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UNOVA INC | UNOVA INDUSTRIAL AUTOMATION SYSTEMS, INC., | INTERMEC TECHNOLOGIES CORPORATION | INTERMEC INTERNATIONAL INC | INTERMEC TECHNOLOGIES MANUFACTURING, LLC, | KEYBANK NATIONAL ASSOCIATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 4.1
EXECUTION COPY
CREDIT AGREEMENT (U.S. $100,000,000)
Dated as of September 30, 2004
among
UNOVA, INC., UNOVA INDUSTRIAL AUTOMATION SYSTEMS, INC., INTERMEC TECHNOLOGIES CORPORATION, INTERMEC INTERNATIONAL INC., INTERMEC TECHNOLOGIES MANUFACTURING, LLC, INTERMEC IP CORP. and UNOVA IP CORP.
as Borrowers,
THE LENDERS WHICH ARE PARTIES HERETO
and
KEYBANK NATIONAL ASSOCIATION
as Administrative Agent, Lead Arranger and Book Manager
and
KEYBANK NATIONAL ASSOCIATION
as LC Issuer
TABLE OF CONTENTS
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EXHIBITS AND SCHEDULES
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CREDIT AGREEMENT U.S. $100,000,000
Dated as of September 30, 2004
UNOVA, INC. , a Delaware corporation, UNOVA INDUSTRIAL AUTOMATION SYSTEMS, INC ., a Delaware corporation, INTERMEC TECHNOLOGIES CORPORATION , a Washington corporation, INTERMEC INTERNATIONAL INC. , a Washington corporation, INTERMEC TECHNOLOGIES MANUFACTURING, LLC, a Washington limited liability company, INTERMEC IP CORP ., a Delaware corporation, and UNOVA IP CORP ., a Delaware corporation, each a Borrower and collectively as the Borrowers, the financial institutions listed on the signature pages of this Agreement, as the Lenders, KEYBANK NATIONAL ASSOCIATION , a national banking association, as the Administrative Agent for the Lenders, and KEYBANK NATIONAL ASSOCIATION, a national banking association, as the LC Issuer, hereby agree as follows:
Section 1 DEFINITIONS; ACCOUNTING TERMS; GOVERNANCE.
1.1 Certain Defined Terms . Certain Uniform Commercial Code terms used in this Agreement have been defined in the Security Agreements executed by each Borrower and any Subsidiary Guarantor. As used in this Agreement and all other Loan Documents, the following terms shall have the meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined) set forth below:
“Accumulated Funding Deficiency” has the meaning ascribed thereto in Section 302(a)(2) of ERISA.
“ Acquisition ” means and includes (i) any acquisition on a going concern basis (by purchase of fee title) of any facility and/or business operated by a Person which is not a Subsidiary of a Borrower and (ii) any acquisition of all or substantially all (but in all cases greater than or equal to 80%) of the outstanding equity or other similar interests in any Person that is not a natural Person (whether by merger, stock purchase, creation of a corporate joint venture or otherwise).
“ Acquisition Documents ” means any and all documents executed and delivered in connection with a Permitted Acquisition including, without limitation, any subordination agreement executed in connection therewith.
“Adjustment Date” means: (a) with respect to each of the first three Fiscal Quarters of UNOVA, Inc. in each Fiscal Year, the date that is the first day of the month immediately succeeding the day on which the Borrower Representative delivers the financial statements required hereunder to be delivered with respect to such Fiscal Quarter, together with the Officer’s Certificate required to be furnished by the Borrowers with such financial statements pursuant to (and complying with) Section 5.1(c), and (b) with respect to the last Fiscal Quarter of UNOVA, Inc. in each Fiscal Year, the date that is first day of the month immediately succeeding the day on which the Borrower Representative delivers the audited financial statements required to be delivered with respect to such Fiscal Year end, together with the Officer’s Certificate required to be furnished by the Borrower Representative with such financial statements pursuant to (and complying with) Section 5.1(c).
“Administrative Agent” means KeyBank and its successors or assigns, each in its capacity as Administrative Agent for the Lenders.
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“Administrative Agent Fee Letter” means that certain letter executed by the UNOVA, Inc. and the Administrative Agent, dated June 18, 2004.
“Advantage” means any payment (whether made voluntarily or involuntarily, by offset of any deposit or other Indebtedness or otherwise) received by a Lender or an Affiliate of a Lender in respect of Obligations if the payment results in any other Lender’s having more than its Pro Rata Share of the Obligations (other than Designated Hedge Obligations) in question.
“Affiliate” means, with respect to a specified Person, any other Person: (a) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with such Person (“control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise), (b) which beneficially owns or holds with power to vote fifteen percent (15%) or more of any class of the voting stock or similar interest of such Person, or (c) fifteen percent (15%) or more of the voting stock or similar interest of which other Person is beneficially owned or held by such Person.
“Agreement” means this Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time.
“Alternate Base Rate” means, for any day, a rate per annum equal to the higher of: (a) the rate of interest which is established from time to time by KeyBank at its principal office in Cleveland, Ohio as its “prime rate” or “base rate” in effect, such rate to be adjusted automatically, without notice, as of the opening of business on the effective date of any change in such rate (it being agreed that: (i) such rate is not necessarily the lowest rate of interest then available from KeyBank on fluctuating rate loans and (ii) such rate may be established by KeyBank by public announcement or otherwise) and (b) the Federal Funds Effective Rate in effect on such day plus one half of one percent (1/2 of 1%).
“Alternate Base Rate Loan” means a Revolving Credit Loan, denominated in Dollars, which bears interest as provided in Section 2.11(a) of this Agreement.
“Alternate Base Rate Borrowing” means a Revolving Credit Borrowing consisting of Alternate Base Rate Loans.
“Anti-Terrorism Laws” shall mean any laws relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).
“Applicable Margin” means (X) from the Closing Date until but excluding the first Adjustment Date commencing after December 31, 2004: (i) with respect to Revolving Credit Borrowings, one hundred basis points (100 bps) per annum with respect to Alternate Base Rate Loans comprising Revolving Credit Borrowings and two hundred basis points (200 bps) per annum with respect to LIBOR Rate Loans comprising Revolving Credit Borrowings and (ii) with respect to the Facility Fee, fifty basis points (50 bps) per annum and (Y) with respect to any Adjustment Date commencing after December 31, 2004 until but excluding the following Adjustment Date, the percentage per annum applicable to Alternate Base Rate Loans or LIBOR Rate Loans comprising Revolving Credit Borrowings, and the Facility Fee, as the case may be, corresponding to
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level of the Consolidated Leverage Ratio of UNOVA, Inc. and its Subsidiaries for the Fiscal Quarter immediately preceding such Adjustment Date as determined by reference to the following grid:
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Approved Securities Intermediary ” means a Securities Intermediary (as defined in the UCC) or Commodity Intermediary (as defined in the UCC) reasonably acceptable to the Administrative Agent and with respect to which a Borrower has delivered to the Administrative Agent an executed Securities Account Control Letter.
“Asset Coverage” means, at any date of determination, an amount (based on the last Asset Coverage Certificate delivered in accordance with the terms hereof) equal to:
(w) seventy-five percent (75%) of the aggregate book value (net of applicable reserves in accordance with GAAP) of all Accounts of the Borrowers and any Subsidiary Guarantors which are comprised of a right to payment for goods sold or leased or for services rendered in the ordinary course of business (other than Excluded Accounts); plus
(x) fifty percent (50%) of the aggregate book value (net of applicable reserves in accordance with GAAP) of all Inventory of the Borrowers and any Subsidiary Guarantors (other than Excluded Inventory); plus
(z) the lesser of: (i) one hundred percent (100%) of the aggregate book value (net of applicable reserves in accordance with GAAP) of all Equipment of the Borrowers and any Subsidiary Guarantors used in the process of manufacturing or processing Inventory (other than Excluded M&E) or (ii) Ten Million Dollars ($10,000,000).
“Asset Coverage Certificate” means, with respect to any Fiscal Quarter, a certificate reflecting the calculation of Asset Coverage, including calculations showing the Excluded Accounts, Excluded M&E and Excluded Inventory as of the last Business Day of such Fiscal Quarter and otherwise reasonably satisfactory to the Administrative Agent and substantially in the form attached hereto as Exhibit H .
“ Assignment and Assumption ” means an assignment and assumption entered
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into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10), and accepted by the Administrative Agent, in substantially the form of Exhibit J or any other form approved by the Administrative Agent.
“ Assumed Tax Rate ” means, for or in respect of any Tax Period (as defined in the definition of “Permitted Tax Distribution”), the greater of (i) fifty percent (50%) or (ii) the highest marginal tax rate applicable to individuals for such Tax Period plus ten percent (10%).
“Barclay’s Facility” means the facility provided by Barclays Bank PLC to certain Foreign Subsidiaries of UNOVA, Inc. pursuant to that certain £15,000,000 Facility Letter, dated February 9, 2004, that certain Ancillary Banking Facilities Letter, dated February 9, 2004, and that certain £10,000,000 Facility Letter, dated February 9, 2004, in each case, as amended, supplemented or otherwise modified from time to time and, in each case, including the other documents delivered in connection therewith.
“Blocked Person” shall have the meaning assigned to such term in Section 4.21 hereof.
“Borrower Guaranteed Obligations” has the meaning set forth in Section 9.1.
“ Borrower Guarantor ” means any Borrower with respect to the Obligations owing to the Lenders by the other Borrowers.
“ Borrower Guaranty ” means the joint and several obligation of each Borrower Guarantor to pay the Obligations of the other Borrowers pursuant to Section 9 of this Agreement.
“Borrower Representative” means UNOVA, Inc., a Delaware corporation.
“Borrowers” means collectively, UNOVA, Inc., a Delaware corporation, UNOVA Industrial Automation Systems, Inc., a Delaware corporation, Intermec Technologies Corporation, a Washington corporation, Intermec International Inc., a Washington corporation, Intermec Technologies Manufacturing, LLC, a Washington limited liability company, Intermec IP Corp., a Delaware corporation, and UNOVA IP Corp., a Delaware corporation, and any future Domestic Subsidiary that executes and delivers a Joinder Agreement.
“ bps ” means basis points where one basis point represents one one-hundredth of a percent (1/100 of 1%).
“Business Day” means (i) a day of the year on which the Administrative Agent is not required or authorized to close in the city in which the applicable Payment Office of the Administrative Agent is located and (ii) if the applicable Business Day relates to LIBOR Rate Loans, a day of the year which is a Business Day described in clause (i) above and which is also a day on which dealings in Dollar deposits are carried on in the London interbank market and banks are open for business in London.
“Capital Expenditures” means those capital expenditures which are required to be capitalized as property, plant or equipment in accordance with GAAP.
“Capitalization” means, in respect of any Person, the net book value of such Person minus (i) the aggregate amount of the Accounts of such Person that are owed by Affiliates of such Person, plus (ii) the aggregate amount of the Accounts of the Affiliates
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of such Person that are owed to such Person and minus (iii) the net book value of such Person’s equity interest in its Subsidiaries, in each case as determined on a consolidated basis in accordance with GAAP.
“ Capitalized Leases ” means, in respect of any Person, any lease of property imposing obligations on such Person, as lessee of such property, which are required in accordance with GAAP to be capitalized on a balance sheet of such Person.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §§ 9601 et seq.
“Certificate of Exemption” shall have the meaning set forth in Section 12.3(b)(i) of this Agreement.
“Change of Control” means any of the following:
(a) an acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of 1934) of beneficial ownership (within the meaning of Rule 13-d promulgated under the Exchange Act) of 30 percent or more of either (i) the then outstanding shares of common stock of UNOVA, Inc. (the “ Outstanding UNOVA, Inc. Common Stock ”), or (ii) the combined voting power of the then outstanding voting securities of UNOVA, Inc. entitled to vote generally in the election of directors (the “ Outstanding UNOVA, Inc. Voting Securities ”), excluding, however, the following acquisitions of Outstanding UNOVA, Inc. Common Stock and Outstanding UNOVA, Inc. Voting Securities: (A) any acquisition by UNOVA, Inc. or any entity directly or indirectly controlled by UNOVA, Inc., and (B) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by UNOVA, Inc. or any entity directly or indirectly controlled by UNOVA, Inc.; or
(b) individuals who, as of the Closing Date, constitute the Board of Directors (the “ UNOVA Board ”) of UNOVA, Inc. (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of such UNOVA Board; provided, however, that any individual who becomes a member of such UNOVA Board subsequent to the Closing Date whose election, or nomination for election by UNOVA, Inc.’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but provided further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the UNOVA Board shall not be so considered as a member of the Incumbent Board.
“Charter Documents” means, as to any Person (other than a natural person), the charter, certificate or articles of incorporation or organization, by-laws, regulations, general or limited partnership agreement, certificate of limited partnership, certificate of formation, operating agreement, or other similar organizational or governing documents of such Person.
“ CIP Regulations ” has the meaning specified in Section 8.13 of this Agreement.
“Closing Date” means the date and the time as of which this Agreement is effective.
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“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means all personal property assets of each of the Borrowers and the Subsidiary Guarantors in which a security interest or Lien is granted to the Administrative Agent for the benefit of the Lenders pursuant to the respective Security Agreement of such Borrower or such Subsidiary Guarantor, as the case may be, provided , however , that in no event shall any Borrower or Subsidiary Guarantor be required to pledge more than 65% of the capital stock of a Subsidiary that is not a Domestic Subsidiary and provided further that in no event shall any Borrower or Subsidiary Guarantor be required to cause the pledge of any capital stock of any Subsidiary of any Foreign Subsidiary.
“Consolidated Amortization Expense” means, with respect to a Person, for any period, all amortization expenses of such Person and its consolidated Subsidiaries during such period, as determined on a consolidated basis in accordance with GAAP.
“Consolidated Depreciation Expense” means, with respect to a Person, for any period, all depreciation expenses of such Person and its consolidated Subsidiaries during such period, as determined on a consolidated basis in accordance with GAAP.
“Consolidated EBIT” means, with respect to a Person, for any period, (a) Consolidated Net Income of such Person and its consolidated Subsidiaries for such period; plus (b) to the extent taken into account for such period in determining such Consolidated Net Income, the sum (without duplication) of: (i) Consolidated Interest Expense of such Person and its consolidated Subsidiaries for such period, (ii) Consolidated Income Tax Expense of such Person and its consolidated Subsidiaries for such period, (iii) any non-recurring, non-cash losses and charges for such period (including, the after-tax non-cash loss, if any, from the sale or other disposition of the Industrial Automation System Segment), (iv) non-cash compensation expense realized from the grant of stock appreciation, stock options, or other similar rights to officers, directors and other employees minus (c) the cash payments arising during such period related to the non-cash compensation expense described in clause (b)(iv) above; all as determined on a consolidated basis in accordance with GAAP.
“Consolidated EBITDA” means, with respect to a Person, for any period, (a) Consolidated EBIT of such Person and its consolidated Subsidiaries for such period; plus (b) to the extent taken into account for such period in determining such Consolidated EBIT, the sum (without duplication) of: (i) Consolidated Depreciation Expense of such Person and its consolidated Subsidiaries for such period and (ii) Consolidated Amortization Expense of such Person and its consolidated Subsidiaries for such period.
“Consolidated Income Tax Expense” means, with respect to a Person, for any period, all taxes (based on the net income of such Person and its consolidated Subsidiaries) paid in cash or accrued during such period (including, without limitation, any penalties and interest with respect thereto and net of any tax refunds received during such period), all as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Coverage Ratio” means, with respect to a Person, for any Testing Period, the ratio of: (x) Consolidated EBIT for such period to (y) the Consolidated Interest Expense for such Testing Period to the extent paid in cash during said period, all as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to a Person, for any period, (a) the amount of interest expense of such Person and its consolidated
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Subsidiaries during such period paid in cash or accrued during such period, all as determined on a consolidated basis in accordance with GAAP, plus (b) the interest payment portion of any Capitalized Lease rental payment of such Person and its consolidated Subsidiaries paid in cash or accrued during such period, all as determined on a consolidated basis in accordance with GAAP.
“Consolidated Leverage Ratio ” means, with respect to a Person, as at the end of any Fiscal Quarter, the ratio of: (a) the aggregate principal amount of the Consolidated Net Debt of such Person and its consolidated Subsidiaries outstanding as of the end of such Fiscal Quarter to (b) the Consolidated EBITDA of such Person and its consolidated Subsidiaries for the Testing Period then ended.
“Consolidated Net Debt” means, with respect to a Person, at any date of determination, without duplication (a) Consolidated Total Funded Debt less (b) the sum of (i) one hundred percent (100%) of the cash and cash equivalents maintained or on deposit in the United States and (ii) twenty percent (20%) of the cash and cash equivalents maintained or on deposit outside of the United States.
“Consolidated Net Income” means, with respect to a Person, for any period, the net income (or loss) of such Person and its consolidated Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Worth” means, with respect to a Person, at any time, the sum of the total assets of such Person and its Subsidiaries, on a consolidated basis, minus the sum of the total liabilities of such Person and its Subsidiaries, on a consolidated basis in accordance with GAAP, provided , however , that such amount shall exclude (i) the after-tax, non-cash impact of the sale of the Industrial Automation System Segment (or any part thereof) and (ii) the sum of (x) non-cash compensation expense realized from the grant of stock appreciation, stock options, or other similar rights to officers, directors and other employees minus (y) the cash payments arising during such period related to such non-cash compensation expense.
“ Consolidated Total Funded Debt ” means, with respect to a Person, at any date of determination, without duplication, all Indebtedness of such Person and its consolidated Subsidiaries which consists of: (a) Indebtedness for Borrowed Money (b) the deferred purchase price of capital assets or services which in accordance with GAAP would be shown on the liability side of a consolidated balance sheet of such Person and its consolidated Subsidiaries, (c) obligations with respect to Capitalized Leases, (d) the present value, determined on the basis of the implicit interest rate, of all basic rental obligations under all synthetic leases (i.e. leases accounted for by the lessee as operating leases under which the lessee is the “owner” of the leased property for Federal income tax purposes) to the extent not cash collateralized, (e) all obligations of such Person as an account party in respect of letters of credit and banker’s acceptances (in each case valued at the stated face amount thereof), all as determined on a consolidated basis in accordance with GAAP.
“Copyrights” means, with respect to any Borrower or Subsidiary, all original works of authorship fixed in a tangible medium, published or unpublished, and any United States copyrights, and registrations thereof and applications therefor, including all renewals and extensions thereof, of such Borrower, whether now existing or hereafter acquired.
“Credit Event” means: (a) the making of a Revolving Credit Loan by any Lender or (b) the issuance or extension of any Letter of Credit by the LC Issuer and the
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participation by any Lender in the risk thereof.
“Credit Request” means a request for a Revolving Credit Borrowing made in accordance with Section 2.3, in the form attached hereto as Exhibit B-1 and incorporated herein by reference.
“Deemed Credit Request” has the meaning specified in Section 2.3(c) of this Agreement.
“Default under ERISA” means: (a) the occurrence or existence of a material Accumulated Funding Deficiency in respect of any Employee Benefit Plan (other than a Multiemployer Plan) within the scope of Section 302(a) of ERISA, or (b) any failure by any Borrower or any Subsidiary thereof to make a full and timely payment of premiums required by Section 4001 of ERISA in respect of any Employee Benefit Plan, or (c) the occurrence or existence of any material liability under Section 4062, 4063, 4064, 4069, 4201, 4217 or 4243 of ERISA in respect of any Employee Benefit Plan, or (d) the institution or existence of any action for the forcible termination of any such Employee Benefit Plan which is within the scope of Section 4001(a)(3) or (15) of ERISA.
“Defaulting Lender” means any Lender with respect to which a Lender Default is in effect.
“ Deposit Account Control Letter ” means a letter agreement, substantially in the form of Exhibit N hereto (with such changes as may be reasonably agreed to by the Administrative Agent) or such other form in form and substance reasonably acceptable to the Administrative Agent, executed by a Borrower and the Administrative Agent and acknowledged and agreed to by the relevant deposit account bank.
“Designated Hedge Agreement” means any Hedge Agreement (x) which has any Borrower as a party and (y)(i) which has any Lender or Affiliate of a Lender as the counterparty or (ii) which has any other Person as the counterparty and the Administrative Agent in such case has designated, in its sole discretion, pursuant to a written instrument, as a Designated Hedge Agreement.
“Designated Hedge Creditor” means the counterparty to any Hedge Agreement to which any Borrower is a party which Hedge Agreement has been designated by the Administrative Agent in accordance with this Agreement as a Designated Hedge Agreement.
“Designated Hedge Obligations” means the obligations of any Borrower to the Designated Hedge Creditor under any Designated Hedge Agreement.
“Disclosure Schedule” means the schedule which is attached hereto as Annex III and is incorporated into this Agreement as the same may be updated with respect to Schedules 4.1, 4.11, 4.13, 4.16 and 4.17 from time to time with the consent of the Administrative Agent, which consent shall not be unreasonably withheld, or otherwise in accordance with the terms hereof.
“Distribution” means a payment made, liability incurred or other consideration (other than any payment made solely in capital stock or other equity units of a Person) given by such Person for the purchase, acquisition, redemption or retirement of any capital stock (whether added to treasury or otherwise) or similar equity or membership units of such Person or as a dividend, return of capital or other distribution in respect of the capital stock or such other equity units of such Person.
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“Dollars” and the sign “$” each means lawful money of the United States.
“Domestic Subsidiary” means (i) any direct Subsidiary of a Borrower that is organized under the Laws of any state of the United States or the District of Columbia and (ii) any direct or indirect Subsidiary of another Domestic Subsidiary which is not a Foreign Subsidiary.
“Eligible Assignee” means any of the following Persons: (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) the L/C Issuer, and (iii) unless an Event of Default has occurred and is continuing, the Borrower Representative (each such approval not to be unreasonably withheld or delayed); provided that, notwithstanding the foregoing, “Eligible Assignee” shall not include any Borrower or any of the Borrowers’ Affiliates or Subsidiaries and; provided , further, that, notwithstanding the foregoing, a Person shall only be an “Eligible Assignee” if (i) such Person shall have complied with the requirements of Section 12.3(b), and (ii) the assignment to or participation of such Person shall not constitute a “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code).
“Employee Benefit Plan” means an “employee benefit plan” as defined in Section 3 of ERISA of a Borrower or a Subsidiary or any of their ERISA Affiliates, including any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA or any “pension plan” as defined in Section 3(2) of ERISA or any “welfare plan” as defined in Section 3(1) of ERISA.
“Environmental Claims” means any and all administrative or judicial actions, suits, demands, demand letters, claims, complaints, liens, notices of non-compliance, investigations, proceedings alleging non-compliance with or liabilities under any Environmental Law or any Environmental Permit, instituted by any Person, including, without limitation, (a) by governmental authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law or (b) by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health or the environment.
“Environmental Laws” means any applicable federal, state or local Law or order pertaining to the protection of the environment, including (but not limited to) applicable provision of CERCLA, RCRA, the Hazardous Materials Transportation Act, 49 USC §§ 5101 et seq., the Federal Water Pollution Control Act (33 USC §§ 1251 et seq.), the Toxic Substances Control Act (15 USC §§ 2601 et seq.), and all similar state, regional or local Laws, treaties, regulations, statutes or ordinances, common law or civil laws of any foreign or domestic governmental authority, agency or tribunal, and all foreign equivalents thereof, as the same have been or hereafter may be amended, and any and all analogous future Laws, treaties, regulations, statutes or ordinances, common law or civil laws of any foreign or domestic governmental authority, agency and which govern: (a) the existence, cleanup and/or remedy of contamination on property; (b) the emission or discharge of Hazardous Materials into the environment; (c) the control of hazardous wastes; (d) the use, generation, transport, treatment, storage, disposal, removal or recovery of Hazardous Materials; or (e) the maintenance and development of wetlands.
“Environmental Permits” means all permits, approvals, certificates, notifications, identification numbers, licenses and other authorizations required under any applicable Environmental Laws.
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“ERISA” means the Employee Retirement Income Security Act of 1974 (Public Law 93-406), as amended, and in the event of any amendment affecting any Section thereof referred to in this Agreement, that reference shall be a reference to that Section as amended, supplemented, replaced or otherwise modified.
“ERISA Affiliate” means, with respect to any Person, any other Person that is under common control with such Person within the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes such Person and which is treated as a single employer under Sections 414(b) or (c) of the Internal Revenue Code. In addition, for provisions of this Agreement that relate to Section 412 of the Internal Revenue Code, the term “ERISA Affiliate” of any Person shall mean any other Person aggregated with such Person under Sections 414(b), (c), (m) or (o) of the Internal Revenue Code.
“ERISA Regulator” means any governmental agency (such as the Department of Labor, the IRS and the Pension Benefit Guaranty Corporation) having any regulatory authority over any Employee Benefit Plan.
“Eurocurrency Reserve Percentage” means, for any Interest Period in respect of any LIBOR Rate Loan, as of any date of determination, the aggregate of the then stated maximum reserve percentages (including any marginal, special, emergency or supplemental reserves), expressed as a decimal, applicable to such Interest Period (if more than one such percentage is applicable, the daily average of such percentages for those days in such Interest Period during which any such percentages shall be so applicable) by the Board of Governors of the Federal Reserve System, any successor thereto, or any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender may be subject in respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board) or in respect of any other category of liabilities including deposits by reference to which the interest rate on LIBOR Rate Loans is determined or any category of extension of credit or other assets that include the LIBOR Rate Loans. For purposes hereof, such reserve requirements shall include, without limitation, those imposed under Regulation D of the Federal Reserve Board and the LIBOR Rate Loans shall be deemed to constitute Eurocurrency Liabilities subject to such reserve requirements.
“Event of Default” has the meaning specified in Section 6 of this Agreement.
“Excluded Accounts” means the Accounts of the Borrowers or the Subsidiary Guarantors which:
(a) have arisen from the sale by such Borrower of goods where such goods have not been shipped or delivered to the Account Debtor or as to which “unbilled receivables” exist;
(b) have arisen in connection with sales of goods which were shipped or delivered to the Account Debtor on other than an absolute sale basis, such as shipments or deliveries made on consignment, a sale or return basis, a guaranteed sale basis, a bill and hold basis, or on the basis of any similar understanding;
(c) are Accounts with respect to which the Administrative Agent does not have a first priority, perfected security interest in favor of the Administrative Agent or are Accounts subject to any Lien other than the Lien in favor of the Administrative Agent except for any Lien permitted by clauses (C), (G) and (K) of Section 5.3(d);
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(d) are evidenced by judgment, Chattel Paper or any Instrument of any kind (including, without limitation, any promissory notes);
(e) are owed by an Affiliate of any Borrower or Subsidiary Guarantor if such Affiliate is also a Borrower or Subsidiary thereof;
(f) are owed by a Person that is not a citizen of or organized under the Laws of the United States or any State or are owed by any Person located outside of the United States unless (i) such Accounts are owed by an Account Debtor located in Canada (other than in the Province of Quebec or other non PPSA jurisdictions) and the Administrative Agent has a first priority lien perfected to its satisfaction in such Accounts, or (ii) payment of such Accounts is guaranteed by a letter of credit in form and substance and issued by a financial institution reasonably satisfactory to the Administrative Agent and which has been transferred or assigned to the Administrative Agent as security for the Obligations; or
(g) are payable in currency other than Dollars.
“Excluded Foreign Subsidiary” means each Foreign Subsidiary of UNOVA, Inc. which (i)(A) is inactive or has no operations and (B) owns Intellectual Property (other than trademarks or tradenames) having a fair market value which, when added to the aggregate fair market value of the Intellectual Property (other than trademarks and tradenames) owned by all other Excluded Foreign Subsidiaries and Excluded Subsidiaries, aggregates less than Two Million Five Hundred Thousand Dollar ($2,500,000), or (ii)(A) maintains a Capitalization of less than Five Million Dollars ($5,000,000), (B) contributes less than Seven Hundred Thousand Dollars ($700,000) to the Consolidated EBITDA of UNOVA, Inc. and its consolidated Subsidiaries and (C) owns Intellectual Property (other than trademarks and tradenames) having a fair market value which, when added to the aggregate fair market value of the Intellectual Property (other than trademarks and tradenames) owned by all other Excluded Foreign Subsidiaries and Excluded Subsidiaries, aggregates less than Two Million Five Hundred Thousand Dollars ($2,500,000), a list of such Excluded Foreign Subsidiaries as of the Closing Date is disclosed on the Disclosure Schedule; provided , however that “Excluded Foreign Subsidiary” shall not include: (x) any Foreign Subsidiary the stock or other ownership interest of which has been pledged to the Administrative Agent for the benefit of the Lenders pursuant to a non-U.S. law governed pledge instrument or agreement and (y) any Special Foreign Subsidiary.
“Excluded Inventory” means the Inventory of the Borrowers or the Subsidiary Guarantors which:
(a) consists of goods: (i) not held for sale, such as any shipping labels, any maintenance items, any supplies and packaging, (ii) raw materials and work-in-process provided only fifty percent (50%) of work-in-process will be considered to be Excluded Inventory, and (iii) any Inventory used in connection with research and development; provided , however that Inventory with respect to which “unbilled receivables” exist shall not be considered as Excluded Inventory;
(b) is not subject to a first priority, perfected security interest in favor of the Administrative Agent or is subject to a Lien in favor of any Person other than the Administrative Agent except for any Lien permitted by clauses (C), (E), (G) and (K) of Section 5.3(d) of this Agreement;
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(c) is on consignment; or
(d) is located outside of the United States.
“Excluded M&E” means the operating Equipment of the Borrowers or the Subsidiary Guarantors which:
(a) is a Fixture;
(b) is not owned in fee by such Borrower or such Subsidiary Guarantor;
(c) is not subject to a first priority, perfected security interest in favor of the Administrative Agent for the benefit of the Lender or is subject to a Lien in favor of any Person other than the Administrative Agent except for any Liens permitted pursuant to by clauses (C), (E), (G) and (K) of Section 5.3(d); or
(d) is located outside of the United States.
“Excluded Subsidiary” means each direct and indirect Domestic Subsidiary of UNOVA, Inc. (that is not a Foreign Subsidiary) which (i)(A) is inactive or has no operations and (B) owns Intellectual Property (other than trademarks or tradenames) having a fair market value which, when added to the aggregate fair market value of the Intellectual Property (other than trademarks and tradenames) owned by all other Excluded Subsidiaries and Excluded Foreign Subsidiaries, aggregates less than Two Million Five Hundred Thousand Dollars ($2,500,000), or (ii)(A) maintains a Capitalization of less than Five Million Dollars ($5,000,000), (B) contributes less than Seven Hundred Thousand Dollars ($700,000) to the Consolidated EBITDA of UNOVA, Inc. and its consolidated Subsidiaries and (C) owns Intellectual Property (other than trademarks and tradenames) having a fair market value which, when added to the aggregate fair market value of the Intellectual Property (other than trademarks and tradenames) owned by all other Excluded Subsidiaries and Excluded Foreign Subsidiaries, aggregates less than Two Million Five Hundred Thousand Dollars ($2,500,000), a list of such Excluded Subsidiaries as of the Closing Date is disclosed on the Disclosure Schedule; provided , however that “Excluded Subsidiary” shall in any event include The Factory Power Company, an Ohio corporation.
“ Executive Order No. 13224 ” means the Executive Order No. 13224 on Terrorist Financing effective September 24, 2001, as the same has been or hereafter may be renewed, extended, amended or replaced.
“Existing Credit Facility” means that certain Credit Agreement, dated as of July 12, 2001, as amended, among the Borrowers which are signatories thereto, Bank of America, N. A., as the Administrative Agent, Heller Financial, Inc, as the Syndication Agent, the Financial Institutions Named therein and Bank of America Securities LLC and Heller Financial, Inc. as the Co-Lead Arrangers and Co-Book Managers, and the lenders party thereto.
“Facility Fee” has the meaning set forth in Section 2.14(a).
“Federal Funds Effective Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest one hundredth of one percent (1/100th 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
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day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided , however , that: (a) 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 a rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day and (b) if such rate is not so published for any Business Day, the Federal Funds Rate for such Business Day shall be the average of quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.
“Financial Asset” means a “financial asset” as defined in the UCC which constitutes an investment of a Borrower or its Subsidiary permitted by Sections 5.3(e)(G), 5.3(e)(H), 5.3(e)(I), 5.3(e)(J), 5.3(e)(K) or 5.3(e)(L) (excluding repurchase agreements).
“Financial Impairment” means, in respect of a Person, the distressed economic condition of such Person manifested by any one or more of the following events:
(a) the material discontinuation of the business of the Person; unless such discontinuation is part of a consolidation, or sale permitted by Section 5.2(a) or 5.3(a) hereof;
(b) the Person generally ceases or is generally unable or admits in writing its inability, generally, to make timely payment upon the Person’s debts, obligations, or liabilities as they mature or come due;
(c) the assignment by the Person for the benefit of creditors;
(d) the voluntary institution by the Person of, or the consent granted by the Person to, the involuntary institution of (whether by petition, complaint, application, default, answer (including, without limitation, an answer or any other permissible or required responsive pleading admitting: (i) the jurisdiction of the forum or (ii) any material allegations of the petition, complaint, application, or other writing to which such answer serves as a responsive pleading thereto), or otherwise), of any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation, receivership, trusteeship, or similar proceeding pursuant to or purporting to be pursuant to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation, receivership, trusteeship, or similar Law of any jurisdiction;
(e) the voluntary application by the Person for or consent granted by the Person to the involuntary appointment of any receiver, trustee, or similar officer (i) for the Person or (ii) of or for all or substantially all of the Person’s property; or
(f) the commencement or filing against a Person, without such Person’s application, approval or consent, of an involuntary proceeding or an involuntary petition seeking: (a) liquidation, reorganization or other relief in respect of such Person, its debts or all or a substantial part of its assets under any federal, state or foreign bankruptcy, insolvency, receivership, or similar Law now or hereafter in effect or (b) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Person or for all or substantially all of its assets, and, in any such case, either (i) such proceeding or petition shall continue undismissed for sixty (60) days or (ii) an order or decree approving or ordering any of the foregoing shall be entered.
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“Fiscal Quarter” means any of the four consecutive three-month fiscal accounting periods collectively forming a Fiscal Year of UNOVA, Inc.
“Fiscal Year” means the regular annual accounting period of UNOVA, Inc. for federal income tax purposes that either (a) comprises a 52-53 week fiscal year ending on the Sunday closest to December 31 or (b) ends on December 31. For the avoidance of doubt, in the case of (a) in the immediately preceding sentence, any reference to a Fiscal Year ending on a specific date in the Loan Documents shall mean the 52-53 week fiscal year ending on the Sunday closest thereto.
“Fixed Rate Bonds” means those certain 6.875% Notes due March 15, 2005 and 7.000% Notes due March 15, 2008 of Bonds of UNOVA, Inc.
“Foreign Lender” has the meaning specified in Section 12.3(b)(i) of this Agreement.
“ Foreign Subsidiary ” means (i) any Subsidiary of a Borrower that is not organized under the laws of any state of the United States or the District of Columbia and (ii) any direct or indirect Subsidiary of any Subsidiary described in clause (i) of this definition.
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles of the U.S. consistent with those applied in the preparation of the financial statements referred to in Section 5.1 of this Agreement and otherwise consistently applied.
“Guarantor” means a Person who pledges his credit or property in any manner for the payment or other performance of Indebtedness, agreements or other obligation of another Person including, without limitation, any guarantor (whether of collection or payment), any obligor in respect of a standby letter of credit or surety bond issued for the account of another Person, any surety, any co-maker, any endorser, and any Person who agrees conditionally or otherwise to make any loan, purchase or investment in order thereby to enable another Person to prevent or correct a default of any kind.
“Guaranty Obligations” means, with respect to any Person, without duplication, any obligation of such Person to guarantee any Indebtedness (‘primary Indebtedness’) of any other Person (the ‘primary obligor’) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether contingent or not contingent, (a) to purchase any such primary Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary Indebtedness of the ability of the primary obligor to make payment of such primary Indebtedness, or (d) otherwise to assure or hold harmless the owner of such primary Indebtedness against loss in respect thereof; provided , however , that the term “Guaranty Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary Indebtedness in respect of which such Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
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liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Hazardous Material” means: (a) any asbestos or other material composed of or containing asbestos which is, or may become, even if properly managed, friable, (b) petroleum and any petroleum product, including crude oil or any fraction thereof, and natural gas or synthetic natural gas liquids or mixtures thereof, or (c) any hazardous or toxic waste, substance or material defined as such in (or for purposes of) CERCLA or RCRA, or any other applicable Environmental Laws.
“Hedge Agreement” means (i) any interest rate swap agreement, any interest rate cap agreement, any interest rate collar agreement, or similar agreement or arrangement designed to protect against fluctuations in interest rates as well as (ii) any foreign exchange, option or similar derivative agreement designed to protect against fluctuations in foreign exchange rates.
“Indebtedness” means, with respect to any Person, without duplication, (a) Indebtedness for Borrowed Money, (b) obligations to pay the deferred purchase price of property or services (other than accrued liabilities incurred in the ordinary course of business, including trade payables), (c) Capital Expenditures or other obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as Capitalized Leases, (d) all obligations of such Person as an account party in respect of letters of credit or banker’s acceptances, (e) obligations secured by any Lien on the properties or assets of the Person, provided, however, that any such obligations and liabilities which are limited in recourse to such property shall be included as Indebtedness only to the extent of the net book value of such property as would be shown on the balance sheet of such Person prepared in accordance with GAAP, (f) obligations of such Person in respect of currency or interest rate swap or comparable transactions and (g) Guaranty Obligations in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (f) above. For the avoidance of doubt, in connection with any loan by a Borrower or any Subsidiary from an insurance company or affiliate thereof against the cash surrender value of one or more life insurance policy(ies) issued by such insurance company or affiliate thereof and maintained on selected employees of such Borrower or Subsidiary, Indebtedness shall include only the principal amount of such loan that is in excess of the cash surrender value of such life insurance policy(ies).
“Indebtedness for Borrowed Money” means, with respect to any Person, without duplication, all obligations of such Person for money borrowed including, without limitation, notes payable, drafts accepted representing extensions of credit, obligations evidenced by bonds, debentures, notes or other similar instruments, and obligations upon which interest charges are customarily paid, and all Guaranty Obligations with respect to such obligations. For the avoidance of doubt, (i) in connection with any loan by a Borrower or any Subsidiary from an insurance company or affiliate thereof against the cash surrender value of one or more life insurance policy(ies) issued by such insurance company or affiliate thereof and maintained on selected employees of such Borrower or Subsidiary, Indebtedness for Borrowed Money shall include only the principal amount of such loan that is in excess of the cash surrender value of such life insurance policy(ies) and (ii) Indebtedness for Borrowed Money of a Borrower or any Subsidiary thereof shall not include obligations owed to another Borrower or a Subsidiary thereof, as applicable.
“ Industrial Automation Systems Segment ” means the operations of UNOVA
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Industrial Automation Systems, Inc., R&B Machine Tool Company, UNOVA JSM, Inc., UNOVA IP Corp., Honsberg Lamb Sonderwerkzeugmaschinen GmbH, Cincinnati Machine U.K. Limited, UNOVA U.K. Limited, The Factory Power Company, Cincinnati Machine Korea Corp., Cincinnati Machine UK Holdings Limited, Cincinnati Machine Holdings UK Limited, UNOVA Canada, Inc., and UNOVA Financing Ltd.
“Intellectual Property” means, with respect to any Borrower or Subsidiary, all Patents, Trademarks and Copyrights of such Borrower or such Subsidiary and any licenses thereof.
“Interest Period” means, for each LIBOR Rate Loan comprising a Revolving Credit Borrowing, the period commencing on the date of such LIBOR Rate Loan or the date of the Rate Conversion or Rate Continuation of any Revolving Credit Loans into such LIBOR Rate Loan and ending on the numerically corresponding day of the period selected by the Borrower Representative pursuant to the provisions hereof and each subsequent period commencing on the last day of the immediately preceding Interest Period in respect of such LIBOR Rate Loans and ending on the last day of the period selected by the Borrower Representative pursuant to the provisions hereof; provided , however , that the duration of each such Interest Period shall be one, two, three, or six months, in each case as the Borrower Representative may select by delivery to the Administrative Agent of a Credit Request therefor in accordance with Section 2.3 of this Agreement or a Rate Conversion\Continuation Request in accordance with Section 2.12 of this Agreement, and provided , further , that:
(i) the Interest Period for each LIBOR Rate Loan comprising part of the same Revolving Credit Borrowing shall be of the same duration;
(ii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided , however , that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day;
(iii) if the Interest Period commences on a Business Day for which there is no numerical equivalent in the calendar month in which the Interest Period is to end, such Interest Period shall end on the last Business Day of such calendar month;
(iv) with respect to LIBOR Rate Loans, no Interest Period may end on a date later than the Revolving Credit Termination Date; and
(v) the Borrowers shall not be entitled to have an aggregate of more than twelve (12) LIBOR Rate Loans outstanding at any one time.
“IRS” means the Internal Revenue Service of the United States.
“Joinder Agreement” means an agreement, in the form of Exhibit O attached hereto, or otherwise in form and substance reasonably acceptable to the Administrative Agent, by which a Domestic Subsidiary joins as a Borrower under the Credit Agreement and the other Loan Documents, as applicable.
“KeyBank” means KeyBank National Association, a national banking association.
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“Law” means any law, treaty, regulation, statute or ordinance, common law, civil law, or any case precedent, ruling, requirement, directive or request having the force of law of any foreign or domestic governmental authority, agency or tribunal.
“LC Exposure” means, with respect to any Lender, at any time of determination, such Lender’s Pro Rata Share of the sum of: (a) the aggregate undrawn amount of all Letters of Credit outstanding at such time, plus (b) the aggregate amount that has been drawn under such Letters of Credit for which the LC Issuer has not at such time been reimbursed by the Borrowers.
“LC Issuer” means, with respect to any Letter of Credit, the issuer of such Letter of Credit, which shall be, with respect to any Letter of Credit hereunder, KeyBank, or any other Lender that is requested by the Administrative Agent to act in such capacity with the approval of the Borrower Representative, and agrees to act as the LC Issuer, and each of their respective successors and assigns (any of which may be replaced at the sole discretion of the Administrative Agent).
“ Lead Arranger ” means KeyBank and its successors or assigns.
“Lender Default” means (i) the refusal (which has not been retracted) of a Lender in violation of its obligations under this Agreement to make available to the Administrative Agent its Pro Rata Share of any Revolving Credit Borrowing hereunder or to fund any portion of the participation purchase price payable by such Lender for its participating interests hereunder or (ii) the notification (which has not been retracted) to the Administrative Agent or the Borrower Representative by a Lender that such Lender does not intend to comply with its obligations hereunder to make available to the Administrative Agent its Pro Rata Share of any Revolving Credit Borrowing hereunder or to fund any portion of the participation purchase price payable by such Lender for its participating interests hereunder.
“Lenders” means the financial institutions listed on the signature pages hereof as the “Lenders” and having Revolving Credit Commitments hereunder or outstanding Revolving Credit Loans hereunder and the successors thereto and assignees thereof.
“Lending Installation” means, with respect to a Lender or its successor or assigns, the branch, Subsidiary or Affiliate of such Lender or its successor or assigns specified under the name of such Lender on the signature pages hereto or as otherwise selected by such Lender pursuant to Section 2.6 of this Agreement, or such other branch, Subsidiary or Affiliate as such Lender may from time to time specify in writing to the Borrower Representative, the Administrative Agent and the Lenders as its Lending Installation.
“Lending Office” means, with respect to any Lender or LC Issuer, the office of such Lender or LC Issuer specified as its “Lending Office” under its name on the signature pages hereto, or such other office of such Lender or LC Issuer as such Lender or LC Issuer may from time to time specify in writing to the Borrower Representative and the Administrative Agent as the office at which Revolving Credit Loans or Letters of Credit are to be made, issued or maintained, as the case may be.
“Letter of Credit” means each: (i) documentary letter of credit and (ii) each standby letter of credit for the account of a Borrower or any Subsidiary thereof issued by the LC Issuer hereunder.
“Letter of Credit Collateral Account” has the meaning specified in Section 7.6
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of this Agreement.
“Letter of Credit Obligations” means (a) the obligations of the Borrowers to reimburse the LC Issuer hereunder, (b) all fees owing to the LC Issuer under this Agreement and the other Loan Documents, (c) any reasonable costs and expenses reimbursable to the LC Issuer pursuant to Section 13.3 of this Agreement, and (d) taxes, Other Taxes, compensation, indemnification obligations or other amounts owing to the LC Issuer under this Agreement, the reimbursement agreement executed in favor of the LC Issuer or any other Loan Document.
“Letter of Credit Request” means a request for the issuance of a Letter of Credit made in accordance with this Agreement, in the form attached hereto as Exhibit B-2 and incorporated herein by reference.
“LIBOR Rate Borrowing” means a Revolving Credit Borrowing consisting of LIBOR Rate Loans.
“LIBOR Rate Loan” means a Revolving Credit Loan, denominated in Dollars, which bears interest as provided in Section 2.11(b) of this Agreement.
“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of similar arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
“Loan Account” has the meaning set forth in Section 2.7(a) of this Agreement.
“Loan Documents” means (i) this Agreement, any note, mortgage (if any) or deed of trust (if any), security agreement, pledge, guaranty or other lien instrument, any fee letter, reimbursement agreement (if any), notice, Revolving Credit Loan request, officer’s certificate or other writing of any kind which is now or hereafter required to be delivered by the Borrowers to the Administrative Agent, the Lenders or the LC Issuer (or any of their respective Affiliates) in connection with this Agreement, including, without limitation, the Revolving Credit Notes and (ii) any Designated Hedge Agreement.
“London Interbank Offered Rate” means, for any Interest Period with respect to a LIBOR Rate Borrowing, the quotient (rounded upwards, if necessary, to the nearest one sixteenth of one percent (1/16th of 1%)) of: (x) the per annum rate of interest, determined by the Administrative Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) as of approximately 12:00 noon (London time) two Business Days prior to the beginning of such Interest Period pertaining to such LIBOR Rate Loan, as provided by Bloomberg’s or Reuters (or any other similar company or service that provides rate quotations comparable to those currently provided by such companies as the rate in the London interbank market), as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Dollars in immediately available funds with a maturity comparable to such Interest Period divided by (y) a number equal to 1.00 minus the Eurocurrency Reserve Percentage. In the event that such rate quotation is not available for any reason, then the rate (for purposes of clause (x) hereof) shall be the rate, determined by the Administrative Agent as of approximately 12:00 noon (London time) two Business Days prior to the beginning of such Interest Period pertaining to such LIBOR Rate Loan, to be the average (rounded upwards, if necessary, to the nearest one sixteenth of one percent (1/16th of 1%)) of the per annum rates at which deposits in Dollars in immediately available funds in an amount comparable to
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such LIBOR Rate Borrowing and with a maturity comparable to such Interest Period are offered to the prime banks by leading banks in the London interbank market. The London Interbank Offered Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Percentage.
“Material Adverse Effect” means: (a) a material adverse effect on the business, properties, operations or condition (financial or otherwise) of the Borrowers and their Subsidiaries taken as a whole, (b) an impairment of a material portion of the Collateral taken as a whole, (c) a material impairment of the Borrowers’ ability (taken as a whole) to repay the Obligations, (d) a material impairment to the Administrative Agent’s security interest and Lien on the Collateral (taken as a whole) or the priority thereof, or (e) a material adverse effect on the legality, validity or enforceability of this Agreement or the other Loan Documents.
“Material Business Agreement” means each agreement or contract (not including Material License Agreements) of a Borrower or any Subsidiary thereof (other than any agreement that by its terms may be terminated upon 60 days’ notice or less) the termination of which could reasonably be expected to result in a Material Adverse Effect.
“Material License Agreement” means each license agreement of a Borrower in respect of Third Party Intellectual Property the termination of which could reasonably be expected to result in a Material Adverse Effect.
“Maximum Lawful Rate” has the meaning specified in Section 13.6 of this Agreement.
“ Moody’s ” means Moody’s Investors Services, Inc., and any successor thereto.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as such term is defined in Section 3(27) of ERISA.
“Net Proceeds” means the cash proceeds (including cash proceeds subsequently received in respect of non-cash consideration initially received) from any sale, lease, transfer or other disposition of any assets (excluding real estate) of, or equity interest in, Industrial Automation Systems Segment (or the merger of such segment or division thereof with or into another Person) to a Person received by the Borrowers (net of (x) selling expenses, including without limitation any reasonable broker’s fees or commissions, costs of discontinuing operations associated with such assets and taxes and tax liabilities arising as a result of any gain associated with such sale or disposition and (y) the repayment of any Indebtedness secured by a purchase money Lien on such assets that is permitted under this Agreement).
“Notice Office” means (i) with respect to the Administrative Agent, such office of the Administrative Agent specified as its “Notice Office” under its name on the signature pages hereto, or such other office, located in a city in the United States Eastern Time Zone, as the Administrative Agent may from time to time specify in writing to the Borrower Representative, the Lenders and the LC Issuer as the office to which notices to the Administrative Agent are to be given by the Borrower Representative, the Lenders and the LC Issuer, as the case may be, and (ii) with respect to each Lender and each LC Issuer, such office thereof specified as its “Notice Office” under its name on the signature pages hereto or, if such Lender shall have become a party hereto pursuant to Section 10.2, in the applicable Assignment and Assumption, or such other office as such Lender or LC Issuer may from time to time specify in writing to the Borrower Representative, the Administrative Agent and the LC Issuer as the office to which notices thereto are to be
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given by the Borrower Representative, the Lenders or the LC Issuer, as the case may be.
“Non-Excluded Taxes” has the meaning set forth in Section 12.3(a) of this Agreement.
“Obligations” means the present and future obligations of each of the Borrowers to the Administrative Agent, the Lenders and the LC Issuer under this Agreement or any other Loan Document including without limitation (a) the outstanding principal and accrued interest (including interest accruing after a petition for relief under the federal bankruptcy laws has been filed, whether or not allowed) in respect of any Revolving Credit Loans advanced to the Borrowers by the Lenders plus the outstanding LC Exposure of the Lenders and the obligation of the Borrowers to repay the Lenders for Revolving Credit Loans thereby in connection with the LC Exposure, (b) all fees owing to the Lenders or the Administrative Agent under this Agreement and the other Loan Documents, (c) any costs and expenses reimbursable to the Lenders or the Administrative Agent pursuant to Section 13.3 of this Agreement, (d) Taxes, Other Taxes, compensation, indemnification obligations or other amounts owing by the Borrowers to the Administrative Agent or the Lenders under this Agreement, the Notes or any Loan Document, (e) Letter of Credit Obligations owing to the LC Issuer, (f) the Unpaid Reimbursement Obligation and (g) the Designated Hedge Obligations and any fees, charges or other amounts owing to any Lender for cash management services owing to any Lender (amounts owing to a Person or to an Affiliate of a Person which was a Lender at the time the hedge exposure of a Borrower was incurred, or which was a Lender at the time the cash management charge was incurred, or which was the LC Issuer at the time the Letter of Credit Obligations were incurred shall continue to be considered as an Obligation for all purposes hereunder and secured hereby even after such Person is no longer a Lender or the LC Issuer unless such Obligation has been terminated or such Person otherwise waives such Obligation).
“Operating Account” means, with respect to the Borrowers, the account described in the Disclosure Schedule and maintained by and in the name of the Borrower Representative with KeyBank National Association for the purposes of disbursing the proceeds of Revolving Credit Loans.
“Other Taxes” has the meaning specified in Section 12.3(a) of this Agreement.
“ Participant ” has the meaning specified in Section 10.4 of this Agreement.
“Patent” means, with respect to any Borrower or Subsidiary, all United States utility and design patents of such Borrower, together with any extensions, reexaminations and reissues of such patents, patents of addition, patent applications, divisions, continuations, continuations-in-part, whether now existing or hereafter acquired.
“Payment Office” means, with respect to the Administrative Agent, such office of the Administrative Agent specified as its “payment office” under its name on the signature pages hereto, or such other office in the U.S. as the Administrative Agent may from time to time specify in writing to the Borrower Representative and the Lenders as the office to which payments are to be made by the Borrowers or funds are to be made accessible to the Administrative Agent by the Lenders, as the case may be.
“PBGC” means the Pension Benefit Guaranty Corporation or any other governmental authority succeeding to any of its functions.
“Permitted Acquisition ” shall mean and include any Acquisition by a Borrower
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or any Subsidiary as to which all of the following conditions are satisfied or as to which the Required Lenders have otherwise consented in accordance with Section 13.1 of this Agreement:
(i) such Acquisition does not involve the Acquisition of a Person which is: (A) a general partnership, general partner of a limited partnership or is otherwise a Person as to which limited liability is unavailable to the holders of its equity or other similar ownership interests therein (unless the equity or similar ownership interests in such entities or Person shall be held by a Subsidiary created in connection with such Permitted Acquisition and as to which limited liability is available to the holders of such equity or other ownership interests), (B) a trust or unincorporated association (unless the record and beneficial interests in any such trust or association shall be held by a Subsidiary created in connection with such Permitted Acquisition and as to which limited liability is available to the holders of such equity or other ownership interests), or (C) without the consent of the Required Lenders, a Person having an equity interest or other similar interest held by a foreign government or any political subdivision or agency thereof unless the same is a requirement to conduct business in a particular foreign jurisdiction or political subdivision;
(ii) such Acquisition (i) involves a line or lines of business which are substantially similar, complementary or related to the lines of business in which the Borrowers and their Subsidiaries, considered as an entirety, are engaged on the Closing Date and (ii) would not subject the Administrative Agent or the Lenders to regulatory or third party approvals in connection with the exercise of rights and remedies under this Agreement and the other Loan documents (unless such approvals are generally required in connection with the exercise of similar rights and remedies by the Administrative Agent or such Lenders in connection with other Borrowers);
(iii) such Acquisition is not actively opposed by the board of directors (or similar governing body) of the selling Person or the person whose equity interests are to be acquired, unless all of the Lenders specifically approve or consent to such Acquisition in writing;
(iv) during such time as a Reference Rating Upgrade does not exist, the Total Acquisition Consideration for all Permitted Acquisitions consummated after the Closing Date shall be limited to $20,000,000 in the aggregate;
(v) if a Reference Rating Upgrade exists, the Total Acquisition Consideration for all Permitted Acquisitions consummated after the Closing Date shall be limited to $50,000,000 in the aggregate; provided , however , in the event that such Reference Rating Upgrade ceases to exist, the Total Acquisition Consideration shall be limited to the greater of the Total Acquisition Consideration expended to date or $20,000,000 in the aggregate;
(vi) if a Reference Rating Upgrade exists and UNOVA, Inc. divests the Industrial Automation System Segment, the Total Acquisition Consideration for all Permitted Acquisitions consummated after the Closing Date shall be limited to $75,000,000 in the aggregate; provided , however , in the event that such Reference Rating Upgrade ceases to exist,
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the Total Acquisition Consideration shall be limited to the greater of the Total Acquisition Consideration expended to date or $20,000,000 in the aggregate;
(vii) in the event that such Acquisition constitutes an acquisition of equity and/or assets with an aggregate total consideration payable (including in the form of equity securities) of greater than Twenty Five Million Dollars ($25,000,000), at least thirty (30) Business Days prior to the completion of such transaction, the Borrower Representative shall have delivered to the Administrative Agent (A) a notice of the proposed Permitted Acquisition and (B) a certificate of a Responsible Officer of the Borrower Representative demonstrating, in reasonable detail, the computations necessary to show compliance with the financial covenants contained in Section 5.4 hereof on a pro forma basis and the other requirements set forth in the definition, such pro forma calculations being determined as if (x) such Acquisition had been completed at the beginning of the most recent Testing Period for which financial information for the Borrowers and the business of the Person to be acquired is available and has been delivered to the Administrative Agent at least 10 Business Days prior to the completion of such transaction (which shall in the case of the acquired business include audited financial statements for the most recent fiscal year, unless the same are unavailable and unaudited financial statements are acceptable to the Administrative Agent) and (y) any Indebtedness incurred to finance such Acquisition, had been outstanding for such entire Testing Period;
(viii) no Event of Default has occurred which is continuing and has not been waived in accordance with Section 13.1 of this Agreement and no Event of Default will occur by reason of consummation of the Acquisition;
(ix) the assets of the Person acquired shall be free of all Liens other than Liens permitted pursuant to Section 5.3(d); and
(x) the Administrative Agent shall have received, on or before the closing of such Acquisition, the documents and deliveries reasonably requested by the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent to the extent required under Section 5.2(o) of this Agreement.
“ Permitted Tax Distributions ” means, for or in respect of any Fiscal Year or other tax period of a Subsidiary of UNOVA, Inc. (each a “Tax Period”), a distribution by Such Subsidiary to its shareholder, member or other equity holder in an amount equal to the product of: (x) the taxable income of such Subsidiary for such Tax Period multiplied by (y) the Assumed Tax Rate. Permitted Tax Distributions shall be calculated and made in advance of the dates on which estimated tax payments relating to the pertinent Tax Period are due, and shall be made without regard to the actual tax status of any shareholder, member or other equity holder of such Subsidiary. Notwithstanding the foregoing, Permitted Tax Distributions shall also include any amounts determined pursuant to the foregoing formula with respect to adjustments to the taxable income of such Subsidiaary imposed by any governmental authority (or otherwise).
“Person” means a natural person, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, limited liability company, joint venture, association or other entity, a government or any political subdivision or
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agency thereof, or any other entity.
“Potential Default” means an event, condition or thing which with the lapse of any applicable grace period or with the giving of notice or both would constitute, an Event of Default referred to in Section 6 of this Agreement and which has not been appropriately waived in writing in accordance with this Agreement or fully corrected, prior to becoming an actual Event of Default.
“Pro Rata Share” means, in respect of any Lender, the quotient (expressed as a percentage) obtained at any time by dividing: (x) such Lender’s Revolving Credit Commitment at such time by (y) the aggregate amount of the Revolving Credit Commitments of all of the Lenders; provided , however , that, if all of the Revolving Credit Commitments are terminated pursuant to the terms hereof, then, such Lender’s Pro Rata Share shall mean the quotient (expressed as a percentage) obtained by dividing (x) the aggregate amount of such Lender’s Revolving Credit Loans (together with any participating interests of such Lender hereunder) outstanding at such time by (y) the aggregate amount of Revolving Credit Loans (together with all such participating interests of all of the Lenders hereunder) of all of the Lenders outstanding at such time.
“Rate Continuation” means a continuation pursuant to Section 2.12 of this Agreement of LIBOR Rate Loans having a particular Interest Period as LIBOR Rate Loans having an Interest Period of the same duration.
“Rate Conversion” means a conversion pursuant to Section 2.12 of this Agreement of Revolving Credit Loans of one Type into Revolving Credit Loans of another Type and, with respect to LIBOR Rate Loans, from one permissible Interest Period to another permissible Interest Period.
“Rate Conversion/Continuation Request” has the meaning specified in Section 2.12 of this Agreement.
“RCRA” means the Solid Waste Disposal Act, including the Resource Conservation and Recovery Act and amendments thereto, 42 U.S.C. §§ 6901 et seq.
“Reference Rating Upgrade” means an upgrade of the senior unsecured credit ratings of UNOVA, Inc. to a rating of at least BB- and Ba3 by S&P and Moody’s, respectively; provided , however , that a “Reference Rating Upgrade” shall not be deemed to exist if both (i) the senior unsecured credit ratings of UNOVA, Inc. have been downgraded by both S&P and Moody’s to ratings lower than BB- and Ba3, respectively, and (ii) ninety (90) days have elapsed since the occurrence of the event described in clause (i) and the senior unsecured ratings of UNOVA, Inc. have not been upgraded by S&P and Moody’s to a rating of at least BB- and Ba3, respectively.
“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043 of ERISA excluding those events for which the requirement of notice has been waived by the PBGC or applicable regulations.
“Required Lenders” means: (i) if the Revolving Credit Commitments have not been terminated pursuant to the terms hereof, Lenders (excluding, for purposes of this clause (i) only, any Lender then constituting a Defaulting Lender) having at least 66 2/3%
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of the aggregate outstanding Revolving Credit Commitments of the Lenders at such time (excluding, for purposes of determining the aggregate outstanding Revolving Credit Commitments of the Lenders at such time, the outstanding Revolving Credit Commitments of any such Defaulting Lender) and (ii) if the Revolving Credit Commitments are terminated pursuant to the terms hereof, Lenders having at least 66 2/3% of the aggregate outstanding principal amount of the Revolving Credit Loans of all of the Lenders outstanding at such time.
“Responsible Officer” means, with respect to the Borrower Representative or a Borrower, the President, Chief Executive Officer, Chief Financial Officer or Treasurer thereof.
“Revolving Credit Borrowing” means a group of Revolving Credit Loans of a single Type made by the Lenders on a single date and as to which a single Interest Period is in effect (i.e. any group of Revolving Credit Loans made by the Lenders of a different Type, or having a different Interest Period (regardless of whether such Interest Period commences on the same date as another Interest Period), or made on a different date shall be considered to comprise a different Revolving Credit Borrowing).
“Revolving Credit Commitment” means the commitment of each Lender to make Revolving Credit Loans up to the amount set forth opposite such Lender’s name in Annex I hereto as its Revolving Credit Commitment as such commitment may be reduced from time to time pursuant to Section 2.9 and/or Section 7 hereof, or adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 10.2 of this Agreement.
“Revolving Credit Loan” means a loan denominated in Dollars made on a revolving credit basis and made by a Lender to the Borrowers pursuant to Section 2.1(a) of this Agreement (whether made by a Lender pursuant to a Credit Request or by reason of a Deemed Credit Request).
“Revolving Credit Note” means the promissory note of the Borrowers payable to the order of a Lender, in substantially the form of Exhibit A hereto.
“Revolving Credit Termination Date” means September 30, 2007, or earlier if the Revolving Credit Commitments are terminated pursuant to the terms of this Agreement.
“Secured Bond Asset” means cash on deposit in the Secured Bond Asset Deposit Account or Securities Entitlements of the Borrowers with respect to Financial Assets held by a securities intermediary in the Secured Bond Asset Securities Account, in each case, in which the Administrative Agent has a perfected security interest by means of a Deposit Account Control Letter or a Securities Account Control Letter.
“ Secured Bond Asset Deposit Account ” has the meaning specified in Section 3.1(a)(D) of this Agreement.
“ Secured Bond Asset Securities Account ” has the meaning specified in Section 3.1(a)(E) of this Agreement.
“Secured Loan Asset” means cash on deposit in the Secured Loan Asset Deposit Account or Securities Entitlements of the Borrowers with respect to Financial Assets held by a securities intermediary in the Secured Loan Asset Securities Account, in each case, in which the Administrative Agent has a first priority, perfected security interest for the
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benefit of the Lenders and the Designated Hedge Creditor by means of a Deposit Account Control Letter or a Securities Account Control Letter.
“ Secured Loan Asset Deposit Account ” has the meaning specified in Section 3.1(a)(D) of this Agreement.
“ Secured Loan Asset Securities Account ” has the meaning specified in Section 3.1(a)(E) of this Agreement.
“ Securities Account Control Letter ” means a letter agreement, substantially in the form of Exhibit M to the Credit Agreement (with such changes as may be reasonably agreed to by the Administrative Agent) or such other form in form and substance reasonably acceptable to the Administrative Agent, executed by a Borrower and the Administrative Agent and acknowledged and agreed to by the relevant Approved Securities Intermediary.
“ S&P ” means Standard and Poor’s Rating Services, a division of McGraw Hill Companies, Inc., and any successor thereto.
“Solvent” means, with respect to any Person, as of any date of determination, that: (a) the fair value of the property of the Person as of such date is greater than the total amount of the liabilities (including contingent liabilities computed at the amount that, in light of all the facts and circumstances existing as of such date, represents the amount that can reasonably be expected to become an actual or matured liability) of the Person, (b) the present fair salable value of the assets of the Person as of such date is not less than the amount that will be required to pay the probable liabilities of the Person on its debts as they become absolute and matured, (c) the Person is able to pay all liabilities of the Person as those liabilities mature, and (d) the Person does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage. The determination of whether a Person is Solvent shall take into account all such Person’s assets and liabilities regardless of whether, or the amount at which, any such asset or liability is included on a balance sheet of such Person prepared in accordance with GAAP, including assets such as contingent contribution or subrogation rights, business prospects, distribution channels and goodwill. In computing the amount of contingent or unrealized assets or contingent or unliquidated liabilities at any time, such assets and liabilities will be computed at the amounts which, in light of all the facts and circumstances existing at such time, represent the amount that reasonably can be expected to become realized assets or matured liabilities, as the case may be. In computing the amount that would be required to pay a Person’s probable liability on its existing debts as they become absolute and matured, reasonable valuation techniques, including a present value analysis, shall be applied using such rates over such periods as are appropriate under the circumstances, and it is understood that, in appropriate circumstances, the present value of contingent liabilities may be zero.
“Special Foreign Subsidiaries” means Intermec International B.V., a Netherlands corporation, Intermec Technologies GmbH, a German corporation, Intermec Technologies S.r.l., an Italian corporation, Intermec Technologies U.K. Limited, a U.K. corporation, Intermec Technologies S.A.S., a French corporation, and Intermec Technologies, S.A., a Spanish corporation.
“Subsidiary” means, in respect of any Person that is not a natural Person, a corporation or other business entity the shares constituting a majority of the outstanding capital stock (or other form of ownership) or constituting a majority of the voting power in any election of directors (or shares constituting both majorities) of which are (or upon
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the exercise of any outstanding warrants, options or other rights would be) owned directly or indirectly at the time in question by such Person or another subsidiary of such Person or any combination of the foregoing.
“Subsidiary Guarantors” means all direct and indirect Domestic Subsidiaries of UNOVA, Inc. other than the Borrowers, the Excluded Subsidiaries and the Foreign Subsidiaries.
“Subsidiary Guaranty” means each guaranty, in the form of Exhibit D-3 hereto, executed by a Subsidiary Guarantor in favor of the Administrative Agent for the benefit of the Lenders pursuant to Section 5.2(l) of this Agreement.
“Subordinated Indebtedness” means (x) all Indebtedness of the Borrowers or any of their respective Subsidiaries, now or hereafter existing, other than the Obligations, and (y) any monetary obligations of the Borrowers or any of their Subsidiaries in connection with any repurchase or redemption of preferred membership units, equity securities or warrants of the Borrowers or any such Subsidiary, in each case, that is expressly subordinated and made junior to, pursuant to the terms of a subordination agreement in form and substance satisfactory to the Required Lenders, (i) the payment and performance in full of the Obligations and (ii) the payment and performance of the Guaranty Obligations of a Guarantor and (iii) which is and which subordination is evidenced by a written agreement in form and substance satisfactory to the Required Lenders.
“Testing Period” shall mean, (i) in respect of the Fiscal Quarter ending on December 31, 2004, the period commencing on the Closing Date and continuing through December 31, 2004, (ii) in respect of the Fiscal Quarter ending on March 31, 2005, the period commencing on the Closing Date and continuing through March 31, 2005, (iii) in respect of the Fiscal Quarter ending on June 30, 2005, the period commencing on the Closing Date and continuing through June 30, 2005, and (iv) in respect of each Fiscal Quarter ending after June 30, 2005, the period consisting of the four consecutive Fiscal Quarters then last ended (whether or not such quarters are all within the same Fiscal Year).
“Third Party Intellectual Property” means any Intellectual Property not owned by a Borrower.
“ Total Acquisition Consideration ” means, with respect to any Permitted Acquisition, the total of all consideration (whether in cash, property or other form of consideration other than consideration in the form of equity securities) received by the Person whose assets or stock is being acquired or by the shareholders thereof in connection with the Permitted Acquisition but excluding in all circumstances consideration consisting of equity securities of UNOVA, Inc. For avoidance of doubt, consideration in the form of equity securities shall not be included in the determination of Total Acquisition Consideration.
“Trademarks” means, with respect to any Borrower or Subsidiary, all United States trademarks, service marks, trade names, trade dress or other indicia of trade origin of such Borrower, whether registered or unregistered, United States trademark and service mark registrations and applications for trademark or service mark registrations and any extension, modification or renewal thereof, whether now existing or hereinafter acquired.
“Type” means a LIBOR Rate Loan or an Alternate Base Rate Loan, as applicable.
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“United States” and “U.S.” each means United States of America.
“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , however , that in the event that, by reason of mandatory provisions of Law, any or all of the attachment, perfection or priority of the Administrative Agent’s security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as from time to time in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for the purposes of definitions related to such provisions; provided , further , that if the UCC is amended after the date hereof, such amendment will not be given effect for the purposes of this Agreement if and to the extent the result of such amendment would be to limit or eliminate any item of Collateral.
“Unpaid Reimbursement Obligation” has the meaning set forth in Section 2.2(e) of this Agreement.
“USA Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“U.S. Lender” has the meaning set forth in Section 12.3(b)(ii) of this Agreement.
“Withdrawal Liability” means (in respect of any Borrower, its Subsidiaries and their ERISA Affiliates), at any date of determination, the amount equal to the aggregate present value (as defined in Section 3(27) of ERISA) at such date of the amount of withdrawal liability claimed to have been incurred as a result of a withdrawal within the scope of Title IV of ERISA from any Employee Benefit Plan less any portion thereof as to which such Borrower reasonably believes, after appropriate consideration of the possible adjustments arising under subtitle E of Title IV of ERISA, such Borrower, its Subsidiaries and their ERISA Affiliates will have no liability.
“Wholly-Owned Subsidiary” means, in respect of any Person, a Subsidiary of such Person in which such Person owns directly or indirectly all of the outstanding capital stock (or other form of ownership) and controls all of the voting power in any election of directors or otherwise.
1.2 Accounting Terms; Calcu lations. All accounting and financial terms not specifically defined herein shall be construed in accordance with GAAP as in effect from time to time. In all cases, such accounting and financial terms shall be applied on a basis consistent with those applied in the preparation of consolidated audited financial statements of UNOVA, Inc. and its consolidated Subsidiaries for the Fiscal Year ending December 31, 2003 (audited by Deloitte & Touche LLP); provided , however , if any change in GAAP in itself affects the calculation of any financial covenant set forth in this Agreement, the Borrower Representative may by written notice to the Administrative Agent, or the Administrative Agent may, by written notice to the Borrower Representative, require that such covenant thereafter be calculated in accordance with GAAP as in effect (and applied by UNOVA, Inc.) immediately before such change in GAAP occurs. If any such notice is given, compliance certificates delivered pursuant to this Agreement after such change shall be accompanied by reconciliations of the difference between the calculation set forth therein and a calculation made in accordance with GAAP as in effect from time to time after such change occurs.
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1.3 Authorization of Borrower Repr esentative. For purposes of this Agreement, each of the Borrowers hereby: (i) authorizes the Borrower Representative to make such requests, give such notices, furnish such certificates or execute such consents as may be required, permitted, requested by or under this Agreement for the benefit of such Borrower, (ii) authorizes the Borrower Representative to execute applications for Letters of Credit hereunder on behalf of such Borrower, and (iii) authorizes the Administrative Agent to treat such requests, notices, certificates or consents made, given or furnished by the Borrower Representative or applications executed by the Borrower Representative on behalf of a Borrower for the issuance of a Letter of Credit, as having been made, given or furnished by such Borrower for purposes of this Agreement. Each of the Borrowers agrees to be bound by all such requests, notices, certificates and consents and other such actions by the Borrower Representative and agrees that all notices to and demands upon the Borrower Representative in respect of any Borrower shall constitute effective notice to and demand upon such Borrower for all purposes hereof.
1.4 Construction of Ter ms Generally. In this Agreement, for the purpose of computing periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. Unless the context otherwise requires, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument, or other document as from time to time amended, supplemented or otherwise modified as permitted hereunder, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof,” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not any particular provision hereof, (d) the word “including” means “including without limitation” and (e) any reference to payment, repayment, or prepayment shall be construed as referring to payment of immediately available funds in Dollars.
1.5 USA Patriot Act Notification; Representations and Undertaking.
(a) Borrower ’s Notification and Representation. The Borrowers are hereby notified that federal Law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or other financial services product. Each Borrower agrees to provide such documentary and other evidence of such Borrower’s identity as may be reasonably requested by the Administrative Agent at any time to enable the Administrative Agent to verify such Borrower’s identity or to comply with any applicable Law or regulation, including, without limitation, the USA Patriot Act.
(b) Lenders’ Certification. Each Lender or assignee or participant of a Lender that is not incorporated under the Laws of the United States or a state thereof (and is not excepted from the certification requirement contained in Section 313 of the USA Patriot Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United states or foreign country and (ii) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank) shall deliver to the Administrative Agent the certification, or, if applicable, recertification, certifying that such Lender, assignee or participant, as applicable, is not a “shell” and certifying to other matters as required by Section 313 of the USA Patriot Act and the applicable regulations: (1) within ten (10) days after the request by the Administrative Agent, and (2) at such other times as are required under the USA Patriot Act.
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Section 2 TERMS OF THE CREDIT FACILITIES.
2.1 Revolving Credit Facility.
(a) Revolving Credit Loans . Subject to the terms and conditions set forth in this Agreement, each of the Lenders severally agrees to make, from time to time on and after the Closing Date until and including the Business Day immediately preceding the Revolving Credit Termination Date, Revolving Credit Loans to the Borrowers; provided , however , that the outstanding principal amount of Revolving Credit Loans by such Lender plus the LC Exposure of such Lender shall not at any time exceed the amount of the Revolving Credit Commitment of such Lender in effect at such time; provided , further , that: (A) during any period of time in which a Reference Rating Upgrade does not exist, the aggregate outstanding principal amount of Revolving Credit Loans plus LC Exposure of the Lenders shall not at any time during such period exceed an amount equal to the sum of (i) Fifty Million Dollars ($50,000,000) plus (ii) the amount of Secured Loan Assets in which Administrative Agent has a first priority, perfected security interest for the benefit of the Lenders and (B) during any period of time in which a Reference Rating Upgrade exists, the aggregate outstanding principal amount of Revolving Credit Loans plus LC Exposure of the Lenders shall not at any time during such period exceed the greater of (1) Fifty Million Dollars ($50,000,000) and (2) the lesser of: (x) an amount equal to the sum of the Asset Coverage at such time plus the amount of Secured Loan Assets in which Administrative Agent has a first priority, perfected security interest for the benefit of the Lenders or (y) the Revolving Credit Commitments of the Lenders in effect at such time. Within the limits set forth in this Agreement, the Borrowers may borrow, prepay and reborrow Revolving Credit Loans. The Revolving Credit Loans shall be comprised of one or more Revolving Credit Borrowings as the Borrowers may elect from time to time, by delivery to the Administrative Agent by the Borrower Representative of a Credit Request or a Rate Conversion/Continuation Request in accordance with this Agreement. Each Revolving Credit Borrowing comprised of LIBOR Rate Loans shall be in an aggregate amount of not less than One Million Dollars ($1,000,000) or an integral multiple of One Million Dollars ($1,000,000) in excess thereof and each Revolving Credit Borrowing comprised of Alternate Base Rate Loans shall be in an aggregate amount of not less than One Hundred Thousand Dollars ($100,000) or an integral multiple of Fifty Thousand Dollars ($50,000) in excess thereof.
(b) Revolving Credit Notes . Each Lender’s Revolving Credit Loans to a Borrower shall be evidenced at all times by a Revolving Credit Note which shall: (i) be executed and delivered by such Borrower and payable to the order of such Lender and (ii) be in a stated principal amount equal to the Revolving Credit Commitment of such Lender and payable for the unpaid principal amount of the Revolving Credit Loans evidenced thereby, (iii) mature on the Revolving Credit Termination Date, (iv) bear interest as provided in this Agreement, (v) be subject to mandatory prepayment as provided in this Agreement, and (vi) be entitled to the benefits of this Agreement and the other Loan Documents.
2.2 Letter of Credit Facility.
(a) Issuance of Letters of Credit . Subject to the terms and conditions set forth in this Agreement, the LC Issuer agrees to issue Letters of Credit for the account of any Borrower or for the account of any non-borrower Subsidiary thereof (the Borrower and Subsidiary being individually a “Letter of Credit Obligor” and collectively “Letter of Credit Obligors”) and to renew, extend and amend such Letters of Credit; provided , however , that, the aggregate LC Exposure plus the outstanding principal amount of Revolving Credit Loans by the Lenders shall not at any time exceed the Revolving Credit Commitments of the Lenders at such time; provided , further , that: (A) during any period of time a Reference Rating Upgrade does not exist, the aggregate LC Exposure of the Lenders plus the aggregate outstanding principal amount of Revolving Credit Loans of the Lenders shall not at any time during such period exceed an
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amount equal to the sum of (i) Fifty Million Dollars ($50,000,000) plus (ii) the amount of Secured Loan Assets in which Administrative Agent has a perfected security interest for the benefit of the Lenders and (B) during any period of time a Reference Rating Upgrade exists, the aggregate LC Exposure of the Lenders plus the aggregate outstanding principal amount of Revolving Credit Loans of the Lenders shall not at any time during such period exceed the greater of (1) Fifty Million Dollars ($50,000,000) and (2) the lesser of: (x) an amount equal to the sum of the Asset Coverage at such time plus the amount of Secured Loan Assets in which Administrative Agent has a first priority, perfected security interest for the benefit of the Lenders or (y) the Revolving Credit Commitments of the Lenders in effect at such time.
(b) Form and Term of Letters of Credit. Each Letter of Credit shall be issued in such form as the LC Issuer may reasonably require subject (i) in the case of documentary letters of credit, to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, and any subsequent revisions thereof adhered to by the LC Issuer, and (ii) in the case of standby letters of credit, to the International Standby Practices (1998), International Chamber of Commerce Publication No. 590, and any subsequent revisions thereof adhered to by the LC Issuer. Each Letter of Credit shall: (w) permit drawings upon presentation of one or more sight drafts and such other documents as specified by the Borrower Representative in the Letter of Credit Request delivered pursuant to Section 2.3(b) below and agreed to by such LC Issuer, which drawings shall occur on or prior to the applicable expiration date of such Letter of Credit, (x) by its terms, provide for payment of drawings only in Dollars, (y) in the case of a standby Letter of Credit, by its terms expire no later than the earlier of: (I) the date eighteen (18) months after the date of issuance of such Letter of Credit (or, in the case of renewal or extension thereof, eighteen (18) months after such renewal or extension) and (II) the date which is not later than the fifteenth (15th) Business Day prior to the Revolving Credit Termination Date; provided , however , that each standby Letter of Credit may, upon the request of the applicable Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of eighteen (18) months or less (but not beyond the date that is fifteen (15) Business Days prior to the Revolving Credit Termination Date) unless the LC Issuer notifies the beneficiary at least 30 days prior to the then-applicable expiration date that such Letter of Credit will not be renewed and (z) in the case of a documentary Letter of Credit, by its terms expire at or prior to the close of business on the earlier of (i) the date 12 months after the date of the issuance of such commercial Letter of Credit and (ii) the date which is not later than the fifteenth (15th) Business Day prior to the Revolving Credit Termination Date.
(c) Application with Respect to Letter of Credit. Concurrently with each Letter of Credit Request, the Borrowers shall cause the applicable Letter of Credit Obligor to execute and deliver to the LC Issuer in respect of such requested Letter of Credit an application with respect to such Letter of Credit, in the LC Issuer’s then standard form; provided , however , that in the event of any conflict between the provisions of any such application agreement and this Agreement, the provisions of this Agreement shall govern.
(d) Participation by Lenders in Letters of Credit. By its issuance of a Letter of Credit and without further action on its part, the LC Issuer hereby grants to each Lender, and each Lender hereby acquires from the LC Issuer, an undivided participation in such Letter of Credit equal to such Lender’s Pro Rata Share of such Letter of Credit’s face amount, effective on the date of the issuance of such Letter of Credit. In consideration, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent for the account of the LC Issuer such Lender’s Pro Rata Share of each disbursement made by the LC Issuer in respect of such Letter of Credit and not reimbursed by the applicable Letter of Credit Obligor or the Borrowers. Each Lender acknowledges and agrees that its obligation to acquire such participations pursuant to this Section is absolute and unconditional and shall not be affected by any event or circumstance whatsoever, including the occurrence of any Potential Default or
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Event of Default hereunder or the failure of any condition precedent in this Agreement to be satisfied and each payment in satisfaction thereof shall be made without any offset, abatement, withholding or reduction whatsoever; provided , however , that the foregoing shall not be construed to excuse the LC Issuer from liability to any Lender to the extent of any direct damages suffered by such Lender that are caused by the LC Issuer’s gross negligence, willful misconduct or bad faith.
(e) Reimbursement . The Borrowers agree that whenever there is a drawing on a Letter of Credit issued by the LC Issuer hereunder, the resulting reimbursement obligation shall be immediately due and payable and the Borrowers shall cause the applicable Letter of Credit Obligor to pay on the date of such drawing, or the Borrowers shall otherwise pay pursuant to Section 9.1 of this Agreement on the date of such drawing, to the Administrative Agent for the account of the LC Issuer an amount equal to the amount of such drawing. The Administrative Agent shall promptly remit any such payment to the LC Issuer.
(f) Failure to Reimburse Drawings; Interest. In the event the Letter of Credit Obligor for whose account any Letter of Credit was issued fails, and the Borrowers fail on behalf of such Letter of Credit Obligor, to reimburse the LC Issuer the amount of any drawing, together with any accrued interest thereon, to the Administrative Agent on the date of such drawing on a Letter of Credit, such failure shall constitute a Deemed Credit Request requesting an Alternate Base Rate Loan to be made to the Borrowers in an aggregate amount equal to the amount reimbursable to the LC Issuer plus any accrued interest thereon and the related Credit Event, without regard to any minimums and multiples lending amounts specified hereunder, but subject to satisfaction of the conditions precedent set forth in Section 3.2 of this Agreement. The Administrative Agent shall disburse all such loan proceeds directly to the LC Issuer to satisfy the reimbursement obligation. For the avoidance of doubt, after giving effect to the Deemed Credit Request and any Revolving Credit Loan made pursuant to this Section 2.2(f) (including any Revolving Credit Loan deemed pursuant to the immediately following paragraph), the Borrowers shall be deemed to have reimbursed in full such drawing on such Letter of Credit.
In the event that any of the conditions precedent set forth in Section 3.2 are not satisfied, each Lender shall be obligated to consummate the purchase, on the date the Revolving Credit Loan would have been made pursuant to this Section 2.2(f), of its undivided participating interest in the outstanding unpaid reimbursement obligation (the “Unpaid Reimbursement Obligation”) owing to the LC Issuer. On the purchase date, each such Lender shall pay to the Administrative Agent, for the benefit of the LC Issuer, in immediately available funds, at the account of the Administrative Agent maintained at the Payment Office of the Administrative Agent not later than the time such Lender would have been obligated to fund its Revolving Credit Loan pursuant to this Section, a purchase price for such participating interest in an amount equal to its Pro Rata Share of the Unpaid Reimbursement Obligation. After the date of such purchase, the outstanding Unpaid Reimbursement Obligation shall bear interest for the account of the LC Issuer for each day from and including the date of such drawing until the earlier of: (i) the date of reimbursement by the applicable Letter of Credit Obligor or by the Borrowers, as the case may be, and (ii) the date on which such drawing is reimbursed by Revolving Credit Loans as provided in the first paragraph Section 2.2(f), at the rate per annum that would apply to the amount of such Unpaid Reimbursement Obligation if such amount were a Revolving Credit Borrowing comprised of Alternate Base Rate Loans. After the date of such purchase, any payment by the Borrower to the Administrative Agent on behalf of the LC Issuer with respect to the Unpaid Reimbursement Obligation, together with interest thereon, shall be promptly distributed by the Administrative Agent to each Lender based on its Pro Rata Share. For the avoidance of doubt, any Unpaid Reimbursement Obligation shall be deemed to be a Revolving Credit Loan hereunder for all purposes of this Agreement and the other Loan Documents until such Unpaid Reimbursement Obligation is repaid by the Borrowers in full, together with interest thereon as herein specified.
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(g) Obligations Absolute . Subject to Section 2.2(h), the obligation of the Borrowers to cause the Letter of Credit Obligor whose account any Letter of Credit is issued to reimburse the LC Issuer, and the Obligation of the Borrowers to reimburse the LC Issuer if such Letter of Credit Obligor does not otherwise reimburse the LC Issuer, shall be absolute and unconditional and shall be performed under all circumstances including, without limitation: (i) any lack of validity or enforceability of any Letter of Credit, (ii) the existence of any claim, offset, defense or other right that such Letter of Credit Obligor or the Borrowers may have against the beneficiary of any Letter of Credit or any successor in interest thereto, (iii) the existence of any claim, offset, defense or other right that any Lender or the Administrative Agent may have against such Letter of Credit Obligor, the Borrowers or the beneficiary of any Letter of Credit or against any successor in interest thereto, (iv) the existence of any fraud or misrepresentation in the presentment of any draft or other item drawn and paid under any Letter of Credit by any Person other than the LC Issuer, (v) any payment of any draft or other item by the LC Issuer which does not strictly comply with the terms of any Letter of Credit issued by such LC Issuer, (vi) any statement or any other documents presented under any Letter of Credit proving to be insufficient, forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect whatsoever, (vii) any act, error, neglect or default, omission, insolvency or failure of business of any of the correspondents of the LC Issuer or (viii) a Potential Default or Event of Default has occurred and is continuing.
(h) Liability of LC Issuer. It is expressly understood and agreed that the absolute and unconditional obligation of the Borrowers to cause each Letter of Credit Obligor to reimburse the LC Issuer, and the absolute and unconditional Obligation of the Borrowers hereunder to reimburse the LC Issuer should such Letter of Credit Obligor fail to reimburse the LC Issuer, for disbursements with respect to a Letter of Credit for the account of such Letter of Credit Obligor shall not be construed to excuse the LC Issuer from liability to such Letter of Credit Obligor to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each of the Borrowers to the extent permitted by applicable Law) suffered by the Letter of Credit Obligor that are caused by the gross negligence, willful misconduct or bad faith of such LC Issuer in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties agree that each LC Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit. Any action, inaction or omission on the part of the LC Issuer or any of its correspondents, under or in connection with any Letter of Credit issued by the LC Issuer or any renewal or extension thereof or the related instruments or documents, if taken in good faith and in conformity with applicable Laws and regulations governing Letters of Credit generally and the terms of this Section, shall be binding upon the Borrowers and shall not place the LC Issuer or any of its correspondents under any liability to any of the Borrowers.
(i) LC Issuer Indemnity. The Borrowers shall indemnify the LC Issuer from and against any loss, liability or out-of-pocket expenses (other than any caused by the LC Issuer’s gross negligence or willful misconduct as determined by the final judgment of a court of competent jurisdiction, the indemnification for which shall be governed solely and exclusively by Section 12.6 of this Agreement) incurred by the LC Issuer in respect of this Agreement and the Letters of Credit issued by the LC Issuer for the account of any Borrower, including, without limitation, reasonable fees and expenses of legal counsel incurred by such LC Issuer in the defense of any claim against it or in the prosecution of its rights and remedies.
(j) Termination of Letter of Credit Commitment. If: (i) any court, arbitrator, or governmental authority shall enjoin or restrain money center banks generally from issuing letters of credit of the type of the requested Letter of Credit, or any Law, rule or
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regulation applicable to money center banks generally or any request or directive (whether having the force of Law) from any governmental authority with jurisdiction over money center banks shall prohibit, or request the LC Issuer to refrain from issuing Letters of Credit generally or maintaining its commitment to issue Letters of Credit hereunder or (ii) there shall have occurred, at any time during the term of this Agreement: (A) any outbreak of hostilities or other national or international crisis or change in economic conditions if the effect of such outbreak, crisis or change would make the issuance of Letters of Credit impracticable, (B) the enactment, publication, decree or other promulgation of any Law which could reasonably be expected to materially and adversely affect the ability of the Borrowers (taken as a whole) to perform their obligations under this Agreement or any reimbursement agreement, or (C) the taking of any action by any government or agency in respect of its monetary or fiscal affairs which could have a material adverse effect on the issuance of Letters of Credit, then the LC Issuer shall give written notice of the occurrence of such event to the Borrower Representative and the Administrative Agent whereupon the commitment of the LC Issuer to issue or extend any Letter of Credit shall be suspended on the effective date of such notice and shall continue to be suspended until such notice is rescinded by the LC Issuer by prompt written notice to the Borrower Representative.
(a) Credit Requests for Revolving Credit Loans. Requests for Revolving Credit Loans shall be given by the Borrower Representative to the Administrative Agent not later than 1:00 p.m. (Eastern Time): (i) on the Business Day which is the requested date of a proposed Revolving Credit Borrowing comprised of Alternate Base Rate Loans and (ii) on the Business Day which is three (3) Business Days before the requested date of a proposed Revolving Credit Borrowing comprised of LIBOR Rate Loans (any Revolving Credit Loans on the Closing Date shall be Alternate Base Rate Loans). Each such request (a “Credit Request”) shall be a written or telephonic notice (in the case of a telephonic notice, promptly confirmed in writing). Each written Credit Request or written confirmation shall be substantially in the form of Exhibit B-1 attached hereto, signed or otherwise acceptably authenticated by the Borrower Representative and transmitted by the Borrower Representative to the Administrative Agent by telecopier or electronic mail. Each Credit Request shall be irrevocable and binding on the Borrowers and be subject to the indemnification provisions of this Agreement.
(b) Requests and Conditions for Letters of Credit. Requests for Letters of Credit for the account of the Borrowers, or the amendment, renewal, or extension of an outstanding Letter of Credit, shall be given by the Borrower Representative to the Administrative Agent and LC Issuer not later than 1:00 p.m. (Eastern Time) three (3) Business Days prior to the specified date for the issuance of the requested Letter of Credit. Each such request (a “Letter of Credit Request”) shall be a written notice. Such request shall be substantially in the form of Exhibit B-2 attached hereto, signed or otherwise acceptably authenticated by the Borrower Representative and transmitted by the Borrower Representative to the Administrative Agent by telecopier or electronic mail. Each Letter of Credit Request shall specify the proposed issuance date of the requested Letter of Credit (which shall be a Business Day), the amount of the Letter of Credit, the expiry date as permitted by Section 2.2(b) of this Agreement, the name and address of the beneficiary and such other matters as the LC Issuer may require.
(c) Requests for Revolving Credit Borrowing Deemed Given. The Borrowers shall be deemed to have made a request for a Revolving Credit Borrowing (a “Deemed Credit Request”), which Deemed Credit Request shall be irrevocable: (x) in the event of an unreimbursed drawing under a Letter of Credit, for a Revolving Credit Borrowing in an amount equal to the amount necessary to reimburse the LC Issuer for such drawing as set forth in Section 2.2(f) and (y) upon any interest, fee or other payment Obligation of the Borrowers hereunder becoming due without payment within the applicable grace period set forth in
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Section 6.1, for a Revolving Credit Borrowing in an amount necessary to pay such interest, fee or payment obligation; each Revolving Credit Borrowing deemed requested under this Section shall be comprised of Alternate Base Rate Loans. Each Lender agrees that its obligation to make or participate in Revolving Credit Loans pursuant to a Deemed Credit Request is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence of any Potential Default or Event of Default or the failure of any condition precedent.
2.4 Funding of Revolving Credit Loans.
(a) Notice and Funding . The Administrative Agent shall notify each Lender required to fund a Revolving Credit Borrowing by telecopy, telephone or similar form of transmission of a Credit Request or a Deemed Credit Request not later 2:30 p.m. (Eastern Time) on the date such Credit Request is received in compliance with Section 2.3 of this Agreement or the date such Deemed Credit Request is deemed received. Prior to the later of 4:30 p.m. (Eastern Time) on the requested funding date applicable to each such Credit Request or Deemed Credit Request, each Lender will make available to the Administrative Agent, in Dollars, in immediately available funds, at the account of the Administrative Agent maintained at the Payment Office, such Lender’s Pro Rata Share of the amount of the requested Revolving Credit Borrowing.
(b) Disbursement of Funds Received . On the Closing Date, if applicable, upon the Administrative Agent’s receipt of funds representing a Lender’s Revolving Credit Loan, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent shall make the Revolving Credit Loan of such Lender available to the Borrowers, in Dollars in immediately available funds, by wire transfer or intrabank transfer: (A) to the Operating Account of the Borrowers or (B) to such other account of the Borrowers as reasonably instructed by the Borrower Representative. After the Closing Date, on the date specified by the Borrower Representative in any Credit Request (or, in the case of a Deemed Credit Request, on the earliest date permitted after such Deemed Credit Request), after the Administrative Agent’s receipt of the funds representing a Lender’s Pro Rata Share of the requested Revolving Credit Borrowing and subject to the terms of this Agreement, the Administrative Agent will make the Revolving Credit Loan of such Lender available to the Borrowers in immediately available funds in Dollars, by wire transfer or intrabank transfer: (A) to such Operating Account or (B) to such other account as the Borrower Representative may instruct from time to time.
(c) Availability of Funds . Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Revolving Credit Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Credit Borrowing, the Administrative Agent may assume that such Lender has made its Pro Rata Share of such Revolving Credit Borrowing available to the Administrative Agent on the date specified for such Revolving Credit Borrowing in accordance with Section 2.4(a) of this Agreement. In each case, and in reliance upon such assumption, the Administrative Agent may, but shall not be obligated to, make available to the Borrowers funds in the amount of such Lender’s Pro Rata Share. Any disbursement by the Administrative Agent in reliance on such assumption shall be deemed to be a Revolving Credit Loan by such Lender.
2.5 Failure of Lender to Fund Revolving Credit Loans or Purchase Participations. If any Lender has not made available to the Administrative Agent funds for such Lender’s Pro Rata Share of any Revolving Credit Borrowing, such Lender shall pay such amount to the Administrative Agent immediately upon demand by the Administrative Agent. If any such Lender does not pay such amount to the Administrative Agent upon such demand, the Administrative Agent shall promptly request payment thereof from the Borrowers, and the Borrowers shall immediately pay such amount to the Administrative Agent. Such Lender and the Borrowers shall be liable to pay interest to the Administrative Agent on such amount for each
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day from the date such amount should otherwise have been made available to the Administrative Agent until the date any such amount is paid to the Administrative Agent at a per annum rate of interest equal to: (x) if paid by such Lender, as the case may be, the Federal Funds Effective Rate or (y) if paid by the Borrowers, the interest rate applicable to such Revolving Credit Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Defaulting Lender.
(a) Continuing Obligation of the Borrowers. Failure of any Lender to fund its Pro Rata Share of any Revolving Credit Borrowing or to pay any participation purchase price shall not excuse the performance by any Borrower of any of such Borrower’s duties or obligations hereunder. If any such Lender funds such Lender’s Pro Rata Share of such Revolving Credit Borrowing or participation purchase price prior to repayment of such amount by the Borrowers, the amount so repaid shall constitute such Lender’s share or participation payment and the Borrowers shall have no further obligation to pay.
(b) Treatment of Lender Failing To Fund. The Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by the Borrowers for the benefit of such Lender until such Lender has cured the applicable Lender Default. Until the earlier of such Defaulting Lender’s cure of its Lender Default or the termination of the Revolving Credit Commitments, all amounts repaid to the Administrative Agent by the Borrowers which would otherwise be required to be applied to such Lender’s Revolving Credit Loans shall be advanced to the Borrowers by the Administrative Agent on behalf of such Defaulting Lender to cure, in full or in part, such Lender Default, but shall nevertheless be deemed to have been paid to such Defaulting Lender in satisfaction of the Obligations to which such payment would otherwise have been applied. Except in the event the Revolving Credit Commitments are terminated pursuant to the terms hereof, no Defaulting Lender shall have any voting or consent rights under this Agreement and shall not constitute a “Lender” (or be included in the calculation of “Required Lenders”) for any voting or consent rights under this Agreement. The terms of this Section shall remain effective with respect to such Defaulting Lender until such time as no Lender Default exists with respect to such Lender.
(c) Continuing Obligation of Lenders to Fund. It is understood that: (i) a Lender shall not be responsible for any failure by any other Lender to perform its obligation to make any Revolving Credit Loans hereunder or pay any participation purchase price for its participating interests hereunder, (ii) the Revolving Credit Commitment of a Lender shall not be increased or decreased as a result of any failure by any other Lender to perform its obligation to make any Revolving Credit Loans or pay such participation purchase price hereunder, (iii) failure by any Lender to perform its obligation to make any Revolving Credit Loans or pay any participation purchase price hereunder shall not excuse any other Lender from its obligation to make any Revolving Credit Loans hereunder or pay any participation purchase price for its participating interests hereunder and (iv) the obligations of each Lender hereunder shall be individual and several, not joint and several.
2.6 Affiliated Funding with respect to Lenders. All or any part of a Revolving Credit Loan that any Lender may be obligated to fund pursuant to this Agreement: (i) may be funded by such Lender on behalf of such Lender’s Lending Installation or (ii) may be funded on such Lender’s behalf by such Lender by and through any such Lending Installation; provided that, (a) if any Lending Installation fails to fund all or any part of such Revolving Credit Loan, such Lender shall be obligated to fund such Revolving Credit Loan pursuant to the terms hereof, (b) in no event shall any such funding by any Lending Installation increase the costs or expenses for which the Borrowers are liable under this Agreement and (c) in no event shall any such funding on behalf of or through any such Lending Installation require the Borrowers to pay any amounts in respect of Non-Excluded Taxes or Other Taxes without such Lender being subject to the exercise by the Borrowers of their rights under Section 12.3 of this Agreement. The funding
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of a Revolving Credit Loan by a Lending Installation hereunder shall utilize the Revolving Credit Commitment of such Lender to the same extent, and as if, such Revolving Credit Loan were funded by such Lender, and for purposes of this Agreement, such Revolving Credit Loan shall be deemed to have been made directly by such Lender.
2.7 Loan Account; Credits; Application of Payme nts.
(a) Administrative Agent Maintenance of Loan Account. The Administrative Agent shall maintain on its books and records a Loan Account (the “Loan Account”) in respect of the Borrowers which shall reflect: (i) with respect to Revolving Credit Borrowings: (x) the outstanding Revolving Credit Loans to the Borrowers, (y) the Pro Rata Share of each Lender in the outstanding Revolving Credit Loans to the Borrowers, and (z) accrued interest on the Revolving Credit Loans payable by the Borrowers, (ii) all Letter of Credit drawings and (iii) all other Obligations of the Borrowers that have become payable hereunder. Each entry by the Administrative Agent in the Loan Account shall be, to the extent permitted by applicable Law, conclusive absent manifest error. Such entries by the Administrative Agent shall not be a condition to the Borrowers’ obligation to repay the Obligations. To the extent applicable pursuant to Treasury Regulation Section 5f.103-1(c), the Administrative Agent shall maintain on the Loan Account, for the benefit of the Borrowers, a record of any Foreign Lenders.
(b) Loan Account Charges\Credits; Reports . Each Borrower hereby authorizes the Administrative Agent to charge the Loan Account of the Borrowers with all Revolving Credit Loans and all other Obligations of the Borrowers under this Agreement or any other Loan Document. The Loan Account of the Borrowers will be credited in accordance with the provisions of this Agreement with all payments received by the Administrative Agent directly from the Borrowers or otherwise for the account of the Borrowers. The Administrative Agent shall send the Borrower Representative statements in accordance with the Administrative Agent’s standard procedures. Any and all such periodic or other statements or reconciliations of the Loan Account shall be final, binding and conclusive upon the Borrowers in all respects, absent manifest error, unless the Administrative Agent receives specific written objection (including email) thereto from the Borrower Representative within forty-five (45) Business Days after any such statement or reconciliation has been sent to the Borrower Representative. Such notice shall only be deemed an objection as to those items specifically objected to therein.
( c) Crediting and Application of Specific Payments. The Borrowers shall make all other payments to be made by the Borrowers under this Agreement with respect to the Obligations not later than 4:00 p.m. (Eastern Time) on the day when due, without setoff, counterclaim, defense or deduction of any kind, to the Administrative Agent’s account maintained at the Payment Office of the Administrative Agent. Payments received after 4:00 p.m. (Eastern Time) shall be deemed to have been received on the next succeeding Business Day. Prior to the occurrence of an Event of Default which is continuing, the Borrower Representative may specify to the Administrative Agent, at the time of the Borrowers making any such payment hereunder, the Obligations of the Borrowers to which such payment is to be applied. If the Borrower Representative does not specify an application for such payment or if an Event of Default has occurred and is continuing, the Administrative Agent shall apply such payment to such Obligations as provided in Section 7.4(d) of this Agreement.
(d) Pa yments, Distributions, Treatment. Subject to periodic settlement of accounts among the Lenders as provided for in this Agreement, after receipt of any payment by the Administrative Agent, the Administrative Agent will cause to be distributed, on the day of receipt of any payment, like funds relating to such payment (other than amounts payable solely to the Administrative Agent or solely to the applicable LC Issuer pursuant to Section 2.14) ratably to each of the Lenders in accordance with its Pro Rata Share at such Lender’s Lending
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Office. Except as set forth in Sections 2.14 and 7.5 of this Agreement, each Revolving Credit Borrowing and participating interest hereunder, each payment or prepayment of principal of any Revolving Credit Borrowing, any reduction of commitments, each payment of interest on the Revolving Credit Loans, and each payment of the fees provided for hereunder shall be allocated among the Lenders ratably in accordance with each Lender’s Pro Rata Share thereof.
(e) Payment not on Business Day. Whenever any payment hereunder or under the Revolving Credit Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day. Any such extension or reduction of time shall in such case be included in the computation of payment of interest, fees or other compensation, as the case may be, provided , however , that, with respect to any LIBOR Rate Loan, if the next succeeding Business Day falls in the succeeding calendar month, such payment shall be made on the preceding Business Day and the relevant Interest Period shall be adjusted accordingly.
(f) Presumption of Payment in Full by the Borrowers. Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Lenders hereunder that the Borrowers will not make such payment in full, the Administrative Agent may assume that the Borrowers have made such payment in full to the Administrative Agent on such date. In reliance upon such assumption, the Administrative Agent may, but shall not be obligated to, distribute to each Lender on such due date the amount then due such Lender. If and to the extent the Borrowers shall not have made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent promptly upon demand the amount distributed to such Lender, together with interest thereon (except to the extent otherwise paid by the Borrowers) for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent at the Federal Funds Effective Rate.
2.8 Repayment and Prepayments.
(a) Scheduled Repayments . The Borrowers shall repay to the Administrative Agent the outstanding principal amount of the aggregate Revolving Credit Loans on the Revolving Credit Termination Date. Reimbursements of drawings on Letters of Credit shall be made as provided in this Agreement.
(i) Mandatory Prepayment of Revolving Credit Loans . If, on any Business Day, whether a Reference Rating Upgrade then exists or does not then exist, the aggregate principal amount of Revolving Credit Loans of the Lenders then outstanding plus the aggregate LC Exposure of the Lenders then existing exceeds the aggregate Revolving Credit Commitments of the Lenders then in effect, the Borrowers shall on such day prepay to the Administrative Agent an amount sufficient to eliminate such excess which amount shall be used to prepay the Lenders ratably in accordance with each Lender’s Pro Rata Share and shall be in addition to any other prepayments required pursuant to this Section 2.8(b).
(ii) Mandatory Prepayment of Revolving Credit Loans Prior to Reference Rating Upgrade . During any period of time in which a Reference Rating Upgrade does not exist, if at any time the aggregate principal amount of Revolving Credit Loans of the Lenders outstanding at such time plus the aggregate LC Exposure of the Lenders existing at such time exceeds the sum of (i) Fifty Million Dollars ($50,000,000) plus (ii) the amount of Secured Loan Assets in which Administrative Agent has a first priority, perfected security interest for the benefit of the Lenders, the Borrowers shall on
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such day prepay to the Administrative Agent an amount sufficient to eliminate such excess which amount shall be used to prepay the Lenders ratably in accordance with each Lender’s Pro Rata Share.
(iii) Mandatory Prepayment of Revolving Credit Loans After the Occurrence and Continuance of Reference Rating Upgrade . During any period of time in which a Reference Rating Upgrade exists, if at any time the aggregate principal amount of Revolving Credit Loans outstanding at such time plus the aggregate LC Exposure of the Lenders existing at such time in excess of Fifty Million Dollars ($50,000,000) exceeds the amount equal to the sum of: (x) the greater of (a) zero and (b) the Asset Coverage at such time minus Fifty Million Dollars ($50,000,000) plus (y) the amount of Secured Loan Assets in which Administrative Agent has a first priority, perfected security interest for the benefit of the Lenders, the Borrowers shall on such day prepay to the Administrative Agent an amount sufficient to eliminate such excess which amount shall be used to prepay the Lenders ratably in accordance with each Lender’s Pro Rata Share.
(iv) Mandatory Application of Net Proceeds . The Borrowers shall apply all Net Proceeds received by the Borrowers to prepay the Revolving Credit Loans as follows:
(A) Net Proceeds (other than dispositions permitted under Section 5.3(a)(A), (B) or (D) hereof) generated from the disposition of any or all of the assets of the Landis Grinding Systems division of UNOVA Industrial Automation Systems, Inc, the Landis Lund division of UNOVA U.K. Limited or the Hebron, Kentucky operations of the Cincinnati Lamb division of UNOVA Industrial Automation Systems, Inc. (collectivel |