, refinancings and modifications thereof, and (iv) all
interest, charges, expenses, fees, reasonable attorneys' fees and other sums
required to be paid by any Pledgor under the Credit Agreement, under this Pledge
Agreement or under any of the other Loan Documents (collectively, the "Secured
Obligations").
Section 4. Delivery Of Pledged Collateral. All certificates representing
or evidencing the Pledged Collateral shall be delivered to and held by or on
behalf of the Administrative Agent pursuant hereto. All Pledged Shares and
certificated Pledged Membership Interests shall be accompanied by duly executed,
undated instruments of transfer or assignment endorsed in blank, all in form and
substance satisfactory to the Administrative Agent. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent shall
have the right, at any time in its discretion and without notice to any Pledgor,
to transfer to or to register in the name of the Administrative Agent or any of
its nominees any or all of the Pledged Shares and Pledged Membership Interests.
In addition, the Administrative Agent shall have the right at any time to
exchange certificates or instruments representing or evidencing Pledged Shares
and Pledged Membership Interests for certificates or instruments of smaller or
larger denominations for any purpose consistent with this Agreement.
Section 5. Representations and Warranties. Each Pledgor represents and
warrants to the Secured Parties as follows:
(a) Each Pledgor is, and at the time of delivery of the Pledged Shares
and Pledged Membership Interests to the Administrative Agent pursuant to Section
4 hereof will be, the sole holder of record and the sole beneficial owner of the
Pledged Collateral pledged by such Pledgor, free and clear of any Lien thereon
or affecting the title thereto except for the security
8
interest granted hereunder and the Liens expressly permitted in Section 7.2 of
the Credit Agreement.
(b) All of the Pledged Shares and Pledged Membership Interests have
been duly authorized, validly issued and are fully paid and non-assessable and
all documentary, stamp, or other taxes or fees owing in connection with the
issuance, transfer and/or pledge thereof hereunder have been paid and will be
hereafter paid by each Pledgor as same becomes due and payable.
(c) No dispute, counterclaim or defense exists with respect to all or
any part of the Pledged Collateral.
(d) Each Pledgor has the requisite corporate or limited liability
company authority to pledge, assign, transfer, deliver, deposit and set over its
Pledged Collateral to the Administrative Agent as provided herein.
(e) There are no restrictions, other than applicable laws and
regulations affecting the offering and sales of securities generally, upon the
transfer, hypothecation or pledge of any of the Pledged Collateral, except for
such restrictions that have been waived and except as set forth in the JV
Agreements.
(f) None of the Pledged Shares or Pledged Membership Interests have
been issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such issuance
or transfer may be subject.
(g) Part A of Schedule I hereto lists the authorized shares of common
stock, the par value thereof and the number of issued and outstanding shares of
common stock of each issuer of Pledged Shares. As of the date hereof, except as
provided in the JV Agreements, (i) no subscription, warrant, option or other
rights to purchase or acquire any shares of any class of capital stock of any
issuer of Pledged Shares is authorized and outstanding, and (ii) there is no
commitment by any issuer of Pledged Shares to issue any such shares, warrants,
options or other such rights or securities.
(h) Part B of Schedule I hereto lists all of the issued and
outstanding membership interests of each issuer of Pledged Membership Interests.
As of the date hereof, except as provided in the JV Agreements and as disclosed
in Borrower's Securities and Exchange Commission filings, (i) no subscription,
warrant, option or other rights to purchase or acquire any membership interests
of any issuer of Pledged Membership Interests is authorized and outstanding, and
(ii) there is no commitment by any issuer of Pledged Membership Interests to
issue any such warrants, options or other such rights or securities.
(i) The pledge by each Pledgor of its Pledged Collateral is not in
contravention of any law or of any agreement to which such Pledgor is party or
by which such Pledgor is otherwise bound, and except as already obtained and
except as provided in the JV Agreements, no consent, approval, authorization or
other order of, or other action by, any Person or notice to or filing with, any
Person is required (x) for the pledge by such Pledgor of the Pledged Collateral
9
pursuant to this Pledge Agreement or for the execution, delivery or performance
of this Pledge Agreement by such Pledgor (except filing of financing statements
under the Uniform Commercial Code may be required to perfect the Administrative
Agent's Lien in certain of the Pledged Collateral) or (y) for the exercise by
the Administrative Agent of the voting or other rights provided for in this
Pledge Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Pledge Agreement (except as may be required in connection with any
disposition of any portion of the Pledged Collateral by laws affecting the
offering and sale of securities generally).
(j) The pledge, assignment and delivery of the Pledged Collateral
together with duly executed, undated instruments of transfer or assignment
endorsed in blank pursuant to this Pledge Agreement will create a valid first
priority Lien on and a first priority perfected security interest in the Pledged
Collateral and the proceeds thereof, securing the payment of the Secured
Obligations and no filing or other action is necessary to perfect or protect
such security interest, except that (i) the filing of a financing statement, the
taking of possession or some other action may be required under Section 9-315 of
the Uniform Commercial Code as in effect in the State of Florida (the "UCC") to
perfect a security interest in certain proceeds of the Pledged Collateral that
do not constitute Pledged Shares or other securities or instruments and (ii) the
filing of a financing statement under Sections 9-312 and 9-314 of the UCC may be
required to perfect a security interest in any Pledged Collateral that
constitutes "investment property" (other than the Pledged Shares) with respect
to which the Administrative Agent does not have "control" (as such terms are
defined in the UCC), including, without limitation, any Pledged Membership
Interests which are uncertificated.
(k) All of the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects, are incorporated herein by this reference and deemed to be made herein
by each Pledgor for purposes of this Pledge Agreement.
(l) This Pledge Agreement has been duly authorized, executed and
delivered by each Pledgor and constitutes a legal, valid and binding obligation
of such Pledgor enforceable against such Pledgor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
The representations and warranties set forth in this Section 5 shall survive
the execution and delivery of this Pledge Agreement.
Section 6. Covenants. Each Pledgor covenants and agrees that from and
after the date of this Pledge Agreement and until the payment and performance in
full of all of the Secured Obligations of such Pledgor:
(a) Without the prior written consent of the Administrative Agent or
except as permitted by the Credit Agreement, such Pledgor shall not sell,
assign, transfer, pledge or otherwise encumber any of its rights in or to its
Pledged Collateral or any unpaid dividends or other distributions or payments
with respect thereto except pursuant to this Pledge Agreement.
10
(b) Without the prior written consent of the Administrative Agent or
except as permitted by the Credit Agreement, and except as provided in the JV
Agreements, such Pledgor will not cause or permit any issuer of Pledged Shares
or Pledged Membership Interests to issue or grant any warrants, stock options of
any nature or other instruments convertible into membership interests or shares
of any class of capital stock or additional membership interests or shares of
capital stock or sell or transfer any membership interests or treasury stock.
(c) Such Pledgor will, at its own cost and expense, promptly execute,
acknowledge and deliver all such instruments and take all such action as the
Administrative Agent from time to time may request in order to perfect and
protect the Lien granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to the Pledged Collateral.
(d) Such Pledgor has and will, at its own cost and expense, defend the
title to its Pledged Collateral and the Liens of the Administrative Agent
thereon against the claim of any Person (other than the Administrative Agent)
and will maintain and preserve such Liens.
(e) Such Pledgor will pay all taxes, assessments and charges levied,
assessed or imposed upon its Pledged Collateral before the same become
delinquent or become Liens upon any of its Pledged Collateral except where the
same may be contested in good faith by appropriate proceedings and as to which
adequate reserves have been provided and except to the extent such failure could
not reasonably be expected to have a Material Adverse Effect.
Section 7. Adjustments and Distributions Concerning Pledged Collateral.
Should the Pledged Collateral, or any part thereof, ever be converted in any
manner by any Pledgor into another type of property or any money or other
proceeds ever be paid or delivered to any Pledgor as a result of such Pledgor's
rights in the Pledged Collateral, then in any such event (except as expressly
provided in Section 8 hereof), all such property, money and other proceeds shall
promptly be and become part of the Pledged Collateral, and each Pledgor
covenants and agrees to forthwith pay and deliver all money so received to the
Administrative Agent, for the benefit of the Secured Parties, as Pledged
Collateral hereunder in accordance with the provisions of the Credit Agreement;
and, if the Administrative Agent deems it necessary and so requests, to properly
endorse, assign or transfer any and all such other proceeds to the
Administrative Agent and to deliver to the Administrative Agent any and all such
other proceeds which require perfection by possession under the UCC. With
respect to any of such property of a kind requiring an additional security
agreement, financing statement or other writing to perfect a security interest
therein in favor of the Administrative Agent, each Pledgor will forthwith
execute and deliver to the Administrative Agent, or cause to be executed and
delivered to the Administrative Agent, whatever documents or instruments the
Administrative Agent shall deem necessary or proper for such purposes.
Section 8. Pledgors' Rights; Termination Of Rights.
----------------------------------------
(a) As long as no Event of Default shall have occurred and be
continuing:
11
(i) Each Pledgor shall have the right, from time to time, to
vote and give consents with respect to its Pledged Collateral or any part
thereof for all purposes permitted by the Credit Agreement or any other Loan
Documents; provided, that, without limitation of the foregoing, no vote
shall be cast, and no consent shall be given or action taken by any Pledgor
without the prior written consent of the Administrative Agent that would
authorize or effect (except if and to the extent expressly permitted by the
Credit Agreement): (A) the issuance of any additional shares of capital
stock or membership interests thereof, unless all such additional shares of
capital stock or membership interests issued to Pledgor are pledged to the
Administrative Agent in accordance with the terms hereof, or (B) the
alteration of the voting rights with respect to the capital stock or
membership interests of any issuer of the Pledged Collateral in a manner
adverse to the Administrative Agent;
(ii) Each Pledgor shall be entitled, from time to time, to
collect and receive for its own use all dividends, distributions and other
amounts paid in respect of its Pledged Collateral to the extent not in
violation of the Credit Agreement other than any and all dividends paid or
payable other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange
for, any of its Pledged Collateral; provided, that until actually paid all
rights to such dividends shall remain subject to the Lien created by this
Pledge Agreement.
(b) All dividends (other than such cash dividends and other
distributions as are permitted to be paid to the Pledgors in accordance with
Section 8(a)(ii) above and except as otherwise provided in the Credit Agreement)
and all other distributions in respect of any of the Pledged Shares or Pledged
Membership Interests, whenever paid or made, shall be delivered to the
Administrative Agent to hold as Pledged Collateral and shall, if received by any
Pledgor, be received in trust for the benefit of the Administrative Agent, be
segregated from the other property or funds of such Pledgor, and be forthwith
delivered promptly to the Administrative Agent as Pledged Collateral of such
Pledgor in the same form as so received (with any necessary endorsement or
assignment).
(c) Upon the occurrence of an Event of Default and during the
continuation thereof, all of Pledgors' rights to exercise voting and other
consensual rights pursuant to Section 8(a)(i) hereof and all of Pledgors' rights
to receive any cash dividends and distributions pursuant to Section 8(a)(ii)
hereof shall cease and all such rights shall thereupon become vested in the
Administrative Agent, for the benefit of the Secured Parties, who shall have the
sole and exclusive right to exercise the voting and other consensual rights
which the Pledgors would otherwise be authorized to exercise pursuant to Section
8(a)(i) hereof and to receive and retain the dividends and distributions which
the Pledgors would otherwise be authorized to receive and retain pursuant to
Section 8(a)(ii) hereof. Upon the occurrence of an Event of Default and during
the continuation thereof, each Pledgor shall pay over to the Administrative
Agent, for the benefit of the Secured Parties, any dividends received by such
Pledgor with respect to its Pledged Collateral and any and all money and other
property paid over to or received by the Administrative Agent shall be retained
by the Administrative Agent, for the benefit of the Secured Parties, as Pledged
Collateral hereunder and shall be applied in accordance with the terms of the
Credit Agreement.
12
Section 9. Default. The Pledgors shall be in default under this Pledge
Agreement upon the occurrence of an "Event of Default" as defined in the Credit
Agreement (hereinafter referred to as an "Event of Default").
Section 10. Remedies Upon An Event Of Default.
----------------------------------
(a) Upon the occurrence of an Event of Default and during the
continuation thereof, the Administrative Agent may exercise all rights of a
secured party under the UCC (whether or not the UCC applies to the affected
collateral). In addition, upon the occurrence of an Event of Default and during
the continuation thereof, the Administrative Agent is hereby authorized and
empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, exercise the voting rights with
respect thereto, collect and receive all cash dividends and other distributions
made thereon, sell in one or more sales after ten (10) days' notice of the time
and place of any public sale or of the time after which a private sale is to
take place (which notice each Pledgor agrees is commercially reasonable), but
without any previous notice or advertisement, the whole or any part of the
Pledged Collateral and otherwise act with respect to the Pledged Collateral as
though the Administrative Agent was the legal and record owner thereof. Each
Pledgor hereby irrevocably constitutes and appoints the Administrative Agent,
for the benefit of the Secured Parties, as the proxy and attorney-in-fact of
such Pledgor with respect to the Pledged Collateral, with full power of
substitution to exercise any of the rights provided in the preceding sentence;
provided, that the Administrative Agent shall not have any duty to exercise any
such right or to preserve the same and shall not be liable for any failure to do
so or for any delay in doing so. Any sale shall be made at a public or private
sale at the Administrative Agent's offices or elsewhere to be named in the
notice of sale, either for cash or upon credit or for future delivery at such
price as the Administrative Agent may deem fair, and any Secured Party may be
the purchaser of the whole or any part of the Pledged Collateral so sold and
hold the same thereafter in its own right free from any claim of any Pledgor or
any right of redemption, which each Pledgor hereby waives to the extent
permitted by applicable law. Each sale shall be made to the highest bidder, but
the Administrative Agent reserves the right to reject any and all bids at such
sale which, in its discretion, it shall deem inadequate. Demands of
performance, except as otherwise herein specifically provided for, notices of
sale, advertisements and the presence of property at sale are hereby waived and
any sale hereunder may be conducted by an auctioneer or any officer or agent of
the Administrative Agent.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be but
one sale, shall be inadequate to discharge in full all the Secured Obligations,
or if the Pledged Collateral be offered for sale in lots, if at any of such
sales, the highest bid for the lot offered for sale would indicate to the
Administrative Agent, in its discretion, the unlikelihood of the proceeds of the
sales of the whole of the Pledged Collateral being sufficient to discharge all
the Secured Obligations, the Administrative Agent may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement at the
time of sale or the time of previous postponement of sale, and no other notice
of such postponement or postponements of sale need be given, any other
13
notice being hereby waived; provided, that any sale or sales made after such
postponement shall be after ten (10) days' notice from the Administrative Agent
to any such Pledgor.
(c) If, at any time that the Administrative Agent shall determine to
exercise its rights to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933, as amended (the "Act"), the Administrative Agent may, in its discretion
(subject only to applicable requirements of law), sell such Pledged Collateral
or part thereof by private sale in such manner and under such circumstances as
the Administrative Agent may deem necessary or advisable, but subject to the
other requirements of this Section 9, and shall not be required to effect such
registration or to cause the same to be effected. Without limiting the
generality of the foregoing, in any such event the Administrative Agent in its
discretion (i) may, in accordance with applicable securities laws, proceed to
make such private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be or shall
have been filed under said Act (or similar statute), (ii) may approach and
negotiate with a single possible purchaser to effect such sale, (iii) may
restrict such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment and not with a view
to the distribution or sale of such Pledged Collateral or part thereof, and (iv)
may place all or any part of the Pledged Collateral with an investment banking
firm for private placement, which firm shall be entitled to purchase all or any
part of the Pledged Collateral for its own account. If any of the Pledged
Collateral shall not be freely distributable to the public without registration
under the Act (or similar statute), then the Administrative Agent shall not be
required to effect such registration or cause the same to be effected but, in
its discretion (subject to applicable requirements of law), may require that any
sale hereunder (including a sale at auction) be conducted subject to
restrictions (i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale, (ii) as to the content of legends
to be placed upon any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof, (iii) as to the
representations required to be made by each Person bidding or purchasing at such
sale relating to that Person's access to financial information about any Pledgor
or any of its subsidiaries so sold and such Person's intentions as to the
holding of the Pledged Collateral so sold for investment, for its own account,
and not with a view to the distribution thereof, and (iv) as to such other
matters as the Administrative Agent may, in its discretion, deem necessary or
appropriate in order that such sale (notwithstanding any failure so to register)
may be effected in compliance with the UCC and other laws affecting the
enforcement of creditors' rights and the Act and all applicable state securities
laws. For the avoidance of doubt, nothing contained herein shall require any
Pledgor to register any Pledged Collateral under the Act.
(d) Each Pledgor acknowledges that, notwithstanding the legal
availability of a private sale or a sale subject to the restrictions described
above in paragraph (c), the Administrative Agent may, in its discretion, elect
to register any or all the Pledged Collateral under the Act (or any applicable
state securities law). Each Pledgor, however, recognizes that the
Administrative Agent may be unable to effect a public sale of any or all the
Pledged Collateral and may be compelled to resort to one or more private sales
thereof. Each Pledgor also acknowledges that any such private sale may result
in prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees
14
that any such private sale shall be deemed to have been made in a commercially
reasonable manner. The Administrative Agent shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time necessary
to permit the registrant to register such securities for public sale under the
Act, or under applicable state securities laws, even if each Pledgor would agree
to do so.
(e) Any cash held by the Administrative Agent as Pledged Collateral
and all cash proceeds received by the Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Pledged Collateral may, in the discretion of the Administrative Agent, be held
by the Administrative Agent as collateral for, and/or then or at any time
thereafter be applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 14 hereof) in whole or in part by the
Administrative Agent for the benefit of the Secured Parties in their individual
and various agency capacities and any other holder of any Secured Obligations
against, all or any part of the Secured Obligations in accordance with the terms
hereof. Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Secured Obligations shall
be paid over to the Pledgors or to whomsoever may be lawfully entitled to
receive such surplus.
(f) Each Pledgor agrees that following the occurrence and during the
continuation of an Event of Default it will not at any time plead, claim or take
the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Pledge Agreement, or the absolute sale of the whole or any
part of the Pledged Collateral or the possession thereof by any purchaser at any
sale hereunder, and each Pledgor waives the benefit of all such laws to the
extent it lawfully may do so. Each Pledgor agrees that it will not interfere
with any right, power and remedy of the Administrative Agent provided for in
this Pledge Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the
Administrative Agent of any one or more of such rights, powers, or remedies. No
failure or delay on the part of the Administrative Agent to exercise any such
right, power or remedy and no notice or demand which may be given to or made
upon any Pledgor by the Administrative Agent with respect to any such remedies
shall operate as a waiver thereof, or limit or impair the Administrative Agent's
right to take any action or to exercise any power or remedy hereunder, without
notice or demand, or prejudice its rights as against any Pledgor in any respect.
Each Pledgor waives all claims, damages and demands against the Administrative
Agent arising out of the repossession, retention or sale of the Pledged
Collateral.
Section 11. Power Of Attorney. Each Pledgor appoints the Administrative
Agent, or any other Person whom the Administrative Agent may designate, as each
Pledgor's true and lawful attorney-in-fact, with, upon the occurrence and during
the continuance of an Event of Default, power to endorse each Pledgor's name on
any checks, notes, acceptances, money orders, drafts or other form of payment or
security representing a portion of the Pledged Collateral that may come into the
Administrative Agent's possession and to do all things necessary to carry out
the terms of this Pledge Agreement. Each Pledgor ratifies and approves all such
acts of such attorney-in-fact. Neither the Administrative Agent nor any other
Person designated by the Administrative Agent as attorney-in-fact hereunder will
be liable for any acts or omissions, nor for any errors of judgment or mistakes
of fact or law, except to the extent that such acts,
15
omission, errors, or mistakes, with respect to the Administrative Agent, result
from gross negligence or willful misconduct by the Administrative Agent. This
power, coupled with an interest, is irrevocable until the payment if full of all
Secured Obligations of each Pledgor.
Section 12. Administrative Agent's Right To Take Action. In the event that
any Pledgor fails or refuses promptly to perform any of its obligations set
forth herein, including, without limitation, its obligation pursuant to Section
6(e) hereof to pay taxes, assessments and other charges levied, assessed or
imposed on the Pledged Collateral, or otherwise fails or refuses to pay any
amount necessary for the preservation and protection of the Pledged Collateral,
the Administrative Agent shall have the right, without obligation, to do all
things it deems necessary or advisable to discharge the same (including, without
limitation, to pay any such taxes, assessments, charges or other sums, together
with interest and penalties thereon) and any sums paid by the Administrative
Agent, or the cost thereof, including, without limitation, attorneys' fees,
shall be reimbursed by the Pledgors, to the Administrative Agent on demand and,
until so reimbursed, shall bear interest at the highest rate chargeable under
Section 2.14(c) of the Credit Agreement.
Section 13. Intentionally Omitted.
----------------------
Section 14. Expenses. The Pledgors shall, jointly and severally, pay all
reasonable and customary out-of-pocket costs, expenses, taxes and fees (i)
incurred by the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of this Pledge Agreement and all
certificates, opinions and other documents relating to these transactions,
including, without limitation, the reasonable disbursements and professional
fees of King & Spalding LLP, counsel to the Administrative Agent, in all cases
whether or not the transaction contemplated hereby shall be consummated; (ii)
incurred by the Administrative Agent in connection with the perfection,
registration, maintenance, administration, custody and preservation of the
Pledged Collateral, including, without limitation, with respect to any and all
stamp, intangible or other taxes that may be payable or determined in the future
to be payable in connection with this Pledge Agreement and all other documents
executed or delivered in connection herewith, and relating to releases and
consents; and (iii) incurred by any of the Secured Parties in connection with or
after the occurrence of any Event of Default, including, without limitation, in
connection with (a) the negotiation, preparation, execution and delivery of any
waiver, amendment or consent by the Secured Parties, (b) the negotiation of any
restructuring or workout transaction, and the preparation, execution and
delivery of any documents prepared in connection therewith, and (c) enforcement
or foreclosure with respect to this Pledge Agreement, in all such cases such
costs, expenses, taxes and fees shall include, without limitation, the
disbursements and reasonable professional fees actually incurred of counsel to
any Secured Party. To the extent that any such fees and expenses are subject to
value added taxes, such taxes will be paid by the Pledgors. To the extent
reimbursement is sought pursuant to this Section 14 or any other document
executed pursuant hereto, the Secured Parties shall submit to the Pledgors a
statement of expenses to be paid by the Pledgors. Such expenses shall be due
and payable within thirty (30) days of the date of the original statement to the
extent that such Secured Party is entitled to such reimbursement.
16
Section 15. Indemnity. The Pledgors, jointly and severally, will indemnify
and hold harmless each of the Secured Parties and each of their respective
employees, representatives, officers and directors from and against any and all
claims, liabilities, investigations, losses, damages, actions, and demands by
any party against the Secured Parties or any of them resulting from any breach
or alleged breach by any Pledgor of any representation or warranty made
hereunder, or otherwise arising out of this Pledge Agreement, unless, with
respect to any of the above, any of the Secured Parties are finally judicially
determined to have acted or failed to act with gross negligence or willful
misconduct. This Section 15 shall survive termination of this Pledge Agreement.
Section 16. Limitation On the Administrative Agent's Duty In Respect Of
Pledged Collateral. The Administrative Agent shall use reasonable care with
respect to the Pledged Collateral in its possession or under its control. The
powers conferred on the Administrative Agent hereunder are solely to protect its
interest in the Pledged Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any Pledged
Collateral or any income thereon, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Collateral, whether or not the Administrative Agent, or
any other Secured Party has or is deemed to have knowledge of such matters, or
as to the taking of any necessary steps to preserve rights against any parties
or any other rights pertaining to any Pledged Collateral. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which the
Administrative Agent accords its own property.
Section 17. Security Interest Absolute. All rights of the Administrative
Agent and security interests hereunder, and all obligations of each Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Loan Documents;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations, or any other amendment or waiver
of or any consent to any departure from the Loan Documents including, without
limitation, any increase in the Secured Obligations resulting from the extension
of additional credit to any Pledgor or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Secured Obligations, or any manner of sale or other
disposition of any collateral for all or any part of the Secured Obligations or
any other assets of any Pledgor or any of its Subsidiaries;
17
(e) any change, restructuring or termination of the corporate
structure or existence of any Pledgor or any of its Subsidiaries; or
(f) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Pledgor or a third party pledgor.
Section 18. Reinstatement. This Pledge Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against any Pledgor for liquidation or reorganization, should any Pledgor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Pledgor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance,"
"fraudulent transfer" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
Section 19. Successors And Assigns. This Pledge Agreement and all
obligations of each Pledgor hereunder shall be binding upon the successors and
assigns of such Pledgor (including any debtor-in-possession on behalf of such
Pledgor) and shall, together with the rights and remedies of the Administrative
Agent, for the benefit of the Secured Parties, hereunder, inure to the benefit
of the Administrative Agent, Lenders, all future holders of any instrument
evidencing any of the Secured Obligations and their respective successors and
assigns. No sales of participations, other sales, assignments, transfers or
other dispositions of any agreement governing or instrument evidencing the
Secured Obligations or any portion thereof or interest therein shall in any
manner affect the Lien granted to the Administrative Agent, for the benefit of
the Secured Parties, hereunder. No Pledgor may assign, sell, hypothecate or
otherwise transfer any interest in or obligation under this Pledge Agreement.
Section 20. Waivers; Amendment.
-------------------
(a) No failure or delay by any Secured Party of any kind in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and of the Secured Parties hereunder and of the Lenders under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Pledge
Agreement or consent to any departure by any Pledgor therefrom shall in any
event be effective unless the same shall be permitted by subsection (b) below,
and then such waiver and consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Pledgor in any case shall entitle such Pledgor to any other or further notice in
similar or other circumstances.
18
(b) Neither this Pledge Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Pledgors with respect to which such waiver, amendment or
modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided below and in the
Credit Agreement).
(c) Notwithstanding an contrary provision herein the Administrative
Agent may (but shall not be required to) waive any notice requirement herein.
Section 21. Severability. Any provision of this Pledge Agreement held to
be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without affecting the legality, validity or enforceability of
the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22. Notices. All notices, requests and other communications to the
Pledgors or Administrative Agent hereunder shall be delivered in the manner
required by the Credit Agreement and shall be sufficiently given to
Administrative Agent or any Pledgor if addressed or delivered to them at, in the
case of the Administrative Agent and Borrower, its addresses and telecopier
numbers specified in the Credit Agreement and in the case of any other Pledgor,
at their respective addresses and telecopier numbers provided in the Subsidiary
Guaranty Agreement. All such notices and communications shall be deemed to have
been duly given at the times set forth in the Credit Agreement.
Section 23. Counterparts; Integration. This Pledge Agreement may be
executed by one or more of the parties to this Pledge Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Pledge Agreement constitutes the entire agreement among the parties hereto
regarding the subject matters hereof and supersedes all prior agreements and
understandings, oral or written, regarding such subject matter.
Section 24. Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) This Pledge Agreement shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles
thereof) of the State of Florida.
(b) Each Pledgor hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
courts located within Broward County in the State of Florida, and of any state
court of the State of Florida located in Broward County and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Pledge Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Florida state court or, to the
19
extent permitted by applicable law, such Federal court. Each Pledgor agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Pledge Agreement shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Pledge Agreement against any
Pledgor or its properties in the courts of any jurisdiction.
(c) Each Pledgor irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each party hereto
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each Pledgor irrevocably consents to the service of process in the
manner provided for notices in Section 10.1 of the Credit Agreement. Nothing in
this Pledge Agreement will affect the right of the Administrative Agent or any
Lender to serve process in any other manner permitted by law.
Section 25. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (ii)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 26. Benefit of Secured Parties. All Liens granted or contemplated
hereby shall be for the benefit of the Secured Parties, and all proceeds or
payments realized from Pledged Collateral in accordance herewith shall be
applied to the Secured Obligations in accordance with Section 8.2 of the Credit
Agreement.
Section 27. Termination of this Pledge Agreement. No termination or
cancellation (regardless of cause or procedure) of the Credit Agreement shall in
any way affect or impair the powers, obligations, duties, rights and liabilities
of the parties hereto in any way with respect to (i) any transaction or event
occurring prior to such termination or cancellation, (ii) the Pledged
Collateral, or (iii) any Pledgor's undertakings, agreements, covenants,
warranties and representations contained in this Pledge Agreement and all such
undertakings, agreements, covenants, warranties and representations shall
survive such termination or cancellation until the payment and performance, in
full, of all Secured Obligations of the Pledgors and the termination of all
commitments to lend or issue letters of credit under the Credit Agreement.
Subject to
20
Section 18 hereof, this Pledge Agreement and the security interests granted
hereunder shall terminate when all of the Secured Obligations have been paid in
full in cash and the Lenders have no further commitment to lend under the Credit
Agreement, the LC Exposure has been reduced to zero and the Issuing Bank has no
further obligation to issue Letters of Credit under the Credit Agreement. Upon
such termination, Administrative Agent shall return all Pledged Collateral in
its possession to the respective Pledgors and will, at the sole cost and expense
of the Pledgors, execute such documents, without recourse or warranty, as
Pledgors deem reasonably necessary to release any interests held by
Administrative Agent or the Lenders in the Pledged Collateral.
Section 28. Additional Pledged Collateral. In the event that the any
Pledgor is required, under the terms of any Loan Document or otherwise, to
pledge and hypothecate any Collateral after the Closing Date, such Pledgor shall
pledge and hypothecate such Collateral, and be bound with respect to such
Collateral by all of the terms and conditions hereof, by delivery to the
Administrative Agent of an executed counterpart of a Supplement to Subsidiary
Pledge Agreement in the form of Exhibit A attached hereto and, in such event, no
amendment hereto or consent by the Administrative Agent or any other Lender
shall be required to effectuate the same.
Section 29. Additional Pledgors. To the extent required pursuant to
Section 5.9(a) and Section 5.13 of the Credit Agreement, each Domestic
Subsidiary that was not in existence on the date of the Credit Agreement and
that owns Capital Stock in another Person is required to enter into this Pledge
Agreement as a Pledgor upon becoming such a Subsidiary. Upon execution and
delivery after the date hereof by the Administrative Agent and such Domestic
Subsidiary of an instrument in the form of Exhibit B, such Subsidiary shall
become a Pledgor hereunder with the same force and effect as if originally named
as a Pledgor herein. The execution and delivery of any instrument adding an
additional Pledgor as a party to this Pledge Agreement shall not require the
consent of any other Pledgor hereunder or of any Lender. The rights and
obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Pledgor as a party to this Pledge
Agreement.
[Signature Pages Follow]
21
IN WITNESS WHEREOF, each Pledgor has caused this Pledge Agreement to be
executed and delivered by its duly authorized officer as of the date first
set forth above.
HEICO CORPORATION
By: ______________________________
Thomas S. Irwin
______________
HEICO AEROSPACE HOLDINGS CORP.
By: ______________________________
Thomas S. Irwin
______________
AD HEICO ACQUISITION CORP.
By: ______________________________
Thomas S. Irwin
______________
HEICO ELECTRONIC TECHNOLOGIES CORP.
By: ______________________________
Thomas S. Irwin
______________
DEC TECHNOLOGIES, INC.
By: ______________________________
Thomas S. Irwin
______________
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
LEADER TECH, INC.
By: ______________________________
Thomas S. Irwin
______________
HVT GROUP, INC.
By: ______________________________
Thomas S. Irwin
______________
JA ENGINEERING II CORP.
By: ______________________________
Thomas S. Irwin
______________
PRIME AIR, LLC
By: ______________________________
Thomas S. Irwin
______________
EMD ACQUISITION CORP.
By: ______________________________
Thomas S. Irwin
______________
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
Acknowledged and Agreed to:
SUNTRUST BANK,
as Administrative Agent
By: _______________________
Name:
Title:
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
Schedule I
to
Pledge Agreement
----------------
Part A
Percentage of
Shares No. of Shares
Issued and Issued
Outstanding owned and Outstanding
Name of Place of by Registered Registered owned by
Corporation Incorporation Owner Owner Registered Owner
----------- ------------- ------------------ ---------- ----------------
Part B
Percentage of
Membership
Interests Membership
Issued and Interests Issued
Outstanding and Outstanding
Place of owned by Registered owned by
Name of LLC Organization Registered Owner Owner Registered Owner
- ----------- ------------- ------------------ ---------- ----------------
EXHIBIT A
to
Pledge Agreement
----------------
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL COLLATERAL
------------------------------------------------------
THIS SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL COLLATERAL (this
"Supplement"), dated as of _____________ __, 200_, is executed by [NAME -- IN
ALL CAPS], a [State] [Entity] (the "Supplement Pledgor"), in favor of SUNTRUST
BANK, a Georgia banking corporation, as Administrative Agent (the
"Administrative Agent"), on its behalf and on behalf of the other banks and
lending institutions (the "Lenders") from time to time party to the Second
Amended and Restated Revolving Credit Agreement, dated as May __, 2008, by and
among HEICO Corporation (the "Borrower"), the Lenders, the Administrative Agent,
and SunTrust Bank, as Issuing Bank and as Swingline Lender (as amended,
restated, supplemented, or otherwise modified from time to time, the "Credit
Agreement"). Terms used herein but not defined herein shall have the meaning
defined for those terms in the Pledge Agreement (as defined below).
W I T N E S S E T H:
--------------------
WHEREAS, Borrower, and certain Subsidiaries of Borrower (the
"Pledgors") are parties to that certain Pledge Agreement, dated as of [Date], by
and among the Pledgors in favor the Administrative Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Pledge Agreement"),
pursuant to which the Pledgors have pledged stock and membership interests to
the Administrative Agent, for itself and the benefit of Lenders;
WHEREAS, the Lenders have agreed to make Loans and the Issuing Bank has
agreed to issue Letters of Credit to the Borrower on the terms and conditions
contained therein;
WHEREAS, it is a condition precedent to the continued extension of the
Loans and the continued issuance of Letters of Credit under the Credit Agreement
that the Supplement Pledgor grant to Administrative Agent a security interest in
all of its Additional Pledged Collateral (as defined below), and the Supplement
Pledgor wishes to fulfill said condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to ensure
the compliance with the Credit Agreement, the Supplement Pledgor hereby agrees
as follows:
SECTION 1. Additional Pledge. As security for the payment and
performance of the Secured Obligations, the Supplement Pledgor hereby:
(a) pledges, hypothecates, assigns, charges, mortgages, delivers, sets
over, conveys and transfers to the Administrative Agent, for the benefit of the
Secured Parties, and
grants to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in all of the Supplemental Pledgor's right, title and interest
in and to:
(i) the shares of capital stock more particularly described in
Schedule I hereto and the certificates, if any, evidencing such shares (the
"Additional Pledged Shares") and all cash, instruments and other property
from time to time received, receivable or otherwise distributed in exchange
for any and all of such Additional Pledged Shares;
(ii) the membership interests more particularly described in Schedule
II hereto and the certificates, if any, evidencing such membership interests
(the "Additional Pledged Membership Interests") and all cash, instruments
and other property from time to time received, receivable or otherwise
distributed in exchange for any and all of such Additional Pledged
Membership Interests; and
(iii) all other Pledged Collateral (as defined in the Pledge
Agreement) relating to the Additional Pledged Shares, and the Additional
Pledged Membership Interests (the items described in subsections (i), (ii)
and (iii) above, collectively, the "Additional Pledged Collateral"; provided
that the Additional Pledged Collateral shall not include more than 65% of
the issued and outstanding equity interests of any Foreign Subsidiary); and
(b) delivers to the Administrative Agent, for the benefit of the
Secured Parties, all of the Supplement Pledgor's right, title and interest in
and to the certificates and instruments, if any, evidencing the Additional
Pledged Collateral, accompanied by instruments of transfer or assignment, duly
executed in blank.
SECTION 2. Representations and Warranties. The Supplement Pledgor
hereby (a) represents and warrants that it is the legal and beneficial owner of
the Additional Pledged Collateral, free and clear of any lien, security
interest, option or other charge or encumbrance except for the security interest
created by the Pledge Agreement as supplemented by this Supplement; and (b)
restates each representation and warranty set forth in Section 5 of the Pledge
Agreement, as supplemented by this Supplement, as of the date hereof with
respect to the Additional Pledged Collateral.
SECTION 3. Additional Pledged Collateral. By execution and delivery
of this Supplement, the Additional Pledged Collateral shall become a part of the
Pledged Collateral referred to in the Pledge Agreement and shall secure the
Secured Obligations as if such Additional Pledged Collateral were Pledged
Collateral on the Closing Date, and shall be subject to all of the terms and
conditions governing Pledged Collateral under the Pledge Agreement. From and
after the date hereof, Schedule I and Schedule II to the Pledge Agreement are
hereby amended to add the Additional Pledged Collateral.
SECTION 4. Binding Effect. This Supplement shall become effective
when it shall have been executed by the Supplement Pledgor and thereafter shall
be binding upon the Supplement Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders. Upon the effectiveness of this
Supplement, this Supplement shall be deemed to be a part of and
shall be subject to all the terms and conditions of the Pledge Agreement. The
Supplement Pledgor shall not have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Lenders.
SECTION 5. Governing Law; Terms. THIS SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF FLORIDA.
SECTION 6. Execution in Counterparts. This Supplement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the Supplement Pledgor has caused this Supplement
to be duly executed and delivered by its duly authorized officer as of the date
first above written.
[NAME OF SUPPLEMENT PLEDGOR]
By: _________________________________
Name:
Title:
Schedule I
to
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL COLLATERAL
Schedule II
to
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL COLLATERAL
EXHIBIT B
to
Pledge Agreement
----------------
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL PLEDGOR
THIS SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL PLEDGOR (this
"Supplement"), dated as of _____________ __, 200_, is executed by [NAME - IN ALL
CAPS], a [State] [Entity] (the "New Pledgor"), in favor of SUNTRUST BANK, a
Georgia banking corporation, as Administrative Agent (the "Administrative
Agent"), on its behalf and on behalf of the other banks and lending institutions
(the "Lenders") from time to time party to the Second Amended and Restated
Revolving Credit Agreement, dated as of May __, 2008, by and among HEICO
Corporation (the "Borrower"), the Lenders, the Administrative Agent, and
SunTrust Bank, as Issuing Bank and as Swingline Lender (as amended, restated,
supplemented, or otherwise modified from time to time, the "Credit Agreement").
Terms used herein but not defined herein shall have the meaning defined for
those terms in the Pledge Agreement (as defined below).
W I T N E S S E T H:
--------------------
WHEREAS, Borrower, and certain Subsidiaries of Borrower (the
"Pledgors") are parties to that certain Pledge Agreement, dated as of [Date], by
and among the Pledgors in favor the Administrative Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Pledge Agreement"),
pursuant to which the Pledgors have pledged stock and membership interests to
the Administrative Agent, for itself and the benefit of Lenders;
WHEREAS, the Lenders have agreed to make Loans and the Issuing Bank has
agreed to issue Letters of Credit to the Borrower on the terms and conditions
contained therein;
WHEREAS, it is a condition precedent to the continued extension of the
Loans and the continued issuance of Letters of Credit under the Credit Agreement
that the New Pledgor grant to Administrative Agent a security interest in all of
its Pledged Collateral (as defined below), and the New Pledgor wishes to fulfill
said condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to ensure
the compliance with the Credit Agreement, the New Pledgor hereby agrees as
follows:
SECTION 1. Pledge. As security for the payment and performance of the
Secured Obligations, the New Pledgor hereby:
(a) pledges, hypothecates, assigns, charges, mortgages, delivers, sets
over, conveys and transfers to the Administrative Agent, for the benefit of the
Secured Parties, and grants to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in all of New Pledgor's right, title and
interest in and to:
(i) the shares of capital stock more particularly described in
Schedule I hereto and the certificates, if any, evidencing such shares (the
"Pledged Shares") and all cash, instruments and other property from time to
time received, receivable or otherwise distributed in exchange for any and
all of such Pledged Shares;
(ii) the membership interests more particularly described in Schedule
II hereto and the certificates, if any, evidencing such membership interests
(the "Pledged Membership Interests") and all cash, instruments and other
property from time to time received, receivable or otherwise distributed in
exchange for any and all of such Pledged Membership Interests; and
(iv) all other collateral relating to the Pledged Shares and the
Pledged Membership Interests (the items described in subsections (i), (ii)
and (iii) above, collectively, the "Pledged Collateral"; provided that the
Pledged Collateral shall not include more than 65% of the issued and
outstanding equity interests of any Foreign Subsidiary); and
(b) delivers to the Administrative Agent, for the benefit of the Secured
Parties, all of New Pledgor's right, title and interest in and to the
certificates and instruments, if any, evidencing the Pledged Collateral,
accompanied by instruments of transfer or assignment, duly executed in blank.
SECTION 2. Joinder. In accordance with Section 29 of the Pledge
Agreement, the New Pledgor by its signature below becomes a Pledgor under the
Pledge Agreement with the same force and effect as if originally named therein
as a Pledgor and the New Pledgor hereby (i) agrees to all the terms and
provisions of the Pledge Agreement applicable to it as Pledgor thereunder and
(ii) represents and warrants that the representations and warranties made by it
as a Pledgor thereunder are true and correct on and as of the date hereof. Each
reference to a Pledgor in the Pledge Agreement shall be deemed to include the
New Pledgor. The Pledge Agreement is hereby incorporated herein by reference.
SECTION 3. Representations and Warranties. The New Pledgor represents
and warrants to the Administrative Agent and the Lenders that this Supplement
has been duly authorized, executed and delivered by it and that each of this
Supplement and the Pledge Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
SECTION 4. Binding Effect. This Supplement shall become effective
when it shall have been executed by the New Pledgor and thereafter shall be
binding upon the New Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders. Upon the effectiveness of this
Supplement, this Supplement shall be deemed to be a part of and shall be subject
to all the terms and conditions of the Pledge Agreement. The New Pledgor shall
not have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 5. Governing Law. THIS SUPPLEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF FLORIDA.
SECTION 6. Execution in Counterparts. This Supplement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same
agreement.
SECTION 7. Notices to New Pledgor. All communications and notices
hereunder shall be in writing and given as provided in Section 22 of the Pledge
Agreement. All communications and notices hereunder to the New Pledgor shall be
given to it at the address set forth under its signature below, with a copy to
the Borrower.
IN WITNESS WHEREOF, the New Pledgor has duly executed this Supplement
to the Pledge Agreement as of the day and year first above written.
[NAME OF NEW PLEDGOR]
By ________________________________
Name:
Title:
Address:
Schedule I
to
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL PLEDGOR
Schedule II
to
SUPPLEMENT TO PLEDGE AGREEMENT - ADDITIONAL PLEDGOR
EXHIBIT C
FORM OF SUBSIDIARY GUARANTY AGREEMENT
-------------------------------------
THIS SUBSIDIARY GUARANTY AGREEMENT (the "Agreement"), dated as of May __,
2008, by and among HEICO CORPORATION, a Florida corporation (the "Borrower"),
each of the subsidiaries of the Borrower listed on Schedule I hereto (each such
subsidiary individually, a "Guarantor" and collectively, the "Guarantors") and
SUNTRUST BANK, a Georgia banking corporation, as administrative agent (the
"Administrative Agent") for the benefit of itself and the several banks and
other financial institutions (the "Lenders") from time to time party to the
Second Amended and Restated Revolving Credit Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders, the Administrative Agent, and
SunTrust Bank, as Issuing Bank and as Swingline Lender (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein and not otherwise defined herein shall the
meanings assigned to such terms in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
establish a revolving credit facility in favor of the Borrower;
WHEREAS, each of the Guarantors is a direct or indirect Subsidiary of the
Borrower and will derive substantial benefit from the making of Loans by the
Lenders and the issuance of Letters of Credit by the Issuing Bank; and
WHEREAS, it is a condition precedent to the obligations of the
Administrative Agent, the Issuing Bank, the Swingline Lender, and the Lenders
under the Credit Agreement that each Guarantor execute and deliver to the
Administrative Agent a Subsidiary Guaranty Agreement in the form hereof, and
each Guarantor wishes to fulfill said condition precedent;
NOW, THEREFORE, in order to induce Lenders to extend the Loans and the
Issuing Bank to issue Letters of Credit and to make the financial accommodations
as provided for in the Credit Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Guarantee.
----------
Each Guarantor unconditionally guarantees, jointly with the other Guarantors
and severally, as a primary obligor and not merely as a surety, (i) the due and
punctual payment of all Obligations, including without limitation, (A) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at
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maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (B) each payment required to be made by the Borrower under the Credit
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (C) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents, (ii) the due and punctual performance of
all covenants, agreements, obligations and liabilities of the Loan Parties under
or pursuant to the Credit Agreement and the other Loan Documents and (iii) the
due and punctual payment and performance of all obligations of the Borrower,
monetary or otherwise, arising under any Hedging Transaction entered into with a
counterparty that was a Lender or an Affiliate of a Lender at the time such
Hedging Transaction was entered into, together with all renewals, extensions,
modifications or refinancings of any of the foregoing (all the monetary and
other obligations referred to in the preceding clauses (i) through (iii) being
collectively called the "Guaranteed Obligations"). Each Guarantor further
agrees that the Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice to or further assent from such Guarantor, and that such
Guarantor will remain bound upon its guarantee notwithstanding any extension or
renewal of any Guaranteed Obligations.
Section 2. Obligations Not Waived.
-----------------------
To the fullest extent permitted by applicable law, each Guarantor waives
presentment or protest to, demand of or payment from the other Loan Parties of
any of the Guaranteed Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. To the fullest extent permitted
by applicable law, the obligations of each Guarantor hereunder shall not be
affected by (i) the failure of the Administrative Agent or any Lender to assert
any claim or demand or to enforce or exercise any right or remedy against the
Borrower or any other Guarantor under the provisions of the Credit Agreement,
any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, this
Agreement, any other Loan Document, any guarantee or any other agreement,
including with respect to any other Guarantor under this Agreement, or (iv) the
failure to perfect any security interest in, or the release of, any of the
security held by or on behalf of the Administrative Agent or any Lender.
Section 3. Guarantee of Payment.
---------------------
Each Guarantor further agrees that its guarantee constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by the Administrative Agent or any Lender to any of the security
held for payment of the Guaranteed Obligations or to any balance of any deposit
account or credit on the books of the Administrative Agent or any Lender in
favor of the Borrower or any other Person.
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Section 4. No Discharge or Diminishment of Guarantee.
------------------------------------------
The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations), including
any claim of waiver, release, surrender, alteration or compromise of any of the
Guaranteed Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise affected by
the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce any remedy under the Credit Agreement, any other Loan
Document or any other agreement, by any waiver or modification of any provision
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations, or by any other act or omission that
may or might in any manner or to the extent vary the risk of any Guarantor or
that would otherwise operate as a discharge of each Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations).
Section 5. Defenses of Borrower Waived.
----------------------------
To the fullest extent permitted by applicable law, each Guarantor waives any
defense based on or arising out of any defense of any Loan Party or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Loan Party, other
than the final and indefeasible payment in full in cash of the Guaranteed
Obligations. The Administrative Agent and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Guaranteed Obligations, make
any other accommodation with any other Loan Party or any other guarantor,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been fully,
finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor or guarantor, as the case may be, or
any security.
Section 6. In furtherance of the foregoing and not in limitation of any
other right that the Administrative Agent or any Lender has at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Borrower or any
other Loan Party to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise,
each Guarantor hereby promises to and will forthwith pay, or cause to be paid,
to the Administrative Agent for the benefit of the Lenders in cash the amount of
such unpaid Obligation. Upon payment by any Guarantor of any sums to the
Administrative Agent, all rights of such Guarantor against any Loan Party
arising as a result thereof by way of right of subrogation, contribution,
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reimbursement, indemnity or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full in cash of
all the Guaranteed Obligations. In addition, any indebtedness of any Loan Party
now or hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full in cash of the Guaranteed Obligations. If
any amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of any Loan Party, such amount shall be held in trust for the
benefit of the Administrative Agent and the Lenders and shall forthwith be paid
to the Administrative Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
Section 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of other Loan Parties' financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
Section 8. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 6), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under this Agreement, the Borrower shall indemnify such
Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets of any Guarantor
shall be sold to satisfy a claim of any Lender under this Agreement, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
Section 9. Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 6) that, in the event a payment shall be
made by any other Guarantor under this Agreement or assets of any other
Guarantor shall be sold to satisfy a claim of any Lender and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Borrower as provided in Section 8, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 21, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to
a Claiming Guarantor pursuant to this Section 9 shall be subrogated to the
rights of such Claiming Guarantor under Section 8 to the extent of such payment.
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Section 10. Subordination. Notwithstanding any provision of this Agreement
to the contrary, all rights of the Guarantors under Section 8 and Section 9 and
all other rights of indemnity, contribution or subrogation under applicable law
or otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Guaranteed Obligations. No failure on the part of the Borrower or
any Guarantor to make the payments required under applicable law or otherwise
shall in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
Section 11. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as
a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
Section 12. Termination. The guarantees made hereunder (i) shall terminate
when all the Guaranteed Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement, the LC
Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (ii) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise. In connection with the foregoing, the
Administrative Agent shall execute and deliver to such Guarantor or Guarantor's
designee, at such Guarantor's expense, any documents or instruments, without
representation (other than as to due authority) or recourse, which such
Guarantor shall reasonably request from time to time to evidence such
termination and release.
Section 13. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of
the capital stock of a Guarantor is sold, transferred or otherwise disposed of
pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
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Section 14. Waivers; Amendment.
-------------------
(a) No failure or delay of the Administrative Agent of any kind in
exercising any power, right or remedy hereunder and no course of dealing between
any Guarantor on the one hand the and Administrative Agent or any holder of any
Note on the other hand shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or remedy hereunder, under any
other Loan Document or under any Hedging Document, or any abandonment or
discontinuance of steps to enforce such a power, right or remedy, preclude any
other or further exercise thereof or the exercise of any other power, right or
remedy. The rights and of the Administrative Agent hereunder and of the Lenders
under the other Loan Documents and the Hedging Documents, as applicable, are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by subsection (b) below, and then such waiver and
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guarantor in any case shall entitle
such Guarantor to any other or further notice in similar or other circumstances.
Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Administrative Agent, with the prior written consent of the Required
Lenders (except as otherwise provided in the Credit Agreement).
Section 15. Notices.
--------
All communications and notices hereunder shall be in writing and given as
provided in Section 10.1 of the Credit Agreement. All communications and
notices hereunder to each Guarantor shall be given to it at its address set
forth on Schedule I attached hereto.
Section 16. Severability.
-------------
Any provision of this Agreement held to be illegal, invalid or unenforceable
in any jurisdiction, shall, as to such jurisdiction, be ineffective to the
extent of such illegality, invalidity or unenforceability without affecting the
legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 17. Counterparts; Integration.
--------------------------
This Agreement may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract (subject to Section 13), and shall become effective as provided
in Section 13. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement. This Agreement
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constitutes the entire agreement among the parties hereto regarding the subject
matters hereof and supersedes all prior agreements and understandings, oral or
written, regarding such subject matter.
Section 18. Rules of Interpretation.
------------------------
The rules of interpretation specified in Section 1.5 of the Credit Agreement
shall be applicable to this Agreement.
Section 19. Governing Law; Jurisdiction; Consent to Service of Process.
-----------------------------------------------------------
(a) This Agreement shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles
thereof) of the State of Florida.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
courts located within Broward County of the State of Florida, and of any state
court of the State of Florida located in Broward County and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, any other Loan Document or any Hedging Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such Florida state court or, to the extent permitted by
applicable law, such Federal court. Each Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Guarantor or its properties in
the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each party
hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each Guarantor irrevocably consents to the service of process in
the manner provided for notices in Section 10.1 of the Credit Agreement. Nothing
in this Agreement will affect the right of the Administrative Agent or any
Lender to serve process in any other manner permitted by law.
Section 20. Waiver of Jury Trial.
---------------------
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
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TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY HEDGING DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE HEDGING
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 21. Additional Guarantors.
----------------------
Pursuant to Section 5.13 of the Credit Agreement, each Subsidiary that was
not in existence on the date of the Credit Agreement is required to enter into
this Agreement as a Guarantor upon becoming a Subsidiary. Upon execution and
delivery after the date hereof by the Administrative Agent and such Subsidiary
of an instrument in the form of Annex 1, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
Section 22. Right of Setoff.
----------------
If an Event of Default shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time, 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 and other Indebtedness at
any time owing by such Lender to or for the credit or the account of any
Guarantor against any or all the obligations of such Guarantor now or hereafter
existing under this Agreement, the other Loan Documents and the Hedging
Documents held by such Lender, irrespective of whether or not such Person shall
have made any demand under this Agreement, any other Loan Document or any
Hedging Document and although such obligations may be unmatured. The rights of
each Lender under this Section 22 are in addition to other rights and remedies
(including other rights of setoff) that such Lender may have.
Section 23. Savings Clause.
---------------
(a) It is the intent of each Guarantor and the Administrative Agent that
each Guarantor's maximum obligations hereunder shall be, but not in excess of:
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(i) in a case or proceeding commenced by or against any Guarantor
under the provisions of Title 11 of the United States Code, 11 U.S.C.
[SEC][SEC]101 et seq. (the "Bankruptcy Code") on or within two years from
the date on which any of the Guaranteed Obligations are incurred, the
maximum amount which would not otherwise cause the Guaranteed Obligations
(or any other obligations of such Guarantor owed to the Administrative Agent
or the Lenders) to be avoidable or unenforceable against such Guarantor
under (i) Section 548 of the Bankruptcy Code or (ii) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against any Guarantor
under the Bankruptcy Code subsequent to two years from the date on which any
of the Guaranteed Obligations are incurred, the maximum amount which would
not otherwise cause the Guaranteed Obligations (or any other obligations of
such Guarantor to the Administrative Agent or the Lenders) to be avoidable
or unenforceable against such Guarantor under any state fraudulent transfer
or fraudulent conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against any Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise
cause the Guaranteed Obligations (or any other obligations of such Guarantor
to the Administrative Agent or the Lenders) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding.
(b) The substantive laws under which the possible avoidance or
unenforceability of the Guaranteed Obligations (or any other obligations of such
Guarantor to the Administrative Agent or the Lenders) as may be determined in
any case or proceeding shall hereinafter be referred to as the "Avoidance
Provisions". To the extent set forth in Section 23(a)(i), (ii), and (iii), but
only to the extent that the Guaranteed Obligations would otherwise be subject to
avoidance or found unenforceable under the Avoidance Provisions, if any
Guarantor is not deemed to have received valuable consideration, fair value or
reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed
Obligations would render such Guarantor insolvent, or leave such Guarantor with
an unreasonably small capital to conduct its business, or cause such Guarantor
to have incurred debts (or to have intended to have incurred debts) beyond its
ability to pay such debts as they mature, in each case as of the time any of the
Guaranteed Obligations are deemed to have been incurred under the Avoidance
Provisions and after giving effect to the contribution by such Guarantor, the
maximum Guaranteed Obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving effect thereto,
would not cause the Guaranteed
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Obligations (or any other obligations of such Guarantor to the Administrative
Agent or the Lenders), as so reduced, to be subject to avoidance or
unenforceability under the Avoidance Provisions.
(c) This Section 23 is intended solely to preserve the rights of the
Administrative Agent and the Lenders hereunder to the maximum extent that would
not cause the Guaranteed Obligations of such Guarantor to be subject to
avoidance or unenforceability under the Avoidance Provisions, and neither the
Guarantors nor any other Person shall have any right or claim under this Section
23 as against the Administrative Agent or Lenders that would not otherwise be
available to such Person under the Avoidance Provisions.
(signatures follow)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
HEICO CORPORATION
By: _______________________________
Thomas S. Irwin
Executive Vice President, Chief
Financial Officer and Treasurer
HEICO AEROSPACE HOLDINGS CORP.
HEICO AEROSPACE CORPORATION
JET AVION CORPORATION
LPI INDUSTRIES CORPORATION
AIRCRAFT TECHNOLOGY, INC.
NORTHWINGS ACCESSORIES CORP.
MCCLAIN INTERNATIONAL, INC.
MCCLAIN PROPERTY CORP.
ROGERS-DIERKS, INC.
TURBINE KINETICS, INC.
THERMAL STRUCTURES, INC.
FUTURE AVIATION, INC.
AVITECH ENGINEERING CORPORATION
AVIATION FACILITIES, INC.
HEICO AEROSPACE PARTS CORP.
JETSEAL, INC.
HEICO AEROSPACE C&A CORP.
NIACC TECHNOLOGY, INC.
HEICO ELECTRONIC TECHNOLOGIES CORP.
RADIANT POWER CORP.
LEADER TECH, INC.
SANTA BARBARA INFRARED, INC.
ANALOG MODULES, INC.
INERTIAL AIRLINE SERVICES, INC.
HEICO EAST CORPORATION
CONNECTRONICS CORP.
HNW 2 BUILDING CORP.
JA ENGINEERING I CORP.
JA ENGINEERING II CORP.
SIERRA MICROWAVE TECHNOLOGY, LLC
LUMINA POWER, INC.
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
By: _______________________________
Thomas S. Irwin
As Treasurer of each of the
above corporations
HNW BUILDING CORP.
ATK ACQUISITION CORP.
AD HEICO ACQUISITION CORP.
101 LUMMIS ROAD CORP.
By: _______________________________
Thomas S. Irwin
As President and Treasurer of
each of the above corporations
AERODESIGN, INC.
By: _______________________________
Thomas S. Irwin
President
By: _______________________________
Elizabeth R. Letendre
Secretary
BATTERY SHOP, L.L.C.
By: AD HEICO Acquisition Corp., its sole
member
By: _______________________________
Thomas S. Irwin
President and Treasurer
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
SUNTRUST BANK, as
Administrative Agent
By: _______________________________
Name:
Title:
[SIGNATURE PAGE TO SUBSIDIARY GUARANTY AGREEMENT]
SCHEDULE I TO THE
SUBSIDIARY GUARANTY AGREEMENT
Guarantor(s) Address
------------ -------
ANNEX 1
to
SUBSIDIARY GUARANTY AGREEMENT
-----------------------------
SUPPLEMENT NO. ___ dated as of _____________, to the Subsidiary Guaranty
Agreement, dated as of ____ __, ____ (the "Guaranty Agreement"), among HEICO
CORPORATION, a Florida corporation (the "Borrower"), each of the subsidiaries of
the Borrower listed on Schedule I thereto (each such subsidiary individually, a
"Guarantor" and collectively, the "Guarantors") and SUNTRUST BANK, a Georgia
banking corporation, as administrative agent (the "Administrative Agent") for
the Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the Second Amended and Restated Revolving Credit
Agreement, dated as of May __, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders") and
SunTrust Bank, as Administrative Agent and issuing bank (in such capacity, the
"Issuing Bank").
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Guaranty Agreement and the Credit
Agreement.
The Guarantors have entered into the Guaranty Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Pursuant to Section 5.13 of the Credit Agreement, each Subsidiary that was not
in existence or not a Guarantor on the date of the Credit Agreement is required
to enter into the Guaranty Agreement as a Guarantor upon becoming a Subsidiary.
Section 21 of the Guaranty Agreement provides that additional Subsidiaries of
the Borrower may become Guarantors under the Guaranty Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary of the Borrower (the "New Guarantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Guaranty Agreement in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
Section 1. Joinder.
--------
In accordance with Section 21 of the Guaranty Agreement, the New Guarantor
by its signature below becomes a Guarantor under the Guaranty Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby (i) agrees to all the terms and provisions of the Guaranty
Agreement applicable to it as Guarantor thereunder and (ii) represents and
warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and as of the date hereof. Each reference to
a Guarantor in the Guaranty Agreement shall be deemed to
include the New Guarantor. The Guaranty Agreement is hereby incorporated herein
by reference.
Section 2. Representations and Warranties.
-------------------------------
The New Guarantor represents and warrants to the Administrative Agent and
the Lenders that this Supplement has been duly authorized, executed and
delivered by it and that each of this Supplement and the Guaranty Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms , except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
Section 3. Binding Effect.
---------------
This Supplement shall become effective when it shall have been executed by
the New Guarantor and thereafter shall be binding upon the New Guarantor and
shall inure to the benefit of the Administrative Agent and the Lenders. Upon
the effectiveness of this Supplement, this Supplement shall be deemed to be a
part of and shall be subject to all the terms and conditions of the Guaranty
Agreement. The New Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
Section 4. Governing Law.
--------------
THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
Section 5. Execution in Counterparts.
--------------------------
This Supplement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 6. Notices to New Guarantor.
-------------------------
All communications and notices hereunder shall be in writing and given as
provided in Section 15 of the Guaranty Agreement. All communications and
notices hereunder to the New Guarantor shall be given to it at the address set
forth under its signature below, with a copy to the Borrower.
(signatures follow)
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly
executed this Supplement to the Guaranty Agreement as of the day and year first
above written.
[NAME OF NEW GUARANTOR]
By: _______________________________
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By: _______________________________
Name:
Title:
EXHIBIT 2.3
FORM OF NOTICE OF REVOLVING BORROWING
-------------------------------------
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Attention: Agency Services
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Credit
Agreement dated as of May __, 2008 (as amended and in effect on the date hereof,
the "Credit Agreement"), among the undersigned, as Borrower, the lenders from
time to time party thereto, and SunTrust Bank, as Administrative Agent, Issuing
Bank and Swingline Lender. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes a Notice of Revolving
Borrowing, and the Borrower hereby requests a Revolving Borrowing under the
Credit Agreement, and in that connection the Borrower specifies the following
information with respect to the Revolving Borrowing requested hereby:
(A) Currency: [Dollars] [Euros]
(B) Aggregate principal amount of Revolving Borrowing(1):______________
(C) Date of Revolving Borrowing (which is a Business Day):____________
(D) Interest Rate basis(2) :______________________
(E) Interest Period(3):___________________________
(F) Location and number of Borrower's account to which proceeds of Revolving
Borrowing are to be disbursed:_______________________
- ---------------------
(1) With respect to Eurodollar Borrowing, not less than the Dollar Equivalent of
$5,000,000 or a larger multiple of $1,000,000, and with respect to Base Rate
Borrowing, not less that $1,000,000 or a larger multiple of $100,000.
(2) Eurodollar Borrowing or Base Rate Borrowing. For a Borrowing in Euros the
Interest Rate basis must be a Eurodollar Borrowing.
(3) Which must comply with the definition of "Interest Period" and end not later
than the Revolving Commitment Termination Date.
Exhibit 2.3 - 1
The Borrower hereby represents and warrants that the conditions specified in
paragraphs (a), (b), (c), and (d) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
HEICO CORPORATION
By: _______________________________
Name:
Title:
EXHIBIT 2.4
FORM OF NOTICE OF SWINGLINE BORROWING
-------------------------------------
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Attention: Agency Services
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Credit
Agreement dated as of May __, 2008 (as amended and in effect on the date hereof,
the "Credit Agreement"), among the undersigned, as Borrower, the lenders named
therein, and SunTrust Bank, as Administrative Agent, Issuing Bank and Swingline
Lender. Terms defined in the Credit Agreement are used herein with the same
meanings. This notice constitutes a Notice of Swingline Borrowing, and the
Borrower hereby requests a Swingline Borrowing under the Credit Agreement, and
in that connection the Borrower specifies the following information with respect
to the Swingline Borrowing requested hereby:
(A) Principal amount of Swingline Loan1(1):________________
(B) Date of Swingline Loan (which is a Business Day):________________
(C) Location and number of Borrower's account to which proceeds of Swingline
Loan are to be disbursed:________________________________
The Borrower hereby represents and warrants that the conditions specified in
paragraphs (a), (b), (c) and (d) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
HEICO CORPORATION
By: _______________________________
Name:
Title:
- ------------------------
(1) Not less than $100,000 or a larger multiple of $50,000.
Exhibit 2.4 - 1
EXHIBIT 2.6
FORM OF NOTICE OF CONVERSION/CONTINUATION
------------------------------------------
Reference is made to the Second Amended and Restated Revolving Credit
Agreement dated as of May __, 2008 (as amended and in effect on the date hereof,
the "Credit Agreement"), among the undersigned, as Borrower, the lenders named
therein (the "Lenders"), and SunTrust Bank, as Administrative Agent for the
Lenders, Issuing Bank and Swingline Lender. Terms defined in the Credit
Agreement are used herein with the same meanings.
Borrower hereby gives irrevocable notice, pursuant to Section 2.6 of the
Credit Agreement, of its request to:
(1) on [DATE] convert [$___________] of the aggregate outstanding
principal amount of the Base Rate Loan(s) into a Eurodollar Loan having an
Interest Period of [_____] month(s);
(2) on [DATE](1) convert [$___________] of the aggregate outstanding
principal amount of the Eurodollar Loan(s) into a Base Rate Loan;
(3) on [DATE] continue [$___________] of the aggregate outstanding
principal amount of the Eurodollar Loan(s), bearing interest at the Adjusted
LIBO Rate, as a Eurodollar Loan having an Interest Period of [_____] month(s).
Borrower hereby represents and warrants that all of the conditions contained
in paragraphs (a), (b) and (c) of Section 3.2 of the Loan Agreement have been
satisfied on and as of the date hereof, and will continue to be satisfied on and
as of the date of the conversion/continuation requested hereby, before and after
giving effect thereto.
IN WITNESS WHEREOF, Borrower has caused this Notice of
Conversion/Continuation to be executed and delivered by its duly authorized
officer as of the date first set forth above.
HEICO CORPORATION
By: _______________________________
Name:
Title:
- --------------------
(1) Which date shall be the end of the Interest Period then in effect for the
Eurodollar Loans being converted.
Exhibit 2.6 - 1
EXHIBIT 5.1(e)
FORM OF COMPLIANCE CERTIFICATE
------------------------------
[Date]
To: SunTrust Bank, as Administrative Agent
303 Peachtree St., N.E.
Atlanta, GA 30308
Attention: _____________
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Credit
Agreement, dated as of May __, 2008 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein and in the exhibits hereto and not otherwise
defined shall have the meanings assigned to such terms in the Credit Agreement),
among HEICO Corporation, a Florida corporation (the "Borrower"), the several
banks and other financial institutions from time to time party thereto (the
"Lenders") and SunTrust Bank, as the administrative agent for the Lenders. This
certificate is being delivered pursuant to Section 5.1(e) of the Credit
Agreement.
I, _____________, in my capacity as the Chief Financial Officer of the
Borrower, DO HEREBY represent and warrant, on behalf of the Borrower, that:
(a) I have reviewed the financial statements (the "Financial Statements") of
the Borrower and its Subsidiaries attached as Exhibit A;
(b) The Financial Statements fairly represent, in all material respects, the
financial condition, results of operations, shareholders' equity and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP at such date and
for such period, subject only to normal year-end audit adjustments and the
absence of footnotes in the case of unaudited Financial Statements;
(c) The Financial Statements have been filed with the Securities and
Exchange Commission, the required officers of the Borrower have made the
certifications to the Securities and Exchange Commission required under Sections
302(a) and 906(a) of the Sarbanes-Oxley Act of 2002, as amended, and such
certifications are true and correct;
(d) As of the date hereof, there exists no Default or Event of Default
except those listed on Exhibit B attached hereto, which exhibit specifies the
details of the Default or Event of Default as well as actions the Borrower has
taken or proposes to take with respect thereto;
Exhibit 5.1(e) - 1
(e) Attached hereto as Exhibit C are calculations set forth in reasonable
detail demonstrating compliance with Article VI of the Credit Agreement; and
(f) Since the date of the previous audited Financial Statements delivered
pursuant to Section 4.4 or Section 5.1 of the Credit Agreement, as applicable,
there has been no change in GAAP or the application thereof except for such
changes set forth in Exhibit D attached hereto, which exhibit specifies the
effect of such change or changes on the Financial Statements delivered herewith.
IN WITNESS WHEREOF, I have hereunto signed my name, in my capacity as the
Chief Financial Officer of the Borrower and on behalf of the Borrower, this __
day of _____________, 200__.
________________________
Name:
Title: Chief Financial Officer
EXHIBIT A
Financial Statements
Exhibit 5.1(e) - 4
EXHIBIT B
Events of Default
Exhibit 5.1(e) - 5
EXHIBIT C
Compliance Calculations
Exhibit 5.1(e) - 6
EXHIBIT D
Changes in GAAP
Exhibit 5.1(e) - 7