EXHIBIT 10.2
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of
September 15, 2003
among
CHART INDUSTRIES, INC.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
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$40,000,000
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J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................. 2
SECTION 1.01. Defined Terms................................................... 2
SECTION 1.02. Classification of Loans and Borrowings.......................... 23
SECTION 1.03. Terms Generally................................................. 23
SECTION 1.04. Accounting Terms; GAAP; Annualization of Financial Covenants.... 24
SECTION 1.05. European Monetary Union......................................... 24
ARTICLE II THE CREDITS ............................................................. 25
SECTION 2.01. Commitments..................................................... 25
SECTION 2.02. Loans and Borrowings............................................ 25
SECTION 2.03. Requests for Borrowings......................................... 26
SECTION 2.04. Letters of Credit............................................... 26
SECTION 2.05. Funding of Borrowings........................................... 32
SECTION 2.06. Interest Elections.............................................. 33
SECTION 2.07. Termination and Reduction of the Commitments.................... 34
SECTION 2.08. Repayment of Loans; Evidence of Debt............................ 34
SECTION 2.09. Prepayment of Loans............................................. 35
SECTION 2.10. Fees............................................................ 38
SECTION 2.11. Interest........................................................ 39
SECTION 2.12. Alternate Rate of Interest...................................... 40
SECTION 2.13. Increased Costs................................................. 41
SECTION 2.14. Break Funding Payments.......................................... 42
SECTION 2.15. Taxes........................................................... 42
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..... 43
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.................. 45
ARTICLE III GUARANTEE .............................................................. 46
SECTION 3.01. The Guarantee................................................... 46
SECTION 3.02. Obligations Unconditional....................................... 47
SECTION 3.03. Reinstatement................................................... 48
SECTION 3.04. Subrogation..................................................... 48
SECTION 3.05. Remedies........................................................ 48
SECTION 3.06. Instrument for the Payment of Money............................. 48
SECTION 3.07. Continuing Guarantee............................................ 49
SECTION 3.08. Rights of Contribution.......................................... 49
SECTION 3.09. General Limitation on Guarantee Obligations..................... 49
ARTICLE IV REPRESENTATIONS AND WARRANTIES .......................................... 50
SECTION 4.01. Organization; Powers............................................ 50
SECTION 4.02. Authorization; Enforceability................................... 50
SECTION 4.03. Governmental Approvals; No Conflicts............................ 50
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SECTION 4.04. Financial Condition; No Material Adverse Change............. 50
SECTION 4.05. Properties.................................................. 51
SECTION 4.06. Litigation.................................................. 51
SECTION 4.07. Environmental Matters....................................... 51
SECTION 4.08. Compliance with Laws and Agreements......................... 53
SECTION 4.09. Investment and Holding Company Status....................... 53
SECTION 4.10. Taxes....................................................... 54
SECTION 4.11. ERISA....................................................... 54
SECTION 4.12. Disclosure.................................................. 54
SECTION 4.13. Use of Credit............................................... 54
SECTION 4.14. Debt Agreements and Liens................................... 54
SECTION 4.15. Subsidiaries and Investments................................ 55
SECTION 4.16. Real Property............................................... 56
SECTION 4.17. Labor Matters............................................... 56
SECTION 4.18. No Burdensome Restrictions.................................. 56
SECTION 4.19. Solvency.................................................... 56
ARTICLE V CONDITIONS............................................................ 57
SECTION 5.01. Effective Date.............................................. 57
SECTION 5.02. Each Credit Event........................................... 60
ARTICLE VI AFFIRMATIVE COVENANTS................................................ 60
SECTION 6.01. Financial Statements and Other Information.................. 60
SECTION 6.02. Notices of Certain Events and Developments.................. 63
SECTION 6.03. Existence; Conduct of Business.............................. 64
SECTION 6.04. Payment of Obligations...................................... 64
SECTION 6.05. Maintenance of Properties; Insurance........................ 64
SECTION 6.06. Books and Records; Inspection............................... 64
SECTION 6.07. Compliance with Laws and Agreements......................... 65
SECTION 6.08. Use of Proceeds and Letters of Credit....................... 65
SECTION 6.09. Additional Guarantors; Additional Collateral;
Ownership of Subsidiaries................................... 65
ARTICLE VII NEGATIVE COVENANTS.................................................. 68
SECTION 7.01. Indebtedness................................................ 68
SECTION 7.02. Liens....................................................... 69
SECTION 7.03. Fundamental Changes......................................... 70
SECTION 7.04. Investments................................................. 72
SECTION 7.05. Restricted Payments......................................... 73
SECTION 7.06. Transactions with Affiliates................................ 73
SECTION 7.07. Restrictive Agreements...................................... 74
SECTION 7.08. Operating Leases............................................ 74
SECTION 7.09. Certain Financial Covenants................................. 75
SECTION 7.10. Modifications of Certain Documents.......................... 77
SECTION 7.11. Sale and Leaseback.......................................... 78
SECTION 7.12. Restrictions on CHEL........................................ 78
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ARTICLE VIII EVENTS OF DEFAULT ............................................... 78
ARTICLE IX THE ADMINISTRATIVE AGENT .......................................... 81
ARTICLE X MISCELLANEOUS ...................................................... 83
SECTION 10.01. Notices .................................................. 83
SECTION 10.02. Waivers; Amendments. ..................................... 84
SECTION 10.03. Expenses; Indemnity; Damage Waiver. ...................... 86
SECTION 10.04. Successors and Assigns. .................................. 87
SECTION 10.05. Survival ................................................. 90
SECTION 10.06. Counterparts; Integration ................................ 90
SECTION 10.07. Severability ............................................. 91
SECTION 10.08. Right of Setoff .......................................... 91
SECTION 10.09. Governing Law; Jurisdiction; Etc. ........................ 91
SECTION 10.10. WAIVER OF JURY TRIAL ..................................... 92
SECTION 10.11. Headings ................................................. 92
SECTION 10.12. Treatment of Certain Information; Confidentiality. ....... 92
SECTION 10.13. Judgment Currency ........................................ 93
SECTION 10.14. Termination of 1999 Credit Agreement ..................... 94
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SCHEDULE I - Commitments
SCHEDULE II - Existing Loans
SCHEDULE III - Existing Letters of Credit and CHEL Letters of Credit
SCHEDULE IV - Existing Mortgages
SCHEDULE V - Existing Foreign Subsidiary Pledge Agreements
SCHEDULE 4.06 - Litigation
SCHEDULE 4.07 - Environmental Matters
SCHEDULE 4.11 - ERISA
SCHEDULE 4.15(a) - Subsidiaries
SCHEDULE 4.16 - Real Property
SCHEDULE 4.17 - Labor Matters
SCHEDULE 7.01 - Indebtedness
SCHEDULE 7.02 - Liens
SCHEDULE 7.04 - Investments
SCHEDULE 7.07 - Restrictive Agreements
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Mortgage
EXHIBIT D - Form of Guarantee Assumption Agreement
EXHIBIT E - Form of Collateral Agency and Intercreditor Agreement
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
September 15, 2003, among: CHART INDUSTRIES, INC., the SUBSIDIARY
GUARANTORS party hereto, each of the lenders whose names appear on the
signature pages hereof under the caption "LENDERS" and JPMORGAN CHASE
BANK, as Administrative Agent.
RECITALS
WHEREAS, the Borrower, the Subsidiary Guarantors party thereto, the
lenders party thereto and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as administrative agent for such lenders, are parties to a
Credit Agreement dated as of April 12, 1999 (as heretofore amended, supplemented
or otherwise modified, the "1999 Credit Agreement"), pursuant to which such
lenders extended credit (by means of making loans and the issuance of letters of
credit) to or for the account of the Borrower and certain of its subsidiaries;
WHEREAS, the Borrower and the Subsidiary Guarantors have secured all
of their obligations under or in respect of the 1999 Credit Agreement, including
principal, interest, fees, expenses, indemnities and reimbursement obligations,
and certain other obligations owing to such lenders (and their affiliates), by
granting in favor of such administrative agent, for the benefit of itself and
such lenders and affiliates, a security interest in and lien upon substantially
all of their existing and after-acquired personal and real property;
WHEREAS, on July 8, 2003 (the "Petition Date"), the Borrower and the
Subsidiary Guarantors filed a voluntary petition with the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
initiating cases under chapter 11 of the Bankruptcy Code and continued in their
possession of their respective assets and in the management of their respective
businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, the Borrower and the Subsidiary Guarantors party thereto
(each as debtor and debtor in possession under chapter 11 of the Bankruptcy
Code), the lenders party thereto and JPMorgan Chase Bank, as administrative
agent for such lenders are party to a Revolving Credit Agreement dated as of
July 17, 2003 (as heretofore amended, supplemented or otherwise modified to the
date hereof, the "DIP Credit Agreement"), providing for new revolving credit
loans and letters of credit to the Borrower (including the continuation of the
outstanding letters of credit issued for account of the Borrower under the 1999
Credit Agreement) in an aggregate principal or face amount not exceeding
$40,000,000, and pursuant to an order of the Bankruptcy Court all obligations of
the Borrower and the Subsidiary Guarantors in respect of the DIP Credit
Agreement, including principal, interest, fees, expenses, indemnities and
reimbursement obligations are secured by a first-priority security interest in
and lien upon their respective existing and after-acquired personal and real
property;
WHEREAS, the Borrower and the Subsidiary Guarantors filed a plan of
reorganization with the Bankruptcy Court which has been confirmed by a final
order of the Bankruptcy Court entered on September 4, 2003 (as supplemented to
the date hereof, the
Amended and Restated Revolving Credit Agreement
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"Reorganization Plan"). Pursuant to the Reorganization Plan, the Borrower and
the Subsidiary Guarantors are concurrently herewith entering into: (a) this
Agreement with the lenders party to the DIP Credit Agreement as of the date
hereof and JPMorgan Chase Bank, as administrative agent for such lenders, which
will amend and restate the DIP Credit Agreement, providing for new revolving
credit loans and letters of credit to or for account of the Borrower (and the
continuation of the revolving credit loans and letters of credit made, continued
or issued under the DIP Credit Agreement and the continuation of the letters of
credit issued under the 1999 Credit Agreement for account of CHEL, in each case
outstanding on the date thereof ) in an aggregate principal or face amount of up
to $40,000,000 and (b) a Term Loan Agreement dated as of September 15, 2003 (as
from time to time amended, restated, supplemented, deferred, renewed, extended,
increased, refunded, refinanced, replaced or otherwise modified, the "Term Loan
Agreement") with the lenders party to the 1999 Credit Agreement as of the date
hereof and JPMorgan Chase Bank, as administrative agent for such lenders,
pursuant to which the Borrower's and such Subsidiary Guarantors' outstanding
obligations (including principal, accrued interest and fees) in respect of the
1999 Credit Agreement (other than the obligations in respect of the letters of
credit originally issued thereunder for account of the Borrower under the 1999
Credit Agreement that were continued under the DIP Credit Agreement and other
than the obligations in respect of the letters of credit issued thereunder for
account of CHEL) will be restructured into term loans held by such lenders in an
aggregate amount of $120,000,000;
NOW THEREFORE, the parties hereto hereby agree that the DIP Credit
Agreement shall, as of the Effective Date (the occurrence of which is subject to
satisfaction of the conditions precedent specified in Section 5.01), be amended
and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement (including in
the foregoing recitals), the following termshave the meanings specified below:
"1999 Credit Agreement" has the meaning assigned to such term in the
recitals of this Agreement.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied
by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder.
Amended and Restated Revolving Credit Agreement
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"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided
that no Lender (or any Affiliate of a Lender) shall be considered to be an
Affiliate of the Borrower or any of its Subsidiaries.
"Agreed Foreign Currency" means, at any time, any of Pounds Sterling,
euro and, with the agreement of the Administrative Agent and the relevant
Issuing Lender (with respect to the denomination of any Letter of Credit to be
issued by such Issuing Lender hereunder), any other Foreign Currency, so long
as, in respect of any such specified Currency or other Foreign Currency, at such
time (a) such Currency is dealt with in the London interbank deposit market, (b)
such Currency is freely transferable and convertible into Dollars in the London
foreign exchange market and (c) no central bank or other governmental
authorization in the country of issue of such Currency (including, in the case
of the euro, any authorization by the European Central Bank) is required to
permit use of such Currency by any Issuing Lender for issuing or making any
disbursement with respect to any Letter of Credit hereunder and/or to permit the
Borrower to reimburse any Issuing Lender for any such disbursement or pay the
interest thereon or to permit any Lender to acquire a participation interest in
any Letter of Credit or make any payment to the relevant Issuing Lender in
consideration therefor, unless in each case such authorization has been obtained
and is in full force and effect.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Margin" means (a) with respect to ABR Loans, 1.50% per
annum or (b) with respect to Eurodollar Loans, 2.50% per annum.
"Applicable Percentage" means with respect to any Lender for purposes
of Section 2.04 or in respect of any indemnity claim under Section 10.03(c)
arising out of an action or omission of the Administrative Agent or the Issuing
Lenders under this Agreement, the percentage of the total Commitments
represented by such Lender's Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Assumption" means an Assignment and Assumption entered
into by a Lender and an assignee (with the consent of any Person whose consent
is required by
Amended and Restated Revolving Credit Agreement
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Section 10.04(b)), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the Commitment Termination Date.
"Bankruptcy Code" means 11 U.S.C.ss.ss. 101, et al. as amended (2002).
"Bankruptcy Court" has the meaning assigned to such term in the
recitals of this Agreement.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Chart Industries, Inc., a Delaware corporation.
"Borrowing" means (a) all ABR Loans made, converted or continued on
the same date or (b) all Eurodollar Loans that have the same Interest Period.
For purposes hereof, the date of a Borrowing comprising one or more Loans that
have been converted or continued shall be the effective date of the most recent
conversion or continuation of such Loan or Loans.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means (a) any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the London interbank
market; and (b)(i) in connection with any Letter of Credit denominated in any
Foreign Currency other than euro, that is also a day on which commercial banks
and the London foreign exchange market settle payments in the Principal
Financial Center for such Foreign Currency or (ii) in connection with any Letter
of Credit denominated in euro, that is also a TARGET Day.
"Capital Expenditures" means, for any period, expenditures made by the
Borrower or any of its Subsidiaries to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP.
"Capital Lease Obligations" of any Person means the 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 any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent
Amended and Restated Revolving Credit Agreement
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ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing.
"Cases" means those chapter 11 bankruptcy cases pending in the
Bankruptcy Court for Chart Industries, Inc. and each of the Subsidiary
Guarantors, jointly administered under Case No. 03-12114.
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking of, such property
for which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) (other than
by any of the Permitted Holders or any Person who is party to the Investor
Rights Agreement), of shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower or by any Permitted Holder
nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or any Issuing
Lender (or, for purposes of Section 2.13(b), by any lending office of such
Lender, such Lender's or such Issuing Lender's holding company, if any) 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.
"Chart Europe" has the meaning assigned to such term in Section 6.09.
"CHEL" means Chart Heat Exchangers Limited, an English company and a
Wholly Owned Subsidiary of the Borrower, which as of the date hereof is in
administration in the United Kingdom.
"CHEL Guaranteed Obligations" has the meaning assigned to such term in
Section 3.01(a).
"CHEL Issuing Lender" means Bank One, NA and/or any other Lender
acceptable to the Administrative Agent and the Required Lenders, and if there
shall be more than one CHEL Issuing Lender at any time, "the CHEL Issuing
Lender" as used herein shall refer to the respective issuing lender with respect
to the applicable CHEL Letter of Credit.
"CHEL Letters of Credit" means the letters of credit issued by the
CHEL Issuing Lender for account of CHEL under the 1999 Credit Agreement and
outstanding on the Petition Date, as listed under "Bank One" in Schedule III
(and any amendments, extensions or renewals
Amended and Restated Revolving Credit Agreement
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thereof from time to time, provided that no such amendment, extension or
renewals shall increase the face amount of any thereof).
"CHEL LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding CHEL Letters of Credit at such time plus (b)
the aggregate amount of all payments made by the CHEL Issuing Lender that have
not yet been reimbursed by or on behalf of CHEL or the Borrower at such time.
For purposes of this Agreement, the CHEL LC Exposure of any Lender at any time
shall be deemed to be its Applicable Percentage of the total CHEL LC Exposure at
such time.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means the property subject to the Liens under the
Security Documents.
"Collateral Account" has the meaning assigned to such term in the
Security Agreement.
"Collateral Agency and Intercreditor Agreement" means the Collateral
Agency and Intercreditor Agreement substantially in the form of Exhibit E among
the Borrower, the Administrative Agent, JPMCB, as Administrative Agent under the
Term Loan Agreement, and the Collateral Agent.
"Collateral Agent" means JPMCB as the collateral agent under the
Security Documents, and any successor in such capacity.
"Commitment" means, with respect to each Lender, the commitment, if
any, of such Lender to make or continue Loans hereunder and to acquire
participations in Letters of Credit issued or continued hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Commitment is set forth on Schedule I, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable. The aggregate amount of the Lenders' Commitments is
$40,000,000 as of the Effective Date.
"Commitment Termination Date" means September 15, 2008.
"Consolidated Current Assets" means, as at any date, the total assets
that would properly be classified as consolidated current assets (excluding cash
and Permitted Investments) of the Borrower and its Subsidiaries as of such date
in accordance with GAAP.
"Consolidated Current Liabilities" means, as at any date, the total
liabilities that would properly be classified as consolidated current
liabilities (excluding the current portion of long-term Indebtedness (including
the Loans and the Term Loans), deferred taxes and accrued interest with respect
to such Indebtedness) of the Borrower and its Subsidiaries as of such date in
accordance with GAAP.
Amended and Restated Revolving Credit Agreement
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"Consolidated EBITDA" means, for any period, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following for such period: (a) net income for such
period plus (b) to the extent deducted in computing such net income, the sum of
(i) expenses in respect of income or similar taxes, (ii) depreciation and
amortization (including amortization or impairment of any goodwill or other
intangibles), (iii) Consolidated Interest Expense, (iv) Restructuring Charges,
(v) extraordinary, unusual or non-recurring expenses, charges or losses (other
than of a type covered under clause (iv) above), (vi) transaction fees and
expenses, (vii) costs, fees and expenses in connection with Dispositions and
acquisitions permitted hereunder and (viii) all other non-cash charges, in each
case for such period, plus (c) business interruption insurance proceeds for such
period minus (d) to the extent added in computing such net income, the sum of
(i) any gains and losses attributable to any fixed asset sales and (ii) any
non-cash, extraordinary gains, in each case for such period; provided that,
without duplication, if during any period for which Consolidated EBITDA is being
determined, the Borrower or any of its Subsidiaries shall have made any
Disposition, Consolidated EBITDA shall be determined for purposes of this
Agreement (in a manner reasonably acceptable to the Administrative Agent) by
excluding the Consolidated EBITDA of any line of business or Person subject to
such Disposition (to the extent not already reflected in the relevant financial
statements of the Borrower) for such period as if such Disposition had been made
or consummated on the first day of such period.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) (i) Consolidated EBITDA for such period minus Capital Expenditures
(other than Capital Expenditures made pursuant to the last paragraph of Section
7.09(e) and other than Capital Expenditures made as a tenant in respect of
leasehold improvements to the extent reimbursed under the related lease or sale
leaseback transaction) for such period to (b) Consolidated Fixed Charges for
such period.
"Consolidated Fixed Charges" means, for any period, the sum, for the
Borrower and it Subsidiaries (determined on a consolidated basis, without
duplication, in accordance with GAAP), of (a) all Consolidated Interest Expense
for such period (other than fees and expenses paid in connection with the
transactions contemplated hereby), (b) all regularly scheduled payments of
principal of Indebtedness (including the Term Loans and the principal component
of all Capital Lease Obligations, but excluding the restructuring of the loans
under the 1999 Credit Agreement pursuant to the Term Loan Agreement as of the
Effective Date) of the Borrower and its Subsidiaries made during such period and
(c) the aggregate amount of all cash payments made by the Borrower and its
Subsidiaries in respect of income (or similar) taxes during such period.
"Consolidated Interest Coverage Ratio" means, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense (other than fees and expenses paid in connection with the transactions
contemplated hereby) for such period.
"Consolidated Interest Expense" means, for any period, total cash
interest expense (including that attributable to Capital Lease Obligations),
less total cash interest income, of the Borrower and its Subsidiaries for such
period with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including all commissions, discounts and other fees and charges
Amended and Restated Revolving Credit Agreement
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owed with respect to letters of credit and bankers' acceptance financing and net
costs under Swap Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio" means the ratio of (a) all Funded
Indebtedness of the Borrower and its Subsidiaries (determined on a consolidated
basis, without duplication, in accordance with GAAP) on the last day of any
fiscal quarter of the Borrower to (b) Consolidated EBITDA for the Test Period
then most recently ended.
"Consolidated Working Capital" means, as at any date, the excess of
(a) Consolidated Current Assets over (b) Consolidated Current Liabilities, in
each as of such date.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means, collectively, this Agreement, the Letter of
Credit Documents and the Security Documents.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Loans and its LC
Exposure at such time.
"Currency" means, with respect to any country, the lawful currency of
such country, whether or not the name of such currency is the same as it was on
the date hereof.
"Debt Incurrence" means the incurrence of any Indebtedness by the
Borrower or any of its Subsidiaries after the Effective Date.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DIP Credit Agreement" has the meaning assigned to such term in the
recitals of this Agreement.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person excluding any sale,
assignment, transfer or other disposition of any property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"Dollar Equivalent" shall mean, with respect to any Loan denominated
in any Foreign Currency, the amount of Dollars that would be required to
purchase the amount of the Foreign Currency of such Loan on the date two
Business Days prior to the first day of the then current Interest Period for
such Loan (or, in the case of any determination made under Section 2.10(b)(ii)
or redenomination under the last sentence of Section 2.16(a), on the date of
determination or redenomination therein referred to), based upon the spot
selling rate at which
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the Administrative Agent offers to sell such Foreign Currency for Dollars in the
London foreign exchange market at approximately 11:00 a.m., London time, for
delivery two Business Days later.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date of this Agreement, but subject to the
conditions specified in Section 5.01 being satisfied (or waived in accordance
with Section 10.02).
"Environmental Claim" means, with respect to any Person, any written
notice, claim, demand or other communication (collectively, a "claim") by any
other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to natural resources
or other property, personal injuries, fines or penalties arising out of, based
on or resulting from (i) the presence, or Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "Environmental Claim" shall include, without
limitation, any claim by any Governmental Authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management or Release of any Hazardous Material or to health or
safety matters.
"Equity Documents" means, collectively, (a) the Investor Rights
Agreement substantially in the form appended to the Reorganization Plan between
the Borrower and certain Persons party thereto (the "Investor Rights Agreement")
and (b) the Warrant Agreement substantially in the form appended to the
Reorganization Plan, between the Borrower and certain Persons party thereto (the
"Warrant Agreement").
"Equity Issuance" means (a) any issuance or sale by the Borrower or
any of its Subsidiaries after the Effective Date of (i) any of its Capital
Stock, (ii) any warrants or options exercisable in respect of its Capital Stock
(other than (A) any warrants or options issued to directors, officers or
employees of the Borrower or any of its Subsidiaries pursuant to employee
benefit plans established in the ordinary course of business and (B) any Capital
Stock of the Borrower issued upon the exercise of any such warrants or options)
or (iii) any other security or instrument representing an equity interest (or
the right to obtain any equity interest) in the Borrower or any of its
Subsidiaries or (b) the receipt by the Borrower or any of its Subsidiaries after
the Effective Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); provided that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Borrower to the Borrower or any Wholly Owned Subsidiary of the
Borrower, (y) any capital contribution by the Borrower or any
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Wholly Owned Subsidiary of the Borrower to any Subsidiary of the Borrower or (z)
any such sale or issuance of Capital Stock of the Borrower to, or any capital
contribution to the Borrower by, any Permitted Holder or any officer, director
or employee thereof.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or securities convertible into, any additional shares
of Capital Stock of any class of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for 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" means (a) 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); (b) 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; (c) 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; (d) 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;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) 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 (g) 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" means the single currency of Participating Member States of the
European Union, which shall be an Agreed Foreign Currency and a Foreign Currency
under this Agreement.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Excess Cash Flow" means, for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) net income of the
Borrower and its Subsidiaries (determined on a consolidated basis in accordance
with GAAP) for such fiscal year, (ii) the
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amount of all non-cash charges (including depreciation and amortization)
deducted in arriving at such net income, (iii) decreases, if any, in
Consolidated Working Capital for such fiscal year (measured as of the first and
last days of such fiscal year), and (iv) the aggregate net amount of non-cash
loss on the Disposition of property by the Borrower and its Subsidiaries during
such fiscal year (other than sales of inventory in the ordinary course of
business), to the extent deducted in arriving at such net income over (b) the
sum, without duplication, of (i) the amount of all non-cash credits included in
arriving at such net income, (ii) the aggregate amount of Capital Expenditures
permitted to be made during such fiscal pursuant to the first paragraph of
Section 7.09(e), (iii) the aggregate amount of all regularly scheduled principal
payments of Funded Indebtedness (other than the Loans and the Term Loans) of the
Borrower and its Subsidiaries made during such fiscal year (other than in
respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder and other than as a
result of the restructuring of the loans under the 1999 Credit Agreement
pursuant to the Term Loan Agreement as of the Effective Date), (iv) increases,
if any, in Consolidated Working Capital for such fiscal year (measured as of the
first and last days of such fiscal year), (vi) the aggregate net amount of gain
on the Disposition of property by the Borrower and its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent included in arriving at such net income, (vi) the aggregate amount
of all cash payments by the Borrower and its Subsidiaries in respect of
acquisitions and Investments under Sections 7.03(c)(v) and 7.04(d)(q) during
such fiscal year, (vii) the aggregate amount of all cash payments by the
Borrower under Sections 7.05(b) and 7.05(c) during such fiscal year and (viii)
the aggregate amount of all cash payments by the Borrower and its Subsidiaries
during such fiscal year that are associated with any non-cash expense that was
added back to net income in a previous period.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Lender 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 the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.15(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
"Existing Foreign Subsidiary Pledge Agreements" means each pledge or
similar agreement executed pursuant to the 1999 Credit Agreement by an Obligor
and the administrative agent under the 1999 Credit Agreement (or a sub-agent
thereof), providing for the pledge of certain Capital Stock of a Foreign
Subsidiary, each as in effect on the Effective Date, as listed in Schedule V,
and thereafter as amended, restated, supplemented, replaced or otherwise
modified from time to time.
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"Existing Letters of Credit" means the letters of credit issued or
continued for account of the Borrower pursuant to the DIP Credit Agreement and
outstanding on the Effective Date, as listed in Schedule III (other than the
CHEL Letters of Credit).
"Existing Loans" means the loans made by the lenders party to the DIP
Credit Agreement to the Borrower pursuant thereto and outstanding on the
Effective Date, as listed in Schedule II.
"Existing Mortgages" means the instruments of Mortgage, Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing (or similar
instruments) executed pursuant to the 1999 Credit Agreement by the Borrower
and/or one or more of its Subsidiaries, each as in effect on the Effective Date,
as listed in Schedule IV, and thereafter as amended, restated, supplemented,
replaced or otherwise modified from time to time.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller, or any other officer performing a
substantial portion of the duties of any of the foregoing, of the Borrower.
"Foreign Currency" means at any time any Currency other than Dollars.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is
organized under the laws of a jurisdiction other than a State of the United
States or the District of Columbia.
"Foreign Subsidiary Pledge Agreement" means a pledge or similar
agreement between an Obligor and the Collateral Agent (or a sub-agent of the
Collateral Agent), providing for the pledge of certain equity interests of a
Foreign Subsidiary, executed and delivered pursuant to this Agreement, and
including any Existing Foreign Subsidiary Pledge Agreements.
"Funded Indebtedness" means all Indebtedness of the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) of a type described in clauses (a), (b), (c), (d), (e),
(f) or (g) (or any Guarantee of any such Indebtedness) of the definition of
"Indebtedness" in this Section.
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"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means 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") means 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 of the guarantor, direct or indirect, (a) 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, (b) 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, (c) 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 (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit D by an entity that, pursuant to Section
6.09(a) is required to become a "Subsidiary Guarantor" hereunder in favor of the
Administrative Agent.
"Guaranteed Obligation" has the meaning assigned to such term in
Section 3.01(b).
"Guarantors" means the Borrower (to the extent provided in Section
3.01(a)) and the Subsidiary Guarantors.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to advances of any
kind (other than advances received in the ordinary course of business), (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property
or services
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(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit and letters of guaranty and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, each
Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of each
Interest Period therefor and, in the case of any Interest Period that is more
than three months long, each day prior to the last day of such Interest Period
that occurs at intervals of three months after the first day of such Interest
Period.
"Interest Period" means (a) for any Borrowing (other than an ABR
Borrowing), the Interest Period of the Loan or Loans constituting such Borrowing
and (b) for any Eurodollar Loan, the period commencing on the date of such Loan
and ending on the numerically corresponding day in the calendar month that is
one, two, three or six months thereafter, as specified in the applicable
Borrowing Request or Interest Election Request; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Loan initially shall be the date on which such Loan is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Loan.
"Investment" means, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of Capital Stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other Person
(including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such Person), but excluding any such advance, loan or
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extension of credit having a term not exceeding 120 days arising in connection
with the sale of inventory or supplies by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; or (d) the entering into of any Swap Agreement.
"Investor Rights Agreement" has the meaning assigned to such term in
the definition of "Equity Documents" in this Section 1.01.
"Issuing Lender" means JPMCB, or any other Lender designated by the
Borrower (and reasonably acceptable to the Administrative Agent) as an Issuing
Lender hereunder, each in its capacity as an issuer of one or more Letters of
Credit hereunder, and their respective successors in such capacity as provided
in Section 2.04(j). Unless the context otherwise requires, "Issuing Lender"
shall include (a) JPMCB and National City Bank, in each case as an issuing
lender of certain of the Existing Letters of Credit and (b) the CHEL Issuing
Lender.
"JPMCB" means JPMorgan Chase Bank.
"LC Disbursement" means a payment made by an Issuing Lender pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower (including, for avoidance, with respect to the CHEL Letters of
Credit continued hereunder) at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule I and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption.
"Letter of Credit" means any letter of credit issued or continued
pursuant to this Agreement.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to
Amended and Restated Revolving Credit Agreement
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Dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Local Time" means (a) with respect to any Loan or Letter of Credit
denominated in or any payment to be made in Dollars, New York City time, (b)
with respect to any Letter of Credit denominated in or any payment to be made in
any Foreign Currency (other than euro), the local time in the Principal
Financial Center for the currency in which such Letter of Credit is denominated
or such payment is to be made and (c) with respect to any Letter of Credit
denominated in or any payment to be made in euro, the local time in London,
England.
"Margin Stock" means "margin stock" within the meaning of Regulations
T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, liabilities, operations, material contracts or condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement or any of the other Credit
Documents or the rights of or benefits available to the Lenders hereunder or
thereunder.
"Mortgages" means, collectively, the instruments of Mortgage, Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing (or other
similar instruments) executed by the Borrower and/or one or more of its
Subsidiaries in favor of the Collateral Agent (or a trustee acceptable to the
Collateral Agent), for the benefit of the Secured Parties, in each case
substantially in the form of Exhibit C (or such other form approved by the
Collateral Agent) and covering the respective properties and leasehold interest
identified therein (and including such additional provisions and deviations from
such exhibit as shall be necessary in the judgment of the Collateral Agent to
conform such instrument to applicable or local law or as shall be customary
under local law or otherwise as the Collateral Agent shall reasonably request),
and including any Existing Mortgages.
Amended and Restated Revolving Credit Agreement
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"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" means
(a) in the case of any Disposition, the gross cash proceeds (including
any cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received by the
Borrower and its Subsidiaries from such Disposition, net of (i) reasonable
legal, title and recording tax expenses, commissions and other fees and
expenses paid by the Borrower or any of its Subsidiaries in connection with
such Disposition, (ii) any Federal, state and local income or other taxes
reasonably estimated by the Borrower (and reasonably acceptable to the
Administrative Agent) to be payable by the Borrower and its Subsidiaries as
a result of such Disposition (but only to the extent that such estimated
taxes are in fact paid to the relevant Federal, state or local governmental
authority within 13 months of the date of such Disposition), (iii) any
repayments by the Borrower or any of its Subsidiaries of Indebtedness to
the extent that (x) such Indebtedness is secured by a Lien on the property
that is the subject of such Disposition and (y) the transferee of (or
holder of a Lien on) such property requires that such Indebtedness be
repaid as a condition to the purchase of such property and (iv) any portion
of the proceeds of such Disposition required to be held in a reserve,
escrow or similar arrangement under the definitive agreement with respect
to such Disposition (but only for so long as such proceeds are so held);
provided that such amount shall not include any cash proceeds received by a
Foreign Subsidiary from any Disposition unless such cash proceeds can be
repatriated to the United States without tax liability to the Borrower;
(b) in the case of any Casualty Event, the gross cash proceeds
received by the Borrower and its Subsidiaries in connection with such
Casualty Event, net of (i) reasonable expenses incurred by the Borrower and
its Subsidiaries in connection therewith, (ii) contractually required
repayments of Indebtedness to the extent secured by a Lien on such property
and (iii) any income and transfer taxes payable by the Borrower or any of
its Subsidiaries in respect of such Casualty Event; provided that such
amount shall not include any cash proceeds received by a Foreign Subsidiary
from any Casualty Event unless such cash proceeds can be repatriated to the
United States without tax liability to the Borrower;
(c) in the case of any Equity Issuance, the gross cash proceeds
received by the Borrower and its Subsidiaries in connection with such
Equity Issuance, net of reasonable expenses incurred by the Borrower and
its Subsidiaries in connection therewith; and
(d) in the case of any Debt Incurrence, the gross cash proceeds
received by the Borrower and its Subsidiaries in respect of such Debt
Incurrence, net of reasonable expenses incurred by the Borrower and its
Subsidiaries in connection therewith; provided that such amount shall not
include any Net Cash Proceeds received by a Foreign Subsidiary from any
Disposition or Casualty Event unless such Net Cash Proceeds can be
repatriated to the United States without tax liability to the Borrower.
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"Obligor" means the Borrower and each Subsidiary Guarantor.
"Other Taxes" means 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 under any Credit Document or from the execution, delivery
or enforcement of, or otherwise with respect to, any Credit Document.
"Participating Member State" means any member state of the European
Community that adopts or has adopted the euro as its lawful currency in
accordance with the legislation of the European Union relating to the European
Monetary Union.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means (a) Liens imposed by law for taxes that
are not yet due or are being contested in compliance with Section 6.04; (b)
carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like
Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 60 days or are being contested in
compliance with Section 6.04; (c) pledges and deposits made in the ordinary
course of business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations; (d) cash 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; (e) judgment liens in
respect of judgments that do not constitute an Event of Default under clause (k)
of Article VIII; (f) easements, zoning restrictions, rights-of-way and similar
charges or 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 interfere with
the ordinary conduct of business of the Borrower or any Subsidiary; (g) banker's
Liens and similar Liens, including rights of offset or set-off, in respect of
deposit accounts, and Liens in favor of securities intermediaries in respect of
securities accounts securing fees and costs owing to such securities
intermediaries; (h) licenses, sublicenses, leases or subleases granted to other
Persons not materially interfering with the ordinary course of business of the
Borrower and its Subsidiaries, taken as a whole; (i) any interest or title of a
lessor, sublessor, licensor or sublicensor in property (and the proceeds,
accession or products thereof) arising by law or contract; (j) Liens arising
from precautionary UCC financing statement filings regarding operating leases
entered into in the ordinary course of business; and (k) such exceptions to
title in respect of real property as set forth in any mortgagee title insurance
policy or a binding commitment with respect thereto delivered to the Collateral
Agent hereunder; provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Permitted Holder" means any of Carl Marks Strategic Investments, LP,
JPMCB, OCM Principal Opportunities Fund II, L.P. and Audax Chart, LLC and any of
their respective affiliates, and any of their respective successors and assigns
under the Investor Rights Agreement.
"Permitted Investments" means:
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(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or from Moody's Investors
Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from 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 of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria described
in clause (c) of this definition; and
(e) money market mutual funds whose investment guidelines restrict
such funds' investments primarily to those satisfying the provisions of
clauses (a) through (d) above, and to other investments constituting cash
or cash equivalents under GAAP.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Petition Date" has the meaning assigned to such term in the recitals
of this Agreement.
"Plan" means 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.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Financial Center" means, in the case of any Foreign
Currency, the principal financial center where such Foreign Currency is cleared
and settled, as determined by the Administrative Agent.
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"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Register" has the meaning assigned to such term in Section 10.04.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to reduce the
Commitments and/or prepay the Loans pursuant to Section 2.09(b) as a result of
the delivery of a Reinvestment Notice.
"Reinvestment Event" means any Disposition or Casualty Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Financial
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary) intends and expects
to use all or a specified portion of the Net Cash Proceeds of a Disposition or
Casualty Event to acquire or repair assets useful, or otherwise to reinvest, in
its business.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire or
repair assets useful, or otherwise to reinvest, in the Borrower's business.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earlier of (a) the date occurring 12 months after such Reinvestment
Event and (b) the date on which the Borrower shall have determined not to
acquire or repair assets useful, or otherwise to reinvest, in the Borrower's or
any Subsidiary's business with all or any portion of the relevant Reinvestment
Deferred Amount.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, threatened release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment, including the movement of
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reorganization Plan" has the meaning assigned to such term in the
recitals of this Agreement.
"Required Lenders" means, at any time, Lenders having Credit Exposures
and unused Commitments, representing more than 50% of the total outstanding
Credit Exposures and unused Commitments at such time.
"Requirements of Law" means the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any
law, treaty, rule or
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regulation or determination of an arbitration or a court or other 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.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of Capital Stock of the Borrower or any of its Subsidiaries, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of Capital Stock or
any option, warrant or other right to acquire any such shares of Capital Stock.
"Restructuring Charges" means, for any period, (a) any and all charges
or expenses directly related to the closure or partial closure of a facility or
sale of any business unit or product line or the reduction in work force,
including, but not limited to, employee severance, expenses related to moving of
assets to another facility, inventory and fixed asset write-downs, lease
buyouts, and accelerated warranty liabilities for such period, (b) any and all
fees and expenses incurred by the Borrower in connection with any Debt
Incurrence, Equity Issuances or Dispositions for such period and (c) any and all
fees and expenses incurred in connection with or directly related to the
consummation of this Agreement, the Term Loan Agreement, the DIP Credit
Agreement and the Cases for such period; provided that Restructuring Charges
shall not exceed in the aggregate (i) $10,000,000 for any Test Period from and
after December 31, 2003 to and including December 31, 2005 and (ii) thereafter,
$5,000,000.
"Security Agreement" means a Security Agreement substantially in the
form of Exhibit B between the Borrower, the Subsidiary Guarantors and the
Collateral Agent.
"Security Documents" means, collectively, the Security Agreement, the
Mortgages, the Guarantee Assumption Agreements, the Foreign Subsidiary Pledge
Agreements, the Collateral Agency and Intercreditor Agreement, such other
security agreements, pledge agreements or similar agreements or instruments as
may be required by the terms of this Agreement, and all Uniform Commercial Code
financing statements required thereby to be filed, or other filings and/or
registrations required to be made or obtained, as the case may be, with respect
to the security interests in property created pursuant to any of the foregoing
agreements.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Administrative Agent is subject for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such 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 such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
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"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, 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, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
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 (b) that is, as of such date,
otherwise Controlled, 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
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Subsidiaries of the Borrower
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system (or any successor
settlement system as determined by the Administrative Agent) is open for the
settlement of payments in euro.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means the loans under the Term Loan Agreement.
"Term Loan Agreement" has the meaning assigned to such term in the
recitals of this Agreement.
"Term Loan Documents" means the "Credit Documents" as defined in the
Term Loan Agreement.
"Term Lenders" means th lenders party to the Term Loan Agreement and
any assignee or transferee thereof.
"Test Period" means each period of four consecutive fiscal quarters of
the Borrower then last ended (in each case taken as one accounting period),
except that prior to September 30, 2004, "Test Period" shall mean the period
commencing on October 1, 2003 and
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ending on the last day of the fiscal quarter of the Borrower most recently ended
(in each case taken as one accounting period).
"Transaction Documents" means, collectively, the Credit Documents, the
Term Loan Documents and the Equity Documents.
"Transactions" means the execution, delivery and performance by each
Obligor of the Transaction Documents to which such Obligor is intended to be a
party, the borrowing of Loans hereunder and the restructuring of the Term Loans
under the Term Loan Agreement, the use of the proceeds thereof and the issuance
of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"Warrant Agreement" has the meaning assigned to such term in the
definition of "Equity Documents" in this Section1.01.
"Wholly Owned Subsidiary" means, as to any Person, (a) any corporation
100% of whose Capital Stock is at the time owned by such Person and/or one or
more Wholly Owned Subsidiaries of such Person (other than directors' qualifying
shares and shares or equity interests required to be held by foreign nationals,
in each case to the extent mandated by applicable law) and (ii) any limited
liability company, partnership, association or other entity in which such Person
and/or one or more Wholly Owned Subsidiaries of such Person has a 100% equity
interest.
"Withdrawal Liability" means 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 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., an "ABR
Loan"). Borrowings also may be classified and referred to by Type (e.g., an "ABR
Borrowing").
SECTION 1.03. 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".
Unless the context requires otherwise (a) 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 from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Credit
Document), (b) any reference herein to any
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Person shall be construed to include such Person's successors and assigns, (c)
the words "herein", "hereof" and "hereunder", and words of similar import, shall
be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP; Annualization of Financial
Covenants. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate or modify the effect of any change occurring after the date
hereof in GAAP or in the application or interpretation thereof on the operation
of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. To enable the ready and consistent
determination of compliance with the covenants set forth in Article VII, the
Borrower will not change the last day of its fiscal year from December 31, or
the last days of the first three fiscal quarters in each of its fiscal years
from March 31, June 30 and September 30, respectively. Notwithstanding anything
herein to the contrary, for purposes of calculating the Consolidated Leverage
Ratio, the Consolidated Interest Coverage Ratio, the Consolidated Fixed Charge
Coverage Ratio and the Consolidated EBITDA under Sections 7.09(a), 7.09(b),
7.09(c) and 7.09(d), respectively, as at the end of any fiscal quarter of the
Borrower ending prior to December 31, 2004, the components of each such ratio
(other than Funded Indebtedness for purposes of the Consolidated Leverage Ratio)
or Consolidated EBITDA, as the case may be, shall be determined for the
applicable Test Period and multiplied by (x) in the case of the Test Period
ending December 31, 2003, four, (y) in the case of the Test Period ending March
31, 2004, two and (z) in the case of the Test Period ending June 30, 2004, 4/3.
SECTION 1.05. European Monetary Union. Each obligation hereunder of
any party hereto that is denominated in a Currency of a country that is not a
Participating Member State on the date hereof shall, effective from the date on
which such country becomes a Participating Member State, be redenominated in
euro in accordance with the legislation of the European Union applicable to the
European Monetary Union; provided that, if and to the extent that any such
legislation provides that any such obligation of any such party payable within
such Participating Member State by crediting an account of the creditor can be
paid by the debtor either in euro or such Currency, such party shall be entitled
to pay or repay such amount either in euro or in such Currency. If the basis of
accrual of interest or fees expressed in this Agreement with respect to an
Agreed Foreign Currency of any country that becomes a Participating Member State
after the date on which such currency becomes an Agreed Foreign Currency shall
be inconsistent with any convention or practice in the interbank market for the
basis of accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the date on
which such country becomes a Participating Member
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State. Without prejudice to the respective liabilities of the Borrower or any of
its Subsidiaries to the Issuing Lenders and/or the Lenders and of the Issuing
Lenders and/or the Lenders to the Borrower under or pursuant to this Agreement,
each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time reasonably
specify to be necessary or appropriate to reflect the introduction or changeover
to the euro in any country that becomes a Participating Member State after the
date hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender severally but not jointly agrees to make Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's Credit Exposure
exceeding such Lender's Commitment or (b) the total Credit Exposures (including,
without duplication, the Existing Loans continued hereunder as Loans pursuant to
the last sentence of this Section, the Existing Letters of Credit continued
hereunder as Letters of Credit pursuant to Section 2.04(l) and the CHEL Letters
of Credit continued hereunder as Letters of Credit pursuant to Section 2.04(m))
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Loans. Subject to the terms and conditions hereof, the Existing Loans
outstanding on the Effective Date shall be continued as an ABR Loan hereunder on
the Effective Date by the Lenders, automatically and without any action on the
part of any Person, and as of the Effective Date each such Existing Loan shall
be deemed a Loan outstanding under this Agreement as of such date.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a
Borrowing consisting of Loans of the same Type made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make any
Loan hereunder.
(b) Type of Loans. Subject to Section 2.12, each Borrowing shall be
constituted entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the
commencement of the Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount of $2,000,000 or a larger multiple of $500,000.
At the time that each ABR Borrowing is made, such Borrowing shall be in an
aggregate amount equal to $1,000,000 or a
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larger multiple of $250,000; provided that an ABR Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(f). Borrowings of more than one
Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten Eurodollar Borrowings outstanding.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, the Borrower may request an
Issuing Lender to issue, at any time and from time to time during the
Availability Period, one or more Letters of Credit for account of the Borrower
denominated in Dollars or any Agreed Foreign Currency and in such form as is
acceptable to such Issuing Lender in its reasonable determination. Letters of
Credit issued or continued hereunder shall constitute utilization of the
Commitments. Any such Letter of Credit may be stated to be issued at the request
of a Subsidiary Guarantor, if requested by the Borrower.
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(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the relevant Issuing Lender) to the relevant Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with Section 2.04(d)), the amount and Currency 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. If requested by such Issuing Lender, the Borrower also shall submit a
letter of credit application on such Issuing Lender's standard form in
connection with any request for a Letter of Credit. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower or any of its Subsidiaries to, or entered into by the
Borrower or any of its Subsidiaries with, the relevant Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the total LC Exposures of the Issuing Lenders (determined for
these purposes without giving effect to the participations therein of the
Lenders pursuant to Section 2.04(e) and, without duplication, including the
aggregate undrawn face amount of the Existing Letters of Credit and the CHEL
Letters of Credit continued and outstanding hereunder as Letters of Credit
pursuant to Sections 2.04(l) and 2.04(m), respectively) shall not exceed
$30,000,000 and (ii) the total Credit Exposures shall not exceed the total
Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date twelve months after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, twelve months after the then-current expiration date of such
Letter of Credit) and (ii) the date that is five Business Days prior to the
Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by an Issuing
Lender, and without any further action on the part of such Issuing Lender or the
Lenders, such Issuing Lender hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Lender, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
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In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
in paragraph (f) below, to pay to the Administrative Agent, for account of the
relevant Issuing Lender, an amount in Dollars equal to such Lender's Applicable
Percentage of (a) in the case of each Letter of Credit denominated in Dollars,
each LC Disbursement made by such Issuing Lender thereunder and (b) in case of
each Letter of Credit denominated in a Foreign Currency, the Dollar Equivalent
of each LC Disbursement made by such Issuing Lender thereunder, promptly upon
the request of such Issuing Lender at any time from the time of such LC
Disbursement until such LC Disbursement is reimbursed by the Borrower or at any
time after any reimbursement payment is required to be refunded to the Borrower
for any reason. Each such payment shall be made in the same manner as provided
in Section 2.05 with respect to Loans made by such Lender (and Section 2.05
shall apply, mutatis mutandis, to the payment obligations of the Lenders under
this Section and, without limiting the foregoing, each Lender agrees that if
such Lender shall fail to pay such amount to such Issuing Lender on the date of
such request, such Lender shall pay such Issuing Lender forthwith on demand
interest on such amount, for each day from and including the date of such
request to but excluding the date of payment thereof to such Issuing Lender, at
the Federal Funds Effective Rate), and the Administrative Agent shall promptly
pay to the relevant Issuing Lender the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to the next following paragraph, the Administrative
Agent shall distribute such payment to the relevant Issuing Lender or, to the
extent that the Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Lender, then to such Lenders and such Issuing Lender as
their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse an Issuing Lender for any LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Reimbursement. If an Issuing Lender shall make any LC Disbursement
in respect of a Letter of Credit denominated in Dollars, the Borrower shall
reimburse such Issuing Lender in respect of such LC Disbursement by paying to
the Administrative Agent an amount in Dollars equal to such LC Disbursement not
later than 12:00 noon, New York City time, on (i) the Business Day that the
Borrower receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not
received prior to such time, provided that, if such LC Disbursement is not less
than $1,000,000, the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be
financed with an ABR Borrowing in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Borrowing. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof.
If an Issuing Lender shall make any LC Disbursement in respect of a
Letter of Credit denominated in a Foreign Currency, the Borrower shall reimburse
such Issuing Lender in respect of such LC Disbursement by paying to such Issuing
Lender in the Currency in which such Letter of Credit is denominated an amount
equal to such LC Disbursement not later than
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12:00 noon, Local Time of such Issuing Lender, on (i) the Business Day that the
Borrower receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., Local Time of such Issuing Lender, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time. Such Issuing Lender shall promptly
notify the Administrative Agent of the amount and date of each such
reimbursement.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof.
Without limiting the other obligations of the Borrower hereunder, the
Borrower hereby agrees to indemnify each Issuing Lender of a Letter of Credit
denominated in a Foreign Currency for any and all costs, expenses and losses
incurred by it as a result of receiving payment or reimbursement for any LC
Disbursement thereunder from any Person in a Currency other than the Currency in
which such Letter of Credit was originally denominated. Any such amount payable
to any Issuing Lender shall be payable promptly after demand by such Issuing
Lender.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, or any term or provision therein, (ii) 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, (iii) payment by any Issuing Lender under a Letter of Credit issued by
it against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Lender,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
by any Issuing Lender or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), 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 any Issuing Lender; provided that the foregoing
shall not be construed to excuse any Issuing Lender from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
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
such Issuing Lender's gross negligence or willful misconduct when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that:
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(i) any Issuing Lender may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit issued
by it without responsibility for further investigation, regardless of any
notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
(ii) any Issuing Lender shall have the right, in its sole discretion,
to decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of a Letter of Credit
issued by it; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lenders when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to the extent permitted by applicable
law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. Each Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit issued by it. Such
Issuing Lender shall promptly after such examination notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether such Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such Issuing
Lender and the Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If any Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at (x) if such amount is denominated in Dollars, the rate per
annum then applicable to ABR Loans or (y) if such amount is denominated in a
Foreign Currency, at the overnight London interbank offered rate determined by
the Administrative Agent in good faith; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (f) of this
Section, then Section 2.11(c) shall apply. Interest accrued pursuant to this
paragraph shall be for account of the relevant Issuing Lender, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (f) of this Section to reimburse such Issuing Lender shall be for
account of such Lender to the extent of such payment.
(j) Replacement of Issuing Lenders. Any Issuing Lender may be replaced
at any time by written agreement between the Borrower, the Administrative Agent,
the replaced Issuing Lender and a successor Issuing Lender. The Administrative
Agent shall notify the Lenders of any such replacement of any Issuing Lender. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for account of the replaced Issuing Lender pursuant to
Section 2.10(b). From and after the effective date of any such replacement, (i)
the successor Issuing Lender shall have all the rights and obligations of the
replaced Issuing
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Lender under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Lender" shall be
deemed to include such successor or to any previous Issuing Lender, or to such
successor and all previous Issuing Lenders, as the context shall require. After
the replacement of an Issuing Lender hereunder, the replaced Issuing Lender
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Lender under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the Required
Lenders (or the Administrative Agent acting upon instructions of the Required
Lenders) (or, if the Loans have been accelerated, Lenders with LC Exposure
representing more than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, or (ii) the Borrower shall be
required to provide cover for LC Exposure pursuant to Section 2.09(b), the
Borrower shall immediately deposit into the Collateral Account, an amount in
cash equal to (x) in the case of an Event of Default, the total LC Exposures as
of such date plus, in each case, any accrued and unpaid interest thereon plus 5%
of the LC Exposure as of such date with respect to all Letters of Credit
denominated in any Foreign Currency or (y) in the case of cover pursuant to
Section 2.09(b), the amount required under Section 2.09(b); 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
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VIII. Such
deposit shall be held by the Administrative Agent in the Collateral Account (or
a sub-account thereof) as collateral in the first instance for the LC Exposure
under this Agreement and thereafter for the payment of the other "Secured
Obligations" under (and as defined in) the Collateral Agency and Intercreditor
Agreement, and for these purposes the Borrower hereby grants a security interest
to the Administrative Agent for the benefit of the Lenders in the Collateral
Account and in any financial assets (as defined in the Uniform Commercial Code)
or other property held therein.
(l) Continuation of Existing Letters of Credit. Subject to the terms
and conditions hereof, each Existing Letter of Credit outstanding on the
Effective Date shall be continued hereunder on the Effective Date by the Issuing
Lender, automatically and without any action on the part of any Person, and as
of the Effective Date the Lenders shall acquire a ratable participation therein
in accordance with their respective Commitments as if such Existing Letter of
Credit were originally issued hereunder, and each such Existing Letter of Credit
shall be deemed a Letter of Credit under this Agreement.
(m) Continuation of CHEL Letters of Credit. Subject to the terms and
conditions hereof, in addition to the Letters of Credit issued or continued
hereunder for account of the Borrower, each Letter of Credit issued for the
account of CHEL under the 1999 Credit Agreement and outstanding on the Effective
Date shall be continued hereunder as of the Effective Date by the CHEL Issuing
Lender, automatically and without any action on the part of any Person, and as
of the Effective Date the Lenders shall acquire a ratable participation therein
in accordance with their respective Commitments as if such Letter of Credit were
originally issued hereunder (and in any amounts from time to time held as cash
collateral by the CHEL Issuing Lender in respect of the CHEL Letters of Credit
issued for the account of CHEL under the 1999 Credit Agreement), and each such
Letter of Credit shall be deemed a Letter of Credit
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under this Agreement. Notwithstanding the foregoing, neither the CHEL Issuing
Lender nor any Lender shall have any obligations to issue any new Letters of
Credit for the account of CHEL or otherwise extend any credit to CHEL hereunder
or otherwise; provided that (i) notwithstanding the foregoing, but subject to
the terms and conditions hereof, upon request of the Borrower, the CHEL Issuing
Lender may agree to amend, extend or renew any CHEL Letter of Credit hereunder
without any consent or approval of the Lenders (and the Lenders' liability
hereunder with respect to such CHEL Letter of Credit shall apply to such CHEL
Letter of Credit as so amended, extended or renewed, as applicable) and (ii)
upon request of the Borrower or CHEL (through the Borrower), the CHEL Issuing
Lender may issue a new Letter of Credit hereunder for the account of the
Borrower solely to replace a then existing CHEL Letter of Credit, provided that
such replacement Letter of Credit shall be in a face amount not in excess of
such existing CHEL Letter of Credit and in Dollars or in such currency (other
than Dollars) of such existing CHEL Letter of Credit and otherwise comply with
the requirements of this Section. Notwithstanding anything herein or in any
other Credit Documents or otherwise to the contrary, the Borrower agrees and
acknowledges that it shall be fully, unconditionally and absolutely liable with
respect to the CHEL Letters of Credit (as in effect on the Effective Date or
issued at any time thereafter in accordance with this Section, and as amended
and/or renewed from time to time) as if the Borrower were named as the account
party thereof. Nothing herein shall impair in any way the liability of CHEL with
respect to the CHEL Letters of Credit.
SECTION 2.05. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Borrowings made to finance the reimbursement of an LC
Disbursement as provided in Section 2.04(f) shall be remitted by the
Administrative Agent to the relevant Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing 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 share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
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SECTION 2.06. Interest Elections.
(a) Elections by the Borrower for Borrowings. Each Borrowing
initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have the Interest
Period specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a Borrowing of a different Type or to
continue such Borrowing as a Borrowing of the same Type and, in the case of
a Eurodollar Borrowing, may elect the Interest Period therefor, all as
provided in this Section. 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 the Loans
constituting such Borrowing, and the Loans constituting each such portion
shall be considered a separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective date of
such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.
(c) Information in Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following information
in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) of
this paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
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(d) Notice by the Administrative Agent to Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period therefor.
(f) Limitations on Lengths of Interest Periods. Notwithstanding any
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert to or continue as a Eurodollar Borrowing any
Borrowing if the Interest Period requested therefor would end after the
Commitment Termination Date.
SECTION 2.07. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated the
Commitments shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments pursuant to this Section shall be in an amount that
is $5,000,000 or a larger multiple of $1,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, the total Credit
Exposures would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable.
(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
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(a) Repayment. The Borrower hereby unconditionally promises to repay
the Loans to the Administrative Agent for account of the Lenders the outstanding
principal amount of the Loans on the Commitment Termination Date.
(b) Maintenance of Records by the Lenders. Each Lender shall maintain
in accordance with its usual practice records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for account of
the Lenders and each Lender's share thereof.
(d) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such records
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Promissory Notes. Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall 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 pursuant to Section 10.04) 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).
SECTION 2.09. Prepayment of Loans.
(a) 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.
(b) Mandatory Prepayments.
(i) Credit Exposure Exceeding Commitments. If at any time the total
Credit Exposures exceed the total Commitments, the Borrower shall forthwith
prepay the Loans (and/or provide cover for LC Exposure as specified in
Section 2.04(k)) in an aggregate amount equal to any such excess. Any
prepayment pursuant to this clause (i) shall be applied, first, to Loans
outstanding and, next, as cover for LC Exposure.
(ii) Currency Fluctuation. On each Quarterly Date and promptly upon
the receipt by the Administrative Agent of a Currency Valuation Notice, the
Administrative Agent shall determine the sum (the "Aggregate Dollar Credit
Exposure") of the total Credit
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Exposures with respect to the Loans and all Letters of Credit denominated
in Dollars plus the aggregate Dollar Amount of all Letters of Credit
denominated in any Foreign Currency. Upon making such determination, the
Administrative Agent shall promptly notify the Lenders and the Borrower
thereof. If, on the date of such determination the Aggregate Dollar Credit
Exposure exceeds the total Commitments as then in effect, the Borrower
shall, on the date of such determination, prepay the Loans (and/or provide
cover for LC Exposure as specified in Section 2.05(k)) in an aggregate
amount equal to such excess. For purposes hereof, "Currency Valuation
Notice" means a notice given by the Required Lenders or by any Issuing
Lender to the Administrative Agent stating that such notice is a "Currency
Valuation Notice" and requesting that the Administrative Agent determine
the then Aggregate Dollar Credit Exposure. Unless an Event of Default shall
have occurred and be continuing, the Administrative Agent shall not be
required to make more than one valuation determination pursuant to Currency
Valuation Notices within any rolling three month period. Any prepayment
pursuant to this clause (ii) shall be applied, first, to Loans outstanding
and, next, as cover for LC Exposure.
(iii) Equity Issuance. Within 5 Business Days of receipt by the
Borrower or any of its Subsidiaries of any cash proceeds from any Equity
Issuance after the Effective Date, the Commitments shall be subject to
automatic reduction and/or the Borrower shall prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.04(k)), in an
aggregate amount equal to 50% of the Net Cash Proceeds of such Equity
Issuance, such reduction and/or prepayment to be effected in each case
solely to the extent specified in clause (vii) of this paragraph; provided
that, notwithstanding the foregoing, with respect to any Equity Issuance
resulting from the exercise of the warrants issued under the Warrant
Agreement the Borrower shall be required to make such prepayment within 30
Business Days after receipt of the Net Cash Proceeds thereof and only at
such time(s) the amount so received (together with all such amounts
previously received that have not been applied by the Borrower under this
clause (iii)) shall exceed $100,000.
(iv) Debt Incurrence. Within 5 Business Days of receipt by the
Borrower or any of its Subsidiaries of any cash proceeds from any Debt
Incurrence (excluding any Indebtedness incurred in accordance with Section
7.01) after the Effective Date, the Commitments shall be subject to
automatic reduction and/or the Borrower shall prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.04(k)), in an
aggregate amount equal to 100% of the Net Cash Proceeds thereof, such
reduction and/or prepayment to be effected in each case solely to the
extent specified in clause (vii) of this paragraph.
(v) Dispositions and Casualty Events. Within 5 Business Days of
receipt by the Borrower or any of its Subsidiaries of any cash proceeds
from any Disposition or Casualty Event, then, unless the Borrower shall
have delivered a Reinvestment Notice in respect thereof to the
Administrative Agent, to the extent the Net Cash Proceeds of such
Disposition or Casualty Event, as the case may be, when combined with the
Net Cash Proceeds of all other Dispositions and Casualty Events occurring
during the then current fiscal year as to which a prepayment has not yet
been made under this clause (v), are in excess of $5,000,000, the
Commitments shall be subject to automatic reduction and/or the Borrower
shall prepay the Loans (and/or provide cover for LC Exposure as specified
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in Section 2.04(k)), in an aggregate amount equal to that portion of the
Net Cash Proceeds of such Disposition or Casualty Event, as the case may
be, and such prior Dispositions and Casualty Events in excess of
$5,000,000, such reduction and/or prepayment to be effected in each case to
the extent specified in clause (vii) of this paragraph; provided that in
the case of any Disposition or Casualty Event as to which the Borrower
shall have delivered a Reinvestment Notice, thereafter on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward the
reduction of the Commitments and/or prepayment of Loans solely to the
extent specified in clause (vii) of this paragraph. Nothing in this
paragraph shall be deemed to limit any obligation of the Borrower or any of
its Subsidiaries pursuant to any of the Security Documents to remit to a
collateral or similar account maintained by the Collateral Agent pursuant
to any of the Security Documents the proceeds of insurance, condemnation
award or other compensation received in respect of any Casualty Event
affecting any property to the extent required by the terms thereof.
(vi) Excess Cash Flow. Not later than the date 90 days after the end
of each fiscal year of the Borrower ending after the date hereof, the
Commitments shall be subject to automatic reduction and/or the Borrower
shall prepay the Loans (and/or provide cover for LC Exposure as specified
in Section 2.04(k)), in an aggregate amount equal to (i) 50% of Excess Cash
Flow for such fiscal year minus (ii) the sum of, without duplication, (x)
the aggregate amount of all optional prepayments of the Loans during such
fiscal year, but only to the extent accompanied by a permanent reduction of
the Commitments, (y) the aggregate amount of all optional prepayments of
the Term Loans during such fiscal year and (z) the aggregate amount of all
regularly scheduled principal payments of the Term Loans made during such
fiscal year, such prepayment and/or reduction to be effected solely in each
case to the extent specified in clause (vii) of this paragraph; provided
that no mandatory prepayment shall be required under this clause (vi) if
such sum for any fiscal year shall be less than $1,000,000.
(vii) Application. The reductions of Commitments and/or prepayments
pursuant to clauses (iii), (iv), (v) and (vi) of this Section 2.09(b) shall
be applied to reduce the aggregate amount of the Commitments (and to the
extent that, after, giving effect to such reduction, the total Credit
Exposures would exceed the Commitments, the Borrower shall first, prepay
the Loans and next, provide cover for LC Exposure as specified in Section
2.04(k)). Notwithstanding the foregoing:
(x) except as provided in clause (z) below, no such reduction
and/or prepayment under any of such clauses (iii), (iv), (v) and (vi)
shall be required until the Term Loans have been paid in full;
(y) if at the time of the application of any such amount any
event or condition which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default (a "Potential Event
of Default") has occurred and is continuing, the amounts subject to
the mandatory prepayment requirements hereunder and under the Term
Loan Agreement shall not be applied to the prepayment of the Term
Loans (to the extent required under the Term Loan
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Agreement), but rather shall be paid by the Borrower or the relevant
Subsidiary to, and held in escrow by, the Administrative Agent until
such earlier time as an Event of Default has occurred as a result of
such event or condition or such Potential Event of Default has been
waived or cured; provided that (A) if at any time such Potential Event
of Default shall be waived or cured, such amounts shall be forthwith
applied to the prepayment to the Term Loans (but only to the extent
required under the Term Loan Agreement) and (B) if such an Event of
Default occurs, such amounts shall be applied solely in accordance
with clause (z) below; and
(z) if at the time of application of any amount subject to the
mandatory prepayment requirements hereunder and under the Term Loan
Agreement any Event of Default has occurred and is continuing, such
amount shall not be applied to the prepayment of the Term Loans (to
the extent required under the Term Loan Agreement), but rather shall
be applied to the reduction of the Commitments and/or the prepayments
(and/or the provision of cash cover for the LC Exposures) in
accordance with the first sentence of this paragraph (vii).
(c) Notices, etc. The Borrower shall notify the Administrative Agent
by telephone (confirmed by telecopy) of any prepayment hereunder (other than a
mandatory prepayment under Section 2.09(b)(i)) (i) in the case of prepayment of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment or (ii) in the case of prepayment of
an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment. Promptly following receipt of any
such notice relating to a Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply the
fully required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.11.
SECTION 2.10. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for account of each Lender a commitment fee, which shall accrue at a rate
per annum equal to 0.375% on the average daily unused amount of the Commitment
of such Lender during the period from and including the Effective Date hereof to
but excluding the Commitment Termination Date. Commitment fees accrued through
and including each Quarterly Date shall be payable in arrears on the third
Business Day following such Quarterly Date and on the earlier of the date the
Commitment terminates and the Commitment Termination Date, commencing on the
first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees with
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respect to the Commitments, the Commitment of a Lender shall be deemed to be
used to the extent of the outstanding Loans and LC Exposure of such Lender.
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Lender a participation fee with respect
to its participations in Letters of Credit (including the CHEL Letters of
Credit), which shall accrue at a rate per annum equal to the Applicable Margin
applicable to interest on Eurodollar Loans on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to each
Issuing Lender for its own account a fronting fee in respect of each Letter of
Credit issued by it, which shall accrue at the rate per annum, as mutually
agreed between the Borrower and such Issuing Lender, on the average daily amount
of the aggregate undrawn amount of such Letter of Credit plus the aggregate
amount of all LC Disbursements in respect thereof that have not yet been
reimbursed by or on behalf of the Borrower during the period from and including
the Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any exposure with respect
to such Letter of Credit, as well as such Issuing Lender's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including each Quarterly Date shall be payable in arrears on
the third Business Day following such Quarterly Date, commencing on the first
such date to occur after the Effective Date; provided that all such fees shall
be payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to any Issuing Lender pursuant to this paragraph
shall be payable within three Business Days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
any Issuing Lender, in the case of fees payable to it) for distribution, in the
case of commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing
shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the
Interest Period for such Borrowing plus the Applicable Margin.
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(c) Default Interest. Notwithstanding the foregoing, (i) upon and
during the continuation of any Event of Default under Section 8.01(a) or (b) or
(ii) upon request of the Required Lenders, upon and during the continuation of
any other Event of Default, the aggregate principal amount of all Loans shall
bear interest, after as well as before judgment, at a rate per annum equal to 2%
plus the rate otherwise applicable to the respective Loans. In addition (but
without duplication of the amounts payable under the immediately preceding
sentence), if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the Commitment Termination Date), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Borrowing
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the commencement
of the Interest Period for a EurodollarBorrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
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continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for account of, or
credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Lender; or
(ii) impose on any Lender or any Issuing Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
relevant Issuing Lender of participating in, issuing or maintaining any Letter
of Credit or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or such Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or such Issuing
Lender's capital or on the capital of such Lender's or such Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by such Issuing Lender, to a level below that which such Lender
or such Issuing Lender or such Lender's or such Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Lender's policies and the policies of such Lender's or
such Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or such Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender or such Lender's or such Issuing Lender's holding
company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender, an Issuing
Lender setting forth the amount or amounts necessary to compensate such Lender
or such Issuing Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
such Issuing Lender, as the case may be, the amount shown as due on any such
certificate within 30 days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender or
any Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or such Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender, an Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or such Issuing Lender, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or such Issuing Lender'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 the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto, or (d) the
assignment of any Eurodollar Loan other than on the last day of an Interest
Period therefor as a result of a request by the Borrower pursuant to Section
2.17, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for a deposit equal to
the principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an Affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 30 days after receipt thereof.
SECTION 2.15. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Credit Document
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)
the Administrative Agent, each Lender and/or each Issuing Lender (as the case
may be) receives 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.
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(b) Payment of Other Taxes by the Borrower. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and each Issuing Lender, within 30 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or such Issuing Lender, as the case may be, 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 the
Borrower by a Lender, an Issuing Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. 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) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction 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 or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.13, 2.14 or 2.15, or
otherwise) or under any other Credit Document (except to the extent otherwise
provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds in Dollars or (with respect to the reimbursement or
other obligation in respect of any Letter of Credit denominated in a Foreign
Currency) in such Foreign Currency, without set-off, counterclaim or other
deduction; provided that if a new Loan is to be made by any Lender on a date the
Borrower is to repay any principal of an outstanding Loan of such Lender, such
Lender shall apply the proceeds of such new Loan to the payment of the principal
to be repaid and only an amount equal to the difference between the principal to
be borrowed and the principal to be repaid shall be made available by such
Lender to the Administrative Agent as provided in Section 2.05 or paid by the
Borrower to the Administrative Agent pursuant to this paragraph, as the case may
be. 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
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thereon. All such payments shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York, except as otherwise expressly
provided in the relevant Credit Document, and except payments to be made
directly to the relevant Issuing Lender as expressly provided herein and except
that payments pursuant to Sections 2.13, 2.14, 2.15 and 10.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for 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 payable for the period of
such extension. All payments hereunder or under any other Credit Document
(except to the extent otherwise provided herein or therein) shall be made in
Dollars. Notwithstanding the foregoing, if the Borrower shall fail to pay any
reimbursement obligation in respect of any LC Disbursement denominated in a
Foreign Currency when due, such unpaid reimbursement obligation shall
automatically be redenominated in Dollars on the due date thereof in an amount
equal to the Dollar Equivalent thereof and such principal or reimbursement
obligation shall be payable on demand in such amount in Dollars; and if the
Borrower shall fail to pay interest on any LC Disbursement made pursuant to a
Letter of Credit that is denominated in a Foreign Currency, such interest shall
automatically be redenominated in Dollars on the due date therefor in an amount
equal to the Dollar Equivalent thereof on the date of such redenomination and
such interest shall be payable on demand.
(b) Application of Insufficient Payments. 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, to pay 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, to pay
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) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each payment or prepayment of principal of Loans by the Borrower
shall be made for account of the relevant Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans held by them and (ii) each
payment of interest on Loans by the Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. 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 Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon then due than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and participations in LC
Disbursements 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 Loans
and participations in LC Disbursements; provided that (i) if any such
participations are
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purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Obligor 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 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). Each Obligor 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 such Obligor rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Obligor
in the amount of such participation.
(e) Presumptions of Payment. 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 account of the Lenders or any Issuing Lender
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
such Issuing Lender, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or such
Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Lender 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 Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(e) or (f), 2.05(b) or 2.16(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.15, 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 judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13 or 2.15, 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
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.13, if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.15, if any Lender defaults in its obligation to fund Loans hereunder,
or if a Lender refuses to consent to any amendment, modification or waiver of
this Agreement or any other Credit Document that pursuant to Section 10.02
requires consent of 100% of the Lenders directly affected thereby, 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 contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (which
consent shall not unreasonably be withheld) with respect to such assignment (but
only to the extent such consent is required by Section 10.04(b)), (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.13 or payments required to be made pursuant to Section 2.15, 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.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. (a) The Borrower hereby guarantees (and
hereby confirms its guarantee pursuant to the 1999 Credit Agreement) to the CHEL
Issuing Lender, each Lender and the Administrative Agent and their respective
successors and assigns, in each case as primary obligor and not merely as
surety, the prompt payment in full when due of all obligations of CHEL in
respect of the CHEL Letters of Credit, strictly in accordance with the terms
hereof (such obligations being herein collectively called the "CHEL Guaranteed
Obligations"). The Borrower hereby further agrees that if CHEL shall fail to pay
in full when due any of the CHEL Guaranteed Obligations, the Borrower will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the CHEL
Guaranteed Obligations, the same will be promptly paid in full when due in
accordance with the terms of such extension or renewal.
(b) The Subsidiary Guarantors hereby jointly and severally guarantee
to each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to the Borrower and all other amounts from time to time owing to the
Lenders or the Administrative Agent by the Borrower and/or any other Obligor
under any of the Credit Documents, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "Guaranteed
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Obligations"). The Subsidiary Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Subsidiary Guarantors will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the
Guarantors under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of
any other guarantee of or security for any of the CHEL Guaranteed Obligations or
the Guaranteed Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section that the obligations of the Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of the Guarantors hereunder, which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
CHEL Guaranteed Obligations or Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall be
done or omitted;
(iii) the maturity of any of the CHEL Guaranteed Obligations or
Guaranteed Obligations shall be accelerated or the CHEL Guaranteed
Obligations or Guaranteed Obligations shall be modified, supplemented or
amended in any respect, or any right under this Agreement or any other
agreement or instrument referred to herein shall be waived or any other
guarantee of any of the CHEL Guaranteed Obligations or Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
CHEL Guaranteed Obligations or Guaranteed Obligations shall fail to be
perfected; or
(v) the insolvency of CHEL or the invalidity, unenforceability or
illegality, or any other defect or defense related to, any of the
obligations of CHEL in respect of the CHEL Letters of Credit.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust
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any right, power or remedy or proceed against the Borrower under this Agreement
or any other agreement or instrument referred to herein, or against any other
Person under any other guarantee of, or security for, any of the CHEL Guaranteed
Obligations or Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Guarantors under
this Article shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of an Obligor in respect of the CHEL
Guaranteed Obligations or Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the CHEL Guaranteed Obligations or
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantors jointly and severally agree that
they will indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including reasonable fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law, but
excluding any such costs and expenses determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of the Administrative Agent or such Lender, as
the case may be.
SECTION 3.04. Subrogation. The Guarantors hereby jointly and severally
agree that until the payment and satisfaction in full of all CHEL Guaranteed
Obligations or Guaranteed Obligations and the expiration and termination of the
Commitments of the Lenders under this Agreement they shall not exercise any
right or remedy arising by reason of any performance by them of their guarantee
in Section 3.01, whether by subrogation or otherwise, against any Obligor or any
other guarantor of any of the CHEL Guaranteed Obligations or Guaranteed
Obligations or any security for any of the CHEL Guaranteed Obligations or
Guaranteed Obligations.
SECTION 3.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the Obligors
under this Agreement may be declared to be forthwith due and payable as provided
in Article VIII (and shall be deemed to have become automatically due and
payable in the circumstances provided in Article VIII) for purposes of Section
3.01 notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Obligor and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by such Obligor) shall forthwith
become due and payable by the Guarantors for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Article constitutes an instrument
for the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
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SECTION 3.07. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all CHEL Guaranteed Obligations or
Guaranteed Obligations whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section shall be subordinate and subject
in right of payment to the prior payment in full of the obligations of such
Subsidiary Guarantor under the other provisions of this Article and such Excess
Funding Guarantor shall not exercise any right or remedy with respect to such
excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor" means, in
respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Subsidiary
Guarantors hereunder and under the other Credit Documents) of all of the
Subsidiary Guarantors, determined (A) with respect to any Subsidiary Guarantor
that is a party hereto on the Effective Date, as of the Effective Date, and (B)
with respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01(b) would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01(b), then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
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valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and each Subsidiary Guarantor (as to itself and its
Subsidiaries only) represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to carry on its business now conducted and (c) except where the
failure to do so, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualifications.
SECTION 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by each Obligor party hereto and
constitutes, and each of the other Credit Documents to which an Obligor is a
party when executed and delivered by such Obligor will constitute, a legal,
valid and binding obligation of such Obligor, enforceable against each Obligor
in accordance with its terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance of the Credit Documents (a) do not require any consent
or approval of, registration or filing with, or any other action by, any
Governmental Authority, except for (i) such as have been obtained or made and
are in full force and effect and (ii) filings and recordings in respect of the
Liens created pursuant to the Security Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority applicable to the Borrower or any of its Subsidiaries,
(c) will not violate or result in a default under any indenture, mortgage, deed
of trust, credit agreement or loan agreement or any other material agreement,
contract or instrument binding upon the Borrower or any of its Subsidiaries or
assets, or give rise to a right thereunder to require any payment to be made by
any such Person and (d) except for Liens created pursuant to the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished to the
Lenders its audited consolidated balance sheet and statements of income,
stockholders' equity and cash
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flows as of and for the fiscal years ended December 31, 2002 reported on by
Ernst & Young LLP and its unaudited consolidated balance sheet and statements of
income and cash flows as of and for the six-month period ended June 30, 2003.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its Subsidiaries as of such dates and for such periods in accordance with GAAP
(subject, with respect to such financial statements as of and for such six-month
period ended June 30, 2003, to normal year-end audit adjustments and the absence
of footnotes). Neither the Borrower nor any of its Subsidiaries has, on the date
hereof, any material contingent liabilities, material liabilities for taxes,
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchanged transactions, or any
unrealized or anticipated losses from any unfavorable commitments, which are not
reflected in such financial statements as required by GAAP.
(b) No Material Adverse Change. Since the Petition Date, there has
been no development or event that has had or could reasonably be expected to
have a Material Adverse Effect (other than with respect to any change of the
type that customarily occurs following commencement of a proceeding under
chapter 11 of the Bankruptcy Code).
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, subject only to Liens permitted by Section
7.02 and except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.06. Litigation. Except for the matters disclosed in Schedule
4.06, there are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority now pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) that
could reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect or (ii) with respect to this Agreement or the
Transactions. Since the date of this Agreement, there has been no change in the
status of the matters disclosed in Schedule 4.06 that, either individually or in
the aggregate, could reasonably be expected to have, or materially increase the
likelihood of, a Material Adverse Effect.
SECTION 4.07. Environmental Matters. Each of the Borrower and its
Subsidiaries has obtained all environmental, health and safety permits,
licenses, registrations and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license,
registration or authorization would not (either individually or in the
aggregate) have a Material Adverse Effect. Each of such permits, licenses,
registrations and authorizations is in full force
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and effect and each of the Borrower and its Subsidiaries is in compliance with
the terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction
issued, entered, promulgated or approved thereunder, except to the extent
failure to comply therewith would not (either individually or in the aggregate)
have a Material Adverse Effect.
In addition, except as disclosed in Schedule 4.07:
(a) No Pending Environmental Matters. No written notice, notification,
demand, request for information, citation, summons or order has been
issued, no complaint has been filed, no penalty has been assessed and no
investigation or review is pending or, to the best knowledge of the
Borrower or any of its Subsidiaries, threatened by any governmental or
other entity with respect to any alleged failure by the Borrower or any of
its Subsidiaries to have any environmental, health or safety permit,
license, registration or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Borrower or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Borrower or any of
its Subsidiaries.
(b) No Permits Required; Certain Specific Representations. Neither the
Borrower nor any of its Subsidiaries owns, operates or leases a treatment,
storage or disposal facility requiring a permit under the Resource
Conservation and Recovery Act of 1976, as amended, or under any comparable
state or local statute; and
(i) no polychlorinated biphenyls (PCB's) are or have been present
at or above regulated levels at any site or facility now or previously
owned, operated or leased by the Borrower or any of its Subsidiaries;
(ii) no regulated asbestos or asbestos-containing materials is or
has been present at any site or facility now or previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any site
or facility now or, to the best knowledge of the Borrower or any of
its Subsidiaries, previously owned, operated or leased by the Borrower
or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at, on or
under any site or facility now or previously owned, operated or leased
by the Borrower
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or any of its Subsidiaries that would (either individually or in the
aggregate) have a Material Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites. Neither the
Borrower nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Material in amounts or quantities other
than those not reasonably likely to have a Material Adverse Effect to any
location that is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the NPL by
the Environmental Protection Agency in the Comprehensive Environmental
Response and Liability Information System, as provided for by 40 C.F.R. ss.
300.5 ("CERCLIS"), or on any similar state or local list or that is the
subject of Federal, state or local enforcement actions or other
investigations that may lead to Environmental Claims against the Borrower
or any of its Subsidiaries.
(d) No Notifications or Listings. No oral or written notification of a
Release of a Hazardous Material has been filed by or on behalf of the
Borrower or any of its Subsidiaries and no site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL, CERCLIS or any
similar state list of sites requiring investigation or clean-up.
(e) No Liens or Restrictions. No Liens have arisen under or pursuant
to any Environmental Laws on any site or facility owned, operated or leased
by the Borrower or any of its Subsidiaries, and no government action has
been taken or is in process that could subject any such site or facility to
such Liens and neither the Borrower nor any of its Subsidiaries would be
required to place any notice or restriction relating to the presence of
Hazardous Materials at any site or facility owned by it in any deed to the
real property on which such site or facility is located.
(f) Full Disclosure. All environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in the
possession of the Borrower or any of its Subsidiaries in relation to facts,
circumstances or conditions at or affecting any site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries and that could have a Material Adverse Effect have been made
available to the Lenders.
SECTION 4.08. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
SECTION 4.09. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
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SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.11. 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
have 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 Accounting Standards No. 87) did not, as of the date of
the most recent annual financial statements reflecting such amounts, exceed the
fair market value of the assets of such Plan by more than $15,000,000.
SECTION 4.12. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Obligors to the Lenders in
connection with the negotiation of this Agreement and the other Credit Documents
or delivered hereunder or thereunder (as modified or supplemented by other
information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such projected financial
information was prepared in good faith based upon assumptions believed to be
reasonable at the time, it being recognized by the Lenders that such projected
financial information include forward-looking statements that by their very
nature are subject to significant risks, uncertainties and contingencies, many
of which are beyond the control of the Borrower and its Subsidiaries and that
actual results may differ, perhaps materially, from those expressed or implied
in such forward-looking statements. There is no fact known to the Borrower or
any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other Credit Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lenders for use in connection with the
Transactions.
SECTION 4.13. Use of Credit. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.14. Debt Agreements and Liens.
(a) Debt Agreements. As of the date hereof, Schedule 7.01 is a
complete and correct list of each credit agreement, loan agreement, indenture,
purchase agreement, guarantee, letter of credit or other arrangement providing
for or otherwise relating to any Indebtedness or
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any extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Borrower or any of its Subsidiaries then outstanding (other
than any Indebtedness under the 1999 Credit Agreement, the DIP Credit Agreement
and the Term Loan Agreement), and the aggregate principal or face amount
outstanding or that may become outstanding under each such arrangement is
correctly described in Schedule 7.01. As of the date hereof (immediately prior
to giving effect to this Agreement), (i) Schedule II is a complete and correct
list of the Existing Loans and (ii) Schedule III is a complete and correct list
of the Existing Letters of Credit and the CHEL Letters of Credit.
(b) Liens. As of the date hereof, Schedule 7.02 is a complete and
correct list of each Lien securing Indebtedness of any Person then outstanding
(other than intercompany debt among the Borrower and the Subsidiary Guarantors
and any Indebtedness under the 1999 Credit Agreement, the DIP Credit Agreement
and the Term Loan Agreement) and covering any property of the Borrower or any of
its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Schedule 7.02.
SECTION 4.15. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Schedule 4.15(a) is a complete and
correct list of all of the Subsidiaries of the Borrower as of the date hereof,
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
(except that, in the case of non-Wholly Owned Subsidiaries, the identity of the
owners other than the Borrower and its Subsidiaries need not be specified) and
(iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Schedule 4.15(a), as of the Effective Date
(after giving effect to the transactions contemplated to occur on or before the
Effective Date) (x) each of the Borrower and its Subsidiaries owns, or will own,
free and clear of Liens (other than Liens created pursuant to the Security
Documents), and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 4.15(a), (y) all of
the issued and outstanding Capital Stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
(b) Investments. Set forth in Schedule 7.04 is a complete and correct
list of all Investments (other than Investments disclosed in Schedule 4.15(a)
and other than Investments of the types referred to in clauses (b), (c), (d),
(f), (j) and (l) of Section 7.04) held by the Borrower or any of its
Subsidiaries in any Person on the date hereof or that will be held on the
Effective Date (after giving effect to the transactions contemplated to occur on
or before the Effective Date) and, for each such Investment, (x) the identity of
the Person or Persons holding such Investment and (y) the nature of such
Investment. Except as disclosed in Schedule 7.04, each of the Borrower and its
Subsidiaries owns (or will own, after giving effect to the transactions
contemplated to occur on or before the Effective Date), free and clear of all
Liens (other than Liens created pursuant to the Security Documents and other
Liens permitted hereunder), all such Investments.
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(c) Restrictions on Subsidiaries. None of the Subsidiaries of the
Borrower is, on the date hereof, subject to any indenture, agreement, instrument
or other arrangement of the type described in Section 7.07 (but subject to the
exceptions set forth therein).
SECTION 4.16. Real Property. Set forth in Schedule 4.16 is a list, as
of the date hereof, of all of the real property interests held by the Borrower
and its Subsidiaries, indicating in each case whether the respective property is
owned or leased, the identity of the owner or (in the case of any leased
property) the lessor and lessee thereof, and the location of the respective
property, and designating the properties that will subject to a Mortgage as of
the Effective Date.
SECTION 4.17. Labor Matters. Except as set forth in Schedule 4.17, (a)
on the date hereof neither the Borrower nor any of its Subsidiaries nor any of
their respective employees is subject to any collective bargaining agreement,
(b) on the date hereof, no petition for certification or union election is
pending with respect to the employees of the Borrower or any of its Subsidiaries
and no union or collective bargaining unit has sought certification or
recognition with respect to the employees of any such Person within the
three-year period ending on the Effective Date and (c) there are no strikes or
other labor disputes against the Borrower or any of its Subsidiaries pending or,
to the knowledge of the Borrower, threatened, other than any thereof that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payment made to employees of the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable law, regulation or order of any
Governmental Authority dealing with such matters that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. All
payments due from the Borrower or any of its Subsidiaries on account of employee
health and welfare insurance that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect if not paid have been
paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
SECTION 4.18. No Burdensome Restrictions. Neither the Borrower nor any
of its Subsidiaries is a party to any agreement or other contractual arrangement
imposing burdensome requirements upon the Borrower or any of its Subsidiaries
that, taking into account the benefits of such agreement or other arrangement to
the Borrower or such Subsidiary, could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.19. Solvency. As of the Effective Date and after giving
effect to the Transactions contemplated hereby, (a) the aggregate value of all
properties of the Borrower and its Subsidiaries at their present fair saleable
value (i.e., the amount that may be realized within a reasonable time,
considered to be six months to one year, either through collection or sale at
the regular market value, conceiving the latter as the amount that could be
obtained for the property in question within such period by a capable and
diligent businessman from an interested buyer who is willing to purchase under
ordinary selling conditions, and determined on a going concern basis), exceeds
the amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of the Borrower and its Subsidiaries,
(b) the Borrower and its Subsidiaries will not, on a consolidated basis, have an
unreasonably small capital with which to conduct their business operations as
heretofore conducted and (c) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay their debts as
they mature.
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ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. This Agreement (and the amendment and
restatement of the DIP Credit Agreement contemplated hereby) and the obligations
of the Lenders to make Loans and of the Issuing Lenders to issue and continue
Letters of Credit hereunder shall become effective at 5:00 p.m. (New York City
time) on the date hereof upon the satisfaction of the following conditions,
including receipt by the Administrative Agent of each of the following
documents, each of which shall be satisfactory to the Administrative Agent (and
to the extent specified below, to the requisite number of Lenders) in form and
substance (or such condition having been waived in accordance with Section
10.02):
(a) Executed Counterparts. This Agreement (and the related
documentation as contemplated hereby), each duly executed and delivered by
the Obligors and the Administrative Agent (it being understood that,
pursuant to an order of the Bankruptcy Court referred to in Section
5.01(k), each of the Lenders shall be deemed to have agreed to, and shall
be bound by, the provisions of this Agreement whether or not such Lenders
shall execute and deliver a counterpart hereof).
(b) Opinion of Counsel to the Obligors. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Calfee, Halter & Griswold LLP, as counsel for the
Obligors, and (ii) such other counsel to one or more of the Obligors as the
Administrative Agent shall request, in form and substance satisfactory to
the Administrative Agent covering such matters relating to the Obligors,
this Agreement and/or the Transactions (and each Obligor hereby instructs
such counsel to deliver such opinion to the Lenders and the Administrative
Agent).
(c) Opinion of Special New York Counsel to JPMCB. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to JPMCB, in form and substance satisfactory to the
Administrative Agent (and JPMCB hereby instructs such counsel to deliver
such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating to
the Obligors, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 5.02.
(f) Security Agreement. The Security Agreement substantially in the
form of Exhibit B hereto, duly executed and delivered by the Borrower, the
Subsidiary
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Guarantors and the Collateral Agent, together with (to the extent required
by the terms thereof) the certificates (if any) held by the respective
Obligor and identified therein and undated stock (or other) powers executed
in blank. In addition, the respective Obligors shall have taken such other
action (including delivering to the Collateral Agent pursuant to the
Security Agreement for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements) as the Collateral
Agent shall have requested in order to perfect the security interests
created pursuant to the Security Agreement.
(g) Mortgages and Title Insurance. The following documents, each of
which shall be executed (and, where appropriate, acknowledged) by Persons
satisfactory to the Collateral Agent:
(i) a Mortgage amending and restating each of the Existing
Mortgages, in each case duly executed and delivered by the respective
owner or lessee of such property in recordable form (in such number of
copies as the Collateral Agent shall have requested) and, to the
extent necessary with respect to any leasehold property to be
subjected to a Mortgage, consents of the respective landlords with
respect to such property;
(ii) one or more mortgagee policies of title insurance (or an
endorsement of such policies issued under the 1999 Credit Agreement)
on forms of and issued by First American Title Insurance Company (the
"Title Company"), insuring the validity and priority of the Liens
created under each such Mortgage for and in amounts satisfactory to
the Collateral Agent, subject only to such exceptions as are
satisfactory to the Collateral Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
office(s), Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed; and
(iii) opinions, each dated the Effective Date, of local counsel
in each of the respective states in which the properties covered by
the Mortgages executed and delivered under this clause (g) are
located, in form and substance reasonably satisfactory to the
Collateral Agent (each such opinion to be addressed to the Lenders,
the Administrative Agent and the Collateral Agent).
In addition, the Borrower shall have paid to the Title Company all expenses
and premiums of the Title Company in connection with the issuance of such
policies (or endorsements) and in addition shall have paid to the Title
Company an amount equal to the recording and stamp taxes payable in
connection with recording each such Mortgage in the appropriate county land
office(s).
(h) Approvals. All material governmental and third party approvals
necessary or, in the discretion of the Administrative Agent, advisable in
connection with the financing contemplated hereby and the continuing
operations of the Borrower and its Subsidiaries shall have been obtained
and be in full force and effect.
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(i) Insurance. Certificates of insurance evidencing the existence of
all insurance required to be maintained by the Borrower pursuant to Section
6.05(b) and the designation of the Administrative Agent as an additional
named insured and the Collateral Agent as the loss payee or additional
named insured, as the case may be, thereunder to the extent required by
Section 6.05(b), such certificates to be in such form and contain such
information as is specified in Section 6.05(b). In addition, the Borrower
shall have delivered a certificate of a Financial Officer of the Borrower
setting forth the insurance obtained by it in accordance with the
requirements of Section 6.05(b) and stating that such insurance is in full
force and effect and that all premiums then due and payable thereon have
been paid.
(j) Lien Searches. The results (which shall be satisfactory to the
Administrative Agent) of a recent search conducted by a Person satisfactory
to the Administrative Agent of Uniform Commercial Code, judgment and tax
lien filings in each relevant jurisdiction where property of the Obligors
is located, and the results of such search shall reveal no Liens on any of
the property of the Obligors except for those permitted under Section 7.02.
(k) Consummation of Reorganization Plan. Evidence that the Bankruptcy
Court shall have entered orders confirming the Reorganization Plan and
authorizing the Obligors to enter into the Transaction Documents, such
orders and Reorganization Plan to each be in form and substance
satisfactory to the Required Lenders (as defined in each of the DIP Credit
Agreement and the 1999 Credit Agreement) voting as one class, and each of
such orders shall be in full force and effect and none of such orders shall
be subject to any appeal or stay, and the Borrower and each of the
Subsidiary Guarantors party to the Cases shall have emerged (or be
simultaneously emerging) from the Cases and shall have consummated (or
shall be simultaneously consummating) the Reorganization Plan in accordance
with the terms thereof, and the Administrative Agent shall have received
evidence satisfactory in form and substance to it demonstrating such fact.
(l) Other Credit Documents. The Collateral Agency and Intercreditor
Agreement, duly executed and delivered by each of the parties thereto.
(m) Term Loan Documents. The Term Loan Agreement and the other Term
Loan Documents, in each case duly executed and delivered by the parties
thereto, and (concurrently with the satisfaction of the conditions
precedent under this Section) the conditions to effectiveness shall have
been satisfied and the restructuring of the loans and other extensions of
credit contemplated thereby shall have been consummated.
(n) Cash Management System. The Required Lenders shall be satisfied
with the cash management system of the Borrower and its Subsidiaries and
shall have received copies of all agreements and documents effecting such
system.
(o) Fees and Expenses. The Borrower shall have made arrangements
satisfactory to the Administrative Agent for payment not later than the
Business Day following the Effective Date to the Administrative Agent of
(a) for account of each Lender, an upfront
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fee equal to 1.50% of such Lender's Commitment as in effect on the
Effective Date and (b) for the account of the relevant payee, all other
fees and expenses payable by the Borrower in connection herewith.
(p) Other Documents. Such other documents as the Administrative Agent
(or its counsel) or any Lender may reasonably request.
SECTION 5.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of each Issuing Lender to issue,
continue, amend, renew or extend, as applicable, any Letter of Credit, is
subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Obligors set forth in
this Agreement and each of the other Credit Documents shall be true and
correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable,
with the same force and effect as if made on and as of such date (or, if
any such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date); and
(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, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a 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 the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent (which shall promptly furnish to each
Lender):
(a) within 90 days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Borrower and its
Subsidiaries as of the end of and for such year, setting forth in each case
in comparative form the figures for (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all reported on by Ernst &
Young LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements
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present fairly in all material respects the financial condition and results
of operations of the Borrower and its Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 45 days after the end of the first three fiscal quarters of
the Borrower, the unaudited consolidated balance sheet and related
statements of operations and cash flows of the Borrower and its
Subsidiaries as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet, as
of the end of) the corresponding period or periods of the previous fiscal
year, all certified by a Financial Officer of the Borrower as presenting
fairly in all material respects the consolidated financial condition and
results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 7.08, 7.09 and
7.11 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 4.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly upon receipt thereof, copies of all significant reports
submitted to the Borrower or any of its Subsidiaries by independent public
accountants in connection with each annual, interim or special audit of the
financial statements of the Borrower and its Subsidiaries made by such
accountants, including the comment letter submitted by such accountants to
management in connection with their annual audit;
(f) within the time periods specified below in this clause (f), but in
any event promptly following delivery of any thereof to the Borrower's
senior management, (I) the monthly package of financial and other
information prepared for such management for each month and (II) without
duplication, the following:
(i) (A) within 30 days after the end of each month (except
within 45 days after the end of March, June and September and within
90 days after the end of December) the unaudited consolidated balance
sheet and related statements of operations and cash flows of the
Borrower and its Subsidiaries as of the end of and for such month and
the then elapsed portion of the fiscal year and (B) within
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30 days after the end of March, June, September and December, a draft
of such consolidated balance sheet and related statements of
operations and cash flows as of the end of and for such month and the
then elapsed portion of the fiscal year; and
(ii) within 30 days after the end of each month (except, other
than for the information under subclause (G) below, within 45 days
after the end of March, June and September and within 90 days after
the end of December), information (presented in a form satisfactory to
the Required Lenders) for such month (the "Relevant Month") and (to
the extent specified below, in the case of the months of March, June,
September and December) for the fiscal quarter ending at the end of
such month (the "Relevant Fiscal Quarter"), as to the following:
(A) sales, orders and backlog of each operating group
as of the end of the Relevant Month;
(B) a comparison of actual orders, sales and
Consolidated EBITDA for the Relevant Month and (in the case of
each of March, June, September and December) the Relevant
Fiscal Quarter to the corresponding monthly or quarterly
period, as appropriate, in the annual operating budget, with
written explanations of material variances,
(C) key working capital ratios as of the end of the
Relevant Month;
(D) sales, general and administrative expenses for the
Relevant Month;
(E) accounts receivable balances, including
identification of significant past-due accounts receivables as
of the end of the Relevant Month;
(F) the unaudited consolidating balance sheet and
related statement of operations of each of the Borrower and its
Subsidiaries as of the end of and for the Relevant Month, (in
the case of each of March, June, September and December) as of
the end of and for the Relevant Fiscal Quarter and for the then
elapsed portion of the fiscal year; and
(G) a draft of the consolidating balance sheet and
related statement of operations of each of the Borrower and its
Subsidiaries as of the end of and for the Relevant Month, (in
the case of each of March, June, September and December) as of
the end of and for the Relevant Fiscal Quarter and for the then
elapsed portion of the fiscal year;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental
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Authority succeeding to any or all of the functions of said Commission, or
with any national securities exchange, or distributed by the Borrower to
its shareholders generally, as the case may be;
(h) (i) on or prior to the first day of each fiscal year of the
Borrower, a draft of the annual operating budget for such fiscal year of
the Borrower and its Subsidiaries (in form satisfactory to the Required
Lenders); and (ii) as soon as available but in any event no later than 30
days after the commencement of each fiscal year of the Borrower, a final
annual operating budget for such fiscal year of the Borrower and its
Subsidiaries (in form satisfactory to the Required Lenders);
(i) as soon as possible but in no event later than 45 days after the
end of each fiscal quarter, an update of the annual operating budget for
the then current fiscal year delivered under this Section (in form
satisfactory to the Required Lenders), setting forth (i) actual
year-to-date performance through the end of such quarter and (ii)
reforecasts for each fiscal quarter remaining in the then current fiscal
year of the Borrower and comparing such reforecasts to such annual
operating budget and any prior re-forecasts for each such fiscal quarter
furnished under this clause (i);
(j) on or prior to the first day of each fiscal quarter of the
Borrower, a 13-week cash flow forecast of the Borrower and its Subsidiaries
for such fiscal quarter; and
(k) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Credit Documents, as the Administrative Agent or
any Lender may reasonably request.
SECTION 6.02. Notices of Certain Events and Developments. The Borrower
will furnish to the Administrative Agent (which shall promptly furnish to each
Lender) prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Affiliates that could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $2,500,000;
(c) 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 $2,500,000;
(d) the assertion of any Environmental Claim by any Person against, or
with respect to the activities of, the Borrower or any of its Subsidiaries
and any alleged violation of or non-compliance with any Environmental Laws
or any permits, licenses or authorizations, other than any Environmental
Claim or alleged violation that, if adversely
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determined, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $1,000,000;
and
(e) any other development that results in, or could reasonably be
expected to have, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. 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 keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03(a).
SECTION 6.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could reasonably be expected to have a Material
Adverse Effect 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 have a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection. 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 are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, (i) permit any representatives
designated by the Administrative Agent (including without limitation any advisor
engaged by the Administrative Agent or its counsel) or any Lender, upon at least
one Business Day's prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers, employees and independent accountants,
all at such reasonable times and as often as reasonably requested (which visits
and inspections shall be (x) at the Borrower's sole expense following the
occurrence and during the continuance of any Default or in the case of any visit
or inspection by the Administrative Agent and (y) otherwise, at such Lender's
expense) and (ii) upon the Administrative Agent's request, permit the
Administrative Agent or any of its agents or representatives to engage an
auditor to conduct a comprehensive field audit of its books, records,
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properties and assets; provided that the Borrower shall not be required to pay
for more than one comprehensive field audit per calendar year, except if such
audit is requested following the occurrence and during the continuance of any
Default.
SECTION 6.07. Compliance with Laws and Agreements. The Borrower will,
and will cause each of its Subsidiaries to, comply with (i) all applicable laws
(including, without limitation, Environmental Laws), rules, regulations, orders,
permits or other authorization of or from any Governmental Authority, and (ii)
all indentures, agreements and other instruments binding upon its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only for working capital and other general corporate
purposes of the Borrower and its Subsidiaries in the ordinary course of
business. Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, is in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and no part of the proceeds of any extension of
credit hereunder will be used to buy or carry any Margin Stock.
SECTION 6.09. Additional Guarantors; Additional Collateral; Ownership
of Subsidiaries
(a) Subsidiary Guarantors. The Borrower will take such action, and
will cause each of its Subsidiaries to take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Borrower are
"Subsidiary Guarantors" hereunder; provided that, notwithstanding anything
herein to the contrary, the following Subsidiaries shall not be required to be
or become Subsidiary Guarantors hereunder or Obligors under any Security
Document (collectively, the "Excluded Subsidiaries"): (i) any Foreign
Subsidiary; and (ii) any Domestic Subsidiary held, directly or indirectly, by a
Foreign Subsidiary. Without limiting the foregoing, in the event that the
Borrower or any of its Subsidiaries shall form or acquire any new Subsidiary
(other than an Excluded Subsidiary) that shall constitute a Subsidiary
hereunder, the Borrower and its Subsidiaries will cause such new Subsidiary to
become a "Subsidiary Guarantor" hereunder and an "Obligor".
(b) Additional Collateral. The Borrower will, and will cause each of
the other Obligors to, grant from time to time to the Collateral Agent for the
benefit of the Secured Parties security interests in all of the assets and
properties of the Borrower and other Obligors, now existing or hereafter
acquired, pursuant to the relevant Security Documents. All such security
interests and Liens shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests and Liens in favor
of the Collateral Agent superior to and prior to the rights of all third Persons
and subject to no other Liens except for Liens permitted under Section 7.02. The
Liens on such assets and properties and/or the security agreements or other
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent as required pursuant to
the relevant Security Documents and all taxes, fees and other charges payable in
connection therewith shall have been paid in full. The Borrower will, and
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will cause each of the other Obligors to, at the expense of the Borrower, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys, reports, landlord waivers, bailee
agreements, control agreements and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower will, and will cause the other Obligors to, deliver to the Collateral
Agent such opinions of counsel, title insurance and other related documents as
may be reasonably requested by the Administrative Agent to assure itself that
this Section has been complied with.
Notwithstanding the foregoing, in the event the Borrower or any
Subsidiary that which is organized under the laws of a State, the United States
of America or the District of Columbia shall form or acquire directly a Foreign
Subsidiary, the Borrower will, and will cause such Subsidiary to pledge the
Capital Stock of such Foreign Subsidiary in favor of the Collateral Agent
pursuant to the relevant Security Document in form and substance reasonably
satisfactory to the Administrative Agent, provided that such pledge of Capital
Stock of a Foreign Subsidiary shall be limited to (i) 65% of the voting Capital
Stock of such Foreign Subsidiary having ordinary voting power for the election
of the board of directors of such Subsidiary and (ii) 100% of all other Capital
Stock of such Foreign Subsidiary; and provided further that, notwithstanding the
foregoing, no portion of the Capital Stock of Chart Europe GmbH ("Chart Europe")
held by the Borrower and its Subsidiaries as of the Effective Date shall be
required to be pledged pursuant to this Agreement, provided that the Borrower
will cause Chart Europe to be liquidated on or prior to June 30, 2004 and, prior
to such liquidation, the Borrower will not, and will not permit any of its
Subsidiaries to, engage in any transaction with Chart Europe other than those
directly related to the consummation of such liquidation (and, in any event,
will not make any Investment in, or transfer any property to, Chart Europe after
the Effective Date).
Notwithstanding the foregoing, as of the Effective Date the Borrower
will, and will cause the other Obligors to, execute and deliver the Mortgages
with respect to such real property interests of the Borrower and the other
Obligors as are designated to be so mortgaged in Schedule 4.16. From time to
time thereafter the Borrower will, and will cause each other Obligor to, notify
the Administrative Agent within 30 days of the acquisition of any additional
real property interests (whether a fee or leasehold) and, thereafter upon the
request of the Required Lenders, grant a mortgage lien on such real property
pursuant to a Mortgage in form and substance reasonably satisfactory to the
Administrative Agent; provided that, in no event will the Borrower or any of its
Subsidiaries be required to take any action, other than using commercially
reasonable efforts, to obtain consents from third parties with respect to its
compliance with this paragraph. If the Administrative Agent or the Required
Lenders reasonably determine that they are required by law or regulation to have
appraisals prepared in respect of any real property of the Borrower and its
Subsidiaries constituting Collateral, the Borrower will, at its own expense,
provide to the Administrative Agent appraisals which satisfy the applicable
requirements of the Real Estate Appraisal Reform Amendments of the Financial
Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which
shall otherwise be in form and substance reasonably satisfactory to the
Administrative Agent.
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(c) Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, take such action from time to time as shall reasonably be
requested by the Administrative Agent or Collateral Agent to effectuate the
purposes and objectives of this Agreement. Without limiting the generality of
the foregoing, the Borrower will, and will cause each other Obligor to, take
such action from time to time (including filing appropriate Uniform Commercial
Code financing statements and executing and delivering such assignments,
security agreements and other instruments) as shall be reasonably requested by
the Collateral Agent to create, in favor of the Collateral Agent, perfected
security interests and Liens in the Collateral purported to be granted as
collateral security for its obligations hereunder and under the Credit
Documents, as required by the Security Documents. Without limiting the
foregoing, in the event that any Capital Stock shall be issued by any Subsidiary
(including, without limitation, any Subsidiary formed or acquired after the date
hereof), subject (in the case of any Foreign Subsidiary) to the limitation under
paragraph (b) of this Section, the respective Obligor agrees forthwith to
deliver to the Collateral Agent pursuant to the relevant Security Document the
certificates (if any) evidencing such Capital Stock owned by such Obligor,
accompanied by undated stock (or other) powers executed in blank and to take
such other action as the Collateral Agent shall request to perfect the security
interest created therein pursuant to the relevant Security Document.
(d) Ownership of Subsidiaries. The Borrower will, and will cause each
of its Subsidiaries to, take such action from time to time as shall be necessary
to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary; provided
that in the case of any Subsidiary that as of the Effective Date is not a Wholly
Owned Subsidiary (as set forth in Schedule 4.15(a)), the Borrower will, and will
cause each of its Subsidiaries to, own not less than the percentage of Capital
Stock of such Subsidiary owned by it as of the Effective Date.
(e) Post-Effective Date Undertakings. The Borrower will, and will
cause its Subsidiaries, within 60 days after the Effective Date, to execute and
deliver a Foreign Subsidiary Pledge Agreement, or an amendment to an Existing
Foreign Subsidiary Pledge Agreement, in each case in form and substance
satisfactory to the Collateral Agent, between each Obligor that holds directly
the Capital Stock of a Foreign Subsidiary as of the Effective Date (other than
the Capital Stock of CHEL and Chart Europe) and the Collateral Agent (or any
sub-agent acting for, or any other Person designated by, the Collateral Agent)
pledging such Capital Stock (subject to the limitations in the second paragraph
of Section 6.09(b)), in each case together with (i) the certificates (if any)
representing such Capital Stock identified therein and undated stock (or other)
powers executed in blank and (ii) such other documents (including an opinion of
counsel approved by the Collateral Agent) and certificates as the Collateral
Agent or its counsel may reasonably request relating to such pledgor, the pledge
of such Capital Stock and all other legal matters relating to such Foreign
Subsidiary Pledge Agreement, all in form and substance reasonably satisfactory
to the Collateral Agent and its counsel. In addition, the respective pledgor of
such Capital Stock will take all other action as the Collateral Agent or its
counsel shall have requested in order to create, perfect and validate the
security interests created pursuant to each such Foreign Subsidiary Pledge
Agreement.
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ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 7.01. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness incurred under the Credit Documents;
(b) Indebtedness incurred under the Term Loan Documents in an
aggregate principal amount not to exceed $120,000,000 at any time
outstanding;
(c) Indebtedness existing on the date hereof and set forth in Schedule
7.01, and any extensions, renewals or replacements of any such
Indebtedness, provided that the aggregate principal amount of the
Indebtedness to be extended, renewed or refinanced does not increase from
that amount outstanding at the time of any such extension, renewal or
refinancing;
(d) Indebtedness of the Borrower owing to any Subsidiary or
Indebtedness of any Subsidiary owing to the Borrower or any other
Subsidiary; provided that (i) in the case of any such Indebtedness owed by
the Borrower or any Subsidiary Guarantor to any Subsidiary which is not a
Subsidiary Guarantor, such Indebtedness shall be evidenced by a promissory
note in form and substance reasonably satisfactory to the Administrative
Agent and the payment of such Indebtedness shall be subordinated to the
prior payment in full of all obligations of such Subsidiary Guarantor under
the Credit Documents on terms reasonably satisfactory to the Administrative
Agent; and (ii) the aggregate amount of all such Indebtedness owing to the
Obligors by any Subsidiaries that are not Subsidiary Guarantors (including
any Guarantees by the Obligors of Indebtedness of any Subsidiaries that are
not Subsidiary Guarantors) shall not exceed $2,000,000 at any time
outstanding;
(e) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capital Lease Obligations and purchase money Indebtedness secured by Liens
permitted by Section 7.02(d) in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding;
(f) Indebtedness evidenced by bonds or letters of credit issued in the
ordinary course of business or reimbursement obligations in respect
thereof;
(g) Indebtedness for bank overdrafts incurred that are promptly
repaid;
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(h) Indebtedness incurred by the Borrower of any of its Subsidiaries
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from guarantees of letters of
credit, surety bonds or performance bonds securing the performance of the
Borrower or any such Subsidiary pursuant to such agreements, in connection
with permitted acquisitions or dispositions of any business, assets or
Subsidiary of the Borrower or any of its Subsidiaries;
(i) Indebtedness incurred in connection with the financing of
insurance premiums;
(j) unsecured Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding that is subordinated in right of
payment to the payment of the obligations of the Obligors under the Credit
Documents (and any other obligations constituting "Secured Obligations"
under the Security Documents) having terms and conditions approved in
writing by the Required Lenders;
(k) Indebtedness of Ferox, a.s. and Ferox GmbH (including any such
Indebtedness set forth in Schedule 7.01) in an aggregate principal amount
not to exceed $16,500,000 at any time outstanding; and
(l) additional Indebtedness of the Borrower or any of its Subsidiaries
in an aggregate principal amount (for the Borrower and its Subsidiaries)
not to exceed $10,000,000 at any time outstanding.
SECTION 7.02. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any of its
Subsidiaries existing on the date hereof and set forth in Schedule 7.02;
provided that (i) no such Lien shall extend to any other property or asset
of the Borrower or any of its Subsidiaries and (ii) any such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) purchase money Liens upon or in real or personal property acquired
or held by the Borrower or any of its Subsidiaries in the ordinary course
of business to secure the purchase price of such property or to secure
Indebtedness incurred solely for the purpose of financing the acquisition,
construction or improvement of any property to be subject to such Liens, or
extensions, renewals or replacements of any of the foregoing for the same
or a lesser amount; provided that (i) no such Lien shall extend to or cover
any property other than the property or equipment being acquired,
constructed or improved, and no
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such extension, renewal or replacement shall extend to or cover property
not theretofore subject to the Lien being extended, renewed or replaced and
(ii) the aggregate principal amount of the Indebtedness secured thereby
shall not exceed the amount permitted by Section 7.01(e);
(e) Liens arising in respect of Capital Lease Obligations permitted
under Section 7.01(e); provided that no such Lien shall extend to or cover
any property other than the property subject to such Capital Lease
Obligations;
(f) Liens in connection with Swap Agreements permitted under Section
7.04(e);
(g) Liens on insurance policies and the proceeds thereof securing the
financing of the premiums with respect thereto;
(h) Liens encumbering customary initial deposits and margin deposits,
and similar Liens and margin deposits, and similar Liens attaching to
commodity trading accounts or other brokerage accounts incurred in the
ordinary course of business;
(i) Liens securing reimbursement obligations in respect of documentary
letters of credit or bankers' acceptances; provided that such Liens attach
only to the documents, the goods covered thereby and the proceeds thereof;
(j) Liens incurred in connection with the purchase or shipping of
goods or assets on the related goods or assets and proceeds thereof in
favor of the seller or shipper of such goods or assets;
(k) Liens in favor of customs and revenues authorities which secure
payments of customs duties in connection with the importation of goods;
(l) Liens arising under Article 2 and Article 4 of the Uniform
Commercial Code; and
(m) Liens not otherwise permitted by this Section so long as the
aggregate amount of Indebtedness or other obligations secured thereby does
not exceed (as to the Borrower and its Subsidiaries) $3,000,000 at any time
outstanding.
SECTION 7.03. Fundamental Changes.
(a) Mergers, Consolidations, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be
continuing:
(i) any Subsidiary of the Borrower may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation;
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(ii) any Subsidiary of the Borrower may merge into any other
Subsidiary of the Borrower, so long as in any such merger involving a
Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving
entity thereof;
(iii) any Foreign Subsidiary of the Borrower may merge into any
other Foreign Subsidiary of the Borrower; and
(iv) any Subsidiary of the Borrower may liquidate or dissolve
if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders (and the Borrower shall give
at least ten Business Days prior written notice of such liquidation or
dissolution to the Administrative Agent).
(b) Dispositions. The Borrower will not, and will not permit any of
its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of
any part of its business or property, whether now owned or hereafter
acquired including receivables and leasehold interests, except:
(i) the Disposition of any inventory or other property in the
ordinary course of business and on ordinary business terms;
(ii) the Disposition of obsolete or worn-out property of the
Borrower and its Subsidiaries no longer used or useful in its
business, provided that the aggregate fair market value of such
property shall not exceed $2,000,000 for any fiscal year;
(iii) the Disposition of property by the Borrower to any of its
Subsidiaries, or by any of its Subsidiaries to the Borrower or another
Subsidiary (other than CHEL and Chart Europe), provided that the
aggregate fair market value of assets that may be so sold,
transferred, leased or disposed of to Subsidiaries that are not
Subsidiary Guarantors shall not exceed $5,000,000; and
(iv) the Disposition of other property of the Borrower or any
of its Subsidiaries, provided that (x) the aggregate fair market value
of such property shall not exceed $5,000,000 for any fiscal year and
(y) the Net Cash Proceeds thereof are applied in accordance with
Section 2.09(b).
(c) Acquisitions. The Borrower will not, and will not permit any of
its Subsidiaries to, acquire any business or property from, or Capital
Stock of, or be a party to any acquisition of, any Person, or acquire any
option to make any such acquisition, except:
(i) purchases of inventory and other property to be sold or
used in the ordinary course of business;
(ii) Investments permitted under Section 7.04;
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(iii) Capital Expenditures;
(iv) acquisitions by the Borrower or any Subsidiary of property
permitted under Section 7.03(b)(iii); and
(v) acquisitions by the Borrower or any Subsidiary of assets
from any Person (other than the Borrower or any Subsidiary) not
exceeding $10,000,000 in the aggregate (excluding any assets purchased
with any Indebtedness permitted under Sections 7.01(d) and 7.01(e)).
(d) Lines of Business. The Borrower will not, and will not permit any
of its Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its Subsidiaries
on the Effective Date and businesses reasonably related thereto.
SECTION 7.04. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and identified in
Schedule 7.04;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower or any of its Subsidiaries in its
Subsidiaries on the date hereof, and additional Investments in the
Subsidiaries after the date hereof, provided that the amount of such
additional Investments in Subsidiaries that are not Subsidiary Guarantors
shall not exceed $5,000,000 for any fiscal year or $15,000,000 in the
aggregate;
(e) Swap Agreements entered into in the ordinary course of the
Borrower's financial planning and not for speculative purposes;
(f) Investments consisting of security deposits with utilities and
other like Persons made in the ordinary course of business;
(g) Indebtedness permitted under Section 7.01;
(h) Dispositions of inventory or other property in the ordinary course
of business and on ordinary business terms;
(i) loans and advances to employees and directors in the ordinary
course of business;
(j) pledges and deposits permitted under Section 7.02 of this
Agreement;
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(k) Borrower and its Subsidiaries may hold Investments to the extent
such Investments reflect an increase in the value of the Investments;
(l) Investments consisting of endorsements for collection or deposit
in the ordinary course of business;
(m) Investments received in connection with any assets sold in
accordance with the terms of this Agreement;
(n) the Borrower and its Subsidiaries may capitalize or forgive any
Indebtedness owed to it by the Borrower or any of its other Subsidiaries;
(o) Investments received in connection with the bankruptcy or
reorganization of, settlement of delinquent accounts and disputes with,
customers and suppliers;
(p) receivables owing to Borrower or any of its Subsidiaries and
advances or prepayments to suppliers or other advances in connection with
the purchase of goods or provision of services; and
(q) additional Investments up to but not exceeding $5,000,000 in the
aggregate (and, for purposes of this clause (q), the aggregate amount of an
Investment at any time shall be deemed to be equal to (i) the aggregate
amount of cash, together with the aggregate fair market value of property,
loaned, advanced, contributed, transferred or otherwise invested that gives
rise to such Investment minus (ii) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such
Investment; the amount of an Investment shall not in any event be reduced
by reason of any write-off of such Investment nor increased by any increase
in the amount of earnings retained in the Person in which such Investment
is made that have not been dividended, distributed or otherwise paid out).
SECTION 7.05. 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 Restricted Payment, except that:
(a) the Borrower may declare and pay dividends with respect to its
Capital Stock payable solely in additional shares of its Capital Stock; and
(b) the Borrower may repurchase its Capital Stock not exceeding
$1,500,000 in the aggregate from the Borrower's existing 401(k) plan to the
extent resulting from trades initiated by the plan administrator.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrower.
SECTION 7.06. 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
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purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except:
(a) transactions in the ordinary course of business and on terms and
conditions substantially as favorable to the Borrower or such Subsidiary as
would reasonably be obtained by the Borrower or such Subsidiary at that
time in a comparable arm's-length transaction with a Person other than an
Affiliate;
(b) transactions between or among the Borrower and one or more Wholly
Owned Subsidiaries, but not otherwise involving any other Affiliate;
(c) so long as no Default shall have occurred and be continuing, the
payment of reasonable and customary management fees;
(d) transactions contemplated by the Investor Rights Agreement; and
(e) any Restricted Payment permitted by Section 7.05.
SECTION 7.07. Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its Capital Stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that:
(i) the foregoing shall not apply to (w) restrictions and conditions
imposed by law, (x) restrictions and conditions under the Credit Documents
and the Term Loan Documents, (y) other restrictions and conditions existing
on the date hereof identified on Schedule 7.07 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition) and (z) customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder; and
(ii) clause (a) of the foregoing shall not apply to (x) restrictions
or conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions or conditions apply only
to the property or assets securing such Indebtedness and (y) customary
provisions in leases and other contracts restricting the assignment
thereof.
SECTION 7.08. Operating Leases. The Borrower will not, and will not
permit any of its Subsidiaries to, become or remain liable in any way, whether
directly or indirectly or by assignment or as a guarantor or other surety, for
the obligations of the lessee under any operating leases (other than
intercompany leases between the Borrower and its Subsidiaries), if
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the aggregate amount of all rents paid by the Borrower and its Subsidiaries
under all such operating leases would exceed $1,000,000 during any calendar
month.
SECTION 7.09. Certain Financial Covenants.
(a) Consolidated Leverage Ratio. The Borrower will not permit the
Consolidated Leverage Ratio on the last day of any fiscal quarter of the
Borrower set forth below to be greater than the ratio set forth opposite such
fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 2003 4.50:1.00
March 31, 2004 4.50:1.00
June 30, 2004 4.25:1.00
September 30, 2004 4.25:1.00
December 31, 2004 4.00:1.00
March 31, 2005 3.75:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.00:1.00
March 31, 2006 3.00:1.00
June 30, 2006 3.00:1.00
September 30, 2006 3.00:1.00
December 31, 2006 2.75:1.00
March 31, 2007 2.75:1.00
June 30, 2007 2.75:1.00
September 30, 2007 2.75:1.00
December 31, 2007 and thereafter 2.50:1.00
(b) Consolidated Interest Coverage Ratio. The Borrower will not permit
the Consolidated Interest Coverage Ratio for any Test Period ending on the
last day of a fiscal quarter of the Borrower set forth below to be less
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 2003 3.50:1.00
March 31, 2004 3.75:1.00
June 30, 2004 3.75:1.00
September 30, 2004 4.00:1.00
December 31, 2004 4.00:1.00
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March 31, 2005 4.25:1.00
June 30, 2005 4.25:1.00
September 30, 2005 4.25:1.00
December 31, 2005 4.25:1.00
March 31, 2006 and thereafter 4.50:1.00
(c) Consolidated Fixed Charge Coverage Ratio. The Borrower will not
permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
ending on the last day of a fiscal quarter of the Borrower set forth below
to be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 2003 1.40:1.00
March 31, 2004 1.40:1.00
June 30, 2004 1.40:1.00
September 30, 2004 1.40:1.00
December 31, 2004 1.40:1.00
March 31, 2005 1.40:1.00
June 30, 2005 1.40:1.00
September 30, 2005 1.40:1.00
December 31, 2005 1.30:1.00
March 31, 2006 1.30:1.00
June 30, 2006 1.30:1.00
September 30, 2006 1.30:1.00
December 31, 2006 1.30:1.00
March 31, 2007 1.30:1.00
June 30, 2007 1.30:1.00
September 30, 2007 1.30:1.00
December 31, 2007 and thereafter 1.20:1.00
(d) Minimum Consolidated EBITDA. The Borrower will not permit its
Consolidated EBITDA for any Test Period ending on the last day of a fiscal
quarter of the Borrower set forth below to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ending Amount ($)
--------------------- ----------
December 31, 2003 28,000,000
March 31, 2004 28,000,000
June 30, 2004 29,000,000
September 30, 2004 30,500,000
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December 31, 2004 32,500,000
March 31, 2005 34,500,000
June 30, 2005 35,500,000
September 30, 2005 and thereafter 36,000,000
(e) Capital Expenditures. The Borrower will not, and will not permit
any of its Subsidiaries to, make any Capital Expenditures, except that during
any fiscal year of the Borrower set forth below, the Borrower and its
Subsidiaries may make Capital Expenditures so long as the aggregate amount of
all such Capital Expenditures does not exceed in any fiscal year of the Borrower
set forth below the amount set forth opposite such fiscal year below:
Fiscal Year Ending Amount($)
------------------ ---------
December 31, 2003 5,000,000
December 31, 2004 7,500,000
December 31, 2005 10,000,000
December 31, 2006 11,000,000
December 31, 2007 and thereafter 12,000,000
In addition to the foregoing, in the event that the amount of Capital
Expenditures permitted to be made by the Borrower and its Subsidiaries pursuant
to the table above in any fiscal year of the Borrower (before giving effect to
any increase in such permitted Capital Expenditure amount pursuant to this
paragraph) is greater than the amount of Capital Expenditures actually made by
the Borrower and its Subsidiaries during such fiscal year, 100% of such excess
may be carried forward and utilized to make Capital Expenditures in the
succeeding fiscal years, provided that no amounts expended in any fiscal year
shall exceed 150% of the amount set forth above for such fiscal year.
In addition to the foregoing, the Borrower and its Subsidiaries may
make Capital Expenditures (x) with the amount of (i) Net Cash Proceeds received
by the Borrower or any of its Subsidiaries from any Disposition or Casualty
Event so long as such Net Cash Proceeds are reinvested or are used to replace or
restore any properties or assets in respect of which such Net Cash Proceeds were
paid or (ii) Net Cash Proceeds received by the Borrower or any of its
Subsidiaries from any Equity Issuance or (y) as tenant under any lease in
respect of leasehold improvements to the extent such expenditures are reimbursed
by the landlord under the related lease or sale leaseback transaction, but in
the case of clause (i) above only to the extent that such Net Cash Proceeds are
not otherwise required to be applied to a prepayment pursuant to Section 2.09(b)
or the corresponding provision of the Term Loan Agreement.
SECTION 7.10. Modifications of Certain Documents. The Borrower will
not, and will not permit any of its Subsidiaries to, consent or otherwise agree
to any modification, supplement or waiver of any of the provisions of any
agreement, instrument or other document evidencing or relating to (i) the
charter, by-laws or other organizational documents of the Borrower or any of the
Subsidiary Guarantors (other than those modifications to the charter, by-laws or
other organizational documents of the Borrower or any of the Subsidiary
Guarantors occurring upon or simultaneously with the consummation of the
Reorganization Plan which have
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been heretofore submitted to the Administrative Agent) or (ii) any agreement or
instrument providing for or evidencing subordinated Indebtedness of the Borrower
or any of its Subsidiaries, in each case with respect to clause (i) or (ii)
above, which would be materially adverse to the Lenders, without the prior
consent of the Required Lenders or the Administrative Agent (with the approval
of the Required Lenders); provided that this Section shall not include the Term
Loan Documents.
SECTION 7.11. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement with any other
Person providing for the leasing by the Borrower or any of its Subsidiaries of
real or personal property that has been or is to be sold or transferred by the
Borrower or any of its Subsidiaries to such other Person or to any other Person
to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of the Borrower or any of its Subsidiaries,
other than such transactions not exceeding an aggregate sale price of
$5,000,000.
SECTION 7.12. Restrictions on CHEL. The Borrower will not, and will
not permit any of its Subsidiaries (other than CHEL) to, engage in any
transaction (including the Disposition or purchase, lease or other acquisition
of any property or the making of any loan or other Investment) with CHEL, and
the Borrower will not permit CHEL to engage in any transaction, except any
transaction incidental to the administration proceeding in respect of CHEL.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or 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 thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Credit Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries in or in connection with this
Agreement or any other Credit Document or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement
or any other Credit Document or any amendment or modification hereof or
thereof, shall prove to have been incorrect when made or deemed made in any
material respect;
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(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02(a), 6.03 (with respect to
any Obligor's existence), 6.08 or 6.09(e) or in Article VII;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Credit
Document and such failure shall continue unremedied for a period of 30 or
more days after notice thereof from the Administrative Agent (given at the
request of any Lender) to the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Indebtedness (other than Indebtedness under the Credit
Documents) aggregating $5,000,000 or more, or any payment of any amount
under Swap Agreements for an aggregate notional principal amount exceeding
$5,000,000, in each case when and as the same shall become due and payable
(after taking into account applicable grace periods, if any);
(g) any event or condition occurs that results in any Indebtedness
(other than Indebtedness under the Credit Documents) aggregating $5,000,000
or more becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both)
the holder or holders of any such Indebtedness or any trustee or agent on
its or their behalf to cause any such Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity;
(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 of its Subsidiaries (other than
CHEL and Chart Europe) or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any of its Subsidiaries (other than
CHEL and Chart Europe) or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for a
period of 60 or more days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) the Borrower or any of its Subsidiaries (other than CHEL and Chart
Europe) shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any of its Subsidiaries (other than CHEL and
Chart Europe) or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
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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;
(j) the Borrower or any of its Subsidiaries (other than CHEL and Chart
Europe) shall admit in writing its inability or fail generally to pay its
debts as they become due;
(k) one or more judgments for the payment of money (not covered by
insurance to the extent the relevant insurer has acknowledged coverage
thereunder) in an aggregate amount in excess of $5,000,000, shall be
rendered against the Borrower or any of its Subsidiaries or any combination
thereof, and such judgments either shall be final and nonappealable or
shall not be vacated, discharged, stayed or bonded pending appeal for any
period of 30 consecutive days;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability to the
Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;
(m) there shall have been asserted against the Borrower or any of its
Subsidiaries an Environmental Claim that, in the judgment of the Required
Lenders, is reasonably likely to be determined adversely to the Borrower or
any of its Subsidiaries, and the amount thereof (either individually or in
the aggregate) is reasonably likely to result liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding $3,000,000 (insofar as
such amount is payable by the Borrower or any of its Subsidiaries but after
deducting any portion thereof that is reasonably expected to be paid by
other creditworthy Persons jointly and severally liable therefor);
(n) a Change in Control shall occur;
(o) any Subsidiary of the Borrower (other than CHEL and Chart Europe)
shall cease to be a Wholly Owned Subsidiary (except (i) as a result of any
transactions expressly permitted under Article VII or (ii) otherwise
expressly permitted under Section 6.09(d));
(p) the guarantee of any of the Subsidiary Guarantors under Article
III shall for whatever reason be terminated or cease to be in full force
and effect (other than in accordance with its terms and the terms of this
Agreement), or the validity or enforceability thereof shall be contested by
any Subsidiary Guarantor; or
(q) other than in connection with any termination of any Lien, the
Liens created by the Security Documents shall at any time not constitute a
valid and perfected Lien on the collateral intended to be covered thereby
(to the extent perfection by filing, registration, recordation or
possession is required herein or therein) in favor of the Collateral Agent,
free and clear of all other Liens (other than Liens permitted under Section
7.02 or under the respective Security Documents), or, except for expiration
or termination in accordance with its terms, any of the Security Documents
shall for
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whatever reason be terminated or cease to be in full force and effect, or
the enforceability thereof shall be contested in writing by any Obligor;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article) and at any time thereafter
during the continuance of such event, the Administrative Agent shall, at the
request of or with the consent of the Required Lenders, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Obligors
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Obligor; provided that in case of any event with respect
to any Obligor described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Obligors accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Obligor.
Anything herein to the contrary notwithstanding, it is understood that
(i) no Lender has the right to individually terminate its Commitments (such
right of termination residing with the Administrative Agent as provided above),
(ii) no Lender has the right to declare its Loans due and payable (such right to
declare the Loans due and payable residing with the Administrative Agent as
provided above, subject to the proviso set forth above in the case of an Event
of Default under clause (h) or (i) of this Article), and (iii) no Lender has the
right to exercise any remedies under any Security Document (such right to
exercise remedies residing with the Collateral Agent as provided therein).
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Credit Documents to which it is a party and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person 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 other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Credit Documents.
Without limiting the generality of
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the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a 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
discretionary rights and powers expressly contemplated hereby or by the other
Credit Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders, and (c) except as expressly set forth herein
and in the other Credit 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 bank serving as 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 with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a 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 this
Agreement or any other Credit 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 or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Credit Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the 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 believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may 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 (who
may be counsel for an Obligor), independent 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 any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent (including, without limitation, under any
Security Document). The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, 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. Each Lender by its
execution and delivery of this Agreement agrees, as contemplated by Section 4.04
of the Security Agreement, that, in the event it shall hold any Permitted
Investments of any Obligor referred to therein, such Permitted Investments shall
be held in the name and under the control of such Lender, and such Lender shall
hold such Permitted Investments as a collateral
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sub-agent for the Administrative Agent thereunder. Each Obligor by its execution
and delivery of this Agreement hereby consents to the foregoing.
The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (ii) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Notwithstanding anything herein to the contrary, the Sole Lead
Arranger and Bookrunner named on the cover page of this Agreement shall not have
any duties or liabilities under this Agreement or the other Credit Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein 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:
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(a) if to the Borrower or any Subsidiary Guarantor, to the Borrower at
Chart Industries, Inc., 5885 Landerbrook Drive, Suite 205, Mayfield
Heights, Ohio 44124, Attention of Michael F. Biehl (Telecopy No. (440)
753-1491; Telephone No. (440) 753-1490);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, 1111
Fannin Street, 10/th/ Floor, Houston, Texas 77002-8069, Attention of Loan
and Agency Services Group (Telecopy No. (713) 750-2782; Telephone No. (713)
750-2102), with a copy to JPMorgan Chase Bank, 270 Park Avenue, 20th Floor,
New York, New York 10017, Attention of Roger Odell (Telecopy No. (212)
270-0433; Telephone No. (212) 270-0506);
(c) if to the Collateral Agent, to JPMorgan Chase Bank, 270 Park
Avenue, 20th Floor, New York, New York 10017, Attention of Roger Odell
(Telecopy No. (212) 270-0433; Telephone No. (212) 270-0506), with a copy to
JPMorgan Chase Bank, 270 Park Avenue, 20th Floor, New York, New York 10017,
Attention of Steven Hawkins (Telecopy No. (212) 270-0433; Telephone No.
(212) 270-0376);
(d) if to JPMCB as an Issuing Lender, to it at 10420 Highland Manor
Drive, 4/th/ Floor, Tampa, Florida 33610, Attention of Joseph Borello
(Telecopy No. (813) 432-5161; Telephone No. (813) 432-6331), with a copy to
JPMorgan Chase Bank, 270 Park Avenue, 20th Floor, New York, New York 10017,
Attention of Roger Odell (Telecopy No. (212) 270-0433; Telephone No. (212)
270-0506);
(e) if to any CHEL Issuing Lender, to it at address provided by such
CHEL Issuing Lender to the Administrative Agent; and
(f) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, any Issuing Lender or any Lender in exercising any right
or power 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 remedies of the Administrative Agent, the Issuing Lenders and the Lenders
hereunder 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 Obligor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of
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this Section, 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 issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or any Issuing Lender may have had notice
or knowledge of such Default at the time.
(b) Amendments to this Agreement. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower, the Subsidiary
Guarantors and the Required Lenders or by the Borrower, the Subsidiary
Guarantors and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall:
(i) increase any Commitment of any Lender without the written consent
of such Lender;
(ii) reduce or forgive the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce or forgive
any fees payable hereunder, without the written consent of each Lender
directly affected thereby;
(iii) postpone the date of any regularly scheduled payment of
principal of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender directly affected thereby;
(iv) alter the pro rata treatment provisions of Sections 2.09(b)(vii)
or 2.16(c), without the written consent of each Lender;
(v) change any of the provisions of this Section or reduce the
percentage in the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; and
(vi) subject to paragraph (d) below, release any Subsidiary Guarantor
from any of its guarantee obligations under the Credit Document, without
the written consent of each Lender;
and provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or any Issuing Lender
hereunder without the prior written consent of the Administrative Agent or the
affected Issuing Lender, as the case may be, and (y) that any modification or
supplement of Article III shall require the consent of each Guarantor.
(c) Amendments to Other Credit Documents. Except as otherwise provided
in Section 10.02(b) with respect to this Agreement and subject to Section
10.02(d), the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise),
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consent to any modification, supplement or waiver under any of the Credit
Documents to which it is a party, provided that, without the prior consent of
each Lender, the Administrative Agent shall not, and shall not agree or consent
to any modification, supplement or waiver under any such Credit Documents to
(except as provided therein), (i) release all or substantially all of the
Collateral or otherwise terminate the Liens with respect thereto or (ii) alter
the relative priorities of the obligations entitled to the benefits of the Liens
created under the Security Documents; provided that no such agreement shall
amend, modify or otherwise affect the rights and duties of the Administrative
Agent or the Collateral Agent thereunder without the prior written consent of
the Administrative Agent or the Collateral Agent, as the case may be.
(d) Certain Releases. Notwithstanding anything herein or in any other
Credit Document to the contrary, upon the occurrence of any Disposition of any
Collateral (including the Capital Stock of any Subsidiary) that is permitted
hereunder or consented to by the Required Lenders or any other transaction or
event permitted or consented to by the Required Lenders hereunder that results
in any Subsidiary ceasing to be a Subsidiary of the Borrower, each of the
Administrative Agent and the Collateral Agent, as applicable, is hereby
authorized to release, without the prior consent of any Lender and at the
request of the Borrower, any Guarantee of such Subsidiary under the relevant
Credit Document or any such Collateral and/or the Liens on any such Collateral
under the relevant Credit Document. Each of the Administrative Agent and the
Collateral Agent shall take any action reasonably requested by the Borrower (at
the Borrower's sole cost and expense) to effect any such release.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each Issuing Lender in connection with the
issuance, amendment, renewal or extension, as applicable, of any Letter of
Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Issuing Lender or any Lender,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Collateral Agent and one counsel for the Lenders
(as selected by the Required Lenders), in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including in connection with
any workout, restructuring or negotiations in respect thereof or in connection
with the bankruptcy, insolvency or reorganization with respect to any Obligor,
and (iv) all out-of-pocket costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Security Document or any other
document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Issuing Lender and each Lender, and each Related
Party of any of
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the foregoing Persons (each such Person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the relevant Issuing Lender
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) any actual or alleged presence, release or
threatened release of Hazardous Materials relating to any property owned or
operated by the Borrower or any of its Subsidiaries, or any violation,
non-compliance with or liability under any Environmental Law related in any way
to the Borrower or any of its Subsidiaries or any of its respective property, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory 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 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 any Related Party.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to
pay any amount required to be paid by it to the Administrative Agent or any
Issuing Lender under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent or such Issuing Lender, as the case
may be, such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or such Issuing Lender in its capacity
as such, and provided further that such indemnity shall not be available to the
Administrative Agent or such Issuing Lender to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of the Administrative Agent or such
Issuing Lender, as the case may be.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
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(a) Assignments Generally. 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 (including any Affiliate of an Issuing
Lender that issues any Letter of Credit), except that (i) no Obligor may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by any Obligor without such consent shall be null and void) and (ii) any
assignment by a Lender of its rights or obligations hereunder shall comply with
the provisions of Section 10.04(b). 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 (including any
Affiliate of an Issuing Lender that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Lenders and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b)(i) Assignments by Lenders. Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may 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 Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, at any time during the continuance of an Event of
Default, to any other Person (other than any Person that is a direct
competitor of the Borrower or any of its Subsidiaries); and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to an assignee
that is a Lender immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent, provided
that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;
(B) 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;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
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(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 10.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this Section 10.04 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 (c) of this Section.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Agents, the Issuing Lenders and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Collateral Agent, any Issuing Lender and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent or any Issuing Lender, sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender's obligations under this Agreement and the
other Credit Documents shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Agents, the Issuing Lenders and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
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the other Credit Documents. 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 other Credit Documents and to
approve any amendment, modification or waiver of any provision of this Agreement
or any other Credit Document; 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 described in the first proviso to
Section 10.02(b) that directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.13 and 2.15 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.16(d) as though it
were a Lender.
(f) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.13, 2.14 or 2.15 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 2.15 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 2.15(e) as though it were a
Lender.
(g) Certain Pledges. 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 any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. 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, any Issuing Lender 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 2.13, 2.14, 2.15, 3.03 and 10.03 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.
SECTION 10.06. Counterparts; Integration. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall
Amended and Restated Revolving Credit Agreement
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constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract
between and among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Delivery of an executed counterpart of a
signature page to this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each Issuing 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, but excluding payroll and trust accounts) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Obligor against any and all of the then due and
owing obligations of any Obligor, or of any other Subsidiary of the Borrower
that is an account party with respect to any Letter of Credit, under the Credit
Documents held by such Lender or such Issuing Lender or (with the consent of the
Required Lenders) any and all other obligations (which may be unmatured) of any
Obligor under the Credit Documents held by such Lender or such Issuing Lender,
irrespective of whether or not such Lender or such Issuing Lender shall have
made any demand thereunder. The rights of each Lender and each Issuing Lender
under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender or such Issuing Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, 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 New York State court or, to the
extent permitted by law, in 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 shall affect any
right that the Administrative Agent, any Issuing Lender or any Lender may
otherwise have to bring any action
Amended and Restated Revolving Credit Agreement
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or proceeding relating to this Agreement against any Obligor or its properties
in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (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) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that
from time to time financial advisory, investment banking and other services may
be offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive 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.
Amended and Restated Revolving Credit Agreement
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(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lenders and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority, (iii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party to this Agreement, (v) to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section), (vi) in connection with the
exercise of any remedies hereunder or under any other Credit Document or any
suit, action or proceeding relating to this Agreement or any other Credit
Document or the enforcement of rights hereunder or thereunder, (vii) subject to
an agreement containing provisions substantially the same as those of this
paragraph, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (viii)
with the consent of the Borrower or (ix) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this paragraph
or (B) becomes available to the Administrative Agent, any Issuing Lender or any
Lender on a nonconfidential basis (and not as a result of a breach of any
applicable confidentiality agreement known to the Administrative Agent, any
Issuing Lender and/or any Lender) from a source other than an Obligor. For the
purposes of this paragraph, "Information" means all information received from
any Obligor relating to any Obligor or its business, other than any such
information that is available to the Administrative Agent, any Issuing Lender or
any Lender on a nonconfidential basis prior to disclosure by an Obligor. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding the foregoing, the Administrative
Agent, the Lenders and the Obligors (and each of their respective employees,
representatives or other agents) may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to such person
relating to such tax treatment or tax structure, other than any information for
which nondisclosure is reasonably necessary in order to comply with applicable
securities laws, and except that, with respect to any document or similar item
that in either case contains information concerning the U.S. tax treatment or
U.S. tax structure of such transactions as well as other information, this
paragraph shall only apply to such portions of the document or similar item that
relate to such tax treatment or tax structure.
SECTION 10.13. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or the
country of the Specified Currency, as the case may be (the "Specified Place"),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to obligations denominated in the Specified Currency. The
payment obligations of the Borrower and the Subsidiary Guarantors under this
Agreement shall not be discharged or satisfied by an amount paid in another
currency or in another place, whether pursuant to a judgment or otherwise, to
the extent that the amount so paid on conversion
Amended and Restated Revolving Credit Agreement
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to the Specified Currency and transfer to the Specified Place under normal
banking procedures does not yield the amount of the Specified Currency at the
Specified Place due hereunder. If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in the Specified Currency
into another currency (the "Second Currency"), the rate of exchange that shall
be applied shall be the rate at which in accordance with normal banking
procedures the Administrative Agent could purchase the Specified Currency with
the Second Currency on the Business Day next preceding the day on which such
judgment is rendered. The obligations of each of the Borrower and the Subsidiary
Guarantors in respect of any such sum due from it to the Administrative Agent,
any Issuing Lender or any Lender hereunder or under any other Credit Document
(in this Section called an "Entitled Person") shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by such Entitled Person of any
sum adjudged to be due hereunder in the Second Currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so
adjudged to be due; and each of the Borrower and the Subsidiary Guarantors
hereby, as a separate obligation and notwithstanding any such judgment, agrees
to indemnify such Entitled Person against, and to pay such Entitled Person on
demand, in the Specified Currency, the amount (if any) by which the sum
originally due to such Entitled Person in the Specified Currency hereunder
exceeds the amount of the Specified Currency so purchased and transferred.
SECTION 10.14. Termination of 1999 Credit Agreement. Each of the
parties bound hereby agrees that, as of the Effective Date, the 1999 Credit
Agreement, and all obligations of the parties thereunder (except to the extent
such obligations are restructured, continued and/or confirmed hereunder or under
the Term Loan Agreement), will be terminated automatically; provided that
nothing herein shall impair in any way the liability of CHEL with respect to the
CHEL Letters of Credit or the right of the CHEL Issuing Lender at any time to
retain any amounts received by it (whether prior to or after the Effective Date)
for the account of CHEL as cash collateral for CHEL's liability with respect to
the CHEL Letters of Credit or to transfer any such amounts to the Administrative
Agent, any Lender or any other CHEL Issuing Lender.
Amended and Restated Revolving Credit Agreement
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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.
CHART INDUSTRIES, INC.
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
Amended and Restated Revolving Credit Agreement
-96-
SUBSIDIARY GUARANTORS
CHART HEAT EXCHANGERS LIMITED
PARTNERSHIP
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CHART INTERNATIONAL, INC.
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CHART MANAGEMENT COMPANY, INC.
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CHART LEASING, INC.
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CHART INC.
By /s/ Michael F. Biehl
--------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
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CHART INTERNATIONAL HOLDINGS, INC.
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CHART ASIA, INC.
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
CAIRE INC.
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
COOLTEL, INC.
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
NEXGEN FUELING, INC.
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Treasurer
GTC OF CLARKSVILLE, LLC
By /s/ Michael F. Biehl
-------------------------------
Name: Michael F. Biehl
Title: Chief Financial Officer and Assistant
Treasurer
Amended and Restated Revolving Credit Agreement
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LENDERS
OCM PRINCIPAL OPPORTUNITIES FUND II,
L.P.
By /s/ R. James Ford
-------------------------
Name: R. James Ford
Title: Managing Director
By: /s/ Jordan L. Kruse
------------------------
Name: Jordan L. Kruse
Title: Vice President
Amended and Restated Revolving Credit Agreement
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AUDAX CHART, LLC
By /s/ Tim White
----------------------------
Name: Tim White
Title: Authorized Signatory
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GENERAL ELECTRIC
CAPITAL CORPORATION
By /s/ Robert M. Kadlick
-------------------------------
Name: Robert M. Kadlick
Title: Duly Authorized Signatory
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JPMORGAN CHASE BANK
By /s/ R. A. Odell
---------------------------
Name: R. A. Odell
Title: Managing Director
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CARL MARKS STRATEGIC INVESTMENTS,
L.P.
By Carl Marks Management Company, L.P.
as a General Partner
By /s/ James F. Wilson
--------------------------
Name: James F. Wilson
Title: General Partner
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ADMINSTRATIVE AGENT
JPMORGAN CHASE BANK,
as Administrative Agent
By /s/ R. A. Odell
-------------------------
Name: R. A. Odell
Title: Managing Director
Amended and Restated Revolving Credit Agreement
SCHEDULE I
Commitments
----------------------------------------------------------------
Lenders Commitments ($)
----------------------------------------------------------------
OCM Principal Opportunities Fund II, 14,740,000
L.P.
----------------------------------------------------------------
Audax Chart, LLC 7,260,000
----------------------------------------------------------------
General Electric Capital Corporation 10,000,000
----------------------------------------------------------------
JPMorgan Chase Bank 5,000,000
----------------------------------------------------------------
Carl Marks Strategic Investments, 3,000,000
L.P.
----------------------------------------------------------------
----------------------------------------------------------------
TOTAL $40,000,000.00
================================================================
Amended and Restated Revolving Credit Agreement
SCHEDULE II
Existing Loans
[see attached list]
Amended and Restated Revolving Credit Agreement
SCHEDULE III
Existing Letters of Credit and CHEL Letters of Credit
[see attached list]
Amended and Restated Revolving Credit Agreement
SCHEDULE IV
Existing Mortgages
- -------------------------------------------------------------------------------------------------------------
Property Mortgage
- -------------------------------------------------------------------------------------------------------------
2191 Ward Avenue, LaCrosse, WI (Fee) Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing, dated 12 April 1999, by Altec
International Limited Partnership in favor of The
Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
P.O. Box 550, Lucas & Montgomery Streets, Mortgage, Assignment of Rents, Security Agreement
Clarksville, AR (Fee) and Fixture Filing, dated 12 April 1999, by
Greenville Tube Corporation in favor of The Chase
Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
PO Box 112 I-575 Airport Drive East, Canton, Georgia Deed to Secure Debt, Assignment of Rents and
(Fee) Security Agreement dated 12 April 1999 by MVE, Inc.
to The Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
P.O. Box 467, 146 Main Street, Plaistow, NH (Fee) Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing, dated 12 April 1999, by Process
Systems International, Inc. in favor of The Chase
Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
5995 N. Washington St., Denver, CO (Fee) Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing, dated 12 April 1999,
by Cryenco, Inc. in favor of The Chase Manhattan
Bank
- -------------------------------------------------------------------------------------------------------------
3505 Country Road, Burnsville, Minnesota (Fee) Mortgage, Assignment of Rents, security Agreement
and Fixture Filing dated 15 April 1999 by MVE, Inc.
in favor of The Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
16655 Buffalo Speedway, Houston, TX (Leasehold) Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing, dated 12 April 1999,
by Northcoast Acquisition Corp. for the benefit of
The Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
407 7th Street, NW, New Prague, Minnesota (Fee) Mortgage, Assignment of Rents, security Agreement
and Fixture Filing dated 15 April 1999 by MVE, Inc.
in favor of The Chase Manhattan Bank
- -------------------------------------------------------------------------------------------------------------
16655 Buffalo Speedway, Houston, TX (Fee) Deed o Trust, Assignment of Rents, Security
Agreement and Fixture Filings dated [ ] February
2002 by Chart Inc. for the benefit of JPMorgan
Chase Bank.
- -------------------------------------------------------------------------------------------------------------
Amended and Restated Revolving Credit Agreement
SCHEDULE V
Existing Foreign Subsidiary Pledge Agreements
1. Chart BioMedical Limited Share Charge Agreement between Chart Inc.,
Chart BioMedical Limited and JPMorgan Chase Bank dated February 12,
2003.
2. Chart Australia Pty, Ltd (formerly known as MVE-Australia Pty, Ltd.)
Share Mortgage between MVE Inc. and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) dated 21 April 1999.