Document/Exhibit Description Pages Size
1: 10-K Annual Report 14 57K
2: EX-3.(II) Articles of Incorporation/Organization or By-Laws 16 58K
3: EX-4.(III) Instrument Defining the Rights of Security Holders 117 371K
4: EX-13 Annual or Quarterly Report to Security Holders 53 238K
5: EX-21 Subsidiaries of the Registrant 1 8K
6: EX-23 Consent of Experts or Counsel 1 7K
7: EX-24 Power of Attorney 1 9K
8: EX-27 Financial Data Schedule (Pre-XBRL) 2 8K
EX-4.(III) — Instrument Defining the Rights of Security Holders
Exhibit Table of Contents
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Exhibit 4(iii)
CREDIT AGREEMENT
by and among
VALMONT INDUSTRIES, INC.,
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
and
THE BANK OF NEW YORK,
AS ISSUING BANK, AS SWING LINE LENDER
and
AS ADMINISTRATIVE AGENT
with
BNY CAPITAL MARKETS, INC.,
AS ARRANGER
Dated as of October 7, 1997
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CREDIT AGREEMENT, dated as of October 7, 1997, by and among VALMONT
INDUSTRIES, INC., a Delaware corporation (the "PARENT BORROWER"), the direct and
indirect wholly-owned Subsidiaries of the Parent Borrower party hereto or which
from time to time become party hereto (each a "SUBSIDIARY BORROWER" and,
collectively, the "SUBSIDIARY BORROWERS"), the lenders party hereto (each a
"LENDER" and, collectively, the "LENDERS"), and THE BANK OF NEW YORK ("BNY"), as
issuing bank (in such capacity, the "ISSUING BANK"), as swing line lender (in
such capacity, the "SWING LINE LENDER"), and as administrative agent for the
Lenders, the Issuing Bank and the Swing Line Lender (in such capacity, the
"ADMINISTRATIVE AGENT").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. DEFINITIONS
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR ADVANCES": the Revolving Credit Loans (or any portions
thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base Rate.
"ACCOUNTANTS": Deloitte & Touche LLP (or any successor
thereto), or such other firm of certified public accountants of recognized
national standing selected by the Parent Borrower.
"ACCUMULATED FUNDING DEFICIENCY": as defined in Section 302 of
ERISA.
"ACQUISITION": with respect to any Person, the purchase or
other acquisition by such Person, by any means whatsoever (including through a
merger, dividend, or otherwise and whether in a single transaction or in a
series of related transactions), of (i) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be either a Subsidiary of
such Person or otherwise under the control of such Person, (ii) any business,
going concern, or divisions or segment of any other Person, or (iii) any
Property of any other Person other than in the ordinary course of business,
PROVIDED, HOWEVER, that no acquisition of all or substantially all of the assets
of such other Person shall be deemed to be in the ordinary course of business.
"ACTIVE SUBSIDIARY BORROWER": at any time, any Subsidiary
Borrower other than an Inactive Subsidiary Borrower.
"ADVANCE": an ABR Advance, a Eurodollar Advance, or a Core
Currency Euro Advance, as the case may be.
"AFFECTED ADVANCE": as defined in Section 3.8.
32
"AGENT PAYMENT OFFICE": (i) with respect to all amounts owing
under the Loan Documents (other than in respect of Alternate Currency Loans),
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its "DOMESTIC PAYMENT OFFICE" in Exhibit M
and, thereafter, such other office, branch, affiliate, or correspondent bank
thereof as it may from time to time designate in writing as such to the Parent
Borrower, the Issuing Bank, the Swing Line Lender and each Lender, and (ii) with
respect to all amounts owing in respect of each Alternate Currency Loan,
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its payment office for the applicable
Alternate Currency in Exhibit M and, thereafter, such other office, branch,
affiliate, or correspondent bank thereof as it may from time to time designate
in writing as such to the Parent Borrower, the Issuing Bank, the Swing Line
Lender and each Lender.
"AFFILIATE": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, to direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"AGGREGATE CREDIT EXPOSURE": at any time, the sum at such time
of (i) the outstanding principal amount of the Revolving Credit Loans and Bid
Loans of all Lenders (determined, in the case of each Alternate Currency Loan,
on the basis of the Dollar Equivalent thereof), PLUS (ii) the outstanding
principal amount of the Swing Line Loans, PLUS (iii) an amount equal to the
Letter of Credit Exposure of all Lenders.
"AGGREGATE REVOLVING CREDIT COMMITMENT AMOUNT": at any
time, the sum at such time of the Revolving Credit Commitment Amounts of all
Lenders.
"AGREEMENT": this Credit Agreement, as the same may be
amended, supplemented, or otherwise modified from time to time.
"ALTERNATE BASE RATE": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on such date
plus 1/2 of 1% and (ii) the BNY Rate in effect on such date.
"ALTERNATE CURRENCY": any Currency (other than Dollars).
"ALTERNATE CURRENCY BID LOAN": each Bid Loan denominated in an
Alternate Currency.
"ALTERNATE CURRENCY EQUIVALENT": on any date of determination
thereof, the amount, as determined by the Administrative Agent, of the relevant
Alternate Currency which could be purchased with the amount of Dollars involved
in such computation at the spot rate at which such Alternate Currency may be
exchanged into Dollars as set forth on such date on Dow Jones Telerate pages
262, 264, 265, 266 or 9993 (or any successor
33
pages) or, if such rate does not appear on such pages, at the arithmetic mean of
the respective spot exchange rates therefor notified to the Administrative Agent
by BNY as of 11:00 a.m. (London time) on such date for delivery, (i) in the case
of an exchange of Canadian Dollars into Dollars, one Core Currency Business Day
later, and (ii) in all other cases, two Core Currency Business Days later.
"ALTERNATE CURRENCY LOAN": an Alternate Currency Revolving
Credit Loan or an Alternate Currency Bid Loan, as the case may be.
"ALTERNATE CURRENCY REVOLVING CREDIT LOAN": each Revolving
Credit Loan denominated in Alternate Currency.
"APPLICABLE MARGIN": (i) Subject to clause (ii) of this
definition, (a) with respect to the Eurodollar Advances, Core Currency Euro
Advances, and the Standby Letter of Credit Commissions, at all times during
which the applicable Pricing Level set forth below is in effect, the percentage
set forth below under the heading "Applicable Eurodollar, Core Currency Euro and
Standby LC Margin" and adjacent to such Pricing Level, and (b) with respect to
the Facility Fee and Trade Letter of Credit Commissions, at all times during
which the applicable Pricing Level set forth below is in effect, the percentage
set forth below under the heading "Applicable Fee and Trade LC Margin" and
adjacent to such Pricing Level:
[Download Table]
Applicable
Eurodollar, Applicable
Core Currency Fee and
Euro and Trade LC
PRICING LEVEL STANDBY LC MARGIN MARGIN
------------- ----------------- ------
Pricing Level I 0.175% 0.075%
Pricing Level II 0.200% 0.100%
Pricing Level III 0.275% 0.100%
(ii) Changes in the Applicable Margin resulting from a change
in a Pricing Level shall be based upon the Compliance Certificate most recently
delivered pursuant to Section 7.1(a) and shall become effective on the date such
Compliance Certificate is delivered to the Administrative Agent and the Lenders.
Notwithstanding anything to the contrary contained in this definition, (a) if,
at any time and from time to time, the Parent Borrower shall be in Default of
its obligations under Section 7.1(a), Pricing Level III shall apply until such
Default is cured, and (b) during the period commencing on the Effective Date and
ending on the date of delivery thereafter of the first Compliance Certificate
pursuant to Section 7.1(a), Pricing Level I shall apply.
"APPROVED BANK": any bank whose (or whose parent company's)
unsecured non-credit supported short-term commercial paper rating from (i)
Standard &
34
Poor's is at least A-1, or the equivalent thereof, or (ii) Moody's is at least
P-1, or the equivalent thereof.
"ASSIGNMENT": as defined in Section 11.6(b).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and
acceptance agreement executed by an assignor and an assignee, substantially in
the form of Exhibit H.
"AUSTRALIAN DOLLARS": freely transferable lawful money of
Australia.
"BID": an offer by a Lender to make a Bid Loan, substantially
in the form of Exhibit K.
"BID ACCEPT/REJECT LETTER": a notification given by a Borrower
or, if such Borrower is a Subsidiary Borrower, the Parent Borrower, on behalf of
such Borrower, pursuant to Section 2.4(d), substantially in the form of Exhibit
L.
"BID INTEREST PERIOD": as to any Bid Loan, the period
commencing on the Borrowing Date with respect to such Bid Loan and ending on the
date requested in the Bid Request with respect to such Bid Loan, which date
shall be neither earlier than seven days, nor later than 180 days, after such
Borrowing Date; PROVIDED, HOWEVER, that (i) if any Bid Interest Period would
otherwise end on a day which is not a Business Day, such Bid Interest Period
shall be extended to the next succeeding Business Day, unless such next
succeeding Business Day would be a date on or after the Scheduled Revolving
Credit Commitment Termination Date, in which event such Bid Interest Period
shall end on the next preceding Business Day, and (ii) no Bid Interest Period
shall end after the Scheduled Revolving Credit Commitment Termination Date.
Interest shall accrue from and including the first day of a Bid Interest Period
to, but excluding, the last day of such Bid Interest Period.
"BID LOAN": each loan made pursuant to Section 2.4.
"BID RATE": as to any Bid made by a Lender pursuant to Section
2.4(b), the fixed rate of interest offered by such Lender with respect thereto
as set forth in such Bid.
"BID REQUEST": a request by a Borrower or, if such Borrower
is a Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, for
Bids, substantially in the form of Exhibit I.
"BNY RATE": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
35
"BORROWER ADDENDUM": an Addendum, duly completed and executed
by each of the Parent Borrower and the relevant Subsidiary thereof,
substantially in the form of Exhibit B-1.
"BORROWERS": collectively, the Parent Borrower and the
Subsidiary Borrowers.
"BORROWING DATE": (i) any Business Day on which (a) the
Lenders make ABR Advances, (b) a Lender makes a Bid Loan, (c) the Swing Line
Lender makes a Swing Line Loan, or (d) the Issuing Bank issues a Letter of
Credit, as the case may be, or (ii) any Core Currency Business Day on which the
Lenders make Eurodollar Advances or Core Currency Euro Advances, as the case may
be.
"BORROWING REQUEST": a request for Revolving Credit Loans
or a Swing Line Loan, substantially in the form of Exhibit C-1.
"BRAZILIAN REALS": freely transferable lawful money of Brazil.
"BUSINESS DAY": any day except Saturday, Sunday or a day which
in New York City is a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close.
"CANADIAN DOLLARS": freely transferable lawful money of
Canada.
"CAPITAL LEASE": a lease the obligations in respect of which
are required to be capitalized by the lessee thereunder for financial reporting
purposes in accordance with GAAP.
"CAPITAL STOCK": as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations and
other rights in, or other equivalents (however designated) of, such Person's
equity (however designated), and any rights, warrants or options exchangeable
for, or convertible into, such shares, interests, participations, rights or
other equivalents.
"CASH EQUIVALENTS": (i) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in full support thereof), in each case having a maturity of
not more than six months from the date of acquisition thereof, (ii) Dollar
denominated time deposits, certificates of deposit and bankers acceptances of
any Lender or any Approved Bank, in each case having a maturity of not more than
six months from the date of acquisition thereof, (iii) commercial paper (a)
issued by any Approved Bank or the parent company of any Approved Bank, (b)
issued or directly and fully guaranteed or insured by any industrial or
financial company with an unsecured non-credit supported short-term commercial
paper rating of at least A-1, or the equivalent thereof, by Standard & Poor's or
at least P-1, or the equivalent thereof, by Moody's, or
36
(c) directly and fully guaranteed or insured by any industrial or financial
company with a long term unsecured non-credit supported senior debt rating of at
least A or A-2, or the equivalent thereof, by Standard & Poor's or Moody's, as
the case may be, in each case having a maturity of not more than six months from
the date of acquisition thereof, (iv) marketable direct obligations issued by
any State of the United States or any political subdivision or public
instrumentality of any such State, in each case having a maturity of not more
than six months from the date of acquisition thereof and, at the time of such
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's or Moody's, and (v) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) of this definition.
"CHANGE OF CONTROL": one or both of the following events:
(a) any person or group (other than any one or more
permitted investors) shall have become the beneficial owner of voting
shares entitled to exercise more than 30% of the total power of all
outstanding voting shares (including any voting shares which are not then
outstanding of which such person or group is deemed the beneficial owner);
and
(b) a change in the composition of the Managing Person
of the Parent Borrower shall have occurred in which the individuals who
constituted the Managing Person of the Parent Borrower at the beginning of
the two year period immediately preceding such change (together with any
other director whose election by the Managing Person of the Parent Borrower
or whose nomination for election by the shareholders of the Parent Borrower
was approved by a vote of at least a majority of the members of such
Managing Person then in office who either were members of such Managing
Person at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of such Managing Person then in office.
For purposes of this definition, (i) the terms "PERSON" and
"GROUP" shall have the respective meanings ascribed thereto in Sections 13(d)
and 14(d)(2) of the Exchange Act, (ii) the term "BENEFICIAL OWNER" shall have
the meaning ascribed thereto in Rule 13d-3 under the Exchange Act, (iii) the
term "PERMITTED INVESTORS" shall mean any one or more of the following: (A)
Robert B. Daugherty, (B) any of his immediate family members, (C) any of his
heirs or beneficiaries, (D) any tax-exempt entity established by him, (E) any
key employee of the Parent Borrower which shall have acquired voting shares from
him, and (F) any employee stock ownership plan sponsored by or otherwise
established by the Parent Borrower, and (iv) the term "VOTING SHARES" shall mean
outstanding shares of any class or classes (however designated) of Capital Stock
of the Parent Borrower entitled to vote generally in the election of members of
the Managing Person thereof.
37
"CODE": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"COMMITMENT PERCENTAGE": with respect to any Lender as of any
date, the percentage as of such date equal to such Lender's Revolving Credit
Commitment Amount divided by the Aggregate Revolving Credit Commitment Amount
(or, if no Revolving Credit Commitments then exist, the percentage equal to such
Lender's Revolving Credit Commitment Amount on the last day upon which Revolving
Credit Commitments did exist divided by the Aggregate Revolving Credit
Commitment Amount as in effect on such day).
"COMPLIANCE CERTIFICATE": a certificate substantially in the
form of Exhibit E.
"CONSOLIDATED": the Parent Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITDA": for any period, net income of the
Parent Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, for such period, PLUS the sum of, without duplication,
each of the following with respect to the Parent Borrower and its Subsidiaries,
to the extent utilized in determining such net income: (i) all interest expense,
(ii) provision for income taxes, and (iii) depreciation and amortization,
PROVIDED, HOWEVER, that, for purposes of this definition, the 1996 pre-tax asset
valuation charge in the amount of $15,800,000 referred to in the Parent
Borrower's Form 10K for the fiscal year ending December 28, 1996 shall be
excluded to the extent utilized in determining such net income.
"CONSOLIDATED DEBT SERVICE": for any period, the sum of (i)
interest expense for such period of the Parent Borrower and its Subsidiaries,
determined on a Consolidated basis in accordance with GAAP, and (ii) all
repayments of Indebtedness (including Indebtedness under the Loan Documents) of
the Parent Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, which were required to be made during such period.
"CONSOLIDATED FIXED CHARGES": for any period, the sum of,
without duplication, (i) Consolidated Debt Service for such period, (ii) all
income taxes payable during such period by the Parent Borrower and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP, and
(iii) all Restricted Payments made pursuant to Section 8.7(ii) in cash during
such period by the Parent Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH": as of any date, the total
stockholders' equity of the Parent Borrower and its Subsidiaries, less
intangible assets, all determined on a Consolidated basis in accordance with
GAAP, as set forth in, (i) during the period
38
commencing on the Effective Date and ending on the date of delivery thereafter
of the first annual audited financial statements pursuant to Section 7.1(b), the
Parent Borrower's December 28, 1996 audited Consolidated financial statements
constituting a part of the Financial Statements, and (ii) at all other times,
the most recent annual audited Consolidated financial statements delivered
pursuant to Section 7.1(b).
"CONTINGENT OBLIGATION": as to any Person ( a "SECONDARY
OBLIGOR"), any obligation of such secondary obligor (i) guaranteeing or in
effect guaranteeing any return on any investment made by another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation (a "PRIMARY OBLIGATION") of any other Person (a "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including any
obligation of such secondary obligor, whether contingent, (a) to purchase any
primary obligation or any Property constituting direct or indirect security
therefor, (b) to advance or supply funds (A) for the purchase or payment of any
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of a primary
obligor, (c) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary of any primary obligation of the ability of
a primary obligor to make payment of a primary obligation, (d) otherwise to
assure or hold harmless the beneficiary of a primary obligation against loss in
respect thereof, and (e) in respect of the liabilities of any partnership in
which a secondary obligor is a general partner, except to the extent that such
liabilities of such partnership are nonrecourse to such secondary obligor and
its separate Property, PROVIDED, HOWEVER, that the term "CONTINGENT OBLIGATION"
shall not include the indorsement of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of a primary obligation in respect of which such Contingent Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"CONTROL PERSON": as defined in Section 3.5.
"CONVERSION DATE": any date on which (i) a Eurodollar Advance
is converted to an ABR Advance or a new Eurodollar Advance, as the case may be,
(ii) an ABR Advance is converted to a Eurodollar Advance or (iii) a Core
Currency Euro Advance is converted to a new Core Currency Euro Advance, as the
case may be.
"CORE CURRENCY": any Currency other than a Non-Core Currency.
"CORE CURRENCY BUSINESS DAY": with respect to any Currency,
any Business Day which is a day on which dealings in eurocurrencies and exchange
between banks may be carried on in London, England and which is not a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close in the national jurisdiction in which the
Agent Payment Office with respect to
39
such Currency is located or, if there is no such Agent Payment Office, the
national jurisdiction of which such Currency is the freely transferable lawful
money.
"CORE CURRENCY EURO ADVANCES": the Revolving Credit Loans (or
any portions thereof) at such time as they (or such portions) are made and/or
being maintained in a Core Currency (other than Dollars) at a rate of interest
based upon the applicable Core Currency Euro Rate.
"CORE CURRENCY EURO RATE": with respect to each Core Currency
Euro Advance, a rate of interest per annum, as determined by the Administrative
Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) (i) the rate per annum for deposits in the applicable
Core Currency having a maturity most nearly comparable to the Euro Interest
Period in respect of such Core Currency Euro Advance which appears on page
3740 or 3750, or any other applicable page with respect to such Core
Currency, of the Dow Jones Telerate Screen (or any successor page) as of
11:00 a.m. London time on the date which is two Core Currency Business Days
prior to the first day of such Euro Interest Period, (ii) if such rate does
not appear on such page of the Dow Jones Telerate Screen (or any successor
page), the rate, as reported by BNY to the Administrative Agent, quoted by
BNY at approximately 11:00 a.m. London time (or as soon thereafter as
practicable) on the date which is two Core Currency Business Days prior to
the first day of such Euro Interest Period to leading banks in the
interbank eurocurrency market as the rate at which BNY is offering deposits
in such Core Currency in an amount approximately equal to BNY's Commitment
Percentage of such Core Currency Euro Advance and having a period to
maturity approximately equal to such Euro Interest Period, or (iii) to the
extent required by Section 3.8, the rate, as reported by BNY to the
Administrative Agent, determined by BNY to be reflective of the all-in cost
of funds to BNY of funding such Core Currency Euro Advance in an amount
approximately equal to its Commitment Percentage of such Core Currency Euro
Advance and having a period to maturity approximately equal to such Euro
Interest Period, by
(b) a number equal to 1.00 MINUS the aggregate of the
then stated maximum rates during such Euro Interest Period of all reserve
requirements (including marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by any Governmental
Authority, including those established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject in respect of
eurocurrency funding (currently referred to as "EUROCURRENCY LIABILITIES"
in Regulation D), without benefit of credits for
40
proration, exceptions or offsets which may be available from time to time to
BNY.
"CREDIT PARTY": each Borrower and each other party (other
than the Administrative Agent, the Issuing Bank, the Swing Line Lender, and the
Lenders) to a Loan Document.
"CURRENCIES": collectively, Dollars, Dutch Guilders, French
Francs, German Marks, and the Non-Core Currencies.
"CURRENCY ADDENDUM": an Addendum, duly completed and
executed by the Parent Borrower, substantially in the form of Exhibit B-2.
"DEFAULT": any event or condition which constitutes an Event
of Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION": with respect to any Person, any sale,
assignment, transfer or other disposition by such Person, by any means, of (i)
the Capital Stock of any other Person, (ii) any business, going concern or
division or segment thereof, or (iii) any other Property of such Person other
than in the ordinary course of business, PROVIDED, HOWEVER, that no such sale,
assignment, transfer or other disposition of Property (other than inventory,
except to the extent subject to a bulk sale) shall be deemed to be in the
ordinary course of business if it is the sale, assignment, transfer or
disposition of (a) all or substantially all of the Property of such Person, or
(b) any Operating Entity.
"DOLLAR BID LOAN": each Bid Loan denominated in Dollars.
"DOLLAR EQUIVALENT": on any date of determination thereof, the
amount, as determined by the Administrative Agent, of Dollars which could be
purchased with the amount of the relevant Alternate Currency involved in such
computation at the spot rate at which Dollars may be exchanged into such
Alternate Currency as set forth on such date on Dow Jones Telerate pages 262,
264, 265, 266 or 9993 (or any successor pages) or, if such rate does not appear
on such pages, at the spot exchange rate therefor notified to the Administrative
Agent by BNY as of 11:00 a.m. (London time) on such date for delivery, (i) in
the case of an exchange of Dollars into Canadian Dollars, one Core Currency
Business Day later, and (ii) in all other cases, two Core Currency Business Days
later.
"DOLLAR REVOLVING CREDIT LOAN": as defined in Section
2.1(b)(i).
"DOLLARS" and "$": lawful currency of the United States.
41
"DOMESTIC SUBSIDIARY": any direct or indirect wholly-owned
Subsidiary of the Parent Borrower which is organized under the laws of the
United States or any State thereof.
"DUTCH BORROWER": any Borrower which is organized under the
laws of, and has its principal office in, the Netherlands.
"DUTCH GUILDERS": freely transferable lawful money of the
Netherlands.
"EFFECTIVE DATE": October 7, 1997.
"ELIGIBLE ASSIGNEE": (i) at all times upon the occurrence and
during the continuance of any Default, any commercial bank, trust company,
banking association, insurance company, financial institution, pension fund,
mutual fund or other similar fund, and (ii) at all other times, any commercial
bank, trust company or banking association having undivided capital surplus and
retained earnings exceeding $100,000,000, PROVIDED, HOWEVER, that, for purposes
of this definition, "Eligible Assignee" shall not include any Lender or any
subsidiary or affiliate thereof.
"EMPLOYEE BENEFIT PLAN": an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Parent Borrower, any of its Subsidiaries or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA AFFILIATE": when used with respect to an Employee
Benefit Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person which is a member of any group of organizations within
the meaning of Sections 414(b) or (c) of the Code (or, solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, Sections 414(m) or (o) of the Code) of which the Parent Borrower or
any of its Subsidiaries is a member.
"EURO INTEREST PERIOD": with respect to any Eurodollar Advance
or Core Currency Euro Advance, as the case may be, requested by any Borrower or,
if such Borrower is a Subsidiary Borrower, the Parent Borrower, on behalf of
such Borrower, the period commencing on the Borrowing Date or Conversion Date,
as the case may be, with respect to such Advance and ending one, two, three or
six months thereafter, as selected by such Borrower or, if such Borrower is a
Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, in the
applicable Borrowing Request or Notice of Conversion, as the case may be,
therefor, PROVIDED, HOWEVER, that (i) if any Euro Interest Period would
otherwise end on a day which is not a Core Currency Business Day, such Euro
Interest Period shall be extended to the next succeeding Core Currency Business
Day unless (a)
42
such next succeeding Core Currency Business Day would be a date on or after the
Scheduled Revolving Credit Commitment Termination Date, in which event such Euro
Interest Period shall end on the next preceding Core Currency Business Day, or
(b) the result of such extension would be to carry such Euro Interest Period
into another calendar month, in which event such Euro Interest Period shall end
on the immediately preceding Core Currency Business Day, (ii) any Euro Interest
Period that begins on the last Core Currency Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Euro Interest Period) shall end on the last Core
Currency Business Day of a calendar month, and (iii) no Euro Interest Period
shall end after the Scheduled Revolving Credit Commitment Termination Date.
Interest shall accrue from and including the first day of a Euro Interest Period
to, but excluding, the last day of such Euro Interest Period.
"EURODOLLAR ADVANCES": the Revolving Credit Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each Eurodollar Advance, a
rate of interest per annum, as determined by the Administrative Agent, obtained
by dividing (and then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) (i) the rate per annum for deposits in Dollars having a
maturity most nearly comparable to the Euro Interest Period in respect
of such Eurodollar Advance which appears on page 3750 of the Dow Jones
Telerate Screen (or any successor page) as of 11:00 a.m. London time on
the date that is two Core Currency Business Days prior to the first day
of such Euro Interest Period, or (ii) if such rate does not appear on
page 3750 of the Dow Jones Telerate Screen (or any successor page), the
rate, as reported by BNY to the Administrative Agent, quoted by BNY at
approximately 11:00 a.m. London time (or as soon thereafter as
practicable) on the date which is two Core Currency Business Days prior
to the first day of such Euro Interest Period to leading banks in the
interbank eurocurrency market as the rate at which BNY is offering
Dollar deposits in an amount approximately equal to BNY's Commitment
Percentage of such Eurodollar Advance and having a period to maturity
approximately equal to such Euro Interest Period, by
(b) a number equal to 1.00 MINUS the aggregate of the then
stated maximum rates during such Euro Interest Period of all reserve
requirements (including marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of
Governors of the Federal Reserve System and any other banking authority
to which BNY and other major United States money center banks are
subject in respect of eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D), without benefit of
43
credits for proration, exceptions or offsets which may be available
from time to time to BNY.
"EVENT OF DEFAULT": as defined in Section 9.1.
"EXCHANGE ACT": the Securities Exchange Act of 1934, as
amended.
"FACILITY FEE": as defined in Section 3.2(a).
"FEDERAL FUNDS RATE": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%)
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that, (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such transactions
received by the Administrative Agent.
"FEES": as defined in Section 2.11.
"FINANCIAL OFFICER": as to any Person, the chief financial
officer of such Person, or such other officer as shall be satisfactory to the
Administrative Agent.
"FINANCIAL STATEMENTS": as defined in Section 4.13.
"FIXED CHARGE COVERAGE RATIO": as of any date, the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Fixed Charges, in each case for the
four fiscal quarter period ending on such date or, if such date is not the last
day of a fiscal quarter, the immediately preceding four fiscal quarter period.
"FIXED RATE LOAN": any Eurodollar Advance, Core Currency Euro
Advance, Bid Loan or Swing Line Loan, as the case may be.
"FRENCH BORROWER": any Borrower which is organized under the
laws of, and has its principal office in, France.
"FRENCH FRANCS": freely transferable lawful money of France.
"GAAP": generally accepted accounting principles as in effect
from time to time in the United States.
"GERMAN BORROWER": any Borrower which is organized under the
laws of, and has its principal office in, Germany.
44
"GERMAN MARKS": freely transferable lawful money of Germany.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"GUARANTOR": as defined in the Subsidiary Guaranty.
"INACTIVE SUBSIDIARY BORROWER": at any time, any Subsidiary
Borrower which has no Subsidiary Borrower Obligations.
"INDEBTEDNESS": as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of Property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person
(other than letters of credit issued in support of trade payables incurred in
the ordinary course of business) and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the issuer in
respect of the issuer's payment thereof, (vi) all liabilities secured by any
Lien on any Property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (vii) obligations
under Capital Leases, and (viii) all Contingent Obligations of such Person in
respect of any of the foregoing.
"INDEMNIFIED LIABILITIES": as defined in Section 11.5.
"INDEMNIFIED PERSON": as defined in Section 11.7.
"INDEMNIFIED TAX": as to any Person, any Tax, except (i) a Tax
on the Income imposed on such Person and (ii) any interest, fees or penalties
for late payment imposed on such Person, in each case to the extent not
attributable to the failure of the Parent Borrower or any of its Subsidiaries to
obtain any necessary approvals or consents of, or file or cause to be filed any
reports, applications, documents, instruments or information required to be
filed pursuant to any applicable law, rule, regulation or request of, any
Governmental Authority.
"INDEMNIFIED TAX PERSON": the Administrative Agent, the
Issuing Bank, the Swing Line Lender, or any Lender, as the case may be.
"INTEREST PAYMENT DATE": (i) as to any ABR Advance, the last
day of each March, June, September and December commencing on the first of such
days to occur
45
after such ABR Advance is made or any Eurodollar Advance is converted to an ABR
Advance, (ii) as to any Swing Line Loan, the date on which the outstanding
principal amount of such Swing Line Loan shall become due and payable in
accordance with Section 2.2, (iii) as to any Eurodollar Advance or Core Currency
Euro Advance, as the case may be, as to which the applicable Borrower has
selected a Euro Interest Period of one, two or three months, or any Bid Loan in
respect of which the Bid Interest Period applicable thereto is less than or
equal to 90 days, the last day of such Euro Interest Period or such Bid Interest
Period, as the case may be, (iv) as to any Eurodollar Advance or Core Currency
Euro Advance, as the case may be, as to which the applicable Borrower has
selected a Euro Interest Period of six months, or any Bid Loan in respect of
which the Bid Interest Period applicable thereto is greater than 90 days, the
last day of each three month or 90 day, as the case may be, interval occurring
during such Euro Interest Period or such Bid Interest Period, as the case may
be, and the last day of such Euro Interest Period or such Bid Interest Period,
as the case may be, and (v) as to any all Advances and all Bid Loans, the
Revolving Credit Maturity Date, and (vi) as to all Swing Line Loans, the Swing
Line Maturity Date.
"INVESTMENTS": as defined in Section 8.6.
"INVITATION TO BID": an invitation to make Bids in the form of
Exhibit J.
"JUDGMENT CURRENCY": as defined in Section 11.14.
"JUDGMENT CURRENCY CONVERSION DATE": as defined in Section
11.14.
"LETTER OF CREDIT": as defined in Section 2.8.
"LETTER OF CREDIT COMMISSIONS": as defined in Section 3.2(b).
"LETTER OF CREDIT COMMITMENT": the commitment of the Issuing
Bank to issue Letters of Credit having an aggregate outstanding face amount up
to the Letter of Credit Commitment Amount, and the commitment of the Lenders to
participate in the Letter of Credit Exposure as set forth in Section 2.10.
"LETTER OF CREDIT COMMITMENT AMOUNT": $30,000,000.
"LETTER OF CREDIT EXPOSURE": as of any date and in respect of
any Lender, an amount equal to (i) the sum as of such date, without duplication,
of (a) the aggregate undrawn face amount of all outstanding Letters of Credit,
(b) the aggregate amount of unpaid drafts drawn on all Letters of Credit, and
(c) the aggregate unpaid Reimbursement Obligations (after giving effect to any
Revolving Credit Loans made on such date to pay any such Reimbursement
Obligations), MULTIPLIED BY (ii) such Lender's Commitment Percentage.
"LETTER OF CREDIT REQUEST": a request in the form of Exhibit
C-2.
46
"LEVERAGE RATIO": as of any date, the ratio of (i) the
aggregate Indebtedness as of such date of the Parent Borrower and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP, to
(ii) Consolidated EBITDA for the four fiscal quarter period ending on such date
or, if such date is not the last day of a fiscal quarter, for the immediately
preceding four fiscal quarter period.
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"LOAN": a Revolving Credit Loan, Bid Loan, or Swing Line Loan,
as the case may be.
"LOAN DOCUMENTS": collectively, this Agreement, the Subsidiary
Guaranty, the Reimbursement Agreements, and all agreements, instruments and
other documents executed or delivered in connection with any of the foregoing,
including any promissory notes executed and delivered pursuant to Section 2.13,
in each case as amended, supplemented or otherwise modified from time to time.
"LOANS": the Revolving Credit Loans, the Bid Loans and/or the
Swing Line Loans, as the case may be.
"MANAGING PERSON": with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control or managing member or members, (iii) a limited partnership, its
general partner, (iv) a general partnership or a limited liability partnership,
its managing partner or executive committee, or (v) any other Person, the
managing body thereof or other Person analogous to the foregoing.
"MARGIN STOCK": any "margin stock", as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as amended,
supplemented or otherwise modified from time to time.
"MATERIAL ADVERSE CHANGE": a material adverse change in (i)
the condition (financial or otherwise), operations, business or Property of the
Parent Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the
Parent Borrower or any of its Subsidiaries to perform its obligations under any
Loan Document, or (iii) the ability of the Administrative Agent, the Issuing
Bank, the Swing Line Lender or any Lender to enforce any Loan Document.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (i)
the condition (financial or otherwise), operations, business or Property of the
Parent Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the
Parent Borrower or any of its
47
Subsidiaries to perform its obligations under any Loan Document, or (iii) the
ability of the Administrative Agent, the Issuing Bank, the Swing Line Lender or
any Lender to enforce any Loan Document.
"MATERIAL SUBSIDIARY": at any time, each Domestic Subsidiary
which has at such time assets or net sales greater than or equal to 5% of the
aggregate assets or net sales of the Parent Borrower and its Subsidiaries,
determined on a Consolidated basis in accordance with GAAP.
"MOODY'S": Moody's Investors Service, Inc., or any successor
thereto.
"MULTIEMPLOYER PLAN": a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NEGOTIATED RATE": with respect to each Swing Line Loan, the
rate per annum equal to, (i) at all times during the period, if any, commencing
on the date of delivery of a notice of an Event of Default by the Administrative
Agent to the Lenders under Section 2.2(c) with respect to such Swing Line Loan
and terminating on the date on which such Event of Default shall no longer be
continuing, the Alternate Base Rate, and (ii) at all other times, the rate
agreed to by the Parent Borrower and the Swing Line Lender in accordance with
Section 2.2 as the interest rate that such Swing Line Loan shall bear.
"NON-CORE CURRENCIES": collectively, Australian Dollars,
Brazilian Reals, Canadian Dollars, and Sterling Pounds, and such other
currencies as shall become Non-Core Currencies in accordance with Section
2.12(b).
"NOTICE OF CONVERSION": a notice substantially in the form of
Exhibit D.
"OBLIGATION CURRENCY": as defined in Section 11.14.
"OPERATING ENTITY": any Person or any business or operating
unit of a Person which is, or could be, operated separate and apart from (i) the
other businesses and operations of such Person, or (ii) any other line of
business or business segment.
"ORGANIZATIONAL DOCUMENTS": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"OTHER INTERCOMPANY ACQUISITION": an Acquisition by the Parent
Borrower or any Subsidiary thereof from the Parent Borrower or any such
Subsidiary, PROVIDED,
48
HOWEVER, that, for purposes hereof, "Other Intercompany Acquisition" shall not
include any Unrestricted Intercompany Acquisition.
"OTHER INTERCOMPANY BASKET AMOUNT": at any time, an amount
equal to the sum of, without duplication, (i) the aggregate outstanding
principal amount of all Other Intercompany Indebtedness at such time, PLUS (ii)
the aggregate consideration paid as of such time for all Other Intercompany
Investments made under Section 8.6(g) on and after the date hereof, PLUS (iii)
the aggregate amount as of such time of all Other Intercompany Restricted
Payments made on or after the date hereof.
"OTHER INTERCOMPANY DISPOSITION": a Disposition by the Parent
Borrower or any Subsidiary thereof to the Parent Borrower or any such
Subsidiary, PROVIDED, HOWEVER, that, for purposes hereof, "Other Intercompany
Disposition" shall not include any Unrestricted Intercompany Disposition.
"OTHER INTERCOMPANY INDEBTEDNESS": Indebtedness of the Parent
Borrower or any Subsidiary thereof to the Parent Borrower or any such
Subsidiary, PROVIDED, HOWEVER, that, for purposes hereof, "Other Intercompany
Indebtedness" shall not include any Unrestricted Intercompany Indebtedness.
"OTHER INTERCOMPANY INVESTMENT": an Investment by the Parent
Borrower or any Subsidiary thereof in the Parent Borrower or any such
Subsidiary, PROVIDED, HOWEVER, that, for purposes hereof, "Other Intercompany
Investment" shall not include any Unrestricted Intercompany Investment.
"OTHER INTERCOMPANY RESTRICTED PAYMENT": a Restricted Payment
made by any Subsidiary of the Parent Borrower to the Parent Borrower or any such
Subsidiary, to the extent received by the Parent Borrower or such Subsidiary, as
the case may be, PROVIDED, HOWEVER, that, for purposes hereof, "Other
Intercompany Restricted Payment" shall not include any Unrestricted Intercompany
Payment.
"OUTSTANDING PERCENTAGE": as of any date and with respect to
the Issuing Bank, the Swing Line Lender or any Lender, as the case may be, a
fraction the numerator of which is the Outstandings on such date of the Issuing
Bank, the Swing Line Lender or such Lender, as applicable, and the denominator
of which is the aggregate Outstandings on such date of the Issuing Bank, the
Swing Line Lender and all Lenders.
"OUTSTANDINGS": with respect to the Issuing Bank, the Swing
Line Lender or any Lender, as the case may be, as of any date, an amount equal
to (i) the outstanding principal amount on such date of all the Loans
(determined, in the case of each Alternate Currency Loan, on the basis of the
Dollar Equivalent thereof) of such Lender, PLUS (ii) with respect to the Issuing
Bank only, the excess of (a) the aggregate sum of all drafts honored under all
Letters of Credit, over (b) all payments made to the Issuing Bank by the Credit
Parties and the Lenders in reimbursement thereof or participation therein, as
the case may be, PLUS (iii) with respect to the Swing Line Lender only, the
excess of (a)
49
the outstanding principal amount on such date of all the Swing Line Loans, over
(b) all payments made to the Swing Line Lender by the Credit Parties and the
Lenders in repayment thereof or participation therein, as the case may be, PLUS
(iv) with respect to each Lender, the excess of (a) the aggregate sum of all
payments by such Lender in participation of the Reimbursement Obligations and
the Swing Line Loans, over (b) all reimbursements of such Lender in respect
thereof.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PENSION PLAN": at any date of determination, any Employee
Benefit Plan (including a Multiemployer Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within the six years immediately preceding such date, were in whole or in part,
the responsibility of the Parent Borrower, any of its Subsidiaries or any ERISA
Affiliate.
"PERMITTED LIEN": a Lien permitted to exist under Section 8.2.
"PERSON": any individual, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary or other capacity, and
for the purpose of the definition of "ERISA Affiliate", a trade or business.
"PRICING LEVEL": Pricing Level I, Pricing Level II, or Pricing
Level III, as applicable.
"PRICING LEVEL I": any time when the Leverage Ratio is less
than 1.00:1.00.
"PRICING LEVEL II": any time when the Leverage Ratio is
greater than or equal to 1.00:1.00 but less than 1.50:1.00.
"PRICING LEVEL III": any time when the Leverage Ratio is
greater than or equal to 1.50:1.00.
"PROHIBITED TRANSACTION": a transaction which is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"PROPERTY": all types of real, personal, tangible, intangible
or mixed property.
"PROPOSED LENDER": as defined in Section 3.12.
50
"REAL PROPERTY": all real property owned or leased by the
Parent Borrower or any of its Subsidiaries.
"REGULATION D": Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATORY CHANGE": (i) the introduction or phasing in of any
law, rule or regulation after the Relevant Date, (ii) the issuance or
promulgation after the Relevant Date of any directive, guideline or request from
any Governmental Authority (whether or not having the force of law), or (iii)
any change after the Relevant Date in the interpretation of any existing law,
rule, regulation, directive, guideline or request by any Governmental Authority
charged with the administration thereof.
"REIMBURSEMENT AGREEMENT": as defined in Section 2.8(a).
"REIMBURSEMENT OBLIGATION": the obligation of the Parent
Borrower to reimburse the Issuing Bank for amounts drawn under a Letter of
Credit.
"RELEVANT DATE": (i) in the case of each Lender listed on the
signature pages hereof, the Effective Date, and (ii) in the case of each other
Lender, the effective date of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender.
"REPORTABLE EVENT": with respect to any Pension Plan, (i) any
event set forth in Sections 4043(b) (other than a Reportable Event as to which
the 30 day notice requirement is waived by the PBGC under applicable
regulations), 4062(c) or 4063(a) of ERISA or the regulations thereunder, (ii) an
event requiring the Parent Borrower, any of its Subsidiaries or any ERISA
Affiliate to provide security to a Pension Plan under Section 401(a)(29) of the
Code, or (iii) any failure to make any payment required by Section 412(m) of the
Code.
"REQUIRED LENDERS": at any time prior to the Revolving Credit
Commitment Termination Date, Lenders having Revolving Credit Commitment Amounts
greater than or equal to 51% of the Aggregate Revolving Credit Commitment
Amount, and, at all other times, the Issuing Bank, the Swing Line Lender and the
Lenders having Outstandings greater than or equal to 51% of the aggregate
Outstandings of the Issuing Bank, the Swing Line Lender and all Lenders.
"REQUIRED PAYMENT": as defined in Section 3.9(a).
"RESTRICTED PAYMENT": as to any Person (i) any dividend or
other distribution, direct or indirect, on account of any shares of Capital
Stock of such Person now or hereafter outstanding (other than a dividend payable
solely in shares of such Capital Stock to the holders of such shares) and (ii)
any redemption, retirement, sinking
51
fund or similar payment, purchase or other acquisition, direct or indirect, of
any shares of any class of Capital Stock of such Person now or hereafter
outstanding.
"REVOLVING CREDIT COMMITMENT": in respect of any Lender, such
Lender's undertaking during the Revolving Credit Commitment Period to make
Revolving Credit Loans, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount not exceeding the Revolving Credit
Commitment Amount of such Lender.
"REVOLVING CREDIT COMMITMENT AMOUNT": as of any date and with
respect to any Lender, the amount set forth adjacent to its name under the
heading "Revolving Credit Commitment Amount" in Exhibit A on such date or, in
the event that such Lender is not listed in Exhibit A, the "Revolving Credit
Commitment Amount" which such Lender shall have assumed from another Lender in
accordance with Section 11.6 on or prior to such date, in each case as the same
may be adjusted from time to time pursuant to Sections 2.5 and 11.6.
"REVOLVING CREDIT COMMITMENT PERIOD": the period from the
Effective Date until the Revolving Credit Commitment Termination Date.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE": the earlier of
the Business Day immediately preceding the Scheduled Revolving Credit Commitment
Termination Date or such other date upon which the Revolving Credit Commitments
shall have been terminated in accordance with Section 2.5 or Section 9.2.
"REVOLVING CREDIT EXPOSURE": with respect to any Lender as of
any date, the sum as of such date of (i) the outstanding principal amount of
such Lender's Revolving Credit Loans (determined, in the case of each Alternate
Currency Loan, on the basis of the Dollar Equivalent thereof), (ii) such
Lender's Swing Line Exposure, and (iii) such Lender's Letter of Credit Exposure.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS": as
defined in Section 2.1.
"REVOLVING CREDIT MATURITY DATE": the Scheduled Revolving
Credit Commitment Termination Date, or such earlier date on which the Revolving
Credit Loans shall become due and payable, whether by acceleration or otherwise.
"SCHEDULED REVOLVING CREDIT COMMITMENT TERMINATION DATE": June
30, 2002.
"SCHEDULED SWING LINE COMMITMENT TERMINATION DATE": the fifth
Business Day preceding the Scheduled Revolving Credit Commitment Termination
Date.
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
52
"SPECIAL COUNSEL": Emmet, Marvin & Martin, LLP, special
counsel to the Administrative Agent.
"STANDARD & POOR'S": Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor thereto.
"STANDBY LETTERS OF CREDIT": as defined in Section 2.8(a).
"STERLING POUNDS": freely transferable lawful money of the
United Kingdom.
"SUBSIDIARY": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the managing Person thereof, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (ii)
in respect of an association, partnership, limited liability company, joint
venture or other business entity, is entitled to share in more than 50% of the
profits and losses thereof, however determined.
"SUBSIDIARY BORROWER OBLIGATIONS": at any time, in respect of
any Subsidiary Borrower, the principal amount outstanding at such time of the
Loans made to such Subsidiary Borrower (determined on the basis of the Dollar
Equivalent thereof), together with all accrued interest thereon and all other
sums due and owing at such time from such Subsidiary Borrower under the Loan
Documents.
"SUBSIDIARY GUARANTY": as defined in Section 5.4.
"SWING LINE COMMITMENT": the undertaking of the Swing Line
Lender during the Swing Line Commitment Period to make Swing Line Loans, subject
to the terms and conditions hereof, in an aggregate outstanding principal amount
not in excess of the Swing Line Commitment Amount, and the commitment of the
Lenders to participate therein as set forth in Section 2.2, as the same may be
adjusted from time to time pursuant to Sections 2.5 and 11.6.
"SWING LINE COMMITMENT AMOUNT": $5,000,000.
"SWING LINE COMMITMENT PERIOD": the period from the Effective
Date until the Swing Line Commitment Termination Date.
"SWING LINE COMMITMENT TERMINATION DATE": the earlier of the
Business Day immediately preceding the Scheduled Swing Line Commitment
Termination Date or such other date upon which the Swing Line Commitment shall
have been terminated in accordance with Section 2.5 or Section 9.2.
53
"SWING LINE EXPOSURE": at any time, in respect of any Lender,
an amount equal to the aggregate outstanding principal amount of the Swing Line
Loans at such time, MULTIPLIED BY such Lender's Commitment Percentage at such
time.
"SWING LINE INTEREST PERIOD": with respect to any Swing Line
Loan requested by the Parent Borrower, the period commencing on the Borrowing
Date with respect to such Swing Line Loan and ending not in excess of five days
thereafter, as selected by the Parent Borrower in the applicable Borrowing
Request therefor, PROVIDED, HOWEVER, that (i) if any Swing Line Interest Period
would otherwise end on a day that is not a Business Day, such Swing Line
Interest Period shall be extended to the next succeeding Business Day, unless
such next succeeding Business Day would be a date on or after the Scheduled
Swing Line Commitment Termination Date, in which event such Euro Interest Period
shall end on the next preceding Business Day, and (ii) no Swing Line Interest
Period shall end after the Scheduled Swing Line Commitment Termination Date.
Interest shall accrue from and including the first day of a Swing Line Interest
Period to, but excluding, the last day of such Swing Line Interest Period.
"SWING LINE LOAN" and "SWING LINE LOANS": as defined in
Section 2.2(a).
"SWING LINE MATURITY DATE": the Scheduled Swing Line
Commitment Termination Date, or such earlier date on which the Swing Line Loans
shall become due and payable, whether by acceleration or otherwise.
"SWING LINE PARTICIPATION AMOUNT": as defined in Section
2.2(c).
"SYNTHETIC LEASE ARRANGEMENT": the synthetic lease arrangement
by and among the Borrower, Wachovia Capital Markets, Inc. and Wachovia Bank,
N.A., as Agent, relating to the office building/headquarters project located in
Omaha, Nebraska.
"TAX": any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"TAX ON THE INCOME": as to any Person, a Tax imposed by one of
the following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender, any jurisdiction in which such
Person is deemed to be doing business; which Tax is an income tax (or any tax in
lieu thereof or equivalent thereto) or franchise tax imposed on all or part of
the net income or net profits of such Person or with respect to the net increase
in the shareholders' or owners' equity or capital in such Person or which Tax
represents interest, fees or penalties for payment of any such income tax or
franchise tax.
"TERMINATION EVENT": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate
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a Pension Plan, or the treatment of a Pension Plan amendment as a termination
under Section 4041(c) of ERISA, (iii) the institution of proceedings to
terminate a Pension Plan under Section 4042 of ERISA, or (iv) the appointment of
a trustee to administer any Pension Plan under Section 4042 of ERISA.
"TRADE LETTERS OF CREDIT": as defined in Section 2.8(a).
"UNFUNDED PENSION LIABILITIES": with respect to any Pension
Plan, at any date of determination, the amount determined by taking the
accumulated benefit obligation, as disclosed in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for Pensions", over the fair
market value of Pension Plan assets.
"UNITED STATES": the United States of America.
"UNRECOGNIZED RETIREE WELFARE LIABILITY": with respect to any
Employee Benefit Plan that provides postretirement benefits other than pension
benefits, the amount of the transition obligation, as determined in accordance
with Statement of Financial Accounting Standards No. 106, "Employers' Accounting
for Postretirement Benefits Other Than Pensions," as of the most recent
valuation date, that has not been recognized as an expense in an income
statement of the Parent Borrower and its Consolidated subsidiaries, provided
that, prior to the date such Statement is applicable to the Parent Borrower,
such amount shall be based on an estimate made in good faith of such transition
obligation.
"UNRESTRICTED INTERCOMPANY ACQUISITION": (i) an Acquisition by
the Parent Borrower or any Guarantor from the Parent Borrower or any Subsidiary
of the Parent Borrower or (ii) an Acquisition by any such Subsidiary (other than
a Guarantor) from any such Subsidiary (other than a Guarantor).
"UNRESTRICTED INTERCOMPANY DISPOSITION": (i) a Disposition by
the Parent Borrower or any Subsidiary thereof to the Parent Borrower or any
Guarantor or (ii) a Disposition by any such Subsidiary (other than a Guarantor)
to any such Subsidiary (other than a Guarantor).
"UNRESTRICTED INTERCOMPANY INDEBTEDNESS": (i) Indebtedness of
the Parent Borrower or any Guarantor to the Parent Borrower or any Subsidiary of
the Parent Borrower or (ii) Indebtedness of any such Subsidiary (other than a
Guarantor) to any such Subsidiary (other than a Guarantor).
"UNRESTRICTED INTERCOMPANY INVESTMENT": (i) an Investment by
the Parent Borrower or any Subsidiary thereof in the Parent Borrower or any
Guarantor or (ii) an Investment by any such Subsidiary (other than a Guarantor)
in any such Subsidiary (other than a Guarantor).
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"UNRESTRICTED INTERCOMPANY PAYMENT": (i) a Restricted Payment
made by any Subsidiary of the Parent Borrower to the Parent Borrower or any
Guarantor, to the extent received by the Parent Borrower or such Guarantor, as
the case may be, or (ii) a Restricted Payment made by any such Subsidiary (other
than a Guarantor) to any such Subsidiary (other than a Guarantor), to the extent
received by such Subsidiary.
1.2. PRINCIPLES OF CONSTRUCTION
(a) All terms defined in a Loan Document shall have the
meanings given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto to the
extent not otherwise provided therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant thereto, accounting terms
not defined in Section 1.1, and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in this Agreement, the
Administrative Agent, the Issuing Bank, the Swing Line Lender, the Lenders and
the Parent Borrower shall negotiate in good faith to amend such ratio or
requirement to reflect such change in GAAP (subject to the approval of the
Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Parent Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under
this Agreement (or such other items as the Administrative Agent may reasonably
requested) setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, any reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to the
contrary, in the computation of periods of time from a specified date to a later
specified date, the
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word "from" means "from and including" and the words "to" and "until" each means
"to but excluding".
(h) References in any Loan Document to a fiscal period shall
refer to that fiscal period of the Parent Borrower.
(i) The words "include" and "including", when used in each
Loan Document, shall mean that the same shall be included "without limitation",
unless otherwise expressly provided therein.
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1. REVOLVING CREDIT LOANS
Subject to the terms and conditions of this Agreement, each
Lender severally (and not jointly) agrees to make revolving credit loans (each a
"REVOLVING CREDIT LOAN" and, as the context may require, collectively with all
other Revolving Credit Loans of such Lender and with the Revolving Credit Loans
of all other Lenders, the "REVOLVING CREDIT LOANS") to one or more of the
Borrowers in the Core Currencies from time to time during the Revolving Credit
Commitment Period, PROVIDED, HOWEVER, that:
(a) immediately after giving effect thereto, (i) such Lender's
Revolving Credit Exposure shall not exceed such Lender's Revolving
Credit Commitment Amount, (ii) the Aggregate Credit Exposure shall not
exceed the Aggregate Revolving Credit Commitment Amount, and (iii) if
such Revolving Credit is an Alternate Currency Revolving Credit Loan,
the aggregate principal amount of all Alternate Currency Loans (in
each case determined on the basis of the Dollar Equivalent thereof)
shall not exceed $50,000,000, and
(b) such Revolving Credit Loan, (i) if to be made in Dollars
(each a "DOLLAR REVOLVING CREDIT LOAN"), shall be made to the Parent
Borrower, (ii) if to be made in Dutch Guilders, shall be made to a
Dutch Borrower, (iii) if to be made in French Francs, shall be made to
a French Borrower, and (iv) if to be made in German Marks, shall be
made to a German Borrower.
During the Revolving Credit Commitment Period, the Borrowers may borrow, prepay
in whole or in part and reborrow under the Revolving Credit Commitments, all in
accordance with the terms and conditions of this Agreement. Subject to the
provisions of Sections 2.3 and 3.3, at the option of the Parent Borrower, Dollar
Revolving Credit Loans may be made as (A) one or more ABR Advances, (B) one or
more Eurodollar Advances, or (C) a combination thereof. The outstanding
principal amount of the Revolving Credit Loans shall be due and payable on the
Revolving Credit Maturity Date.
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2.2. SWING LINE LOANS
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make swing line loans (each a "SWING LINE Loan" and,
collectively, the "SWING LINE LOANS") to the Parent Borrower in Dollars from
time to time during the Swing Line Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed the Swing Line Commitment
Amount, PROVIDED, HOWEVER, that, immediately after making each Swing Line Loan,
(i) the aggregate unpaid balance of the Swing Line Loans would not exceed the
Swing Line Commitment Amount and (ii) the Aggregate Credit Exposure would not
exceed the Aggregate Revolving Credit Commitment Amount. During the Swing Line
Commitment Period, the Parent Borrower may borrow, prepay in whole or in part
and reborrow under the Swing Line Commitment, all in accordance with the terms
and conditions of this Agreement. No Swing Line Loan shall be made prior to the
making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any
Swing Line Loan at a time when any Lender shall be in default of its obligations
under this Agreement unless arrangements to eliminate the Swing Line Lender's
risk with respect to such defaulting Lender's participation in such Swing Line
Loan shall have been made for the benefit of the Swing Line Lender and such
arrangements are in all respects satisfactory to the Swing Line Lender. The
Swing Line Lender will not make any Swing Line Loan if the Administrative Agent
or any Lender, by notice to the Swing Line Lender and the Parent Borrower no
later than one Business Day prior to the Borrowing Date with respect to such
Swing Line Loan, shall have determined that the conditions set forth in Section
6 have not been satisfied and such conditions remain unsatisfied as of the
requested time of the making such Swing Line Loan. Each Swing Line Loan shall be
due and payable on the earlier to occur of the last day of the Swing Line
Interest Period applicable thereto and the Swing Line Maturity Date.
(c) Upon each receipt by a Lender of notice of an Event of
Default from the Administrative Agent pursuant to Section 10.5, such Lender
shall purchase unconditionally, irrevocably, and severally (and not jointly)
from the Swing Line Lender a participation in the outstanding Swing Line Loans
(including accrued interest thereon) in an amount (the "SWING LINE PARTICIPATION
AMOUNT") equal to the product of its Commitment Percentage and the aggregate
outstanding principal amount of the Swing Line Loans plus all accrued and unpaid
interest thereon. Each Lender shall also be liable for an amount equal to the
product of its Commitment Percentage and any amounts paid by any Credit Party
pursuant to this Section that are subsequently rescinded or avoided, or must be
otherwise restored or returned. Such liabilities shall be absolute and
unconditional and without regard to the occurrence of any Default or the
compliance by and Credit Party with any of its obligations under the Loan
Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a
Lender of notice of an Event of Default from the Administrative Agent pursuant
to Section 10.5,
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such Lender shall promptly make available its Swing Line Participation Amount to
the Administrative Agent for the account of the Swing Line Lender at the
applicable Agent Payment Office, in Dollars, and in immediately available funds.
The Administrative Agent shall deliver the payments made by each Lender pursuant
to the immediately preceding sentence to the Swing Line Lender promptly upon
receipt thereof in like funds as received. Each Lender shall indemnify and hold
harmless the Administrative Agent and the Swing Line Lender from and against any
and all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, costs and expenses resulting from any failure on the
part of such Lender to pay, or from any delay in paying the Administrative Agent
any amount such Lender is required to pay in accordance with this Section 2.2
(except in respect of losses, liabilities, actions, suits, judgments, demands,
costs and expenses suffered by the Administrative Agent or the Swing Line
Lender, as the case may be, resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Swing Line Lender, as the case may
be), and such Lender shall be required to pay interest to the Administrative
Agent for the account of the Swing Line Lender from the date such amount was due
until paid in full, on the unpaid portion thereof, at a rate of interest per
annum equal to the Federal Funds Rate payable upon demand by the Swing Line
Lender. The Administrative Agent shall distribute such interest payments to the
Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by any
Credit Party, for the account of the Swing Line Lender, for any payment in
connection with Swing Line Loans and such payment relates to an amount
previously paid by a Lender pursuant to this Section, the Administrative Agent
will promptly pay over such payment to such Lender.
2.3. PROCEDURE FOR BORROWING
(a) REVOLVING CREDIT LOANS. Any Borrower may borrow under the
Revolving Credit Commitments on any Business Day or any Core Currency Business
Day, as the case may be, during the Revolving Credit Commitment Period, provided
that such Borrower or, if such Borrower is a Subsidiary Borrower, the Parent
Borrower, on behalf of such Borrower, shall notify the Administrative Agent by
the delivery of a Borrowing Request, which shall be sent by facsimile and shall
be irrevocable (confirmed promptly by the delivery to the Administrative Agent
of a Borrowing Request manually signed by such Borrower or the Parent Borrower,
on behalf of such Borrower, as the case may be), no later than: 11:00 a.m. three
Core Currency Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Advances, 11:00 a.m. four Core Currency Business Days prior to the
requested Borrowing Date, in the case of Core Currency Euro Advances, and 10:00
a.m. on the requested Borrowing Date, in the case of ABR Advances, specifying
(i) the requested Borrowing Date, (ii) whether such borrowing is to consist of
one or more Eurodollar Advances, one or more Core Currency Euro Advances, ABR
Advances, or a combination thereof, and the amount of each
59
thereof (stated in the applicable Currency), and (iii) if the borrowing is to
consist of one or more Eurodollar Advances or Core Currency Euro Advances, the
length of the Euro Interest Period for each such Eurodollar Advance and Core
Currency Euro Advance. Notwithstanding anything to the contrary contained
herein, (A) each Eurodollar Advance to be made on a Borrowing Date, when
aggregated with all amounts to be converted to a Eurodollar Advance on such date
and having the same Euro Interest Period as such first Eurodollar Advance, shall
equal no less than $5,000,000 or such amount plus a whole multiple of $1,000,000
in excess thereof, (B) each Core Currency Euro Advance to be made on a Borrowing
Date, when aggregated with all amounts to be converted to a Core Currency Euro
Advance on such date and having the same Euro Interest Period, and being
denominated in the same Currency, as such first Core Currency Euro Advance shall
not be less than an amount in such Currency having a Dollar Equivalent of
approximately $2,500,000 or such amount plus an amount in such Currency having a
Dollar Equivalent of a whole multiple of approximately $1,000,000 in excess
thereof, and (C) each ABR Advance to be made on a Borrowing Date shall equal no
less than $1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof or, if less, the unused portion of the Aggregate Revolving Credit
Commitment Amount.
(b) SWING LINE LOANS. The Parent Borrower may borrow under the
Swing Line Commitment on any Business Day during the Swing Line Commitment
Period, provided that the Parent Borrower shall notify the Administrative Agent
and the Swing Line Lender (by telephone or facsimile confirmed promptly by the
delivery to the Administrative Agent and the Swing Line Lender of a Borrowing
Request manually signed by the Parent Borrower) no later than: 3:00 p.m. on the
requested Borrowing Date, specifying (i) the aggregate principal amount to be
borrowed under the Swing Line Commitment, (ii) the requested Borrowing Date, and
(iii) the amount of, and the length of the Swing Line Interest Period for, each
Swing Line Loan. The Swing Line Lender will then, subject to its determination
that the terms and conditions of this Agreement have been satisfied and subject
to its agreement with the Parent Borrower on the Negotiated Rate to be
applicable thereto, make the requested amount available, in Dollars, and in
immediately available funds, promptly on that same day, to the Administrative
Agent at the applicable Agent Payment Office who, thereupon, will promptly make
such amount available to the Parent Borrower at the such Agent Payment Office,
in Dollars, and in immediately available funds. Each borrowing of Swing Line
Loans shall be in an aggregate principal amount equal to $500,000 or such amount
plus a whole multiple of $100,000 in excess thereof or, if less, the unused
portion of the Swing Line Commitment Amount.
(c) FUNDING OF REVOLVING CREDIT LOANS. Upon receipt of each
Borrowing Request requesting Revolving Credit Loans, the Administrative Agent
shall promptly notify each Lender thereof. Subject to its receipt of the notice
referred to in the preceding sentence, each Lender will make the amount of its
Commitment Percentage of the requested Revolving Credit Loans available to the
Administrative Agent for the account of the applicable Borrower at the
applicable Agent Payment Office in the
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applicable Currency not later than (i) 11:00 a.m. (local time in the city in
which such Agent Payment Office is located), in the case of an Alternate
Currency Revolving Credit Loan, and (ii) 2:00 p.m. (New York City time), in the
case of a Dollar Revolving Credit Loan, in each case on the on the relevant
Borrowing Date requested by such Borrower or the Parent Borrower, on behalf of
such Borrower, as the case may be, in funds immediately available to the
Administrative Agent at such Agent Payment Office. The amounts so made available
to the Administrative Agent on such Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by the
Administrative Agent, be made available on such Borrowing Date to such Borrower
by the Administrative Agent at such Agent Payment Office, in such Currency, and
in immediately available funds, no later than (A) 1:30 p.m. (local time in the
city in which such Agent Payment Office is located), in the case of an Alternate
Currency Revolving Credit Loan, and (B) 3:00 p.m. (New York City time), in the
case of a Dollar Revolving Credit Loan.
(d) FAILURE TO FUND. Unless the Administrative Agent shall
have received prior notice from a Lender (by telephone or otherwise, such notice
to be promptly confirmed by facsimile or other writing) that such Lender will
not make available to the Administrative Agent such Lender's Commitment
Percentage of the Revolving Credit Loans to be made on a Borrowing Date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice thereof from the
Administrative Agent in accordance with the terms hereof, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such Borrowing Date a corresponding amount. If and to the extent
such Lender shall not have so made such amount available to the Administrative
Agent, such Lender and such Borrower severally agree to pay to the
Administrative Agent, forthwith on demand, such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to such Borrower until the
date such amount is paid to the Administrative Agent, at a rate per annum equal
to, in the case of such Borrower, the applicable interest rate set forth in
Section 3.1, and, in the case of such Lender, the Federal Funds Rate (or, in the
case of each Alternate Currency Loan, a rate determined by the Administrative
Agent to be reflective of the all-in cost of funds to the Administrative Agent
in funding such Alternate Currency Loan). Such payment by such Borrower,
however, shall be without prejudice to its rights against such Lender. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Revolving Credit Loan as part of
such Revolving Credit Loans for purposes of this Agreement, which Revolving
Credit Loan shall be deemed to have been made by such Lender on the such
Borrowing Date.
(e) BORROWER ACCOUNTS. Each Loan shall be made to the
applicable payment account of the applicable Borrower set forth in Exhibit P or
the Borrower Addendum, if any, executed and delivered with respect to such
Borrower pursuant to
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Section 2.12, as the case may be, or such other account which such Borrower may
from time to time specify by written notice to the Administrative Agent and the
Lenders.
2.4. BID PROCEDURE
(a) Each Borrower may, provided that no Default shall have
occurred and be continuing, request Bids for one or more Bid Loans denominated
in any Currency during the Commitment Period by delivering, or, if such Borrower
is a Subsidiary Borrower, causing the Parent Borrower to deliver, on behalf of
such Borrower, by hand or facsimile to the Administrative Agent a duly completed
Bid Request no later than 12:00 noon: four Core Currency Business Days, in the
case of Alternate Currency Bid Loans, and one Business Day, in the case of
Dollar Bid Loans, in each case before the proposed Borrowing Date therefor. A
request for Bids that does not conform substantially to the format of Exhibit I
may be rejected in the Administrative Agent's sole discretion, and the
Administrative Agent shall promptly notify the applicable Borrower and, if such
Borrower is a Subsidiary Borrower, the Parent Borrower of such rejection by
facsimile. Each Bid Request shall specify (i) the amount of each Bid Loan
(stated in the applicable Currency), (ii) the proposed Borrowing Date therefor,
and (iii) the Bid Interest Period or Bid Interest Periods (which shall not
exceed three different Bid Interest Periods in a single Bid Request), with
respect thereto. Promptly after its receipt of each Bid Request that is not
rejected as aforesaid, the Administrative Agent shall send to each Lender an
Invitation to Bid, appropriately completed by the Administrative Agent with
reference to such Bid Request.
(b) Each Lender may, in its sole and absolute discretion, make
one or more Bids in response to each Invitation to Bid. Each Bid by a Lender
must be received by the Administrative Agent not later than 9:30 a.m.: one Core
Currency Business Day before the proposed Borrowing Date for a proposed
Alternate Currency Bid Loan and on the proposed Borrowing Date for a proposed
Dollar Bid Loan. Bids to make Bid Loans that do not conform substantially to the
format of Exhibit K may be rejected by the Administrative Agent after conferring
with, and upon the instruction of, the applicable Borrower and, if such Borrower
is a Subsidiary Borrower, the Parent Borrower, and the Administrative Agent
shall notify the Lender making such nonconforming bid of such rejection as soon
as practicable. Each Bid shall be irrevocable and shall specify (i) the amount
(stated in the applicable Currency and which (A) shall be in a minimum principal
amount of $5,000,000 or such amount plus a whole multiple of $1,000,000 in
excess thereof (or, in the case of Alternate Currency Bid Loans, an amount in
the applicable Alternate Currency having a Dollar Equivalent of approximately
$5,000,000 or such amount plus an amount in the applicable Alternate Currency
having a Dollar Equivalent of a whole multiple of approximately $1,000,000 in
excess thereof), and (B) may equal the entire principal amount requested by such
Borrower) of such Bid Loan, (ii) the Bid Rate with respect to such Bid Loan, and
(iii) the Bid Interest Period with respect to such Bid Loan and the last day
thereof. If any Lender shall elect not to make a Bid, such Lender shall so
notify the Administrative Agent by facsimile not later than 9:30 a.m.: one
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Core Currency Business Day before the proposed Borrowing Date for a proposed
Alternate Currency Bid Loan and on the proposed Borrowing Date for a proposed
Dollar Bid Loan, PROVIDED, HOWEVER, that the failure by any Lender to give any
such notice shall not obligate such Lender to make any Bid Loan in connection
with the relevant Bid Request.
(c) With respect to each Invitation to Bid sent to the
Lenders, the Administrative Agent shall (i) promptly notify the applicable
Borrower and, if such Borrower is a Subsidiary Borrower, the Parent Borrower by
facsimile of each Bid made, the amount (stated in the applicable Currency) of
the Bid Loan offered thereby, and the identity of the Lender that made such Bid,
and (ii) send a list of all Bids to such Borrower and, if such Borrower is a
Subsidiary Borrower, the Parent Borrower for their respective records as soon as
practicable after completion of the bidding process. Each notice and list sent
by the Administrative Agent pursuant to this Section 2.4(c) shall list the Bids
in ascending yield order.
(d) The applicable Borrower may in its sole and absolute
discretion, subject only to the provisions of this Section 2.4(d), accept or
reject any Bid made in accordance with the procedures set forth in this Section
2.4, and such Borrower or, if such Borrower is a Subsidiary Borrower, the Parent
Borrower, on behalf of such Borrower, shall notify the Administrative Agent by
telephone, confirmed by facsimile in the form of a Bid Accept/Reject Letter,
whether and to what extent it has decided to accept or reject any or all of such
Bids, not later than 10:30 a.m.: one Core Currency Business Day before the
proposed Borrowing Date for a proposed Alternate Currency Bid Loan and on the
proposed Borrowing Date for a proposed Dollar Bid Loan, PROVIDED, HOWEVER, that
the failure by such Borrower or the Parent Borrower, on behalf of such Borrower,
as the case may be, to give such notice shall be deemed to be a rejection of all
such Bids. In connection with each acceptance of one or more Bids by such
Borrower:
(i) such Borrower shall not accept a Bid made at a particular
Bid Rate if it has decided to reject any other Bid made at a lower Bid
Rate and having the same Bid Interest Period as such Bid,
(ii) the aggregate amount of the Bids accepted by such
Borrower shall not exceed the principal amount specified in the Bid
Request therefor (determined, in the case of each Alternate Currency
Bid Loan, on the basis of the Dollar Equivalent thereof),
(iii) if such Borrower shall desire to accept a Bid made at a
particular Bid Rate and having a particular Bid Interest Period, it
must accept all other Bids made at such Bid Rate and having such Bid
Interest Period, PROVIDED, HOWEVER, that, if the acceptance of all
such other Bids would cause the aggregate amount of all such accepted
Bids to exceed the amount requested (determined, in the case of each
Alternate Currency Bid Loan, on the basis of the Dollar Equivalent
thereof), then such acceptance shall be made pro rata in accordance
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with the amount of each such Bid at such Bid Rate and having such Bid
Interest Period, and
(iv) except pursuant to Section 2.4(d)(ii), no Bid shall be
accepted unless the Bid Loan with respect thereto shall be in (1) a
minimum principal amount of $5,000,000, or such amount plus a whole
multiple of $1,000,000 in excess thereof (or, in the case of Alternate
Currency Bid Loans, an amount in the applicable Alternate Currency
having a Dollar Equivalent of approximately $5,000,000, or such amount
plus an amount in the applicable Alternate Currency having a Dollar
Equivalent of a whole multiple of approximately $1,000,000 in excess
thereof), or (2) if less, an aggregate principal amount equal to the
excess of the Aggregate Commitment Amount over the outstanding
principal amount of all Loans (determined, in the case of each
Alternate Currency Bid Loan, on the basis of the Dollar Equivalent
thereof).
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not each Bid of such Lender has been accepted (and, if
so, in what amount) by facsimile sent by the Administrative Agent, and, if such
Bid has been accepted by the applicable Borrower, in whole or in part, such
bidding Lender shall, after its receipt of such notice, make immediately
available funds in the applicable Currency and in the amount in which such Bid
was so accepted available, (i) in the case of Dollar Bid Loans, to the
Administrative Agent at the applicable Agent Payment Office, and (ii) in the
case of Alternate Currency Bid Loans, (A) directly to such Borrower, or (B) upon
the occurrence and during the continuance of an Event of Default, if directed by
the Required Lenders and with the consent of the Administrative Agent, to the
Administrative Agent at the applicable Agent Payment Office, in each case no
later than 12:00 noon (local time in the city in which such funds are to be made
available in accordance with the terms hereof) on the proposed Borrowing Date.
The Administrative Agent will make available to such Borrower at the applicable
Agent Payment Office, in the applicable Currency, and in immediately available
funds, the aggregate of any amount so made available by such Lender no later
than 2:30 p.m. (such local time) on such Borrowing Date. Notwithstanding
anything to the contrary contained herein, no Lender shall be obligated to make
a Bid Loan if, immediately after making such Bid Loan, (1) the outstanding
principal amount of the Bid Loans of all Lenders (determined, in the case of
each Alternate Currency Bid Loan, on the basis of the Dollar Equivalent thereof)
would exceed 50% of the Aggregate Revolving Credit Commitment Amount, and (2) if
such Bid Loan is an Alternate Currency Bid Loan, the aggregate principal amount
of all Alternate Currency Loans (in each case determined on the basis of the
Dollar Equivalent thereof) shall not exceed $50,000,000.
(f) A Bid Request shall not be made within five Business Days
after the date of any previous Bid Request, unless the applicable Borrower has
accepted one or more Bids pursuant to a Bid Request made within such five
Business Days.
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(g) If the Administrative Agent shall elect to submit a Bid in
its capacity as a Lender, it shall submit such bid directly to the applicable
Borrower and, if such Borrower is a Subsidiary Borrower, the Parent Borrower
fifteen minutes earlier than the latest time at which the other Lenders are
required to submit their bids to the Administrative Agent pursuant to Section
2.4(b).
(h) All notices required by this Section 2.4 shall be given in
accordance with Section 11.2.
(i) Each Bid Loan shall be due and payable on the last day of
the Bid Interest Period applicable thereto.
2.5. TERMINATION OR REDUCTION OF COMMITMENTS
(a) VOLUNTARY TERMINATION OR REDUCTIONS. The Parent Borrower
shall have the right, upon at least three Business Days' prior written notice to
the Administrative Agent, (i) at any time when the Aggregate Credit Exposure
shall be zero, to terminate the Revolving Credit Commitments of all of the
Lenders, and (A) at any time and from time to time when the Aggregate Revolving
Credit Commitment Amount shall exceed the Aggregate Credit Exposure, to reduce
permanently the Aggregate Revolving Credit Commitment Amount by a sum not
greater than the amount of such excess, PROVIDED, HOWEVER, that each such
reduction shall be in the amount of $5,000,000 or such amount plus a whole
multiple of $1,000,000 in excess thereof. Each of the Parent Borrower and the
Swing Line Lender shall have the right, upon at least three Business Days' prior
written notice to the other and the Administrative Agent, to terminate the Swing
Line Commitment and/or permanently reduce the Swing Line Commitment Amount,
PROVIDED, HOWEVER, that each such reduction shall be in the amount of $1,000,000
or such amount plus a whole multiple of $1,000,000 in excess thereof.
(b) REDUCTIONS IN GENERAL. Each reduction of the Aggregate
Revolving Credit Commitment Amount shall be made by reducing each Lender's
Revolving Credit Commitment Amount by an amount equal to such Lender's
Commitment Percentage of such reduction.
2.6. PREPAYMENTS
(a) VOLUNTARY PREPAYMENTS. Each Borrower may, at its option,
prepay the Revolving Credit Loans or the Swing Line Loans, as the case may be,
without premium or penalty (but subject to Section 3.4), in full at any time or
in part from time to time by delivering, or, if such Borrower is a Subsidiary
Borrower, causing the Parent Borrower, on behalf of such Borrower, to deliver,
to the Administrative Agent an irrevocable written notice thereof at least one
Business Day's prior to the proposed prepayment date, in the case of Revolving
Credit Loans consisting of ABR Advances or Swing Line Loans, as the case may be,
and at least three Core Currency Business Days prior to the proposed prepayment
date, in the case of Revolving Credit Loans consisting
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of Eurodollar Advances or Core Currency Euro Advances, as the case may be, in
each case specifying whether the Loans to be prepaid consist of Revolving Credit
Loans or Swing Line Loans, and, in the case of Revolving Credit Loans, whether
such Revolving Credit Loans consist of ABR Advances, Eurodollar Advances, Core
Currency Euro Advances, or a combination thereof, the amount to be prepaid
(stated in the applicable Currency), and the date of prepayment, whereupon the
amount specified in such notice shall be due and payable on the date specified.
Upon receipt of such notice, the Administrative Agent shall promptly notify each
Lender thereof. Each partial prepayment pursuant to this Section 2.6(a) shall be
(i) in the case of Swing Line Loans, in a minimum amount of $500,000 or such
amount plus a whole multiple of $100,000 in excess thereof, (ii) in the case of
ABR Advances and Eurodollar Advances, in a minimum amount of $1,000,000 or such
amount plus a whole multiple of $1,000,000 in excess thereof, and (iii) in the
case of Core Currency Euro Advances, in a minimum amount in the applicable
Currency having an Alternate Currency Equivalent of approximately $1,000,000 or
such amount plus an amount in the applicable Currency having an Alternate
Currency Equivalent of a whole multiple of approximately $100,000 in excess
thereof. Except as otherwise permitted by Sections 2.6(b) or 3.7, no Borrower
shall, or shall be permitted to, prepay any Bid Loan without the prior consent
of the applicable Lender.
(b) AGGREGATE CREDIT EXPOSURE PREPAYMENTS. If, on the last day
of any calendar quarter, the Aggregate Credit Exposure shall exceed the
Aggregate Revolving Credit Commitment Amount, then the Borrowers shall prepay
the Loans on the immediately succeeding Business Day such that, immediately
after giving effect thereto, the Aggregate Credit Exposure shall not exceed the
Aggregate Revolving Credit Commitment Amount.
(c) IN GENERAL. Simultaneously with each prepayment hereunder,
the Borrowers shall prepay all accrued and unpaid interest on the amount prepaid
through the date of prepayment.
2.7. USE OF PROCEEDS
Each Borrower agrees that the proceeds of the Loans shall be
used solely (i) to pay all of the Fees, (ii) to pay the reasonable out-of-pocket
fees and expenses incurred by the Borrowers in connection with the Loan
Documents, (iii) for the Borrowers' working capital purposes in the ordinary
course of business, and (iv) for the Borrowers' general corporate purposes not
inconsistent with the provisions hereof. Notwithstanding anything to the
contrary contained in any Loan Document, each Borrower further agrees that no
part of the proceeds of any Loan, and no Letter of Credit, will be used,
directly or indirectly, for a purpose which violates any law, rule or regulation
of any Governmental Authority, including the provisions of Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System, as amended.
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2.8. LETTER OF CREDIT SUB-FACILITY
(a) Subject to the terms and conditions of this Agreement, the
Issuing Bank agrees, in reliance on the agreement of the other Lenders set forth
in Section 2.9, to issue standby letters of credit (the "STANDBY LETTERS OF
CREDIT") or commercial (trade) letters of credit (the "TRADE LETTERS OF CREDIT"
and, together with the Standby Letters of Credit, the "LETTERS OF CREDIT")
denominated in Dollars during the Revolving Credit Commitment Period for the
account of the Parent Borrower, provided that, immediately after the issuance of
each Letter of Credit, (i) the Letter of Credit Exposure of all Lenders (whether
or not the conditions for drawing under any Letter of Credit have or may be
satisfied) would not exceed the Letter of Credit Commitment Amount, and (ii) the
Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit
Commitment Amount. Each Letter of Credit shall have an expiration date which
shall be not later than the earlier of (i) twelve months after the date of
issuance thereof or (ii) five Business Days before the Scheduled Revolving
Credit Commitment Termination Date. No Letter of Credit shall be issued if the
Administrative Agent, or any Lender by notice to the Administrative Agent no
later than 1:00 p.m. one Business Day prior to the requested date of issuance of
such Letter of Credit, shall have determined that any condition set forth in
Sections 5 or 6 has not been satisfied.
(b) Each Letter of Credit shall be issued for the account of
the Parent Borrower in support of an obligation of the Parent Borrower or any
Subsidiary thereof in favor of a beneficiary who has requested the issuance of
such Letter of Credit as a condition to a transaction entered into in the
ordinary course of business. The Parent Borrower shall give the Administrative
Agent a Letter of Credit Request for the issuance of each Letter of Credit by no
later than 11:00 a.m. three Business Days prior to the requested date of
issuance. Each Letter of Credit Request shall be accompanied by the Issuing
Bank's standard letter of credit application, standard reimbursement agreement
(each a "REIMBURSEMENT AGREEMENT") and such other documentation as the Issuing
Bank may reasonably require, executed by the Parent Borrower. Upon receipt of
such Letter of Credit Request from the Parent Borrower, the Administrative Agent
shall promptly notify the Issuing Bank and each other Lender thereof. Each
Letter of Credit shall be in form and substance reasonably satisfactory to the
Issuing Bank, with such provisions with respect to the conditions under which a
drawing may be made thereunder and the documentation required in respect of such
drawing as the Issuing Bank shall reasonably require. The Issuing Bank shall, on
the proposed date of issuance, and subject to the terms and conditions of the
Reimbursement Agreement and to the other terms and conditions of this Agreement,
issue the requested Letter of Credit.
(c) Upon each payment by the Issuing Bank of a draft drawn
under a Letter of Credit, the Parent Borrower shall pay to the Administrative
Agent, for the account of the Issuing Bank, an amount equal to such payment.
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(d) Notwithstanding anything to the contrary contained herein
or in any Reimbursement Agreement, to the extent that the terms of this
Agreement shall be inconsistent with the terms of such Reimbursement Agreement,
the terms of this Agreement shall govern.
2.9. LETTER OF CREDIT PARTICIPATION AND FUNDING COMMITMENTS
(a) Each Lender hereby unconditionally, irrevocably and
severally (and not jointly) for itself only and without any notice to or the
taking of any action by such Lender, takes an undivided participating interest
in the obligations of the Issuing Bank under and in connection with each Letter
of Credit in an amount equal to such Lender's Commitment Percentage of the
amount of such Letter of Credit. Each Lender shall be liable to the Issuing Bank
for its Commitment Percentage of (i) the unreimbursed amount of any draft drawn
and honored under each Letters of Credit, and (ii) any amounts paid by any
Credit Party pursuant to Sections 2.8(c) or 3.6 that are subsequently rescinded
or avoided, or must be otherwise restored or returned. Such liabilities shall be
unconditional and without regard to the occurrence of any Default or the
compliance by any Credit Party with the Loan Documents.
(b) The Issuing Bank will promptly notify the Administrative
Agent, and the Administrative Agent will promptly notify each Lender (which
notice shall be promptly confirmed in writing) of the date and the amount of any
draft presented under each Letters of Credit with respect to which full
reimbursement is not made as provided in Section 2.8(c), and forthwith upon
receipt of each such notice, such Lender (other than the Issuing Bank in its
capacity as a Lender) shall make available to the Administrative Agent for the
account of the Issuing Bank its Commitment Percentage of the amount of such
unreimbursed draft at the office of the applicable Agent Payment Office, in
Dollars, and in immediately available funds, before 4:00 p.m. on the day such
notice was given by the Administrative Agent, if the relevant notice was given
by the Administrative Agent at or prior to 1:00 p.m. on such day, and before
12:00 noon, on the next Business Day, if the relevant notice was given by the
Administrative Agent after 1:00 p.m. on such day. The Administrative Agent shall
distribute the payments made pursuant to the immediately preceding sentence to
the Issuing Bank promptly upon receipt thereof in like funds as received. Each
Lender shall indemnify and hold harmless the Administrative Agent and the
Issuing Bank from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including reasonable attorneys' fees and expenses and an
administration fee of not less than $100 payable to the Issuing Bank as the
issuer of the relevant Letter of Credit) resulting from any failure on the part
of such Lender to perform its obligations under this Section 2.9 (except in
respect of losses, liabilities, actions, suits, judgments, demands, costs and
expenses incurred by the Issuing Bank to the extent resulting from the gross
negligence or willful misconduct of the Issuing Bank). If a Lender does not make
any payment required under this Section when due, such Lender shall be required
to pay interest to the Administrative Agent for the account of the Issuing Bank
(upon demand therefor) the amount of such
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payment at a rate of interest per annum equal to the Federal Funds Rate from the
due date of such payment until the date such payment is received by the
Administrative Agent. The Administrative Agent shall distribute such interest
payments to the Issuing Bank upon receipt thereof in like funds as received.
(c) Whenever the Issuing Bank is reimbursed by any Credit
Party or the Administrative Agent is reimbursed by any Credit Party, for the
account of the Issuing Bank, for any payment under a Letter of Credit and such
payment relates to an amount previously paid by a Lender pursuant to this
Section, the Administrative Agent (or the Issuing Bank, to the extent that it
has received the same) will pay over such payment to such Lender (i) before 4:00
p.m. on the day such payment from such Credit Party is received, if such payment
is received at or prior to 1:00 p.m. on such day, or (ii) before 12:00 noon on
the next succeeding Business Day, if such payment from such Credit Party is
received after 1:00 p.m. on such day.
2.10. ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS
The Parent Borrower's obligation to reimburse the
Administrative Agent for the account of the Issuing Bank in respect of each
payment under or in respect of the Letters of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which any Credit Party may have or have had
against the beneficiary of such Letter of Credit, the Administrative Agent, the
Issuing Bank, the Swing Line Lender, any Lender or any other Person, including
any defense based on the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be forged, fraudulent or
invalid, or the legality, validity, regularity or enforceability of such Letter
of Credit, provided that, with respect to any Letter of Credit, the foregoing
shall not relieve the Issuing Bank of any liability it may have to the Parent
Borrower for any actual damages sustained by the Parent Borrower arising from a
wrongful payment under such Letter of Credit made as a result of the Issuing
Bank's gross negligence, willful misconduct or failure to meet the applicable
standard of care required under UPC 500 issued by the International Chamber of
Commerce (or any customs or practices published in substitution or in lieu
thereof).
2.11. PAYMENTS
(a) Except as otherwise specifically provided in this
Agreement, each payment, including each prepayment, of principal and interest on
the Loans, the Facility Fee, the Letter of Credit Commissions and all other fees
to be paid to the Administrative Agent, the Issuing Bank, the Swing Line Lender
and the Lenders in connection with the Loan Documents (the Facility Fee and the
Letter of Credit Commissions, together with all of such other fees, being
sometimes hereinafter collectively referred to as the "FEES") shall be made by
the Borrowers to the Administrative Agent at the applicable Agent Payment Office
in funds immediately available to the Administrative Agent at such office by
12:00 noon (local time in the city in which such Agent Payment Office is
located) on the due date for such payment, PROVIDED, HOWEVER, that, unless an
Event of Default has
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occurred and is continuing and the Required Lenders have directed the
Administrative Agent and the Borrowers to the contrary, and the Administrative
Agent shall have consented thereto, each payment, including each prepayment, of
principal and interest on the Alternate Currency Bid Loans shall be made
directly by the applicable Borrower to the applicable Lender by 12:00 noon
(local time in the city in which such payment is to be made in accordance with
the terms hereof), and such Lender and such Borrower or, if such Borrower is a
Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, shall
promptly notify the Administrative Agent of the date and amount of such payment.
The failure of the applicable Borrower to make any such payment by such time
shall not constitute a default hereunder, provided that such payment is made on
such due date, but any such payment made after 2:00 p.m. (local time in the city
in which such payment is to be made in accordance with the terms hereof) on such
due date shall be deemed to have been made on the next Business Day or Core
Currency Business Day, as the case may be, for the purpose of calculating
interest on amounts outstanding on the applicable Loans. Subject to Section
9.2(b), promptly upon receipt thereof by the Administrative Agent, (i) each
payment of principal and interest on the Loans shall be remitted by the
Administrative Agent in like funds as received to the Swing Line Lender and each
Lender pro rata according to its Outstanding Percentage of the Loans, and (ii)
each payment of the Facility Fee shall be remitted by the Administrative Agent
in like funds as received to each Lender pro rata according to such Lender's
Revolving Credit Commitment Amount or, if the Revolving Credit Commitments shall
have terminated or been terminated, according to the outstanding principal
amount of such Lender's Revolving Credit Loans.
(b) Notwithstanding anything to the contrary contained in any
Loan Document, each payment (including each prepayment) of principal and
interest on each Alternate Currency Loan shall be made solely in the Currency in
which such Alternate Currency Loan is denominated.
(c) If any payment hereunder or under any Reimbursement
Agreement shall be due and payable on a day which is not a Business Day or a
Core Currency Business Day, as the case may be, the due date thereof (except as
otherwise provided herein) shall be extended to the next Business Day or Core
Currency Business Day, as the case may be, and (except with respect to payments
in respect of the Fees) interest shall be payable at the applicable rate
specified herein during such extension, PROVIDED, HOWEVER, that, if such next
Business Day or Core Currency Business Day, as the case may be, is after the
Revolving Credit Maturity Date or the Swing Line Maturity Date, as the case may
be, any such payment shall be due on the immediately preceding Business Day or
Core Currency Business Day, as the case may be.
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2.12. ADDITION AND REMOVAL OF SUBSIDIARY BORROWERS; ADDITION OF
NON-CORE CURRENCIES
(a) ADDITION AND REMOVAL OF SUBSIDIARY BORROWERS
(i) Provided that no Default has occurred and is then
continuing, the Parent Borrower may from time to time direct that any
of its direct or indirect wholly-owned Subsidiaries which is not then
a Subsidiary Borrower become a Subsidiary Borrower by submitting a
Borrower Addendum to the Administrative Agent with respect to such
Subsidiary, together with (A) a certificate, dated the date of such
Borrower Addendum, of the Secretary or Assistant Secretary of such
Subsidiary and substantially in the form of, and with substantially
the same attachments as, the certificate which would have been
required under Section 5.1 if such Subsidiary had become a party
hereto on the Effective Date, and (B) an opinion of counsel (excluding
opinions of foreign counsel) to such Subsidiary in all respects
reasonably satisfactory to the Administrative Agent, provided that, to
the extent that any such certificate, attachment or opinion is not in
English, it shall be accompanied by a certified English translation
thereof. Upon receipt of such Borrower Addendum and all of the
supporting items referred to in clauses (A) and (B) of this Section
2.12(a)(i), the Administrative Agent shall confirm such Borrower
Addendum by signing a copy thereof and shall deliver a copy thereof to
the Parent Borrower, the Issuing Bank, the Swing Line Lender and each
Lender, at which time such Subsidiary shall become a "SUBSIDIARY
BORROWER" hereunder.
(ii) REMOVAL OF SUBSIDIARY BORROWERS. The Parent Borrower may
from time to time direct that any Inactive Subsidiary Borrower cease
to be a Subsidiary Borrower by submitting written notice thereof to
the Administrative Agent. Upon receipt of such notice, the
Administrative Agent shall confirm such notice by signing a copy
thereof and shall deliver a copy thereof to the Parent Borrower and
each Lender, at which time such Inactive Subsidiary Borrower shall
cease to be a "SUBSIDIARY BORROWER" hereunder.
(b) ADDITION OF NON-CORE CURRENCIES. Provided that no Default
has occurred and is then continuing, the Parent Borrower may from time to time
request that any currency which is not then a Non-Core Currency become a
Non-Core Currency by submitting a Currency Addendum with respect to such
currency to the Administrative Agent. Upon receipt of such Currency Addendum,
the Administrative Agent shall confirm such Currency Addendum by signing a copy
thereof and shall deliver a copy thereof to the Parent Borrower, the Issuing
Bank, the Swing Line Lender and each Lender. In the event that BNY consents
(which consent shall not be unreasonably withheld) to such currency becoming a
Non-Core Currency in a writing delivered to the Administrative Agent and the
Parent Borrower on or prior to the third day following the
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date of such Currency Addendum, then, on the fourth day following such Currency
Addendum, such currency shall become a "NON-CORE CURRENCY".
2.13. RECORDS
(a) LENDER RECORDS. Each of the Lenders and the Swing Line
Lender will note on its internal records with respect to each Loan made by it:
(i) the date of such Loan and the identity of the Borrower to whom such Loan was
made, (ii) whether such Loan is a Revolving Credit Loan, a Bid Loan, or a Swing
Line Loan, (iii) in the case of each Revolving Credit Loan, (A) whether such
Loan consists of one or more ABR Advances, one or more Eurodollar Advances, one
or more Core Currency Euro Advances, or a combination thereof, and the amount of
each thereof (stated in the applicable Currency), (B) the interest rate (without
regard to the Applicable Margin) applicable to each Advance, and (C) in the case
of each Eurodollar Advance and each Core Currency Euro Advance, the Euro
Interest Period applicable thereto, (iv) in the case of each Bid Loan and each
Swing Line Loan, (A) the Bid Rate or the Negotiated Rate, as the case may be,
applicable thereto, and (B) the Bid Interest Period or the Swing Line Period, as
the case may be, applicable thereto, and (v) each payment and prepayment of the
principal of such Loan.
(b) ADMINISTRATIVE AGENT RECORDS. The Administrative Agent
shall keep records regarding the Loans, the Letters of Credit and the Loan
Documents in accordance with its customary procedures for agented credits.
(c) PRIMA FACIE EVIDENCE. The entries made in the records
maintained pursuant to Sections 2.13(a) and (b) shall, to the extent not
prohibited by applicable law and not otherwise inconsistent with any entries
made in the Notes, be prima facie evidence of the existence and amount of the
obligations of the Borrowers recorded therein; provided that the failure of the
Administrative Agent, the Swing Line Lender or any Lender, as the case may be,
to make any notation on its records shall not affect the respective obligations
of the Credit Parties in respect of the Loan Documents.
(d) NOTES. Upon the request of any Lender or the Swing Line
Lender, as the case may be, to the Administrative Agent and the Parent Borrower,
with respect to any Loan made by such Lender or the Swing Line Lender, as the
case may be, the Parent Borrower agrees to execute and deliver (or cause the
applicable Subsidiary Borrower to execute and deliver), at the Parent Borrower's
own cost and expense, to the Administrative Agent (for delivery to such Lender
or the Swing Line Lender, as the case may be) a promissory note of the
applicable Borrower evidencing such Loan, substantially in the form of Exhibit
Q-1, Q-2 or Q-3, as the case may be, payable to the order of such Lender or the
Swing Line Lender, as the case may be, and dated the Effective Date.
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3. INTEREST, FEES, CONVERSIONS AND YIELD PROTECTIONS
3.1. INTEREST RATES AND PAYMENT DATES
(a) PRIOR TO MATURITY. Except as otherwise provided in Section
3.1(b), prior to maturity, the Loans shall bear interest on the outstanding
principal amount thereof at the applicable interest rate or rates per annum set
forth below:
[Download Table]
ADVANCES/LOANS RATE
-------------- ----
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate for the applicable Euro Interest
Period PLUS the Applicable Margin.
Each Core Currency Euro Core Currency Euro Rate for the
Advance applicable Euro Interest Period PLUS the
Applicable Margin.
Each Bid Loan Bid Rate applicable thereto for the applicable Bid
Interest Period.
Each Swing Line Loan Negotiated Rate applicable thereto for the
applicable Swing Line Interest Period.
(b) DEFAULT RATE. Upon the occurrence and during the
continuance of an Event of Default under Section 9.1(a) or (b), (i) the unpaid
principal amount of any Loans shall bear interest payable on demand at a rate
per annum (whether before or after the entry of a judgment thereon) equal to (A)
in the case of each Dollar Bid Loan and each Swing Line Loan, 2% PLUS the Bid
Rate or the Negotiated Rate, as the case may be, applicable thereto until the
last day of the Bid Interest Period or the Swing Line Interest Period, as the
case may be, applicable thereto and, thereafter, 2% PLUS the Alternate Base
Rate, (B) in the case of each Alternate Currency Bid Loan, 2% PLUS the Bid Rate
applicable thereto until the last day of the Bid Interest Period applicable
thereto and, thereafter, 2% PLUS the rate determined by the applicable Lender to
be reflective of the all-in cost of funds to such Lender with respect thereto,
and (C) in all other cases, 2% PLUS the rate which would be otherwise applicable
under Section 3.1(a), and (ii) any overdue interest or other amount payable
under the Loan Documents shall bear interest (whether before or after the entry
of a judgment thereon) payable on demand at a rate per annum equal to 2% PLUS
the Alternate Base Rate.
(c) IN GENERAL. Interest on all Loans shall be calculated on
the basis of a 360-day year for the actual number of days elapsed, except that
interest on (i) ABR Advances, to the extent based on the BNY Rate, and (ii) Bid
Loans denominated in Canadian Dollars or Sterling Pounds, in each case shall be
calculated on the basis of a
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365- or 366-day year (as the case may be) for the actual number of days elapsed.
Except as otherwise expressly provided herein, interest shall be payable in
arrears on each Interest Payment Date and upon each payment (including
prepayment) of the Loans. Any change in the interest rate on the Loans resulting
from a change in the Alternate Base Rate or reserve requirements shall become
effective as of the opening of business on the day on which such change shall
become effective. The Administrative Agent shall, as soon as practicable, notify
the Parent Borrower, the Issuing Bank, the Swing Line Lender and the Lenders of
the effective date and the amount of each such change in the BNY Rate, but any
failure to so notify shall not in any manner affect the obligation of any
Borrower to pay interest on the Loans in the amounts and on the dates required.
Each determination of a rate of interest by the Administrative Agent or BNY, as
the case may be, pursuant to the Loan Documents shall be conclusive and binding
on all parties hereto absent manifest error. Each Borrower acknowledges that to
the extent interest payable on ABR Advances is based on the BNY Rate, such rate
is only one of the bases for computing interest on loans made by the Lenders,
and by basing interest payable on ABR Advances on the BNY Rate, the Lenders have
not committed to charge, and no Borrower has in any way bargained for, interest
based on a lower or the lowest rate at which any Lender may now or in the future
make loans to other borrowers.
3.2. FEES
(a) FACILITY FEE. The Parent Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in accordance with each
Lender's Commitment Percentage, a fee (the "FACILITY FEE"), during the Revolving
Credit Commitment Period, at a rate per annum equal to the Applicable Margin
applicable thereto on the average daily Aggregate Revolving Credit Commitment
Amount, regardless of usage. The Facility Fee shall be payable (i) quarterly in
arrears on the last day of each March, June, September and December during the
Revolving Credit Commitment Period, commencing on the first such day following
the Effective Date, (ii) on the date of any reduction in the Aggregate Revolving
Credit Commitment Amount (to the extent of the amount which shall have accrued
on the amount of such reduction), and (iii) on the Revolving Credit Maturity
Date. The Facility Fee shall be calculated on the basis of a 360-day year for
the actual number of days elapsed.
(b) LETTER OF CREDIT COMMISSIONS. The Parent Borrower agrees
to pay to the Administrative Agent, for the account of the Lenders in accordance
with each Lender's Commitment Percentage, commissions (the "LETTER OF CREDIT
COMMISSIONS") with respect to the Letters of Credit for the period from and
including the date of issuance of each thereof to and including the expiration
date thereof, at a rate per annum equal to (i) with respect to Standby Letters
of Credit, the Applicable Margin applicable thereto in effect on the date of
issuance thereof, and (ii) with respect to Trade Letters of Credit, the
Applicable Margin applicable thereto in effect on the date of issuance thereof,
in each case on the average daily maximum amount available under any contingency
to be drawn under such Letter of Credit. The Letter of Credit Commissions shall
be (A) calculated on
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the basis of a 360-day year for the actual number of days elapsed and (B)
payable quarterly in arrears on the last day of each March, June, September
and December of each year and on the Revolving Credit Commitment Termination
Date.
(c) AGENTS' FEES. Each Borrower agrees to pay to the
Administrative Agent, for its own account, such other fees, if any, as have been
agreed to in writing by such Borrower and the Administrative Agent.
3.3. CONVERSIONS; CONCERNING INTEREST PERIODS
(a) Each applicable Borrower may elect from time to time to
convert one or more Eurodollar Advances to ABR Advances by giving, or, if such
Borrower is a Subsidiary Borrower, by causing the Parent Borrower, on behalf of
such Borrower, to give, the Administrative Agent at least two Business Day's
prior irrevocable notice of such election, specifying the amount to be
converted, provided, that any such conversion of Eurodollar Advances shall only
be made on the last day of the Interest Period applicable thereto, except as
otherwise provided in Section 3.7. In addition, each applicable Borrower may
elect from time to time to convert (i) ABR Advances to Eurodollar Advances, (ii)
Eurodollar Advances to new Eurodollar Advances by selecting a new Euro Interest
Period therefor, and (iii) Core Currency Euro Advances to new Core Currency Euro
Advances in the same applicable Currency by selecting a new Euro Interest Period
therefor, in each case by giving, or, if such Borrower is a Subsidiary Borrower,
by causing the Parent Borrower, on behalf of the Borrower, to give, the
Administrative Agent at least three Core Currency Business Days' prior
irrevocable notice of such election, specifying the amount to be so converted
and the initial Euro Interest Period relating thereto, provided that any such
conversion of ABR Advances to Eurodollar Advances shall only be made on a Core
Currency Business Day and, except as otherwise provided in Section 3.7, any such
conversion of Eurodollar Advances to new Eurodollar Advances or Core Currency
Euro Advances to new Core Currency Euro Advances, as the case may be, shall only
be made on the last day of the Euro Interest Period applicable to the Eurodollar
Advances or Core Currency Euro Advances, as the case may be, which are to be
converted to such new Eurodollar Advances or such new Core Currency Euro
Advances, as the case may be. Each such notice shall be irrevocable and shall be
promptly confirmed by delivery to the Administrative Agent of a Notice of
Conversion manually signed by the applicable Borrower or, if such Borrower is a
Subsidiary Borrower, the Parent Borrower, on behalf of such Borrower, as the
case may be. The Administrative Agent shall promptly notify each Lender (by
telephone or otherwise, such notice to be confirmed by facsimile or other
writing) of each such election. Advances may be converted pursuant to this
Section in whole or in part, provided that (A) the amount to be converted to
each Eurodollar Advance, when aggregated with any Eurodollar Advance to be made
on such date in accordance with Section 2.3 and having the same Euro Interest
Period as such first Eurodollar Advance, shall equal no less than $5,000,000 or
such amount plus a whole multiple of $1,000,000 in excess thereof, and (B) the
amount to be converted to each Core Currency Euro
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Advance, when aggregated with any Core Currency Euro Advance to be made on such
date in accordance with Section 2.3 and having the same Euro Interest Period,
and being denominated in the same applicable Currency, as such first Core
Currency Euro Advance, shall equal no less than an amount in such Currency
having a Dollar Equivalent of approximately $2,500,000 or such amount plus an
amount in such Currency having a Dollar Equivalent of a whole multiple of
approximately $1,000,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of an Event of Default,
no Borrower shall have the right to elect to convert any existing ABR Advance to
a new Eurodollar Advance or to convert any existing Eurodollar Advance to a new
Eurodollar Advance. In such event, except as otherwise provided in Section 3.7,
(i) each ABR Advance shall be automatically continued as an ABR Advance, (ii)
each Eurodollar Advance shall be automatically converted to an ABR Advance on
the last day of the Euro Interest Period applicable thereto, and (iii) each Core
Currency Euro Advance shall, on the last day of the Euro Interest Period
applicable thereto, be automatically converted to a new Core Currency Euro
Advance in the same applicable Currency with a one month Euro Interest Period.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance, new Eurodollar Advance or new Core
Currency Euro Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that any such conversion shall not
constitute a borrowing for purposes of Sections 4, 5 or 6).
(d) Notwithstanding anything to the contrary contained in any
Loan Document, if the applicable Borrower or, if such Borrower is a Subsidiary
Borrower, the Parent Borrower, on behalf of such Borrower, shall have failed,
for any reason, to elect a Eurodollar Advance or Core Currency Euro Advance, as
the case may be, under Sections 2.3 or 3.3, as the case may be, in connection
with any borrowing of new Loans or expiration of a Euro Interest Period with
respect to any existing Eurodollar Advance or Core Currency Euro Advance, as the
case may be, the amount of the Loans subject to such borrowing or such existing
Eurodollar Advance or Core Currency Euro Advance, as the case may be, shall,
except as otherwise provided in Section 3.7, thereafter be (i) in the case of a
Eurodollar Advance, an ABR Advance, and (ii) in the case of a Core Currency Euro
Advance, a new Core Currency Euro Advance in the same applicable Currency with a
one month Euro Interest Period, in each case until such time, if any, as such
Borrower shall elect a new Eurodollar Advance or Core Currency Euro Advance, as
the case may be, pursuant to Section 3.3.
(e) Neither Bid Loans nor Swing Line Loans may be converted.
(f) At no time shall the aggregate outstanding number (whether
as a result of borrowings or conversions), of (i) all Eurodollar Advances exceed
ten, (ii) all
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Core Currency Euro Advances exceed eight, and (iii) all Swing Line Interest
Periods exceed three.
3.4. INDEMNIFICATION FOR LOSS
Notwithstanding anything contained herein to the contrary, (i)
if any Borrower shall fail for any reason to borrow or convert from or into any
Fixed Rate Loan on the date specified therefor in the applicable Borrowing
Request, Notice of Conversion, or Bid, as the case may be, or (ii) if any Fixed
Rate Loan to such Borrower shall terminate for any reason prior to the last day
of the Euro Interest Period, Bid Interest Period or Swing Line Interest Period,
as the case may be, applicable thereto, or (iii) if such Fixed Rate Loan is
repaid or prepaid, in whole or in part, for any reason prior to the last day of
the Euro Interest Period, Bid Interest Period or Swing Line Interest Period, as
the case may be, applicable thereto, such Borrower agrees to indemnify each
applicable Lender or the Swing Line Lender, as the case may be, against, and to
pay on demand directly to such Lender or the Swing Line Lender, as the case may
be, the amount (calculated by such Lender or the Swing Line Lender, as the case
may be, using any method chosen by it which is customarily used by it for such
purpose) equal to any loss or out-of-pocket expense (excluding loss of margin)
suffered by such Lender or the Swing Line Lender, as the case may be, as a
result of such failure to borrow or convert or such termination, repayment or
prepayment, including any loss, cost or expense suffered by such Lender or the
Swing Line Lender, as the case may be, in liquidating or employing deposits
acquired to fund or maintain the funding of its Fixed Rate Loans to such
Borrower, or redeploying funds prepaid or repaid, in amounts which correspond to
such Fixed Rate Loans, and any internal processing charge customarily charged by
such Lender or the Swing Line Lender, as the case may be, in connection
therewith.
3.5. CAPITAL ADEQUACY
If the amount of capital required to be maintained by any
Lender, the Issuing Bank or the Swing Line Lender, as the case may be, or any
Person directly or indirectly owning or controlling such Lender, the Issuing
Bank or the Swing Line Lender, as the case may be (each a "CONTROL PERSON"),
shall be affected by the occurrence of a Regulatory Change and such Lender, the
Issuing Bank or the Swing Line Lender, as the case may be, shall have determined
that such Regulatory Change shall have had or will thereafter have the effect of
reducing (i) the rate of return on capital of such Lender, the Issuing Bank, the
Swing Line Lender or such Control Person, as the case may be, or (ii) the asset
value to such Lender, the Issuing Bank, the Swing Line Lender or such Control
Person, as the case may be, of the Loans, Letters of Credit, Revolving Credit
Commitments, Letter of Credit Commitment or Swing Line Commitment made or
maintained by such Lender, the Issuing Bank or the Swing Line Lender, as the
case may be, to a level below that which such Lender, the Issuing Bank, the
Swing Line Lender or such Control Person, as the case may be, could have
achieved or would thereafter be able to achieve but for such Regulatory Change
(after taking into account its policies
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regarding capital adequacy) by an amount deemed by such Lender, the Issuing Bank
or the Swing Line Lender, as the case may be, to be material to such Lender, the
Issuing Bank, the Swing Line Lender or such Control Person, as the case may be,
then the Borrowers severally agree to pay to such Lender, the Issuing Bank, the
Swing Line Lender or such Control Person, as the case may be, within ten days
after demand by such Lender, the Issuing Bank or the Swing Line Lender, such
additional amount or amounts as shall be sufficient to compensate such Lender,
the Issuing Bank, the Swing Line Lender or such Control Person, as the case may
be, for such reduction (which demand shall be accompanied by a statement setting
forth the calculations of such additional amount or amounts which statement
shall be conclusive absent manifest error).
3.6. REIMBURSEMENT FOR INCREASED COSTS
If any Lender, the Issuing Bank or the Swing Line Lender, as
the case may be, shall determine that a Regulatory Change does or shall impose,
modify or make applicable any reserve, special deposit, compulsory loan,
assessment, increased cost or similar requirement against assets held by, or
deposits of, or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender in respect of its Fixed Rate
Loans or Letter of Credit, as the case may be, which is not otherwise included
in the determination of a Eurodollar Rate, Core Currency Euro Rate, Bid Rate or
Negotiated Rate, as the case may be, and the result of any of the foregoing is
to increase the cost to such Lender, the Issuing Bank or the Swing Line Lender,
as the case may be, of making, renewing, converting or maintaining its Fixed
Rate Loans or Letters of Credit, as the case may be, or its commitment to make
such Fixed Rate Loans or the Letters of Credit, as the case may be, or to reduce
any amount receivable under the Loan Documents in respect of its Fixed Rate
Loans or Letters of Credit, as the case may be, then, in any such case, the
Borrowers severally agree to pay such Lender, the Issuing Bank or the Swing Line
Lender, as the case may be, within ten days after demand therefor, such
additional amounts as is sufficient to compensate such Lender, the Issuing Bank
or the Swing Line Lender, as the case may be, for such additional cost or
reduction in such amount receivable which it deems to be material as determined
by it (which demand shall be accompanied by a statement setting forth the
calculations of such additional amounts which statement shall be conclusive
absent manifest error).
3.7. ILLEGALITY OF FUNDING
Notwithstanding any other provision hereof, if any Lender or
the Swing Line Lender, as the case may be, shall reasonably determine that any
law, regulation, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for such Lender or
the Swing Line Lender, as the case may be, to make or maintain any Fixed Rate
Loan as contemplated by this Agreement, such Lender or the Swing Line Lender, as
the case may be, shall promptly notify the Parent Borrower and the
Administrative Agent thereof, and (i) the commitment or other obligation of such
Lender or the Swing Line Lender, as the case may be, to make such Fixed Rate
Loans or
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convert ABR Advances to Eurodollar Advances or Core Currency Euro Advances to
new Core Currency Euro Advances, as the case may be, shall forthwith be
suspended, (ii) such Lender or the Swing Line Lender, as the case may be, shall
fund its portion of each requested Eurodollar Advance as an ABR Advance, (iii)
such Lender's or the Swing Line Lender's, as the case may be, Loans then
outstanding as such Eurodollar Advances, if any, shall be converted
automatically to an ABR Advance on the last day of the then current Euro
Interest Period applicable thereto or at such earlier time as may be required,
and (iv) in the case of each Core Currency Euro Advance, each Bid Loan and each
Swing Line Loan, the applicable Borrower shall take such action as such Lender
or the Swing Line Lender, as the case may be, may reasonably request with a view
to minimizing the obligations of such Borrower under Section 3.4. If the
commitment of any Lender or the Swing Line Lender, as the case may be, with
respect to Fixed Rate Loans is suspended pursuant to this Section and such
Lender shall have obtained actual knowledge that it is once again legal for such
Lender or the Swing Line Lender, as the case may be, to make or maintain Fixed
Rate Loans, such Lender or the Swing Line Lender, as the case may be, shall
promptly notify the Administrative Agent and the Parent Borrower thereof and,
upon receipt of such notice by each of the Administrative Agent and the Parent
Borrower, such Lender's or the Swing Line Lender's, as the case may be,
commitment to make or maintain Fixed Rate Loans shall be reinstated.
3.8. SUBSTITUTED INTEREST RATE
In the event that (i) the Administrative Agent or BNY shall
have determined (which determination shall be conclusive and binding upon the
Borrowers) that by reason of circumstances affecting the interbank market either
adequate or reasonable means do not exist for ascertaining the Eurodollar Rate
or Core Currency Euro Rate, as the case may be, applicable pursuant to Section
3.1 or (ii) the Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be conclusive and binding
on the Borrowers) that the applicable Eurodollar Rate or Core Currency Euro
Rate, as the case may be, will not adequately and fairly reflect the cost to
such Lenders of maintaining or funding loans bearing interest based on such
Eurodollar Rate or Core Currency Euro Rate, as the case may be, with respect to
any portion of the Loans that any Borrower has requested be made as Eurodollar
Advances or Core Currency Euro Advances, as the case may be, or Eurodollar
Advances or Core Currency Euro Advances, as the case may be, that will result
from the requested conversion of any portion of the Advances into or of
Eurodollar Advances or Core Currency Euro Advances, as the case may be (each an
"AFFECTED ADVANCE"), the Administrative Agent shall promptly notify the Parent
Borrower and the Lenders (by telephone or otherwise, to be promptly confirmed in
writing) of such determination, on or, to the extent practicable, prior to the
requested Borrowing Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) in the case of Eurodollar
Advances, (A) such Affected Advances shall be made as ABR Advances, (B) the
Advances (or any portion thereof) that were to have been converted to Affected
Advances shall be converted to ABR Advances, and (C) any outstanding
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Affected Advances shall be converted, on the last day of the then current Euro
Interest Period with respect thereto, to ABR Advances, and (b) in the case of
Core Currency Euro Advances, the interest rate for such Affected Advances shall
be determined pursuant to clause (a)(iii) of the definition of Core Currency
Euro Rate. Until any notice under clause (i) or (ii), as the case may be, of
this Section has been withdrawn by the Administrative Agent (by notice to the
Parent Borrower promptly upon either (1) the Administrative Agent having
determined that such circumstances affecting the interbank market no longer
exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate or Core Currency Euro Rate, as the case may be, pursuant to
Section 3.1 or (2) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances, (x) no further Eurodollar Advances shall be
required to be made by the Lenders, (y) no Borrower shall have the right to
convert all or any portion of the Loans to or as Eurodollar Advances, and (z)
the interest rate for Core Currency Euro Advances shall be determined pursuant
to clause (a)(iii) of the definition of Core Currency Euro Rate.
3.9. TAXES
(a) PAYMENTS TO BE FREE AND CLEAR. Subject to Sections 3.9(d),
3.9(e) and 3.9(f), all payments by each Credit Party under the Loan Documents
shall be made free and clear of, and without any deduction or withholding for,
any Indemnified Tax. If any Credit Party or any other Person is required by any
law, rule, regulation, order, directive, treaty or guideline to make any
deduction or withholding (which deduction or withholding would constitute an
Indemnified Tax) from any amount required to be paid by any Credit Party to or
on behalf of any Indemnified Tax Person under any Loan Document (each a
"REQUIRED PAYMENT"), then:
(i) such Credit Party shall notify the Administrative Agent
and such Indemnified Tax Person of any such requirement or any change
in any such requirement as soon as such Credit Party becomes aware
thereof;
(ii) such Credit Party shall pay such Indemnified Tax prior to
the date on which penalties attach thereto, such payment to be made
(to the extent that the liability to pay is imposed on such Credit
Party) for its own account or (to the extent that the liability to pay
is imposed on such Indemnified Tax Person) on behalf and in the name
of such Indemnified Tax Person;
(iii) such Credit Party shall pay to such Indemnified Tax
Person an additional amount such that such Indemnified Tax Person
shall receive on the due date therefor an amount equal to the Required
Payment had no such deduction or withholding been required; and
(iv) such Credit Party shall, within 30 days after paying such
Indemnified Tax, deliver to the Administrative Agent and such
Indemnified Tax
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Person satisfactory evidence of such payment to the relevant
Governmental Authority.
(b) OTHER INDEMNIFIED TAXES. If any Indemnified Tax Person or
any affiliate thereof is required by any law, rule, regulation, order,
directive, treaty or guideline to pay any Indemnified Tax (excluding an
Indemnified Tax which is subject to Section 3.9(a)) with respect to any sum paid
or payable by any Credit Party to such Indemnified Tax Person under the Loan
Documents, then, within five days after such Indemnified Tax Person shall have
notified such Credit Party thereof (which notice shall be accompanied by a
statement setting forth the reasonable calculation thereof), such Credit Party
shall pay to such Indemnified Tax Person the amount of such Indemnified Tax.
(c) TAX ON INDEMNIFIED TAXES. If any amounts are payable by
any Credit Party in respect of Indemnified Taxes pursuant to Section 3.9(a) or
(b), such Credit Party agrees to pay to the applicable Indemnified Tax Person,
within five days of written request therefor (which request shall set forth the
reasonable calculations thereof), an amount equal to all Taxes imposed with
respect to such amounts as such Indemnified Tax Person shall determine in good
faith are payable by such Indemnified Tax Person or any affiliate thereof in
respect of such amounts and in respect of any amounts paid to or on behalf of
such Indemnified Tax Person pursuant to this Section 3.9(c).
(d) EXCEPTION FOR EXISTING TAXES. No amount shall be required
to be paid to any Indemnified Tax Person under Section 3.9(a) or (b) with
respect to any Indemnified Tax to the extent that such Indemnified Tax would
have been required to have been paid under any law, rule, regulation, order,
directive, treaty or guideline in effect on (i) the date of the applicable Bid,
in the case of any Bid Loan, (ii) the date of the applicable Borrowing Request,
in the case of any Swing Line Loan, and (iii) the Relevant Date, in all other
cases.
(e) U.S. TAX CERTIFICATES. Each Lender that is organized under
the laws of any jurisdiction other than the United States or any political
subdivision thereof shall deliver to the Administrative Agent for transmission
to the Parent Borrower, on or prior to the Relevant Date, and at such other
times, as may be necessary in the determination of the Parent Borrower, any
other Credit Party or the Administrative Agent (each in the reasonable exercise
of its discretion), such certificates, documents or other evidence, properly
completed and duly executed by such Lender (including Internal Revenue Service
Form 1001 or Form 4224 (or, in each case, any equivalent or successor form)) to
establish that such Lender is not subject to deduction or withholding of United
States federal income tax under Section 1441 or 1442 of the Code or otherwise
(or under any comparable provisions of any successor statute) with respect to
any payments to such Lender of principal, interest, fees or other amounts
payable under the Loan Documents. No Credit Party shall be required to pay any
additional amount to any such Lender under Section 3.9(a)(iii) if such Lender
shall have failed to satisfy the requirements of the
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immediately preceding sentence; provided that, if such Lender shall have
satisfied such requirements on the Relevant Date, nothing in this Section 3.9(e)
shall relieve any Credit Party of its obligation to pay any additional amounts
pursuant to Section 3.9(a)(iii) in the event that, as a result of any change in
applicable law (including any change in the interpretation thereof), such Lender
is no longer properly entitled to deliver certificates, forms, documents or
other evidence at a subsequent date establishing the fact that such Lender is
not subject to deduction or withholding as described in the immediately
preceding sentence.
(f) OTHER TAX CERTIFICATES. Each Indemnified Tax Person agrees
to use reasonable efforts to deliver to any Credit Party or the Administrative
Agent, promptly upon any reasonable request therefor from time to time by such
Credit Party or the Administrative Agent, such certificates, forms, documents
and information as may be required by applicable law, regulation, order,
directive, guideline or treaty from time to time and to file all appropriate
forms to obtain a certificate, form or other appropriate documents from the
appropriate Governmental Authorities to establish that payments made in respect
of any Alternate Currency Loan by such Credit Party can be made without (or at a
reduced rate of) deduction or withholding of Indemnified Taxes, PROVIDED,
HOWEVER, that if such Indemnified Tax Person is or becomes unable by virtue of
any change in applicable law, regulation or treaty, to establish such exemption
or reduction, such Credit Party shall nonetheless remain obligated under Section
3.9(a) to pay the amounts described therein, and PROVIDED FURTHER that no
Indemnified Tax Person shall be required to take any action under this Section
3.9(f) which, in the sole discretion of such Indemnified Tax Person, would cause
such Indemnified Tax Person or any affiliate thereof to suffer a material
economic, legal or regulatory disadvantage.
(g) OTHER TAXES. Each Credit Party agrees to pay any current
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents.
3.10. OPTION TO FUND
Each Lender and the Swing Line Lender has indicated that, if
any Borrower requests a Eurodollar Advance, a Core Currency Euro Advance or a
Swing Line Loan, or if such Lender makes a Bid Loan to any Borrower, as the case
may be, such Lender or the Swing Line Lender, as the case may be, may wish to
purchase one or more deposits in order to fund or maintain its funding of its
Commitment Percentage of such Eurodollar Advance or Core Currency Euro Advance,
its Bid Loan or its Swing Line Loan, as the case may be, during the Euro
Interest Period, Bid Interest Period or Swing Line Interest Period, as the case
may be, applicable thereto; it being understood that the provisions of this
Agreement relating to such funding are included only for the
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purpose of determining the rate of interest to be paid in respect of such
Eurodollar Advance, Core Currency Euro Advance, Bid Loan or Swing Line Loan, as
the case may be, and any amounts owing under Sections 3.4 and 3.6. Each Lender
and the Swing Line Lender shall be entitled to fund and maintain its funding of
all or any part of each Eurodollar Advance, each Core Currency Euro Advance,
each Bid Loan and each Swing Line Loan in any manner it sees fit, but all such
determinations under Sections 3.4 and 3.6 shall be made as if each Lender and
the Swing Line Lender had actually funded and maintained its Commitment
Percentage of each such Eurodollar Advance or such Core Currency Euro Advance,
or the amount of its Bid Loan or Swing Line Loan, as the case may be, during the
applicable Euro Interest Period, Bid Interest Period or Swing Line Interest
Period, as the case may be, through the purchase of deposits in an amount equal
to the amount of its Commitment Percentage of such Eurodollar Advance or such
Core Currency Euro Advance, or the amount of its Bid Loan or Swing Line Loan, as
the case may be, having a maturity corresponding to such Euro Interest Period,
Bid Interest Period or Swing Line Interest Period, as the case may be. Any
Lender or the Swing Line Lender, as the case may be, may fund its Commitment
Percentage of each Eurodollar Advance or Core Currency Euro Advance, or each Bid
Loan or Swing Line Loan, as the case may be, from or for the account of any
branch, office, affiliate, or correspondent bank of such Lender or the Swing
Line Lender, as the case may be, as such Lender or the Swing Line Lender, as the
case may be, may choose from time to time.
3.11. CHANGES OF LENDING OFFICES
(a) With respect to any Loan of any Lender or the Swing Line
Lender, or any Letter of Credit, as the case may be, such Lender, the Swing Line
Lender or the Issuing Bank, as the case may be, agrees that upon the occurrence
of any event giving rise to the operation of Section 3.4, 3.5, 3.6, 3.7 or 3.9
with respect to such Loan or such Letter of Credit, as the case may be, it will,
if requested by the applicable Borrower or, if such Borrower is a Subsidiary
Borrower, the Parent Borrower, on behalf of such Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender, the Swing Line
Lender or the Issuing Bank, as the case may be) to designate another office of
such Lender, the Swing Line Lender or the Issuing Bank, as the case may be, for
such Loan or such Letter of Credit, as the case may be, affected by such event,
provided that such designation is made on such terms that such Lender, the Swing
Line Lender or the Issuing Bank, as the case may be, suffers no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the right of
any Lender, the Swing Line Lender or the Issuing Bank, as the case may be,
provided in Sections 3.4, 3.5, 3.6, 3.7 and 3.9.
(b) Each of the Lenders, the Swing Line Lender and the Issuing
Bank shall have the right at any time and from time to time to transfer any of
its Loans to a different office, affiliate or
83
subsidiary thereof, provided that it shall promptly notify the Administrative
Agent and the Parent Borrower of any such change of office, affiliate or
subsidiary, PROVIDED, HOWEVER, that such Lender, the Swing Line Lender or the
Issuing Bank, as the case may be, shall not be entitled to receive any greater
amount under Sections 3.4, 3.5, 3.6, 3.7 or 3.9 as a result of such transfer
than it would be entitled to immediately prior thereto unless such claim would
have arisen even if such transfer had not occurred.
3.12. REPLACEMENT OF LENDERS
Notwithstanding the foregoing, if (i) any Lender shall request
compensation pursuant to Section 3.5 or 3.6, (ii) any Lender shall give any
notice to the Parent Borrower or the Administrative Agent pursuant to Section
3.7, or (iii) any Borrower shall be required to pay any additional amounts
pursuant to Section 3.9 in respect of any Lender, then, in each such case, the
Parent Borrower may require that such Lender transfer all of its right, title
and interest under the Loan Documents to any lender identified by the Parent
Borrower (a "PROPOSED LENDER") if such Proposed Lender agrees to assume all of
the obligations of such Lender for consideration equal to the outstanding
principal amount of such Lender's Loans and all unreimbursed sums paid by such
Lender under Sections 2.2(d) and 2.9(b), together with interest thereon to the
date of such transfer and all other amounts payable under the Loan Documents to
such Lender on or prior to the date of such transfer (including any fees accrued
hereunder and any amounts which would be payable under Section 3.4 as if all of
such Lender's Loans were being prepaid in full on such date). Subject to the
execution and delivery of an Assignment and Acceptance Agreement and such other
documents as such Lender may reasonably require, and the satisfaction of all of
the other terms and conditions of Section 11.6, such Proposed Lender shall be a
"LENDER" for all purposes hereunder. Without prejudice to the survival of any
other agreement of the Borrowers under the Loans Documents, the agreements of
the Borrowers contained in Sections 3.4, 3.5, 3.6, 11.5 and 11.7 (without
duplication of any payments made to such Lender by any Borrower or the Proposed
Lender) shall survive for the benefit of any Lender replaced under this Section
3.12 with respect to the time prior to such replacement.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement, the Lenders to make the Revolving Credit Loans, the Issuing
Bank to issue the Letters of Credit and the Lenders to participate therein, and
the Swing Line Lender to make the Swing Line Loans and the Lenders to
participate therein, the Parent Borrower makes the following representations and
warranties to the Administrative Agent, the Issuing Bank, the Swing Line Lender
and each Lender:
4.1. SUBSIDIARIES; CAPITALIZATION
As of the Effective Date, the Parent Borrower has only the
Subsidiaries set forth on, and the authorized, issued and outstanding Capital
Stock of the Parent Borrower
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and each such Subsidiary is as set forth on, Schedule 4.1. Except as set forth
on Schedule 4.1, the shares of, or partnership or other interests in, each
Subsidiary of the Parent Borrower are owned beneficially and of record by the
Parent Borrower or another Subsidiary of the Parent Borrower, are free and clear
of all Liens (other than Permitted Liens) and are duly authorized, validly
issued, fully paid and nonassessable. As of the Effective Date, except as set
forth on Schedule 4.1, (i) neither the Parent Borrower nor any of its
Subsidiaries has issued any securities convertible into, or options or warrants
for, any common or preferred equity securities thereof, (ii) there are no
agreements, voting trusts or understandings binding upon the Parent Borrower or
any of its Subsidiaries with respect to the voting securities of the Parent
Borrower or any of its Subsidiaries or affecting in any manner the sale, pledge,
assignment or other disposition thereof, including any right of first refusal,
option, redemption, call or other right with respect thereto, whether similar or
dissimilar to any of the foregoing, and (iii) all of the outstanding Capital
Stock of each Subsidiary of the Parent Borrower is owned by the Parent Borrower
or another Subsidiary of the Parent Borrower.
4.2. EXISTENCE AND POWER
Each of the Parent Borrower and its Subsidiaries is duly
organized or formed and validly existing in good standing under the laws of the
jurisdiction of its formation, has all requisite power and authority to own its
Property and to carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the nature of the
business conducted therein or the Property owned by it therein makes such
qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
4.3. AUTHORITY AND EXECUTION
Each of the Parent Borrower and each of its Subsidiaries has
full legal power and authority to enter into, execute, deliver and perform the
terms of the Loan Documents to which it is a party all of which have been duly
authorized by all proper and necessary corporate, partnership or other
applicable action and are in full compliance with its Organizational Documents.
The Parent Borrower and each of its Subsidiaries has duly executed and delivered
the Loan Documents to which it is a party.
4.4. BINDING AGREEMENT
The Loan Documents constitute the valid and legally binding
obligations of each of the Parent Borrower and its Subsidiaries, in each case to
the extent it is a party thereto, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
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4.5. LITIGATION
Except as set forth on Schedule 4.5, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority (whether purportedly on behalf of the Parent Borrower or any of its
Subsidiaries) pending or, to the knowledge of the Parent Borrower, threatened
against the Parent Borrower or any of its Subsidiaries or maintained by the
Parent Borrower or any of its Subsidiaries or which may affect the Property of
the Parent Borrower or any of its Subsidiaries or any of their respective
Properties or rights, which (i) could reasonably be expected to have a Material
Adverse Effect, (ii) call into question the validity or enforceability of, or
otherwise seek to invalidate, any Loan Document, or (iii) might, individually or
in the aggregate, materially and adversely affect any of the transactions
contemplated by any Loan Document.
4.6. REQUIRED CONSENTS
Except for information filings required to be made in the
ordinary course of business which are not a condition to the performance by the
Parent Borrower or any of its Subsidiaries under the Loan Documents to which it
is a party, no consent, authorization or approval of, filing with, notice to, or
exemption by, stockholders or holders of any other equity interest, any
Governmental Authority or any other Person, which has not already been obtained
or made, is required to authorize, or is required in connection with the
execution, delivery or performance of, the Loan Documents to which the Parent
Borrower or any of its Subsidiaries is a party, or is required as a condition to
the validity or enforceability of the Loan Documents to which any of the same is
a party. Each Borrower, prior to each borrowing by it hereunder in any
jurisdiction, has obtained all necessary approvals and consents of, and has
filed or caused to be filed all reports, applications, documents, instruments
and information required to be filed pursuant to all applicable laws, rules,
regulations and requests of, all Governmental Authorities in connection with
such borrowing in such jurisdiction.
4.7. ABSENCE OF DEFAULTS; NO CONFLICTING AGREEMENTS
(a) None of the Parent Borrower or any of its Subsidiaries is
in default under any mortgage, indenture, contract or agreement to which it is a
party or by which it or any of its Property is bound, the effect of which
default could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents will not
constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of the Parent Borrower or any
of its Subsidiaries or result in a breach of or require the mandatory repayment
of or other acceleration of payment under or pursuant to the terms of any such
mortgage, indenture, contract or agreement.
(b) None of the Parent Borrower or any of its Subsidiaries is
in default with respect to any judgment, order, writ, injunction, decree or
decision of any
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Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect.
4.8. COMPLIANCE WITH APPLICABLE LAWS
Each of the Parent Borrower and its Subsidiaries is complying
in all material respects with all statutes, regulations, rules and orders of all
Governmental Authorities which are applicable to it, a violation of which could
reasonably be expected to have a Material Adverse Effect.
4.9. TAXES
Each of the Parent Borrower and each of its Subsidiaries has
filed or caused to be filed all tax returns required to be filed and has paid,
or has made adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it (other than those
being contested as required under Section 7.4) which would be material to the
Parent Borrower or any of its Subsidiaries, and no tax Liens have been filed
with respect thereto. The charges, accruals and reserves on the books of the
Parent Borrower and each of its Subsidiaries with respect to all taxes are, to
the best knowledge of the Parent Borrower, adequate for the payment of such
taxes, and the Parent Borrower knows of no unpaid assessment which is due and
payable against the Parent Borrower or any of its Subsidiaries or any claims
being asserted which could reasonably be expected to have a Material Adverse
Effect, except such thereof as are being contested as required under Section
7.4, and for which adequate reserves have been set aside in accordance with
GAAP.
4.10. GOVERNMENTAL REGULATIONS
Neither the Parent Borrower, any of its Subsidiaries nor any
Person controlled by, controlling, or under common control with, the Parent
Borrower or any of its Subsidiaries, is subject to regulation under the Public
Utility Holding Company Act of 1935, as amended, the Federal Power Act, as
amended, or the Investment Company Act of 1940, as amended, or is subject to any
statute or regulation which prohibits or restricts the incurrence of
Indebtedness, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.11. FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS
Neither the Parent 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 of purchasing or carrying any Margin Stock.
After giving effect to the making of each Loan and each Letter of Credit, Margin
Stock will constitute less than 25% of the assets (as determined by any
reasonable method) of the Parent Borrower and its Subsidiaries.
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4.12. PLANS
Each Employee Benefit Plan is in compliance with ERISA and the
Code, where applicable, in all material respects. As of the Effective Date, (i)
the amount of all Unfunded Pension Liabilities under the Pension Plans,
excluding any plan which is a Multiemployer Plan, does not exceed $50,000, and
(ii) the amount of the aggregate Unrecognized Retiree Welfare Liability under
all applicable Employee Benefit Plans does not exceed $50,000. The Parent
Borrower and each of its Subsidiaries and ERISA Affiliates has complied with the
requirements of Section 515 of ERISA with respect to each Pension Plan which is
a Multiemployer Plan. As of the Effective Date, the Parent Borrower and its
Subsidiaries and ERISA Affiliates have no liability under Section 4201 or 4204
of ERISA (including the obligation to satisfy secondary liability as a result of
purchaser default) and the aggregate potential annual withdrawal liability
payments, as determined in accordance with Title IV of ERISA, of the Parent
Borrower and its Subsidiaries and ERISA Affiliates with respect to all Pension
Plans which are Multiemployer Plans is approximately $50,000. The Parent
Borrower and its Subsidiaries and ERISA Affiliates have, as of the Effective
Date, made all contributions or payments to or under each such Pension Plan
required by law or the terms of such Pension Plan or any contract or agreement
with respect thereto. No material liability to the PBGC has been, or is expected
by the Parent Borrower, any of its Subsidiaries or any ERISA Affiliate to be,
incurred by the Parent Borrower, any such Subsidiary or any ERISA Affiliate.
Liability, as referred to in this Section includes any joint and several
liability. Each Employee Benefit Plan which is a group health plan within the
meaning of Section 5000(b)(1) of the Code is in material compliance with the
continuation of health care coverage requirements of Section 4980B of the Code.
4.13. FINANCIAL STATEMENTS
The Parent Borrower has heretofore delivered to the
Administrative Agent and the Lenders copies of its Form 10K for the fiscal year
ending December 28, 1996, containing the audited Consolidated Balance Sheets of
the Parent Borrower and its Subsidiaries as of December 28, 1996, and the
related Consolidated Statements of Operations, Stockholder's Equity and Cash
Flows for the such fiscal year, and its Form 10Q for the fiscal quarter ended
March 29, 1997, containing the unaudited Consolidated Balance Sheet of the
Parent Borrower and its Subsidiaries for such fiscal quarter, together with the
related Consolidated Statements of Operations and Cash Flows for such fiscal
quarter (with the applicable related notes and schedules, the "FINANCIAL
STATEMENTS"). The Financial Statements fairly present the Consolidated financial
condition and results of the operations of the Parent Borrower and its
Subsidiaries as of the dates and for the periods indicated therein and have been
prepared in conformity with GAAP. Except as reflected in the Financial
Statements or in the footnotes thereto, neither the Parent Borrower nor any of
its Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, Contingent, unmatured or otherwise) which, in accordance with GAAP,
should have been shown in the Financial Statements and was not. Since December
28,
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1996, the Parent Borrower and each of its Subsidiaries has conducted its
business only in the ordinary course, and there has been no Material Adverse
Change.
4.14. PROPERTY
Each of the Parent Borrower and each of its Subsidiaries has
good and marketable title to, or a valid leasehold interest in, all of its real
Property, and is the owner of, or has a valid lease of, all personal property,
in each case which is material to the Parent Borrower and its Subsidiaries,
taken as a whole, subject to no Liens, except such Permitted Liens. All leases
of Property to the Parent Borrower or any of its Subsidiaries are in full force
and effect, the Parent Borrower or such Subsidiary, as the case may be, enjoys
quiet and undisturbed possession under all leases of real property and neither
the Parent Borrower nor any of its Subsidiaries is in default beyond any
applicable grace period of any provision thereof, the effect of which could
reasonably be expected to have a Material Adverse Effect.
4.15. AUTHORIZATIONS
Each of the Parent Borrower and each of its Subsidiaries
possesses or has the right to use all franchises, licenses and other rights as
are material and necessary for the conduct of its business, and with respect to
which it is in compliance, with no known conflict with the valid rights of
others which could reasonably be expected to have a Material Adverse Effect. No
event has occurred which permits or, to the best knowledge of the Parent
Borrower, after notice or the lapse of time or both, or any other condition,
could reasonably be expected to permit, the revocation or termination of any
such franchise, license or other right which revocation or termination could
reasonably be expected to have a Material Adverse Effect.
4.16. ENVIRONMENTAL MATTERS
Neither the Parent Borrower nor any of its Subsidiaries (i)
has received written notice or otherwise learned of any claim, demand, action,
event, condition, report or investigation indicating or concerning any potential
or actual liability which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, arising in connection with (a) any
non-compliance with or violation of the requirements of any applicable federal,
state, local or foreign environmental health or safety statute or regulation, or
(b) the release or threatened release of any toxic or hazardous waste, substance
or constituent, or other substance into the environment, (ii) to the best
knowledge of the Parent Borrower, has any threatened or actual liability in
connection with the release or threatened release of any toxic or hazardous
waste, substance or constituent, or other substance into the environment which
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, (iii) has received notice of any federal, state, local or
foreign investigation evaluating whether any remedial action is needed to
respond to a release or threatened release of any toxic or hazardous waste,
substance or constituent or other substance into the environment for
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which the Parent Borrower or any of its Subsidiaries is or would be liable,
which liability would reasonably be expected to have a Material Adverse Effect,
or (iv) has received notice that the Parent Borrower or any of its Subsidiaries
is or may be liable to any Person under the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 et
seq., or any analogous state law, which liability would reasonably be expected
to have a Material Adverse Effect. The Parent Borrower and each of its
Subsidiaries is in compliance with the financial responsibility requirements of
federal, state, local and foreign environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265, subpart H, and any
analogous state law, except in those cases in which the failure so to comply
would not reasonably be expected to have a Material Adverse Effect.
4.17. ABSENCE OF CERTAIN RESTRICTIONS
No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Parent Borrower or any of its Subsidiaries
is a party (other than this Agreement), prohibits or limits in any way, directly
or indirectly the ability of any Subsidiary of the Parent Borrower to make
Restricted Payments or repay any Indebtedness to the Parent Borrower or to
another Subsidiary of the Parent Borrower.
4.18. NO MISREPRESENTATION
No representation or warranty contained in any Loan
Document and no certificate or report from time to time furnished by the
Parent Borrower or any of its Subsidiaries in connection with the
transactions contemplated thereby, contains or will contain a misstatement of
material fact or omits or will omit to state a material fact required to be
stated in order to make the statements therein contained not misleading in
the light of the circumstances under which made, provided that any
projections or pro-forma financial information contained therein are based
upon good faith estimates and assumptions believed by the Parent Borrower to
be reasonable at the time made, it being recognized by the Agents and the
Lenders that such projections as to future events are not to be viewed as
facts, and that actual results during the period or periods covered thereby
may differ from the projected results.
5. CONDITIONS OF LENDING - THE FIRST BORROWING DATE
In addition to the conditions precedent set forth in Section 6, the
obligation of each Lender to make Revolving Credit Loans and the Issuing Bank to
issue Letters of Credit on the first Borrowing Date shall be subject to the
fulfillment of the following conditions precedent:
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5.1. EVIDENCE OF ACTION
The Administrative Agent shall have received a certificate,
dated the first Borrowing Date, of the Secretary or Assistant Secretary or other
analogous counterpart of each Credit Party (i) attaching a true and complete
copy of the resolutions of its Managing Person and of all documents evidencing
all necessary corporate, partnership or similar action (in form and substance
satisfactory to the Administrative Agent) taken by it to authorize the Loan
Documents to which it is a party and the transactions contemplated thereby, (ii)
attaching a true and complete copy of its Organizational Documents, (iii)
setting forth the incumbency of its officer or officers or other analogous
counterpart who may sign the Loan Documents, including therein a signature
specimen of such officer or officers, and (iv) attaching a certificate of good
standing of the Secretary of State of the jurisdiction of its formation.
5.2. OPINIONS OF COUNSEL
The Administrative Agent shall have received (i) an opinion of
McGrath, North, Mullin & Kratz, P.C., counsel to the Parent Borrower and its
Subsidiaries, dated the first Borrowing Date, substantially in the form of
Exhibit F-1, and (ii) an opinion of Thomas P. Egan, corporate counsel of the
Parent Borrower and its Subsidiaries, dated the first Borrowing Date,
substantially in the form of Exhibit F-2.
5.3. OPINION OF SPECIAL COUNSEL
The Administrative Agent shall have received an opinion of
Special Counsel, dated the first Borrowing Date, substantially in the form of
Exhibit G.
5.4. SUBSIDIARY GUARANTY
Each of (a) American Lighting Standards Corporation, (b)
Microflect Company, Inc., and (c) Valmont International Corp. shall have
delivered to the Administrative Agent a guaranty, dated as of the Effective
Date, substantially in the form of Exhibit R (as amended, supplemented or
otherwise modified from time to time, the "SUBSIDIARY GUARANTY").
5.5. FEES AND EXPENSES
All fees payable to the Administrative Agent, the Issuing
Bank, the Swing Line Lender and the Lenders on the first Borrowing Date shall
have been paid, the fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
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6. CONDITIONS OF LENDING - EACH BORROWING DATE
The obligation of each Lender to make any Loan, the Swing Line Lender
to make any Swing Line Loan, and the Issuing Bank to issue any Letter of Credit
on any Borrowing Date shall be subject to the fulfillment of the following
conditions precedent:
6.1. COMPLIANCE
On each Borrowing Date and after giving effect to the Loans to
be made thereon (i) there shall exist no Default, (ii) each of the
representations and warranties contained in each Loan Document shall be true and
correct with the same effect as though such representation and warranty had been
made on such Borrowing Date, except to the extent such representation and
warranty specifically relates to an earlier date, in which case such
representation and warranty shall have been true and correct on and as of such
earlier date, and (iii) each of the Parent Borrower and its Subsidiaries shall
be in compliance with all of the terms, covenants and conditions of each Loan
Document to which it is a party. Each borrowing by any Borrower shall constitute
a certification by such Borrower and, if such Borrower is a Subsidiary Borrower,
the Parent Borrower, and each request by the Parent Borrower for the issuance of
a Letter of Credit shall constitute a certification by the Parent Borrower, as
of such Borrowing Date that each of the foregoing matters is true and correct in
all respects.
6.2. BORROWING REQUEST; LETTER OF CREDIT REQUEST; BID REQUEST
With respect to the Loans to be made, and the Letters of
Credit to be issued, on each Borrowing Date, the Administrative Agent shall have
received, (i) in the case of Revolving Credit Loans or Swing Line Loans, a
Borrowing Request, (ii) in the case of Letters of Credit, a Letter of Credit
Request, and (iii) in the case Bid Loans, a Bid Request and such other documents
required to be delivered pursuant to Section 2.4, in each case duly executed by
the applicable Borrower or, if such Borrower is a Subsidiary Borrower, the
Parent Borrower, on behalf of such Borrower.
6.3. LOAN CLOSINGS
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Administrative Agent, the Issuing Bank, the
Swing Line Lender or any Lender on or before the applicable Borrowing Date shall
have been so executed and delivered on or before such Borrowing Date.
6.4. OTHER DOCUMENTS
Each of the Administrative Agent, the Issuing Bank, the Swing
Line Lender and the Lenders shall have received such other documents, each in
form and substance reasonably satisfactory to it, as it shall reasonably require
in connection with
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the making of the Loans and the issuance of the Letters of Credit on such
Borrowing Date.
7. AFFIRMATIVE COVENANTS
The Parent Borrower agrees that, so long as this Agreement is in
effect, any Loan or Reimbursement Obligation remains outstanding, or any other
amount is owing under any Loan Document to any Lender, the Issuing Bank, the
Swing Line Lender or the Administrative Agent, the Parent Borrower shall:
7.1. FINANCIAL STATEMENTS AND INFORMATION
Maintain, and cause each of its Subsidiaries to maintain, a
standard system of accounting in accordance with GAAP, and furnish or cause to
be furnished to the Administrative Agent and each Lender:
(a) COMPLIANCE CERTIFICATE. Within 45 days after the end of
each of the first three fiscal quarters (90 days after the end of the
last fiscal quarter), a Compliance Certificate, certified by a
Financial Officer of the Parent Borrower.
(b) FORM 10K. As soon as available, but in any event within 90
days after the end of each fiscal year of the Parent Borrower, a copy
of the annual audited financial statements of the Parent Borrower and
its Subsidiaries, prepared on a Consolidated basis in accordance with
GAAP, as filed with the SEC. Such financial statements shall be
certified without qualification by the Accountants, which
certification shall (i) state that the audit by such Accountants was
conducted in accordance with generally accepted auditing standards,
(ii) state that such audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in such financial
statements, and (iii) include the opinion of such Accountants that
such financial statements present fairly, in all material respects,
the financial position of the Parent Borrower and its Subsidiaries and
the results of their operations and their cash flows for such fiscal
year in conformity with GAAP, except as otherwise specified in such
opinion.
(c) FORM 10Q. As soon as available, but in any event within 45
days after the end of each fiscal quarter (except the last fiscal
quarter) of each fiscal year of the Parent Borrower, copies of the
unaudited financial statements of the Parent Borrower and its
Subsidiaries, prepared on a Consolidated basis in accordance with
GAAP, as filed with the SEC.
(d) OTHER INFORMATION. Such other information as the
Administrative Agent or any Lender may reasonably request from time to
time.
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7.2. CERTIFICATES; OTHER INFORMATION
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Parent Borrower or any of its Subsidiaries in an aggregate amount in
excess of $500,000 is declared or shall become due and payable prior
to its stated maturity, or is called and not paid when due, (ii) the
holders of any notes (other than any notes issued hereunder),
certificate, security or other evidence of Indebtedness, or any
obligees with respect to any other Indebtedness of the Parent Borrower
or any of its Subsidiaries, have the right to declare Indebtedness in
an aggregate amount in excess of $500,000 due and payable prior to its
stated maturity, or (iii) there shall occur and be continuing a
Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Parent
Borrower or any of its Subsidiaries a party to any proceeding before
any Governmental Authority which could reasonably be expected to have
a Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such
notice a copy of such citation, summons, subpoena, order to show cause
or other document, (ii) any lapse or other termination of any material
license, permit, franchise or other authorization issued to the Parent
Borrower or any of its Subsidiaries by any Person or Governmental
Authority, and (iii) any refusal by any Person or Governmental
Authority to renew or extend any such material license, permit,
franchise or other authorization, which lapse, termination, refusal or
dispute could reasonably be expected to have a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material
which the Parent Borrower or any of its Subsidiaries may now or
hereafter be required to file with or deliver to any securities
exchange or the SEC, and (ii) annual reports relating to the Parent
Borrower or any of its Subsidiaries;
(d) Prompt written notice in the event that the Parent
Borrower, any of its Subsidiaries or any ERISA Affiliate knows, or has
reason to know, that (i) any Termination Event with respect to a
Pension Plan has occurred or will occur, (ii) any condition exists
with respect to a Pension Plan which presents a material risk of
termination of the Pension Plan, imposition of an excise tax,
requirement to provide security to the Pension Plan or other liability
on the Parent Borrower, any of its Subsidiaries or any ERISA
Affiliate, (iii) the Parent Borrower, any of its Subsidiaries or any
ERISA Affiliate has applied for a waiver of the minimum funding
standard under Section 412 of the Code with respect to a Pension Plan,
(iv) the aggregate amount of the Unfunded Pension Liabilities under
all Pension Plans is in excess of $50,000, (v) the aggregate amount of
Unrecognized Retiree
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Welfare Liability under all applicable Employee Benefit Plans is in
excess of $50,000, (vi) the Parent Borrower, any of its Subsidiaries
or any ERISA Affiliate has engaged in a Prohibited Transaction with
respect to an Employee Benefit Plan, (vii) the imposition of any tax
under Section 4980B(a) of the Code or (viii) the assessment of a civil
penalty under Section 502(c) of ERISA, together with a certificate of
a Financial Officer of the Parent Borrower setting forth the details
of such event and the action which the Parent Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect
thereto, together with a copy of all notices and filings with respect
thereto.
(e) Prompt written notice in the event that Parent Borrower,
any of its Subsidiaries or any ERISA Affiliate shall receive a demand
letter from the PBGC notifying the Parent Borrower, such Subsidiary or
such ERISA Affiliate of any final decision finding liability and the
date by which such liability must be paid, together with a copy of
such letter and a certificate of a Financial Officer of the Parent
Borrower setting forth the action which the Parent Borrower, such
Subsidiary or such ERISA Affiliate proposes to take with respect
thereto.
(f) Promptly upon the same becoming available, and in any
event by the date such amendment is adopted, a copy of any Pension
Plan amendment that the Parent Borrower, any of its Subsidiaries or
any ERISA Affiliate proposes to adopt which would require the posting
of security under Section 401(a)(29) of the Code, together with a
certificate of a Financial Officer of the Parent Borrower setting
forth the reasons for the adoption of such amendment and the action
which the Parent Borrower, such Subsidiary or such ERISA Affiliate
proposes to take with respect thereto.
(g) As soon as possible and in any event by the tenth day
after any required installment or other payment under Section 412 of
the Code owed to a Pension Plan shall have become due and owing and
remain unpaid a copy of the notice of failure to make required
contributions provided to the PBGC by the Parent Borrower, any of its
Subsidiaries or any ERISA Affiliate under Section 412(n) of the Code,
together with a certificate of a Financial Officer setting forth the
action which the Parent Borrower, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto.
(h) Such other information as the Administrative Agent or any
Lender shall reasonably request from time to time.
7.3. LEGAL EXISTENCE
Except as may be otherwise permitted by Sections 8.3, 8.4 and
8.5, maintain, and cause each of its Subsidiaries to maintain, its corporate,
partnership or analogous existence, as the case may be, in good standing in the
jurisdiction of its formation and in each other jurisdiction in which the
failure so to do could reasonably be
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expected to have a Material Adverse Effect, except that any Subsidiary of the
Parent Borrower (other than an Active Subsidiary Borrower or a Guarantor) may
fail to maintain its corporate, partnership or analogous existence, as the case
may be, in good standing in any jurisdiction at any time, provided that such
failure could not reasonably be expected to have a Material Adverse Effect.
7.4. TAXES
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all Taxes upon or with respect to the Parent Borrower or such
Subsidiary and all Taxes upon the income, profits and Property of the Parent
Borrower and its Subsidiaries, which if unpaid, could reasonably be expected to
have a Material Adverse Effect or become a Lien on Property of the Parent
Borrower or such Subsidiary (other than a Permitted Lien), unless and to the
extent only that such Taxes shall be contested in good faith and by appropriate
proceedings diligently conducted by the Parent Borrower or such Subsidiary and
provided that such reserve or other appropriate provision as shall be required
by the Accountants in accordance with GAAP shall have been made therefor.
7.5. INSURANCE
Maintain, and cause each of its Subsidiaries to maintain, with
financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption
coverage) as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative
Agent, upon written request, full information as to the insurance carried.
7.6. PERFORMANCE OF OBLIGATIONS
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all lawful Indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, might (i) have a Material Adverse
Effect or (ii) become a Lien upon Property of the Parent Borrower or any of its
Subsidiaries other than a Permitted Lien, unless and to the extent only that the
validity of such Indebtedness, obligation or claim shall be contested in good
faith and by appropriate proceedings diligently conducted and provided that the
Parent Borrower shall give the Administrative Agent prompt notice of any such
contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.7. CONDITION OF PROPERTY
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each of
its Subsidiaries so to do,
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all Property necessary to the operation of the Parent Borrower's or such
Subsidiary's business, except where the failure so to do could not reasonably be
expected to have a Material Adverse Effect.
7.8. OBSERVANCE OF LEGAL REQUIREMENTS
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, a violation of which could reasonably be expected to
have a Material Adverse Effect, except such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it, provided
that the Parent Borrower shall give the Administrative Agent prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.9. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS
At all reasonable times, upon reasonable prior notice, permit
representatives of the Administrative Agent, the Issuing Bank, the Swing Line
Lender and each Lender to visit the offices of the Parent Borrower and each of
its Subsidiaries, to examine the books and records thereof and Accountants'
reports relating thereto, and to make copies or extracts therefrom, to discuss
the affairs of the Parent Borrower and each such Subsidiary with the respective
officers thereof, and to examine and inspect the Property of the Parent Borrower
and each such Subsidiary.
7.10. AUTHORIZATIONS
Maintain, and cause each of its Subsidiaries to maintain, in
full force and effect, all material licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business.
7.11. FINANCIAL COVENANTS
(a) FIXED CHARGE COVERAGE RATIO. Maintain at all times during
the periods set forth below, a Fixed Charge Coverage Ratio of not less than the
ratios set forth below:
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[Download Table]
PERIOD RATIO
------ -----
Effective Date through June 1.65:1.00
30, 1999
July 1, 1999 through June 30, 1.85:1.00
2000
July 1, 2000 and thereafter 2.00:1.00.
(b) LEVERAGE RATIO. Maintain at all times a Leverage Ratio of
not more than 2.00:1.00.
7.12. SUBSIDIARIES
(a) Except as may otherwise be permitted by Sections 7.3, 8.3,
8.4 and 8.5, at all times cause each Subsidiary Borrower and each Guarantor to
be a direct or indirect wholly-owned Subsidiary of the Parent Borrower.
(b) On or prior to each date hereafter upon which a Person
shall have become a Material Subsidiary, cause such Subsidiary to become a party
to the Subsidiary Guaranty, in accordance with the terms thereof, on and as of
such date and, in the event that such date shall occur after the first Borrowing
Date, to deliver to the Administrative Agent, simultaneously with the execution
and delivery of the same, (i) a certificate, dated the date such Material
Subsidiary shall have become a party to the Subsidiary Guaranty, executed by
such Material Subsidiary and substantially in the form of, and with
substantially the same attachments as, the certificate which would have been
required under Section 5.1 if such Material Subsidiary had become a party to the
Subsidiary Guaranty on or before the first Borrowing Date, and (ii) if requested
by the Administrative Agent, an opinion of counsel to such Material Subsidiary,
covering the same matters with respect to such Material Subsidiary as were
covered by the opinions delivered pursuant to Section 5.2, in form and substance
reasonably satisfactory to the Administrative Agent.
8. NEGATIVE COVENANTS
The Parent Borrower agrees that, so long as this Agreement is in
effect, any Loan or Reimbursement Obligation remains outstanding, or any other
amount is owing under any Loan Document to any Lender, the Issuing Bank, the
Swing Line Lender or the Administrative Agent, the Parent Borrower shall not,
directly or indirectly:
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8.1. INDEBTEDNESS
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness existing on the
Effective Date as set forth on Schedule 8.1 and refinancings thereof, (iii)
Unrestricted Intercompany Indebtedness, (iv) Other Intercompany Indebtedness,
provided that, immediately after the incurrence of each such Other Intercompany
Indebtedness, the Other Intercompany Basket Amount shall not exceed an amount
equal to 20% of Consolidated Tangible Net Worth, (v) Indebtedness in an
aggregate principal amount not in excess of 5% of Consolidated Tangible Net
Worth at any one time outstanding (a) in respect of Capital Leases, (b) secured
by Liens on Property (including, in the event such Property constitutes capital
stock of a newly acquired Subsidiary of the Parent Borrower, Liens on the
Property of such Subsidiary) acquired by the Parent Borrower or any of its
Subsidiaries after the Effective Date, provided that such Liens are in existence
on the date of such acquisition and were not placed on such Property in
contemplation of such acquisition, and (c) other purchase money Indebtedness,
provided that, in each case under this Section 8.1(v), the Lien securing such
Indebtedness is permitted by Section 8.2, and (vi) other unsecured Indebtedness,
provided that, (a) immediately before and after giving effect to the incurrence
thereof, no Default shall or would exist, and (b) the aggregate outstanding
principal amount of all such Indebtedness incurred by the Subsidiaries of the
Parent Borrower shall not exceed $10,000,000 at any time.
8.2. LIENS
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for Taxes in the ordinary course of
business which are not delinquent or which are being contested in accordance
with Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (ii) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA), (iii) deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of Indebtedness), leases, statutory obligations, surety and appeal bonds
and other obligations of like nature arising in the ordinary course of business,
(iv) zoning ordinances, easements, rights of way, minor defects, irregularities,
and other similar restrictions affecting real Property which do not materially
and adversely affect the value of such real Property or materially impair its
use for the operation of the business of the Parent Borrower or such Subsidiary,
(v) Liens arising by operation of law such as mechanics', materialmen's,
carriers', warehousemen's liens incurred in the ordinary course of business
which are being contested in accordance with Section 7.6, (vi) Liens arising out
of judgments or decrees which are being contested in accordance with Section
7.6, provided that enforcement of such Liens is stayed pending such contest,
(vii) statutory Liens in favor of lessors arising in connection with the
Property leased to the Parent Borrower or any of its Subsidiaries, (viii) Liens
under capital leases and Liens on
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Property (including, in the event such Property constitutes capital stock of a
newly acquired Subsidiary of the Parent Borrower, Liens on the Property of such
Subsidiary) acquired after the Effective Date and either existing on such
Property when acquired, or created contemporaneously with such acquisition, to
secure the payment or financing of the purchase price thereof, provided that
such Liens attach only to the Property so purchased or acquired and provided
further that the Indebtedness secured by such Liens is permitted by Section
8.1(v), (ix) Liens pursuant to the Synthetic Lease Arrangement, and (x) Liens on
Property of the Parent Borrower and its Subsidiaries existing on the Effective
Date as set forth on Schedule 8.2, as renewed from time to time, but not any
increases in the amounts secured thereby or extensions thereof to additional
Property.
8.3. MERGERS AND CONSOLIDATIONS
Consolidate or merge into or with any Person, or enter into
any binding agreement to do so which is not contingent on obtaining the consent
of the requisite Lenders, or permit any of its Subsidiaries so to do, except:
(a) provided that, immediately before and after giving effect
thereto, no Default shall exist, (i) the Parent Borrower may
consolidate or merge with any direct or indirect wholly-owned
Subsidiary thereof (other than an Active Subsidiary Borrower),
provided that the Parent Borrower shall be the survivor, (ii) any
Active Subsidiary Borrower may consolidate or merge with any direct or
indirect wholly-owned Subsidiary of the Parent Borrower (other than an
Active Subsidiary Borrower), provided that such Active Subsidiary
Borrower shall be the survivor, and (iii) any Active Subsidiary
Borrower may consolidate or merge with any other Active Subsidiary
Borrower which shall be organized under the laws of, and have its
principal office in, the same national jurisdiction as such Active
Subsidiary Borrower, provided that the survivor shall have assumed in
a manner in all respects reasonably satisfactory to the Administrative
Agent all of the other entity's obligations and liabilities under the
Loans Documents, in each case whether fixed, contingent, then existing
or thereafter arising, created, assumed, incurred or acquired, and
whether before or after the occurrence of any Event of Default under
Section 9.1(g) or (h); and
(b) other consolidations and mergers permitted by Sections
8.4(c), 8.4(d), 8.4(e), 8.5(c), 8.5(d) and 8.5(e).
8.4. ACQUISITIONS
Make any Acquisition or enter into any binding agreement to do
so which is not contingent on obtaining the consent of the requisite Lenders, or
permit any of its Subsidiaries so to do, except:
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(a) Acquisitions of Investments permitted by Section 8.6;
(b) Acquisitions pursuant to the Synthetic Lease Arrangement;
(c) Unrestricted Intercompany Acquisitions, provided that, in
the event that any such Unrestricted Intercompany Acquisition shall be
effected by or through a consolidation or merger involving the Parent
Borrower or any Active Subsidiary Borrower, then such consolidation or
merger shall be otherwise permitted by Section 8.3(a);
(d) Other Intercompany Acquisitions, provided that (i) each
such Other Intercompany Acquisition shall be otherwise permitted by
Section 8.10, (ii) in the event that any such Other Intercompany
Acquisition shall be effected by or through a consolidation or merger
involving the Parent Borrower or any Active Subsidiary Borrower, then,
in the case of the Parent Borrower, the Parent Borrower shall be the
survivor, and, in the case of such Active Subsidiary Borrower, such
Active Subsidiary Borrower shall be the survivor unless otherwise
permitted by Section 8.3(a), and (iii) to the extent that the
aggregate consideration paid in connection with any such Other
Intercompany Acquisition shall be comprised of one or more
Investments, each such Investment shall be otherwise permitted by
Section 8.6(g) or 8.6(h); and
(e) other Acquisitions by the Parent Borrower or any of its
Subsidiaries, provided that, (i) in the event that any Operating
Entity shall be acquired in connection with any such Acquisition, then
such Operating Entity shall be in, or otherwise constitute, a line of
business which is related or complementary to the line of business of
the Parent Borrower and its Subsidiaries, (ii) in the event that any
such Acquisition shall be effected by or through a consolidation or
merger involving the Parent Borrower or any Active Subsidiary
Borrower, then, in the case of the Parent Borrower, the Parent
Borrower shall be the survivor, and, in the case of such Active
Subsidiary Borrower, such Active Subsidiary Borrower shall be the
survivor unless otherwise permitted by Section 8.3(a), and (iii)
immediately before and after giving effect to each such Acquisition,
no Default shall or would exist, and all of the representations and
warranties contained in Section 4 shall be true and correct as if then
made.
8.5. DISPOSITIONS
Make any Disposition, or permit any of its Subsidiaries so to
do, except:
(a) Dispositions of any Investments permitted under Sections
8.6(a) and 8.6(c);
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(b) Dispositions of Property which, in the reasonable opinion
of the Parent Borrower or such Subsidiary, as the case may be, is
obsolete or no longer useful in the conduct of it business;
(c) Unrestricted Intercompany Dispositions, provided that, in
the event that any such Unrestricted Intercompany Disposition shall be
effected by or through a consolidation or merger involving the Parent
Borrower or any Active Subsidiary Borrower, then, in the case of the
Parent Borrower, the Parent Borrower shall be the survivor, and, in
the case of such Active Subsidiary Borrower, such Active Subsidiary
Borrower shall be the survivor unless otherwise permitted by Section
8.3(a);
(d) Other Intercompany Dispositions, provided that (i) each
such Other Intercompany Disposition shall be otherwise permitted by
Section 8.10, (ii) in the event that any such Other Intercompany
Disposition shall be effected by or through a consolidation or merger
involving the Parent Borrower or any Active Subsidiary Borrower, then,
in the case of the Parent Borrower, the Parent Borrower shall be the
survivor, and, in the case of such Active Subsidiary Borrower, such
Active Subsidiary Borrower shall be the survivor unless otherwise
permitted by Section 8.3(a), and (iii) to the extent that the
aggregate consideration paid in connection with any such Other
Intercompany Disposition shall be comprised of one or more
Investments, each such Investment shall be otherwise permitted by
Section 8.6(g) or 8.6(h); and
(e) other Dispositions, provided that, (i) in the event any
such Disposition shall be effected by or through a consolidation or
merger involving the Parent Borrower or any Active Subsidiary
Borrower, then, in the case of the Parent Borrower, the Parent
Borrower shall be the survivor, and, in the case of such Active
Subsidiary Borrower, such Active Subsidiary Borrower shall be the
survivor unless otherwise permitted by Section 8.3(a), (ii)
immediately before and after giving effect to each such Disposition,
no Default shall or would exist, and all of the representations and
warranties contained in Section 4 shall be true and correct as if then
made, and (iii) immediately after giving effect to each such
Disposition, the aggregate fair market value of the Property sold,
assigned, transferred or otherwise disposed of in connection with such
Disposition, when aggregated with the aggregate fair market value of
all Property sold, assigned, transferred or otherwise disposed of in
connection with all other Dispositions made on and after the date
hereof under this Section 8.5(e), shall not exceed an amount equal to
10% of Consolidated Tangible Net Worth.
8.6. INVESTMENTS
At any time, purchase or otherwise acquire, hold or invest in
the Capital Stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds or
credit to, or make any other
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investment, whether by way of capital contribution, time deposit or otherwise,
in or with any Person (all of which are sometimes referred to herein as
"INVESTMENTS"), or permit any of its Subsidiaries so to do, except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the Effective Date as set forth on
Schedule 8.6;
(c) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally
insured institutions in amounts not exceeding the limits of such
insurance;
(d) Acquisitions permitted by Section 8.3 and 8.4;
(e) Investments in any seller debt incurred in connection with
Dispositions permitted by Section 8.5;
(f) Unrestricted Intercompany Investments;
(g) Other Intercompany Investments made on or after the date
hereof (other than Investments permitted by Section 8.6(b)), provided
that, immediately after giving effect to each such Other Intercompany
Investment, the Other Intercompany Basket Amount shall not exceed an
amount equal to 20% of Consolidated Tangible Net Worth; and
(h) other Investments made on or after the date hereof (other
than Investments permitted by Section 8.6(b)), provided that, (i)
immediately before and after giving effect to each such other
Investment, no Default shall or would exist, and all of the
representations and warranties contained in Section 4 shall be true
and correct as if then made, and (ii) the aggregate consideration paid
for all such other Investments shall not exceed $10,000,000.
8.7. RESTRICTED PAYMENTS
Declare or make any Restricted Payments, or permit any of its
Subsidiaries so to do, except:
(a) Unrestricted Intercompany Payments;
(b) Other Intercompany Restricted Payments made on or after
the date hereof, provided that, immediately after giving effect
thereto, the Other Intercompany Basket Amount shall not exceed an
amount equal to 20% of Consolidated Tangible Net Worth; and
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(c) other Restricted Payments made on or after the date
hereof, provided that, (i) immediately before and after giving effect
thereto, no Default shall or would exist, and (ii) the aggregate
amount of all such Restricted Payments received by Persons other than
the Parent Borrower and its Subsidiaries shall not exceed $12,000,000
in any fiscal year.
8.8. BUSINESS CHANGES
Except as may be otherwise permitted by Section 8.3 or 8.4,
materially change the nature of the business of the Parent Borrower and its
Subsidiaries as conducted on the Effective Date.
8.9. AMENDMENTS, ETC.
Enter into or agree to, or permit any of its Subsidiaries so
to do, any amendment, supplement, other modification or waiver of any term or
condition of its Organizational Documents, unless, in each such case, such
amendment, supplement, other modification or waiver would not adversely affect
the Administrative Agent, the Issuing Bank, the Swing Line Lender or any Lender.
8.10. TRANSACTIONS WITH AFFILIATES
Become, or permit any of its Subsidiaries to become, a party
to any transaction with any Affiliate thereof unless the Parent Borrower's
Managing Person shall have determined that the terms and conditions relating
thereto are as favorable to the Parent Borrower or such Subsidiary, as the case
may be, as those which would be obtainable at the time in a comparable
arms-length transaction with a Person other than an Affiliate thereof.
8.11. LIMITATION ON UPSTREAM PAYMENTS BY SUBSIDIARIES
Permit or cause any of its Subsidiaries to enter into or
agree, or otherwise be or become subject, to any agreement, contract or other
arrangement (other than this Agreement) with any Person pursuant to the terms of
which such Subsidiary is or would be prohibited from declaring or making, or
restricted in its ability to declare or make, any Restricted Payment or any loan
or advance to the Parent Borrower or any other Subsidiary thereof or prohibited
from repaying, or restricted in its ability to repay, any loan or advance from
the Parent Borrower or any other Subsidiary thereof.
8.12. PREPAYMENTS OF INDEBTEDNESS
Prepay or obligate itself to prepay, in whole or in part, any
long-term Indebtedness (other than Indebtedness under the Loan Documents), or
permit any of its Subsidiaries so to do, except that the Parent Borrower or any
of its Subsidiaries may refinance any long-term Indebtedness with any other
long-term Indebtedness, provided
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that the terms and conditions thereof shall, in the reasonable determination of
the Administrative Agent, be no less favorable to the Parent Borrower or such
Subsidiary, as the case may be, as the long-term Indebtedness so being
refinanced.
8.13. LIMITATION ON NEGATIVE PLEDGES
Enter into any agreement, other than (i) this Agreement or
(ii) any agreement in respect of Indebtedness permitted by Section 8.1(v),
provided that any prohibition or limitation referred to in this Section 8.13
shall only be effective against the assets financed by such agreement, or permit
any of its Subsidiaries so to do, which prohibits or limits the ability of the
Parent Borrower or such Subsidiary to create, incur, assume or suffer to exist
any Lien in favor of the Administrative Agent, the Lenders, the Swing Line
Lender and/or the Issuing Bank upon any of its Property, whether now owned or
hereafter acquired.
9. DEFAULT
9.1. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT"
hereunder:
(a) The failure of any Borrower to make any payment of
principal with respect to any Loan when due and payable, or the
failure of the Parent Borrower to make any payment with respect to any
Reimbursement Obligation when due and payable; or
(b) The failure of any Credit Party to make any payment of
interest, Fees, expenses or other amounts payable under any Loan
Document or otherwise to the Administrative Agent with respect to the
loan facilities established hereunder within three Business Days of
the date when due and payable; or
(c) The failure of any Credit Party to observe or perform any
covenant or agreement contained in Sections 2.7, 7.3, 7.11, 7.12 or
Section 8 (other than Sections 8.1, 8.2, 8.6 and 8.13); or
(d) The failure of any Credit Party to observe or perform (i)
any term, covenant or agreement contained in Section 8.1, 8.2, 8.6 or
8.13 and such failure shall have continued unremedied for a period of
10 days after such Credit Party shall have become aware thereof, or
(ii) any other term, covenant, or agreement contained in any Loan
Document and such failure shall have continued unremedied for a period
of 30 days after such Credit Party shall have become aware thereof; or
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(e) Any representation or warranty made or deemed made by any
Credit Party (or by an officer thereof on its behalf) in any Loan
Document or in any certificate, report, opinion (other than an opinion
of counsel) or other document delivered or to be delivered pursuant
thereto, shall prove to have been incorrect or misleading (whether
because of misstatement or omission) in any material respect when made
or deemed made; or
(f) (i) Liabilities and/or other obligations of the Parent
Borrower (other than its obligations hereunder) or any of its
Subsidiaries, whether as principal, guarantor, surety or other
obligor, for the payment of any Indebtedness in an aggregate amount in
excess of $1,000,000 (A) shall become or shall be declared to be due
and payable prior to the expressed maturity thereof, or (B) shall not
be paid when due or within any grace period for the payment thereof,
or (ii) any holder of any such liability or other obligation shall
have the right to declare such liability or other obligation due and
payable prior to the expressed maturity thereof and the applicable
defaults or events of default giving rise to such right shall then be
continuing; or
(g) Any Credit Party (other than an Inactive Subsidiary
Borrower) shall (i) make an assignment for the benefit of creditors,
(ii) generally not be paying its debts as such debts become due, (iii)
admit in writing its inability to pay its debts as they become due,
(iv) file a voluntary petition in bankruptcy, (v) become insolvent
(however such insolvency shall be evidenced), (vi) file any petition
or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or
similar relief under any present or future statute, law or regulation
of any jurisdiction, (vii) petition or apply to any tribunal for any
receiver, custodian or any trustee for any substantial part of its
Property, (viii) be the subject of any such proceeding filed against
it which remains undismissed for a period of 45 days, (ix) file any
answer admitting or not contesting the material allegations of any
such petition filed against it or any order, judgment or decree
approving such petition in any such proceeding, (x) seek, approve,
consent to, or acquiesce in any such proceeding, or in the appointment
of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its Property, or an
order is entered appointing any such trustee, receiver, custodian,
liquidator or fiscal agent and such order remains in effect for 45
days, or (xi) take any formal action for the purpose of effecting any
of the foregoing or looking to the liquidation or dissolution of such
Credit Party (except as may be otherwise expressly permitted herein);
or
(h) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court
having jurisdiction (i) adjudging any Credit Party (other than an
Inactive Subsidiary Borrower) bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization,
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liquidation, arrangement, adjustment or composition of or in respect
of any Credit Party (other than an Inactive Subsidiary Borrower) under
the United States bankruptcy laws or any other applicable Federal or
state law, (iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Credit
Party (other than an Inactive Subsidiary Borrower) or of any
substantial part of the Property thereof, or (iv) ordering the winding
up or liquidation of the affairs of any Credit Party (other than an
Inactive Subsidiary Borrower), and, in each case, such other decree or
order continues unstayed and in effect for a period of 45 days; or
(i) Judgments or decrees against the Parent Borrower or any of
its Subsidiaries aggregating in excess of $500,000 shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for
a period of 30 days; or
(j) The occurrence of a Change of Control; or
(k) Any Loan Document shall cease, for any reason, to be in
full force and effect, or any Credit Party shall so assert in writing
or shall disavow any of its obligations thereunder, or any Event of
Default shall have occurred under, and as such term is defined in, any
Loan Document; or
(l) (i) any Termination Event shall occur; (ii) any
Accumulated Funding Deficiency, whether waived, shall exist with
respect to any Pension Plan; (iii) any Person shall engage in any
Prohibited Transaction involving any Employee Benefit Plan; (iv) the
Parent Borrower, any of its Subsidiaries or any ERISA Affiliate shall
fail to pay when due an amount which is payable by it to the PBGC or
to a Pension Plan under Title IV of ERISA; (v) the imposition of any
tax under Section 4980B(a) of the Code; (vi) the assessment of a civil
penalty with respect to any Employee Benefit Plan under Section 502(c)
of ERISA; or (vii) any other event or condition shall occur or exist
with respect to an Employee Benefit Plan which in the case of clauses
(i) through (vii) would, individually or in the aggregate, have a
Material Adverse Effect; or
(m) A default by the Parent Borrower or any of its
Subsidiaries shall have occurred under the Synthetic Lease
Arrangement, and the applicable grace period or cure period, if any,
with respect to such default shall have expired.
9.2. CONTRACT REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (i) if it is an Event of Default
specified in Section 9.1(g) or 9.1(h), all Revolving Credit Commitments, the
Swing Line Commitment and the Letter of Credit Commitment shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest thereon,
any Reimbursement Obligations owing or contingently owing in respect of all
outstanding Letters of Credit
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and all other amounts owing under the Loan Documents shall immediately become
due and payable, and (ii) if it is any other Event of Default, upon the
direction of the Required Lenders, the Administrative Agent shall (A) by notice
to the Parent Borrower, declare all Revolving Credit Commitments, the Swing Line
Commitment, and the Letter of Credit Commitment to be terminated forthwith,
whereupon such Revolving Credit Commitments, the Swing Line Commitment and the
Letter of Credit Commitment shall immediately terminate, and/or (B) by notice of
default to the Parent Borrower, declare the Loans, all accrued and unpaid
interest thereon, any Reimbursement Obligations owing or contingently owing in
respect of all outstanding Letters of Credit and all other amounts owing under
the Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as otherwise provided in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived. Each Credit Party hereby further expressly waives and
covenants not to assert any appraisement, valuation, stay, extension, redemption
or similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any Loan Document.
(b) In the event that the Revolving Credit Commitments, the
Swing Line Commitment and the Letter of Credit Commitment shall have been
terminated or the Loans, any Reimbursement Obligations owing or contingently
owing in respect of all outstanding Letters of Credit and all other amounts
owing under the Loan Documents shall have been declared due and payable pursuant
to the provisions of this Section, any funds received by the Administrative
Agent, the Issuing Bank, the Swing Line Lender and the Lenders from or on behalf
of the Borrowers shall be remitted to, and applied by, the Administrative Agent
in the following manner and order: (i) first, to the payment of interest on, and
then the principal portion of, any Revolving Credit Loans which the
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or any Credit
Party; (ii) second, to reimburse the Administrative Agent, the Issuing Bank, the
Swing Line Lender for any expenses due from the Credit Parties pursuant to the
provisions of Section 11.5 and the Reimbursement Agreements, (iii) third, to the
payment of the Reimbursement Obligations and the outstanding principal amount of
the Swing Line Loans (together with all interest thereon), (iv) fourth, to the
payment of the Fees, (v) fifth, to the payment of any other fees, expenses or
amounts (other than the principal of and interest on the Loans) payable by the
Credit Parties to the Administrative Agent, the Issuing Bank, the Swing Line
Lender or any of the Lenders under the Loan Documents, (vi) sixth, to the
payment, pro rata according to the Outstanding Percentage of each Lender, of
interest due on the Loans (other than the Swing Line Loans), (vii) seventh, to
the payment, pro rata according to Outstanding Percentage of each Lender, of
principal on the Loans (other than the Swing Line Loans), of such principal, and
(viii) eighth, any remaining funds shall be paid to whomsoever shall be entitled
thereto or as a court of competent jurisdiction shall direct.
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10. THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT
Each of the Issuing Bank, the Swing Line Lender and each
Lender hereby irrevocably designates and appoints BNY as the Administrative
Agent of the Issuing Bank, the Swing Line Lender and such Lender under the Loan
Documents and each of the Issuing Bank, the Swing Line Lender and each Lender
hereby irrevocably authorizes the Administrative Agent to take such action on
its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. The duties of the Administrative Agent shall be
mechanical and administrative in nature, and, notwithstanding any provision to
the contrary elsewhere in any Loan Document, the Administrative Agent shall not
have any duties or responsibilities other than those expressly set forth
therein, or any fiduciary relationship with, or fiduciary duty to, the Issuing
Bank, the Swing Line Lender or any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the Loan
Documents or otherwise exist against the Administrative Agent.
10.2. DELEGATION OF DUTIES
The Administrative Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon, and shall be fully protected in, and shall not be under
any liability for, relying upon, the advice of counsel concerning all matters
pertaining to such duties.
10.3. EXCULPATORY PROVISIONS
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except the Administrative Agent
for its own gross negligence or willful misconduct), or (ii) responsible in any
manner to the Issuing Bank, the Swing Line Lender or any of the Lenders for any
recitals, statements, representations or warranties made by any Credit Party, or
any officer thereof, contained in the Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, the Loan Documents or
for the value, validity, effectiveness, genuineness, perfection, enforceability
or sufficiency of any of the Loan Documents or for any failure of any Credit
Party or any other Person to perform its obligations thereunder. The
Administrative Agent shall not be under any obligation to the Issuing Bank, the
Swing Line Lender or any Lender to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, the Loan
Documents, or to inspect the Property, books or records of any Credit Party. The
Issuing Bank, the Swing Line Lender and the Lenders
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acknowledge that the Administrative Agent shall not be under any duty to take
any discretionary action permitted under the Loan Documents unless the
Administrative Agent shall be instructed in writing to do so by the Issuing
Bank, the Swing Line Lender and Required Lenders and such instructions shall be
binding on the Issuing Bank, the Swing Line Lender and all Lenders; PROVIDED,
HOWEVER, that the Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or is contrary to
law or any provision of the Loan Documents. The Administrative Agent shall not
be under any liability or responsibility whatsoever, as Administrative Agent, to
any Credit Party or any other Person as a consequence of any failure or delay in
performance, or any breach, by the Issuing Bank, the Swing Line Lender or any
Lender of any of its obligations under any of the Loan Documents.
10.4. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by a
proper Person or Persons and upon advice and statements of legal counsel
(including counsel to any Credit Party), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may treat
the Issuing Bank, the Swing Line Lender or each Lender, as the case may be, or
the Person designated in the last notice filed with it under this Section, as
the holder of all of the interests of the Issuing Bank, the Swing Line Lender or
such Lender, as the case may be, in its Loans, the Letters of Credit and the
Reimbursement Obligations, as applicable, until written notice of transfer,
signed by the Issuing Bank, the Swing Line Lender or such Lender (or the Person
designated in the last notice filed with the Administrative Agent) and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent. The Administrative Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability or genuineness
of the Loan Documents or any instrument, document or communication furnished
pursuant thereto or in connection therewith, and the Administrative Agent shall
be entitled to assume that the same are valid, effective and genuine, have been
signed or sent by the proper parties and are what they purport to be. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under the Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under the Loan Documents in accordance with a request or direction of
the Required Lenders, and such request or direction and any action taken or
failure to act pursuant thereto shall be binding upon the Issuing Bank, the
Swing Line Lender, all the Lenders and all future holders of the Loans and the
Reimbursement Obligations.
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10.5. NOTICE OF DEFAULT
The Administrative Agent shall be deemed not to have knowledge
or notice of the occurrence of any Default unless the Administrative Agent has
received written notice thereof from the Issuing Bank, the Swing Line Lender, a
Lender or any Credit Party. In the event that the Administrative Agent receives
such a notice, the Administrative Agent shall promptly give notice thereof to
the Issuing Bank, the Swing Line Lender, the Lenders and the Parent Borrower.
10.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS
Each of the Issuing Bank, the Swing Line Lender and each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter, including any review of the affairs of the
Parent Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to the Issuing Bank, the
Swing Line Lender or any Lender. Each of the Issuing Bank, the Swing Line Lender
and each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, the Issuing
Bank, the Swing Line Lender or any Lender, and based on such documents and
information as it has deemed appropriate made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Parent Borrower and its Subsidiaries and
made its own decision to enter into this Agreement. Each of the Issuing Bank,
the Swing Line Lender and each Lender also represents that it will,
independently and without reliance upon the Administrative Agent, the Issuing
Bank, the Swing Line Lender or any Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
any Loan Document, and to make such investigation as it deems necessary to
inform itself as to the business, operations, Property, financial and other
condition and creditworthiness of the Parent Borrower and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Issuing Bank, the Swing Line Lender and/or the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide the Issuing Bank, the Swing Line Lender or any
Lender with any credit or other information concerning the business, operations,
Property, financial and other condition or creditworthiness of the Parent
Borrower and its Subsidiaries which at any time may come into the possession of
the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7. INDEMNIFICATION
Each Lender agrees to indemnify and hold harmless the
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by any Credit Party and without limiting the obligation of any Credit
Party to do so), pro rata according to (i)
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at any time prior to the Commitment Termination Date, its Commitment Percentage,
and (ii) at all other times, (a) if no Loan or Reimbursement Obligation is
outstanding, its Commitment Percentage, and (b) if any Loan or Reimbursement
Obligation is outstanding, its Outstanding Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever including any
amounts paid to the Issuing Bank, the Swing Line Lender or any Lender (through
the Administrative Agent) by any Credit Party pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must be otherwise
restored or returned) which may at any time (including at any time following the
payment of the Loans or the Reimbursement Obligations) be imposed on, incurred
by or asserted against the Administrative Agent in any way relating to or
arising out of the Loan Documents or any other documents contemplated by or
referred to therein or the transactions contemplated thereby or any action taken
or omitted to be taken by the Administrative Agent under or in connection with
any of the foregoing; PROVIDED, HOWEVER, that no Lender shall be liable to the
Administrative Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting solely from the finally
adjudicated gross negligence or willful misconduct of the Administrative Agent.
Without limitation of the foregoing, each Lender agrees to reimburse each Agent
promptly upon demand for its pro rata share (calculated as set forth in the
first sentence of this Section) of any unpaid fees owing to the Administrative
Agent, and any costs and expenses (including reasonable fees and expenses of
counsel) payable by any Credit Party under Section 11.5, to the extent that the
Administrative Agent has not been paid such fees or has not been reimbursed for
such costs and expenses, by any Credit Party. The failure of any Lender to
reimburse the Administrative Agent promptly upon demand for its pro rata share
(as so calculated) of any amount required to be paid by the Lenders to the
Administrative Agent as provided in this Section shall not relieve any other
Lender of its obligation hereunder to reimburse the Administrative Agent for its
pro rata share (as so calculated) of such amount, but no Lender shall be
responsible for the failure of other Lender to reimburse the Administrative
Agent for such other Lender's pro rata share (as so calculated) of such amount.
The agreements in this Section shall survive the termination of the Revolving
Credit Commitments, the Swing Line Commitment, the Letter of Credit Commitment,
and the payment of all amounts payable under the Loan Documents.
10.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY
BNY and its affiliates may make secured or unsecured loans to,
accept deposits from, issue letters of credit for the account of, act as trustee
under indentures of, and generally engage in any kind of business with, the
Parent Borrower or any of its Subsidiaries as though BNY were not Administrative
Agent hereunder and BNY Capital Markets did not arrange the transactions
contemplated hereby. With respect to the Revolving Credit Commitment, Swing Line
Commitment and Letter of Credit Commitment made or renewed by BNY and the Loans
and Reimbursement Obligations
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owing to BNY, BNY shall have the same rights and powers under the Loan Documents
as the Issuing Bank, the Swing Line Lender or any Lender and may exercise the
same as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall in each case include BNY.
10.9. SUCCESSOR ADMINISTRATIVE AGENT
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to the Issuing Bank, the Swing Line Lender
and each of the Lenders a written notice of its resignation as Administrative
Agent under the Loan Documents, such resignation to be effective upon the
earlier of (i) the written acceptance of the duties of the Administrative Agent
under the Loan Documents by a successor Administrative Agent and (ii) on the
30th day after the date of such notice. Upon any such resignation, the Required
Lenders shall have the right to appoint from among the Lenders a successor
Administrative Agent, provided that the Parent Borrower shall have consented
thereto in writing (which consent shall not be unreasonably withheld and shall
not be required if a Default shall have occurred and then be continuing). If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and accepted such appointment in writing within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Issuing Bank, the Swing Line
Lender and the Lenders, appoint a successor Administrative Agent, which
successor Administrative Agent shall be a commercial bank organized under the
laws of the United States or any State thereof and having a combined capital,
surplus, and undivided profits of at least $100,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Credit Parties, the Issuing Bank, the Swing Line Lender and the
Lenders shall execute such documents as shall be necessary to effect such
appointment. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of the Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it, and any amounts
owing to it, while it was Administrative Agent under the Loan Documents. If at
any time there shall not be a duly appointed and acting Administrative Agent,
the Credit Parties agree to make each payment due under the Loan Documents
directly to the Issuing Bank, the Swing Line Lender and the Lenders entitled
thereto during such time.
11. OTHER PROVISIONS
11.1. AMENDMENTS AND WAIVERS
Except as otherwise provided in Section 10(i) of the
Subsidiary Guaranty, with the written consent of the Required Lenders, the
Administrative Agent and the
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appropriate Credit Parties may, from time to time, enter into written
amendments, supplements or modifications of the Loan Documents and, with the
consent of the Required Lenders, the Administrative Agent on behalf of the
Issuing Bank, the Swing Line Lender and the Lenders may execute and deliver to
any such Credit Parties a written instrument waiving or a consent to a departure
from, on such terms and conditions as the Administrative Agent may specify in
such instrument, any of the requirements of the Loan Documents or any Default
and its consequences; PROVIDED, HOWEVER, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the consent of all of the Lenders, (i) increase
the Revolving Credit Commitment Amount of any Lender or the Aggregate
Revolving Credit Commitment Amount, (ii) extend the Scheduled
Revolving Credit Commitment Termination Date, (iii) decrease the rate,
or extend the time of payment, of interest of, or change or forgive
the principal amount or extend the time of payment of, any Loan (other
than a Swing Line Loan), or decrease the rate, or extend the time of
payment, of the Facility Fee or the Letter of Credit Commissions, (iv)
change the provisions of Sections 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10,
11.1, 11.6(a) or 11.7, (v) change the definition of "Required
Lenders", or (vi) release any Credit Party from all or substantially
all its obligations under the Subsidiary Guaranty (other than as
provided in Section 10(i) of the Subsidiary Guaranty);
(b) without the written consent of the Issuing Bank, no such
amendment, supplement, modification or waiver shall change the Letter
of Credit Commitment, change the amount or the time of payment of the
Letter of Credit Commissions or change any other term or provision
which relates to the Letter of Credit Commitment or the Letters of
Credit or any other rights of the Issuing Bank under any Loan
Document;
(c) without the written consent of the Administrative Agent,
no such amendment, supplement, modification or waiver shall amend,
modify or waive any provision of Section 10 or otherwise change any of
the rights or obligations of the Administrative Agent hereunder or
under the Loan Documents; and
(d) without the written consent of the Swing Line Lender, no
such amendment, supplement, modification or waiver shall change the
Swing Line Commitment or change any other term or provision that
relates to the Swing Line Commitment or the Swing Line Loans.
Any such amendment, supplement, modification or waiver shall apply equally to
the Administrative Agent, the Swing Line Lender, the Issuing Bank and each of
the Lenders and shall be binding upon the parties to the applicable Loan
Document, the Lenders, the Swing Line Lender, the Issuing Bank, the
Administrative Agent and all future holders of the Loans and the Reimbursement
Obligations. In the case of any waiver, the parties to the applicable Loan
Document, the Issuing Bank, the Lenders, the Swing Line Lender
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and the Administrative Agent shall be restored to their former position and
rights hereunder and under the Loan Documents to the extent provided for in such
waiver, and any Default waived shall not extend to any subsequent or other
Default, or impair any right consequent thereon. The Loan Documents may not be
amended orally or by any course of conduct.
11.2. NOTICES
All notices and other communications under the Loan Documents
shall be given to each party hereto, initially, at the following address, and,
thereafter, such other address through which it may from time to time be
accepting notices, as designated by it in writing to the Administrative Agent
and the Parent Borrower:
(a) if to the Parent Borrower or any other Borrower, the
office, branch or affiliate thereof designated as its address for
notices in Exhibit O or the Borrower Addendum, if any, executed and
delivered with respect to such Borrower pursuant to Section 2.12, as
the case may be;
(b) if to any Lender, the Issuing Bank or the Swing Line
Lender, the office, branch, affiliate, or correspondent bank thereof
designated as its address for notices in Exhibit N; and
(c) if to the Administrative Agent, the office, branch,
affiliate, or correspondent bank thereof designated as its address for
notices in Exhibit M.
Such notices and other communications will be effective only if and when given
in writing, and shall be deemed to have been given three days after deposit in
the mail, designated as certified mail, return receipt requested,
postage-prepaid, at the applicable address specified above, or when delivered at
the applicable address specified above, or when sent by telecopy addressed to
the party to which such notice is directed at its address determined as provided
above and receipt is confirmed, except that any notice, request or demand by any
Borrower to or upon the Administrative Agent, the Issuing Bank, the Swing Line
Lender or the Lenders pursuant to Sections 2.3, 2.4, 2.5, 2.6, 2.8 or 3.3 shall
not be effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by fax or other
electronic means as fully as if originally signed.
11.3. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Issuing Bank, the Swing Line Lender or any
Lender, any right, remedy, power or privilege under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges under the
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Loan Documents are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
11.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND CERTAIN
OBLIGATIONS
(a) All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
(b) The obligations of the Credit Parties under Sections 3.4,
3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 11.5 and 11.7 shall survive the termination of
the Revolving Credit Commitments, the Swing Line Commitment and the Letter of
Credit Commitment and the payment of the Loans, the Reimbursement Obligations
and all other amounts payable under the Loan Documents.
11.5. EXPENSES
The Parent Borrower agrees, promptly upon presentation of a
statement or invoice therefor, and whether any Loan is made (i) to pay or
reimburse the Administrative Agent and BNY Capital Markets for all their
respective out-of-pocket costs and expenses reasonably incurred in connection
with the development, preparation, execution and syndication of, the Loan
Documents and any amendment, supplement or modification thereto (whether or not
executed or effective), any documents prepared in connection therewith and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of Special Counsel, (ii) to pay or reimburse the
Administrative Agent, the Issuing Bank, the Swing Line Lender and the Lenders
for all of their respective costs and expenses, including reasonable fees and
disbursements of counsel, incurred in connection with (a) any Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
of the obligations of any Credit Party under any of the Loan Documents and (b)
the enforcement of this Section, (iii) to pay, indemnify, and hold each of the
Lenders, the Swing Line Lender, the Issuing Bank and the Administrative Agent
harmless from and against, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents and any such other documents, and (iv) to pay, indemnify and hold each
of the Lenders, the Swing Line Lender, the Issuing Bank and the Administrative
Agent and each of their respective affiliates, officers, directors and employees
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable counsel
fees and disbursements) with respect to the enforcement and performance of the
Loan Documents, the use of the
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proceeds of the Loans and the Letters of Credit and the enforcement and
performance of the provisions of any subordination agreement involving the
Administrative Agent, the Issuing Bank, the Swing Line Lender and the Lenders
(all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"), and, if and to
the extent that the foregoing indemnity may be unenforceable for any reason, the
Parent Borrower agrees to make the maximum payment not prohibited under
applicable law; PROVIDED, HOWEVER, that the Parent Borrower shall have no
obligation to pay Indemnified Liabilities to the Administrative Agent, the
Issuing Bank, the Swing Line Lender or any Lender, as the case may be, arising
from the finally adjudicated gross negligence or willful misconduct of such
Agent or such Lender, as the case may be, or claims between one indemnified
party and another indemnified party. The agreements in this Section shall
survive the termination of the Revolving Credit Commitments, the Swing Line
Commitment and the Letter of Credit Commitment and the payment of all amounts
payable under the Loan Documents.
11.6. ASSIGNMENTS AND PARTICIPATIONS
(a) Except as may otherwise be permitted by Sections 7.3, 8.3,
8.4 and 8.5, (i) the Loan Documents shall be binding upon and inure to the
benefit of the Credit Parties, the Lenders, the Swing Line Lender, the Issuing
Bank, the Administrative Agent, all future holders of the Loans and the
Reimbursement Obligations, and their respective successors and permitted
assigns, and (ii) no Credit Party may assign, delegate or transfer any of its
rights or obligations under the Loan Documents without the prior written consent
of the Administrative Agent, the Issuing Bank, the Swing Line Lender and each
Lender.
(b) In addition to its rights under Section 11.6(e), each
Lender shall have the right to sell, assign, transfer or negotiate (each an
"ASSIGNMENT") one hundred percent, or any lesser percentage, of its rights and
obligations under the Loan Documents to any subsidiary or affiliate of such
Lender, to any other Lender, or to any Eligible Assignee, provided that (i) each
such Assignment shall be of a constant, and not a varying, percentage of all of
the assignor Lender's rights and obligations under the Loan Documents, (ii) the
Revolving Credit Commitment Amount of the Revolving Credit Commitment assigned
shall be not less than $5,000,000, or the full Revolving Credit Commitment
Amount of such assignor Lender's Revolving Credit Commitment, (iii) the Parent
Borrower, the Swing Line Lender, the Issuing Bank and the Administrative Agent
shall have consented thereto in writing (which consents shall not be
unreasonably withheld), PROVIDED, HOWEVER, that such consents shall not be
required, (A) in the case of the Swing Line Lender, the Issuing Bank and the
Administrative Agent, if such assignee is another Lender, and (B) in the case of
the Parent Borrower, if a Default shall have occurred and then be continuing or
such assignee is a subsidiary or affiliate of another Lender, and (iv) the
assignor Lender and such assignee shall deliver to the Administrative Agent
three copies of an Assignment and Acceptance Agreement executed by each of them,
along with an assignment fee in the sum of $3,500 for the account of the
Administrative Agent. Upon receipt of such number of executed copies of each
such
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Assignment and Acceptance Agreement, together with the assignment fee therefor
and the Parent Borrower's, the Swing Line Lender's, the Issuing Bank's and the
Administrative Agent's consents to such Assignment, if required, the
Administrative Agent shall record the same and execute not less than two copies
of such Assignment and Acceptance Agreement in the appropriate place, deliver
one such copy to the assignor and one such copy to the assignee, and deliver one
photocopy thereof, as executed, to the Parent Borrower, the Swing Line Lender
and the Issuing Bank. From and after the effective date specified in such
Assignment and Acceptance Agreement, the assignee thereunder shall be a party
hereto and shall for all purposes of this Agreement and the other Loan Documents
be deemed a "Lender" and, to the extent provided in such Assignment and
Acceptance Agreement, the assignor Lender thereunder shall be released from its
obligations under this Agreement and the other Loan Documents. The
Administrative Agent shall be entitled to rely upon the representations and
warranties made by the assignee under each Assignment and Acceptance Agreement.
(c) In addition to the participations provided for in Section
11.10(a), each Lender may grant participations in all or any part of its rights
under the Loan Documents to one or more Eligible Assignees, provided that (i)
such Lender's obligations under this Agreement and the other Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties to this Agreement and the other Loan Documents for the performance
of such obligations, (iii) the Credit Parties, the Administrative Agent, the
Issuing Bank, the Swing Line Lender 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 the other Loan Documents, (iv) no
sub-participations shall be permitted, (v) neither the granting nor the offering
of such participation would require that any additional loss, cost or expense be
borne by any Borrower at any time or would require any registration or
qualification under any applicable federal or state securities laws, and (vi)
the voting rights of any holder of any participation shall be limited to the
voting rights of such Lender under Sections 11.1(a), (b), (c) and (d).
(d) No Lender shall, as between and among the Credit Parties,
the Administrative Agent, the Issuing Bank, the Swing Line Lender and such
Lender, as the case may be, be relieved of any of its obligations under the Loan
Documents as a result of any Assignment or the granting of any participation in
all or any part of its rights under the Loan Documents, except that it shall be
relieved of its obligations to the extent of any such Assignment of all or any
part of its rights and obligations under the Loan Documents pursuant to Section
11.6(b).
(e) Subject to Section 11.6(d), any Lender may at any time or
from time to time assign all or any portion of its rights under the Loan
Documents to a Federal Reserve Bank, provided that any such assignment shall not
release such assignor from its obligations thereunder.
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11.7. INDEMNITY
The Parent Borrower agrees to defend, protect, indemnify, and
hold harmless the Administrative Agent, BNY Capital Markets, the Issuing Bank,
the Swing Line Lender and each Lender, each of their respective affiliates and
each of the respective officers, directors, employees and agents of each of the
foregoing (each an "INDEMNIFIED PERSON") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel to such Indemnified
Persons in connection with any investigative, administrative or judicial
proceeding, whether direct, indirect or consequential and whether based on any
federal or state laws or other statutory regulations of any jurisdiction,
including securities and commercial laws and regulations, under common law or at
equitable cause, or on contract or otherwise, including any liabilities and
costs under federal, state or local health or safety laws or environmental laws,
regulations, or common law principles, arising from or in connection with the
past, present or future operations of the Parent Borrower, any other Credit
Party, or their respective predecessors in interest, or the past, present or
future environmental condition of the Property of the Parent Borrower or any of
its Subsidiaries, the presence of asbestos-containing materials at any such
Property, or the release or threatened release of any hazardous substance into
the environment from any such Property) in any manner relating to or arising out
of the Loan Documents, any commitment letter or fee letter executed and
delivered by the Parent Borrower or any of its Subsidiaries and/or the
Administrative Agent, the Issuing Bank or the Swing Line Lender, the
capitalization of the Parent Borrower or any of its Subsidiaries, the Revolving
Credit Commitments, the Swing Line Commitment or the Letter of Credit
Commitment, the making of, management of and participation in the Loans or the
Reimbursement Obligations, or the use or intended use of the proceeds of the
Loans or the Letters of Credit hereunder, provided that the Parent Borrower
shall have no obligation under this Section to an Indemnified Person with
respect to any of the foregoing to the extent found in a final judgment of a
court having jurisdiction to have resulted primarily out of the gross negligence
or wilful misconduct of such Indemnified Person or arising solely from claims
between one such Indemnified Person and another such Indemnified Person. The
indemnity set forth herein shall be in addition to any other obligations or
liabilities of the Parent Borrower to each Indemnified Person under the Loan
Documents or at common law or otherwise, and shall survive any termination of
the Loan Documents, the expiration of the Revolving Credit Commitments, the
Swing Line Commitment and the Letter of Credit Commitment and the payment of all
Indebtedness under the Loan Documents.
11.8. LIMITATION OF LIABILITY
No claim may be made by the Parent Borrower, any of its
Subsidiaries, any Lender, the Swing Line Lender, the Issuing Bank or other
Person against the Administrative Agent, any Lender, the Swing Line Lender, the
Issuing Bank or any
119
directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of the Parent Borrower, its
Subsidiaries, each Lender, the Swing Line Lender, the Issuing Bank and each such
other Person hereby waives, releases and agrees not to sue upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
11.9. COUNTERPARTS
This Agreement may be executed by one or more of the parties
thereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same document. It shall
not be necessary in making proof of any Loan Document to produce or account for
more than one counterpart signed by the party to be charged. A counterpart of
any Loan Document or to any document evidencing, and of any an amendment,
modification, consent or waiver to or of any Loan Document transmitted by
telecopy shall be deemed to be an originally executed counterpart. A set of the
copies of the Loan Documents signed by all the parties thereto shall be
deposited with each of the Parent Borrower and the Administrative Agent. Any
party to a Loan Document may rely upon the signatures of any other party thereto
which are transmitted by telecopy or other electronic means to the same extent
as if originally signed.
11.10. ADJUSTMENTS; SET-OFF
(a) If any Lender, the Swing Line Lender or the Issuing Bank
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of its Loans or Reimbursement
Obligations in excess of its Outstanding Percentage of payments then due and
payable on account of the Loans or Reimbursement Obligations received by all the
Lenders, the Swing Line Lender and the Issuing Bank, such Lender, the Swing Line
Lender or the Issuing Bank, as the case may be, shall forthwith purchase,
without recourse, for cash, from the other Lenders, the Swing Line Lender and
the Issuing Bank such participations in their Loans and Reimbursement
Obligations as shall be necessary to cause such purchaser to share such excess
payment with each of them according to their Outstanding Percentages, PROVIDED,
HOWEVER, that if all or any portion of such excess payment is thereafter
recovered from such purchaser, such purchase shall be rescinded and the related
seller shall repay to such purchaser the purchase price to the extent of such
recovery, together with an amount equal to such seller's pro rata share
(according to the proportion of (i) the amount of all other related required
repayments to (ii) the total amount so recovered from the purchaser) of any
interest or other amount paid or payable by the purchaser in respect of the
total amount so recovered.
120
(b) In addition to any rights and remedies of each Lender, the
Swing Line Lender and the Issuing Bank provided by law, upon the occurrence of
an Event of Default and acceleration of the Loans and the Reimbursement
Obligations, or at any time upon the occurrence and during the continuance of an
Event of Default under Section 9.1(a) or (b), each Lender, the Swing Line Lender
and the Issuing Bank shall have the right, without prior notice to any Credit
Party, any such notice being expressly waived by each Credit Party to the extent
permitted by applicable law, to set-off and apply against any indebtedness or
other liability, whether matured or unmatured, of any Credit Party to such
Lender, the Swing Line Lender or the Issuing Bank arising under the Loan
Documents, any amount owing from such Lender, the Swing Line Lender or the
Issuing Bank to such Credit Party. To the extent permitted by applicable law,
the aforesaid right of set-off may be exercised by such Lender, the Swing Line
Lender or the Issuing Bank against any Credit Party or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of any Credit
Party, or against anyone else claiming through or against any Credit Party or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditors,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender, the Swing Line Lender or the Issuing Bank prior to the
making, filing or issuance of, service upon such Lender, the Swing Line Lender
or the Issuing Bank of, or notice to such Lender, the Swing Line Lender or the
Issuing Bank of, any petition, assignment for the benefit of creditors,
appointment or application for the appointment of a receiver, or issuance of
execution, subpoena, order or warrant. Each Lender, the Swing Line Lender and
the Issuing Bank agrees promptly to notify the Parent Borrower and the
Administrative Agent after each such set-off and application made by such
Lender, the Swing Line Lender or the Issuing Bank, as the case may be, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
11.11. CONSTRUCTION
Each party to a Loan Document represents that it has been
represented by counsel in connection with the Loan Documents and the
transactions contemplated thereby and that the principle that agreements are to
be construed against the party drafting the same shall be inapplicable.
11.12. GOVERNING LAW
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws, but including Section 5-1401 of the General
Obligations Law.
121
11.13. JUDGMENT CURRENCY
(a) Each Credit Party's obligations under the Loan Documents
to make payments in the applicable Currency (the "OBLIGATION CURRENCY") shall
not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that, on the Business Day immediately following
the date of such tender or recovery, the Administrative Agent, the Issuing Bank,
the Swing Line Lender or the applicable Lender, as the case may be, may, in
accordance with normal banking procedures, purchase the Obligation Currency with
such other currency. If for the purpose of obtaining or enforcing judgment
against any Credit Party in any court or in any jurisdiction, it becomes
necessary to convert into any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "JUDGMENT CURRENCY") an
amount due in the Obligation Currency, the conversion shall be made at the rate
of exchange at which, in accordance with normal banking procedures in the
relevant jurisdiction, the Obligation Currency could be purchased with the
Judgment Currency as of the day immediately preceding the day on which the
judgment is given (such Business Day being hereinafter referred to as the
"JUDGMENT CURRENCY CONVERSION DATE").
(b) If the amount of Obligation Currency purchased pursuant to
the last sentence of Section 11.14(a) is less than the sum originally due in the
Obligation Currency, the applicable Credit Party covenants and agrees to
indemnify the applicable recipient against such loss, and if the Obligation
Currency so purchased exceeds the sum originally due to such recipient, such
recipient agrees to remit to the applicable Credit Party such excess.
11.14. INTERNATIONAL BANKING FACILITIES
(a) The Parent Borrower and the other Credit Parties
acknowledge that some or all of the Lenders may, in connection with the Loan
Documents, utilize an International banking facility (as defined in Regulation
D).
(b) Each Credit Party which is an entity located outside the
United States (i) understands that it is the policy of the Board of Governors of
the Federal Reserve System that deposits received by International banking
facilities may be used only to support the non-U.S. operations of a depositor
(or its foreign affiliates) located outside the United States and that
extensions of credit by International banking facilities may be used only to
finance the non-U.S. operations of a customer (or its foreign affiliates)
located outside the United States, and (ii) acknowledges that the proceeds of
its borrowings hereunder from an international banking facility will be used
solely to finance its operations outside the United States, or that of its
foreign affiliates.
122
11.15. HEADINGS DESCRIPTIVE
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.16. SEVERABILITY
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.17. INTEGRATION
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between the Administrative Agent and the Parent
Borrower with respect to certain fees, the Loan Documents embody the entire
agreement and understanding among the Credit Parties, the Administrative Agent,
the Issuing Bank, the Swing Line Lender and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Credit Parties, the Administrative Agent, the Issuing Bank, the Swing
Line Lender and the Lenders with respect to the subject matter thereof.
11.18. CONSENT TO JURISDICTION
Each party to a Loan Document hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in the City of
New York over any suit, action or proceeding arising out of or relating to the
Loan Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Credit Party hereby agrees that a final judgment in any such suit, action
or proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
11.19. SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably consents to
the service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 11.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect
123
effective service of process upon it in any such suit, action, or proceeding,
and (ii) shall to the fullest extent enforceable by law, be taken and held to be
valid personal service upon and personal delivery to it.
11.20. NO LIMITATION ON SERVICE OR SUIT
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of either Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent, the Issuing Bank, the Swing Line Lender or any Lender to
bring proceedings against any Credit Party in the courts of any jurisdiction or
jurisdictions in which such Credit Party may be served.
11.21. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SWING
LINE LENDER, THE LENDERS AND THE CREDIT PARTIES HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH CREDIT PARTY HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE
ISSUING BANK, THE SWING LINE LENDER OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE ISSUING BANK, THE SWING LINE LENDER OR THE LENDERS,
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE
ISSUING BANK, THE SWING LINE LENDER OR THE LENDERS WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
EACH CREDIT PARTY ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANK,
THE SWING LINE LENDER AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.22. PARENT BORROWER AS AGENT FOR SUBSIDIARY BORROWERS
Each Subsidiary Borrower hereby irrevocably designates and
appoints the Parent Borrower as its agent under the Loan Documents and such
Subsidiary Borrower hereby irrevocably authorizes the Parent Borrower to take
such action on its behalf under the provisions of the Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Parent Borrower by the terms of the Loan Documents, together with such other
powers as are reasonably incidental thereto.
124
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
VALMONT INDUSTRIES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
125
THE BANK OF NEW YORK,
Individually, as
Administrative Agent, as
Issuing Bank and as Swing
Line Lender
By:
---------------------------
Name:
-------------------------
Title:
------------------------
126
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK
B.A, "RABOBANK NEDERLAND", NEW
YORK BRANCH
By:
---------------------------
Name:
-------------------------
Title:
------------------------
127
CREDIT LYONNAIS CHICAGO BRANCH
By:
---------------------------
Name:
-------------------------
Title:
------------------------
128
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
129
THE BANK OF NOVA SCOTIA
By:
---------------------------
Name:
-------------------------
Title:
------------------------
130
U.S. BANK NATIONAL ASSOCIATION
d/b/a FIRST BANK, N.A.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
131
WACHOVIA BANK, N.A.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
132
VALMONT INDUSTRIES, INC.
AMENDMENT NO. 1
TO CREDIT AGREEMENT
AMENDMENT NO. 1 (this "AMENDMENT"), dated as of April 15, 1998, to the
Credit Agreement, dated as of October 7, 1997, by and among VALMONT INDUSTRIES,
INC., a Delaware corporation (the "PARENT BORROWER"), the Subsidiary Borrowers
party thereto, the Lenders party hereto, and The Bank of New York, as Issuing
Bank, as Swing Line Lender and as Administrative Agent for the Lenders, the
Issuing Bank and the Swing Line Lender (in such capacity, the "ADMINISTRATIVE
AGENT")(the "CREDIT AGREEMENT").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Parent Borrower has requested that the Credit Agreement be
amended to add the Parent Borrower as a French Borrower upon the terms and
conditions contained herein, and the Administrative Agent and the Lenders are
willing to so agree.
Accordingly, in consideration of the Recitals and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
12. SECTION 1.1 OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO AMEND AND
RESTATE IN ITS ENTIRETY THE DEFINITION OF "FRENCH BORROWER" AS FOLLOWS:
"FRENCH BORROWER": (i) the Parent Borrower or (ii) any other
Borrower which is organized under the laws of, and has its principal
office in, France.
13. SECTION 3.9 OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO AMEND AND
RESTATE IN ITS ENTIRETY SUBSECTION (D) THEREOF AS FOLLOWS:
(d) EXCEPTION FOR EXISTING TAXES. No amount shall be required
to be paid to any Indemnified Tax Person under Section 3.9(a) or (b)
with respect to any Indemnified Tax to the extent that such Indemnified
Tax would have been required to have been paid under any law, rule,
regulation, order, directive, treaty or guideline in effect on (i) the
date of the applicable Bid, in the case of any Bid Loan, (ii) the date
of the applicable Borrowing Request, in the case of any Swing Line
Loan, and (iii) the Relevant Date, in all other cases, except in each
such case to the extent that such Indemnified Tax shall be attributable
to any sum paid or
133
payable by any Credit Party under the Loan Documents in respect of any
Loan denominated in a Currency other than the Currency of the
jurisdiction in which the applicable Borrower has been organized and in
which it has its principal office.
14. ON THE DATE HEREOF, EACH CREDIT PARTY HEREBY (A) REAFFIRMS AND ADMITS
THE VALIDITY AND ENFORCEABILITY OF THE LOAN DOCUMENTS (AS AMENDED BY
THIS AMENDMENT) AND ALL OF ITS OBLIGATIONS THEREUNDER, (B) AGREES AND
ADMITS THAT IT HAS NO DEFENSES TO OR OFFSETS AGAINST ANY SUCH
OBLIGATION, AND (C) REPRESENTS AND WARRANTS THAT, IMMEDIATELY BEFORE
AND AFTER GIVING EFFECT TO THIS AMENDMENT, NO DEFAULT OR EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING AND EACH OF THE REPRESENTATIONS
AND WARRANTIES MADE BY IT IN THE LOAN DOCUMENTS (AS MODIFIED BY THIS
AMENDMENT) TO WHICH IT IS A PARTY IS TRUE AND CORRECT WITH THE SAME
EFFECT AS THOUGH SUCH REPRESENTATION AND WARRANTY HAD BEEN MADE ON THE
DATE HEREOF.
15. IN ALL OTHER RESPECTS, THE LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE
AND EFFECT, AND NO MODIFICATION IN RESPECT OF ANY TERM OR CONDITION OF
ANY LOAN DOCUMENT CONTAINED HEREIN SHALL BE DEEMED TO BE A MODIFICATION
IN RESPECT OF ANY OTHER TERM OR CONDITION CONTAINED IN ANY LOAN
DOCUMENT.
16. THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS ALL OF
WHICH, TAKEN TOGETHER, SHALL CONSTITUTE ONE AMENDMENT. IN MAKING PROOF
OF THIS AMENDMENT, IT SHALL ONLY BE NECESSARY TO PRODUCE THE
COUNTERPART EXECUTED AND DELIVERED BY THE PARTY TO BE CHARGED.
17. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS, BUT INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW.
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
134
VALMONT INDUSTRIES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
THE BANK OF NEW YORK,
Individually, as
Administrative Agent, as
Issuing Bank and as Swing Line
Lender
By:
---------------------------
Name:
-------------------------
Title:
------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK
B.A, "RABOBANK NEDERLAND", NEW
YORK BRANCH
By:
---------------------------
Name:
-------------------------
Title:
------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
CREDIT LYONNAIS CHICAGO BRANCH
By:
---------------------------
Name:
-------------------------
Title:
------------------------
135
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
THE BANK OF NOVA SCOTIA
By:
---------------------------
Name:
-------------------------
Title:
------------------------
U.S. BANK NATIONAL ASSOCIATION
d/b/a FIRST BANK, N.A.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
WACHOVIA BANK, N.A.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
136
AGREED AND CONSENTED TO:
AMERICAN LIGHTING STANDARDS
CORPORATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
MICROFLECT COMPANY, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
VALMONT INTERNATIONAL CORP.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
137
AMENDMENT NO. 2
AMENDMENT NO. 2 (this "AMENDMENT"), dated as of July 24, 1998, to the
Credit Agreement, dated as of October 7, 1997, by and among Valmont Industries,
Inc., the Subsidiary Borrowers party thereto, the Lenders party thereto and The
Bank of New York, as Issuing Bank, as Swing Line Lender and as Administrative
Agent (as amended, the "AGREEMENT").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Agreement.
II. The Parent Borrower has requested that the Administrative Agent
agree to amend the Agreement upon the terms and conditions contained herein, and
the Administrative Agent is willing so to agree.
Accordingly, in consideration of the Recitals and the terms and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Parent Borrower
and the Administrative Agent hereby agree as follows:
18. THE DEFINITION OF "CONSOLIDATED FIXED CHARGES" CONTAINED IN SECTION 1.1
OF THE AGREEMENT IS AMENDED BY AMENDING AND RESTATING CLAUSE (III) OF
SUCH DEFINITION IN ITS ENTIRETY AS FOLLOWS:
(iii) all Restricted Payments made pursuant to Section 8.7(c)(ii) in
cash during such period by the Parent Borrower and its Subsidiaries,
determined on a Consolidated basis in accordance with GAAP.
19. SECTION 8.7 OF THE AGREEMENT IS AMENDED BY (A) DELETING THE WORD "AND"
AT THE END OF CLAUSE (B) OF SUCH SECTION, (B) INSERTING THE WORD "AND"
IMMEDIATELY AFTER THE WORD "YEAR" IN CLAUSE (C) OF SUCH SECTION AND (C)
ADDING A NEW CLAUSE (D) TO SUCH SECTION AS FOLLOWS:
(d) other Restricted Payments made on or before July
31, 1999 in connection with the redemption, retirement, sinking fund or
similar payment, purchase or other acquisition of shares of the Parent
Borrower's common stock, provided that, (i) immediately before and
after giving effect thereto, no Default shall or would exist, and (ii)
the aggregate amount of all such Restricted Payments referred to in
this clause (d) shall not exceed $54,000,000.
138
20. PARAGRAPHS 1 AND 2 OF THIS AMENDMENT SHALL NOT BE EFFECTIVE UNTIL SUCH
TIME AS THE REQUIRED LENDERS SHALL HAVE CONSENTED IN WRITING TO THIS
AMENDMENT.
21. THE PARENT BORROWER HEREBY (A) REAFFIRMS AND ADMITS THE VALIDITY AND
ENFORCEABILITY OF EACH LOAN DOCUMENT AND ALL OF THE OBLIGATIONS OF EACH
CREDIT PARTY THEREUNDER, (B) AGREES AND ADMITS THAT NO CREDIT PARTY HAS
ANY DEFENSES TO OR OFFSETS AGAINST ANY SUCH OBLIGATION AND (C)
CERTIFIES THAT, IMMEDIATELY AFTER GIVING EFFECT TO PARAGRAPHS 1 AND 2
OF THIS AMENDMENT, (I) NO DEFAULT SHALL EXIST AND (II) EACH OF THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN EACH LOAN DOCUMENT SHALL BE
TRUE AND CORRECT WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATION AND
WARRANTY HAD BEEN MADE ON SUCH BORROWING DATE, EXCEPT TO THE EXTENT
SUCH REPRESENTATION AND WARRANTY SPECIFICALLY RELATES TO AN EARLIER
DATE, IN WHICH CASE SUCH REPRESENTATION AND WARRANTY SHALL HAVE BEEN
TRUE AND CORRECT ON AND AS OF SUCH EARLIER DATE.
22. IN ALL OTHER RESPECTS, THE LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE
AND EFFECT, AND NO AMENDMENT IN RESPECT OF ANY TERM OR CONDITION OF ANY
LOAN DOCUMENT SHALL BE DEEMED TO BE AN AMENDMENT IN RESPECT OF ANY
OTHER TERM OR CONDITION CONTAINED IN ANY LOAN DOCUMENT.
23. THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS ALL OF
WHICH, TAKEN TOGETHER, SHALL CONSTITUTE ONE AGREEMENT. IN MAKING PROOF
OF THIS AMENDMENT, IT SHALL ONLY BE NECESSARY TO PRODUCE THE
COUNTERPART EXECUTED AND DELIVERED BY THE PARTY TO BE CHARGED.
24. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
139
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
VALMONT INDUSTRIES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
THE BANK OF NEW YORK,
individually, as Issuing Bank,
as Swing Line Lender and as as
Administrative Agent
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Consented to and agreed:
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
140
VALMONT INDUSTRIES, INC.
CREDIT LYONNAIS CHICAGO BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
U.S. BANK NATIONAL ASSOCIATION
d/b/a FIRST BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WACHOVIA BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
141
VALMONT INDUSTRIES, INC.
AMERICAN LIGHTING STANDARDS
CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MICROFLECT COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
VALMONT INTERNATIONAL CORP.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
142
VALMONT INDUSTRIES, INC.
AMENDMENT NO. 3
AMENDMENT NO. 3 (this "AMENDMENT"), dated as of February 5, 1999, to
the Credit Agreement, dated as of October 7, 1997, by and among Valmont
Industries, Inc., the Subsidiary Borrowers party thereto, the Lenders party
thereto and The Bank of New York, as Issuing Bank, as Swing Line Lender and as
Administrative Agent (as amended, the "AGREEMENT").
RECITALS
III. Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Agreement.
IV. The Parent Borrower has requested that the Administrative Agent
agree to amend the Agreement upon the terms and conditions contained herein, and
the Administrative Agent is willing so to agree.
Accordingly, in consideration of the Recitals and the terms and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Parent Borrower
and the Administrative Agent hereby agree as follows:
25. SECTION 8.7 OF THE AGREEMENT IS AMENDED BY (A) DELETING THE WORD "AND"
AT THE END OF CLAUSE (C) OF SUCH SECTION, (B) INSERTING THE WORD "AND"
IMMEDIATELY AFTER THE AMOUNT "$54,000,000" IN CLAUSE (D) OF SUCH
SECTION AND (C) ADDING A NEW CLAUSE (E) TO SUCH SECTION AS FOLLOWS:
(e) other Restricted Payments made in connection with
the redemption, retirement, sinking fund or similar payment, purchase
or other acquisition of shares of the Parent Borrower's common stock,
provided that, (i) immediately before and after giving effect thereto,
no Default shall or would exist, and (ii) the aggregate amount of
shares of the Parent Borrower's common stock subject to all such
redemptions, retirements, sinking fund or similar payments, purchases
and other acquisitions referred to in this clause (e) shall not exceed
2,277,840.
26. PARAGRAPH 1 OF THIS AMENDMENT SHALL NOT BE EFFECTIVE UNTIL SUCH TIME AS
THE REQUIRED LENDERS SHALL HAVE CONSENTED IN WRITING TO THIS AMENDMENT.
27. THE PARENT BORROWER HEREBY (A) REAFFIRMS AND ADMITS THE VALIDITY AND
ENFORCEABILITY OF EACH LOAN DOCUMENT AND ALL OF THE OBLIGATIONS OF EACH
CREDIT PARTY THEREUNDER, (B) AGREES AND ADMITS THAT NO CREDIT PARTY HAS
ANY DEFENSES TO OR
143
OFFSETS AGAINST ANY SUCH OBLIGATION AND (C) CERTIFIES THAT, IMMEDIATELY
AFTER GIVING EFFECT TO PARAGRAPH 1 OF THIS AMENDMENT, (I) NO DEFAULT
SHALL EXIST AND (II) EACH OF THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN EACH LOAN DOCUMENT SHALL BE TRUE AND CORRECT WITH THE SAME
EFFECT AS THOUGH SUCH REPRESENTATION AND WARRANTY HAD BEEN MADE ON SUCH
BORROWING DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATION AND WARRANTY
SPECIFICALLY RELATES TO AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATION AND WARRANTY SHALL HAVE BEEN TRUE AND CORRECT ON AND AS
OF SUCH EARLIER DATE.
28. IN ALL OTHER RESPECTS, THE LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE
AND EFFECT, AND NO AMENDMENT IN RESPECT OF ANY TERM OR CONDITION OF ANY
LOAN DOCUMENT SHALL BE DEEMED TO BE AN AMENDMENT IN RESPECT OF ANY
OTHER TERM OR CONDITION CONTAINED IN ANY LOAN DOCUMENT.
29. THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS ALL OF
WHICH, TAKEN TOGETHER, SHALL CONSTITUTE ONE AGREEMENT. IN MAKING PROOF
OF THIS AMENDMENT, IT SHALL ONLY BE NECESSARY TO PRODUCE THE
COUNTERPART EXECUTED AND DELIVERED BY THE PARTY TO BE CHARGED.
30. THIS AMENDMENT SHALL BE EFFECTIVE AS OF FEBRUARY 5, 1999.
31. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
144
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC.
AMENDMENT NO. 3
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
VALMONT INDUSTRIES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
THE BANK OF NEW YORK,
individually, as Issuing Bank,
as Swing Line Lender and as as
Administrative Agent
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Consented to and agreed:
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
145
VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC.
AMENDMENT NO. 3
CREDIT LYONNAIS CHICAGO BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
U.S. BANK NATIONAL ASSOCIATION
d/b/a FIRST BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WACHOVIA BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
146
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VALMONT INDUSTRIES, INC.
VALMONT INDUSTRIES, INC.
AMENDMENT NO. 3
AMERICAN LIGHTING STANDARDS
CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MICROFLECT COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
VALMONT INTERNATIONAL CORP.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
147
Dates Referenced Herein and Documents Incorporated by Reference
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