EXHIBIT 10.1
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CREDIT AGREEMENT
DATED AS OF NOVEMBER 10, 2005
AMONG
AMCOL INTERNATIONAL CORPORATION
AND
CERTAIN BORROWING SUBSIDIARIES,
THE GUARANTORS FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
AND
HARRIS N.A.
as Administrative Agent
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WELLS FARGO BANK N.A.,
as Syndication Agent
AND
BANK OF AMERICA, N.A.,
as Documentation Agent
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TABLE OF CONTENTS
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SECTION
HEADING
PAGE
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SECTION 1.
THE CREDIT
FACILITIES..................................................................1
Section 1.1. Revolving Credit
Commitments...........................................................1
Section 1.2. Letters of
Credit......................................................................2
Section 1.3. Applicable Interest
Rates..............................................................4
Section 1.4. Minimum Borrowing
Amounts; Maximum Eurocurrency
Loans..................................6
Section 1.5. Manner of Borrowing
Loans and Designating Applicable Interest
Rates....................6
Section 1.6. Interest
Periods.......................................................................9
Section 1.7.
Maturity of
Loans......................................................................9
Section 1.8.
Prepayments............................................................................9
Section 1.9. Default
Rate..........................................................................10
Section 1.10.
The
Notes.............................................................................11
Section 1.11.
Funding
Indemnity.....................................................................11
Section 1.12.
Revolving Credit Commitment
Terminations..............................................12
Section 1.13.
Substitution of
Lenders...............................................................12
Section 1.14. Swing
Loans...........................................................................13
Section 1.15.
Increase in Revolving Credit
Commitments..............................................14
SECTION 2.
FEES..................................................................................15
Section 2.1. Fees
.................................................................................15
SECTION 3.
PLACE AND APPLICATION OF
PAYMENTS.....................................................16
Section 3.1. Place and Application
of
Payments.....................................................16
Section 3.2. Account
Debit.........................................................................17
SECTION 4.
GUARANTIES............................................................................17
Section 4.1.
Guaranties............................................................................17
Section 4.2. Further
Assurances....................................................................17
SECTION 5.
DEFINITIONS;
INTERPRETATION...........................................................18
Section 5.1.
Definitions...........................................................................18
Section 5.2.
Interpretation........................................................................32
Section 5.3. Change in Accounting
Principles.......................................................32
SECTION 6.
REPRESENTATIONS AND
WARRANTIES........................................................33
Section 6.1. Organization and
Qualification........................................................33
Section 6.2.
Subsidiaries..........................................................................33
Section 6.3. Authority and Validity
of
Obligations.................................................33
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Section 6.4. Use of Proceeds;
Margin
Stock.........................................................34
Section 6.5. Financial
Reports.....................................................................34
Section 6.6. No Material Adverse
Change............................................................34
Section 6.7. Full
Disclosure.......................................................................34
Section 6.8. Trademarks,
Franchises, and
Licenses..................................................35
Section 6.9. Governmental Authority
and
Licensing..................................................35
Section 6.10.
Good
Title............................................................................35
Section 6.11.
Litigation and Other
Controversies....................................................35
Section 6.12.
Taxes.................................................................................35
Section 6.13.
Approvals.............................................................................36
Section 6.14.
Affiliate
Transactions................................................................36
Section 6.15.
Investment Company; Public Utility Holding
Company....................................36
Section 6.16.
ERISA.................................................................................36
Section 6.17.
Compliance with
Laws..................................................................36
Section 6.18.
Other
Agreements......................................................................37
Section 6.19.
Solvency..............................................................................37
Section 6.20. No
Default............................................................................37
SECTION 7.
CONDITIONS
PRECEDENT..................................................................37
Section 7.1. All Credit
Events.....................................................................37
Section 7.2. Initial Credit
Event..................................................................38
SECTION 8.
COVENANTS.............................................................................39
Section 8.1. Maintenance of
Business...............................................................39
Section 8.2. Maintenance of
Properties.............................................................39
Section 8.3. Taxes and
Assessments.................................................................40
Section 8.4.
Insurance.............................................................................40
Section 8.5. Financial
Reports.....................................................................40
Section 8.6.
Inspection............................................................................42
Section 8.7. Limitations on
Indebtedness...........................................................42
Section 8.8. Limitation on
Liens...................................................................42
Section 8.9. Investments,
Acquisitions, Loans and
Advances.........................................43
Section 8.10.
Mergers, Consolidations and
Sales.....................................................44
Section 8.11.
Dividends and Certain Other Restricted
Payments.......................................46
Section 8.12.
ERISA.................................................................................46
Section 8.13.
Compliance with
Laws..................................................................46
Section 8.14.
Burdensome Contracts With
Affiliates..................................................47
Section 8.15. No
Changes in Fiscal
Year.............................................................47
Section 8.16.
Formation of
Subsidiaries.............................................................47
Section 8.17.
Change in the Nature of
Business......................................................47
Section 8.18.
Use of Loan
Proceeds..................................................................48
Section 8.19. No
Restrictions.......................................................................48
Section 8.20.
Subordinated
Debt.....................................................................48
Section 8.21.
Financial
Covenants...................................................................48
Section 8.22.
Contingent
Obligations................................................................48
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SECTION 9.
EVENTS OF DEFAULT AND
REMEDIES........................................................49
Section 9.1. Events of
Default.....................................................................49
Section 9.2. Non-Bankruptcy
Defaults...............................................................50
Section 9.3. Bankruptcy
Defaults...................................................................51
Section 9.4. Collateral for Undrawn
Letters of
Credit..............................................51
Section 9.5. Notice of
Default.....................................................................52
Section 9.6.
Expenses..............................................................................52
SECTION 10.
CHANGE IN
CIRCUMSTANCES...............................................................52
Section 10.1.
Change of
Law.........................................................................52
Section 10.2.
Unavailability of Deposits or Inability to Ascertain, or Inadequacy
of, LIBOR.........52
Section 10.3.
Increased Cost and Reduced
Return.....................................................53
Section 10.4.
Lending
Offices.......................................................................54
Section 10.5.
Discretion of Lender as to Manner of
Funding..........................................54
SECTION 11.
THE ADMINISTRATIVE
AGENT..............................................................54
Section 11.1.
Appointment and Authorization of Administrative
Agent.................................54
Section 11.2.
Administrative Agent and its
Affiliates...............................................54
Section
11.3. Action by
Administrative
Agent........................................................55
Section 11.4.
Consultation with
Experts.............................................................55
Section 11.5.
Liability of Administrative Agent; Credit
Decision....................................55
Section 11.6.
Indemnity.............................................................................56
Section 11.7.
Resignation and Removal of Administrative Agent and Successor
Administrative Agent....56
Section 11.8.
L/C
Issuer............................................................................57
Section 11.9.
Hedging Liability and Funds Transfer and Deposit Account Liability
Arrangements.......57
Section 11.10.
Designation of Additional
Agents......................................................57
SECTION 12.
THE
GUARANTEES........................................................................58
Section 12.1.
The
Guarantees........................................................................58
Section 12.2.
Guarantee
Unconditional...............................................................58
Section 12.3.
Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances...........59
Section 12.4.
Subrogation...........................................................................59
Section 12.5.
Waivers...............................................................................60
Section 12.6.
Limit on
Recovery.....................................................................60
Section 12.7.
Stay of
Acceleration..................................................................60
Section 12.8.
Benefit to
Guarantors.................................................................60
Section 12.9.
Guarantor
Covenants...................................................................60
SECTION 13.
MISCELLANEOUS.........................................................................60
Section 13.1.
Withholding
Taxes.....................................................................60
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Section 13.2. No
Waiver, Cumulative
Remedies........................................................62
Section 13.3.
Non-Business
Days.....................................................................62
Section 13.4.
Documentary
Taxes.....................................................................62
Section 13.5.
Survival of
Representations...........................................................62
Section 13.6.
Survival of
Indemnities...............................................................62
Section 13.7.
Sharing of
Set-Off....................................................................62
Section 13.8.
Notices...............................................................................63
Section 13.9.
Counterparts..........................................................................63
Section 13.10.
Successors and
Assigns................................................................63
Section 13.11.
Participants..........................................................................63
Section 13.12.
Assignments...........................................................................64
Section 13.13.
Amendments............................................................................65
Section 13.14.
Headings..............................................................................65
Section 13.15. Costs
and Expenses;
Indemnification...................................................65
Section 13.16.
Set-off...............................................................................66
Section 13.17. Entire
Agreement......................................................................66
Section 13.18.
Governing
Law.........................................................................66
Section 13.19.
Severability of
Provisions............................................................66
Section 13.20. Excess
Interest.......................................................................67
Section 13.21.
Construction..........................................................................67
Section 13.22.
Lender's Obligations
Several..........................................................67
Section 13.23.
Submission to Jurisdiction; Waiver of Jury
Trial......................................67
Section 13.24.
Currency..............................................................................68
Section 13.25. USA
Patriot
Act.......................................................................68
Section 13.26.
Appointment and Authorization of
Company..............................................69
Signature
Page..............................................................................................S-1
EXHIBIT A --
Notice of Payment Request
EXHIBIT B --
Notice of Borrowing
EXHIBIT C --
Notice of Continuation/Conversion
EXHIBIT D-1 -- Revolving
Note
EXHIBIT D-2 -- Swing Note
EXHIBIT E --
Form
of Commitment Amount Increase Request
EXHIBIT F --
Compliance Certificate
EXHIBIT G --
Additional Guarantor Supplement
EXHIBIT H --
Assignment and Acceptance
SCHEDULE 1 --
Commitments
SCHEDULE 1.2 -- Existing Letters
of Credit
SCHEDULE 6.2 -- Subsidiaries
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CREDIT AGREEMENT
This Credit Agreement is entered into as of November 10, 2005, by
and
among AMCOL International Corporation, a
Delaware corporation (the "Company"),
CETCO (Europe) Limited, a United Kingdom
corporation ("CETCO Europe"), Colin
Stewart Minchem Limited, a United Kingdom
corporation ("Colin Stewart" and
together with CETCO Europe, collectively
referred to herein as the "UK
Borrowers" and each individually as a "UK
Borrower"), CETCO Poland Sp. .zo. o, a
Polish corporation (the "Polish Borrower"),
and together with the Company, the
UK Borrowers, and the Polish Borrower
collectively referred to herein as the
"Borrowers" and each individually as a
"Borrower") the direct and indirect
Subsidiaries of the Borrowers from time to
time party to this Agreement, as
Guarantors, the several financial
institutions from time to time party to this
Agreement, as Lenders, and Harris N.A., as
Administrative Agent as provided
herein. All capitalized terms used herein
without definition shall have the same
meanings herein as such terms are defined
in Section 5.1 hereof.
PRELIMINARY STATEMENT
The Borrowers have requested, and the Lenders have agreed to
extend,
certain credit facilities on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained
herein, and other good and valuable
consideration, the receipt and sufficiency
of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. THE CREDIT
FACILITIES.
Section 1.1. Revolving Credit Commitments. Subject to the terms
and
conditions hereof, each Lender, by its
acceptance hereof, severally agrees to
make a loan or loans (individually a
"Revolving Loan" and collectively the
"Revolving Loans") in U.S. Dollars, Euros
and Pound Sterling to the Company, in
Euros to Colin Stewart, in Pound Sterling
or Euro to CETCO Europe, in Euro to
the Polish Borrower, from time to time on a
revolving basis in an aggregate
outstanding Original Dollar Amount up to
the amount of such Lender's Revolving
Credit Commitment, subject to any
reductions thereof pursuant to the terms
hereof, before the Revolving Credit
Termination Date; provided that (i) the sum
of the aggregate Original Dollar Amount of
Revolving Loans, Swing Loans, and L/C
Obligations at any time outstanding shall
not exceed the Revolving Credit
Commitments in effect at such time, (ii)
the sum of the aggregate Original
Dollar Amount of all Loans outstanding to
the Company denominated in Euros and
Pound Sterling shall not exceed
$25,000,000, (iii) the sum of the aggregate
principal amount of all Loans outstanding
to Colin Stewart shall not exceed
(euro)5,000,000, (iv) the sum of the
aggregate principal amount of all Loans
denominated in Euro outstanding to CETCO
Europe shall not exceed (euro)4,000,000
and the sum of the aggregate principal
amount of all Loan denominated in Pound
Sterling to CETCO Europe shall not exceed
(pound)10,000,000, and (v) the sum of
the aggregate principal amount of all Loans
outstanding to the Polish Borrower
shall not exceed (euro)9,000,000. Each
Borrowing of Revolving Loans shall be
made ratably by the Lenders in proportion
to their respective Percentages. As
provided in Section 1.5(a) hereof, the
Company may elect that each Borrowing of
Revolving Loans denominated in U.S. Dollars
be either Base Rate Loans or
Eurocurrency Loans. All Revolving Loans
denominated in an Alternative Currency
shall be Eurocurrency Loans. Revolving
Loans may be repaid and the principal
amount thereof reborrowed before the
Revolving Credit Termination Date, subject
to the terms and conditions hereof.
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Section 1.2. Letters of Credit. (a) General Terms. Subject to the
terms
and conditions hereof, as part of the
Revolving Credit, the L/C Issuer shall
issue standby letters of credit (each a
"Letter of Credit") for the account of
the Company in an aggregate undrawn face
amount up to the L/C Sublimit.
Notwithstanding anything herein to the
contrary, those certain letters of credit
issued for the account of the Company by
Harris N.A. and listed on Schedule 1.2
hereof (the "Existing Letters of Credit")
shall each constitute a "Letter of
Credit" herein for all purposes of this
Agreement with the Company as the
applicant therefor, to the same extent, and
with the same force and effect as if
the Existing Letters of Credit had been
issued under this Agreement at the
request of the Company. Each Letter of
Credit shall be issued by the L/C Issuer,
but each Lender shall be obligated to
reimburse the L/C Issuer for such Lender's
Percentage of the amount of each drawing
thereunder and, accordingly, each
Letter of Credit shall constitute usage of
the Revolving Credit Commitment of
each Lender pro rata in an amount equal to
its Percentage of the L/C Obligations
then outstanding.
(b)
Applications. At any time before the Revolving Credit
Termination Date, the L/C Issuer shall, at
the request of the Company, issue one
or more Letters of Credit in U.S. Dollars,
in a form satisfactory to the L/C
Issuer, with expiration dates no later than
the earlier of 12 months from the
date of issuance (or which are cancelable
not later than 12 months from the date
of issuance and each renewal) or five (5)
days prior to the Revolving Credit
Termination Date, in an aggregate face
amount as set forth above, upon the
receipt of an application duly executed by
the Company for the relevant Letter
of Credit in the form then customarily
prescribed by the L/C Issuer for the
Letter of Credit requested (each an
"Application"). Notwithstanding anything
contained in any Application to the
contrary: (i) the Company shall pay fees in
connection with each Letter of Credit as
set forth in Section 2.1 hereof, (ii)
except as otherwise provided in Section 1.9
hereof, before the occurrence of an
Event of Default, the L/C Issuer will not
call for the funding by the Company of
any amount under a Letter of Credit before
being presented with a drawing
thereunder, and (iii) if the L/C Issuer is
not timely reimbursed for the amount
of any drawing under a Letter of Credit on
the date such drawing is paid, the
Company's obligation to reimburse the L/C
Issuer for the amount of such drawing
shall bear interest (which the Company
hereby promises to pay) from and after
the date such drawing is paid at a rate per
annum equal to the sum of the
Applicable Margin plus the Base Rate from
time to time in effect (computed on
the basis of a year of 360 days, and the
actual number of days elapsed). If the
L/C Issuer issues any Letter of Credit with
an expiration date that is
automatically extended unless the L/C
Issuer gives notice that the expiration
date will not so extend beyond its then
scheduled expiration date, unless the
Required Lenders instruct the L/C Issuer
otherwise, the L/C Issuer will give
such notice of non-renewal before the time
necessary to prevent such automatic
extension if before such required notice
date: (i) the expiration date of such
Letter of Credit if so extended would be
after the Revolving Credit Termination
Date, (ii) the Revolving Credit Commitments
have been terminated, or (iii) a
Default or an Event of Default exists and
the Administrative Agent, at the
request or with the consent of the Required
Lenders, has given the L/C Issuer
instructions not to so permit the extension
of the expiration date of such
Letter of Credit. The L/C Issuer agrees to
issue amendments to the Letter(s) of
Credit increasing the amount, or extending
the expiration date, thereof at the
request of the Company subject to the
conditions of Section 7 hereof and the
other terms of this Section 1.2.
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(c) The
Reimbursement Obligations. Subject to Section 1.2(b) hereof,
the obligation of the Company to reimburse
the L/C Issuer for all drawings under
a Letter of Credit (a "Reimbursement
Obligation") shall be governed by the
Application related to such Letter of
Credit, except that reimbursement shall be
made by no later than 12:00 Noon (Chicago
time) on the date when each drawing is
to be paid in immediately available funds
at the Administrative Agent's
principal office in Chicago, Illinois or
such other office as the Administrative
Agent may designate in writing to the
Company (who shall thereafter cause to be
distributed to the L/C Issuer such
amount(s) in like funds). If the Company does
not make any such reimbursement payment on
the date due and the Participating
Lenders fund their participations therein
in the manner set forth in Section
1.2(d) below, then all payments thereafter
received by the Administrative Agent
in discharge of any of the relevant
Reimbursement Obligations shall be
distributed in accordance with Section
1.2(d) below.
(d) The
Participating Interests. Each Lender (other than the Lender
acting as L/C Issuer in issuing the
relevant Letter of Credit), by its
acceptance hereof, severally agrees to
purchase from the L/C Issuer, and the L/C
Issuer hereby agrees to sell to each such
Lender (a "Participating Lender"), an
undivided percentage participating interest
(a "Participating Interest"), to the
extent of its Percentage, in each Letter of
Credit issued by, and each
Reimbursement Obligation owed to, the L/C
Issuer. Upon any failure by the
Company to pay any Reimbursement Obligation
at the time required on the date the
related drawing is to be paid, as set forth
in Section 1.2(c) above, or if the
L/C Issuer is required at any time to
return to the Company or to a trustee,
receiver, liquidator, custodian or other
Person any portion of any payment of
any Reimbursement Obligation, each
Participating Lender shall, not later than
the Business Day it receives a certificate
in the form of Exhibit A hereto from
the L/C Issuer (with a copy to the
Administrative Agent) to such effect, if such
certificate is received before 1:00 p.m.
(Chicago time), or not later than 1:00
p.m. (Chicago time) the following Business
Day, if such certificate is received
after such time, pay to the Administrative
Agent for the account of the L/C
Issuer an amount equal to such
Participating Lender's Percentage of such unpaid
or recaptured Reimbursement Obligation
together with interest on such amount
accrued from the date the related payment
was made by the L/C Issuer to the date
of such payment by such Participating
Lender at a rate per annum equal to: (i)
from the date the related payment was made
by the L/C Issuer to the date two (2)
Business Days after payment by such
Participating Lender is due hereunder, the
Federal Funds Rate for each such day and
(ii) from the date two (2) Business
Days after the date such payment is due
from such Participating Lender to the
date such payment is made by such
Participating Lender, the Base Rate in effect
for each such day. Each such Participating
Lender shall thereafter be entitled
to receive its Percentage of each payment
received in respect of the relevant
Reimbursement Obligation and of interest
paid thereon, with the L/C Issuer
retaining its Percentage thereof as a
Lender hereunder. The several obligations
of the Participating Lenders to the L/C
Issuer under this Section 1.3 shall be
absolute, irrevocable, and unconditional
under any and all circumstances
whatsoever and shall not be subject to any
set-off, counterclaim or defense to
payment which any Participating Lender may
have or have had against any
Borrower, the L/C Issuer, the
Administrative Agent, any Lender or any other
Person whatsoever. Without limiting the
generality of the foregoing, such
obligations shall not be affected by any
Default or Event of Default or by any
reduction or termination of any Revolving
Credit Commitment of any Lender, and
each payment by a Participating Lender
under this Section 1.2 shall be made
without any offset, abatement, withholding
or reduction whatsoever.
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(e)
Indemnification. The Participating Lenders shall, to the extent
of their respective Percentages, indemnify
the L/C Issuer (to the extent not
reimbursed by the Company) against any
cost, expense (including reasonable
counsel fees and disbursements), claim,
demand, action, loss or liability
(except such as result from the L/C
Issuer's gross negligence or willful
misconduct) that the L/C Issuer may suffer
or incur in connection with any
Letter of Credit issued by it. The
obligations of the Participating Lenders
under this Section 1.2(e) and all other
parts of this Section 1.2 shall survive
termination of this Agreement and of all
Applications, Letters of Credit, and
all drafts and other documents presented in
connection with drawings thereunder.
(f) Manner
of Requesting a Letter of Credit. The Company shall
provide at least five (5) Business Days'
advance written notice to the
Administrative Agent of each request for
the issuance of a Letter of Credit,
such notice in each case to be accompanied
by an Application for such Letter of
Credit properly completed and executed by
the Company and, in the case of an
extension or an increase in the amount of a
Letter of Credit, a written request
therefor, in a form acceptable to the
Administrative Agent and the L/C Issuer,
in each case, together with the fees called
for by this Agreement. The
Administrative Agent shall promptly notify
the L/C Issuer of the Administrative
Agent's receipt of each such notice and the
L/C Issuer shall promptly notify the
Administrative Agent and the Lenders of the
issuance of the Letter of Credit so
requested.
Section 1.3. Applicable Interest Rates. (a) Base Rate Loans. Each
Base
Rate Loan made or maintained by a Lender
shall bear interest during each
Interest Period it is outstanding (computed
on the basis of a year of 360 days
and the actual days elapsed) on the unpaid
principal amount thereof from the
date such Loan is advanced or continued, or
created by conversion from a
Eurocurrency Loan, until maturity (whether
by acceleration or otherwise) at a
rate per annum equal to the sum of the
Applicable Margin plus the Base Rate from
time to time in effect, payable on the last
day of its Interest Period and at
maturity (whether by acceleration or
otherwise).
"Base Rate" means for any day the greater of: (i) the rate of
interest
announced or otherwise established by the
Administrative Agent from time to time
as its prime commercial rate as in effect
on such day, with any change in the
Base Rate resulting from a change in said
prime commercial rate to be effective
as of the date of the relevant change in
said prime commercial rate (it being
acknowledged and agreed that such rate may
not be the Administrative Agent's
best or lowest rate) and (ii) the sum of
(x) the rate determined by the
Administrative Agent to be the average
(rounded upward, if necessary, to the
next higher 1/100 of 1%) of the rates per
annum quoted to the Administrative
Agent at approximately 10:00 a.m. (Chicago
time) (or as soon thereafter as is
practicable) on such day (or, if such day
is not a Business Day, on the
immediately preceding Business Day) by two
or more Federal funds brokers
selected by the Administrative Agent for
sale to the Administrative Agent at
face value of Federal funds in the
secondary market in an amount equal or
comparable to the principal amount owed to
the Administrative Agent for which
such rate is being determined, plus (y) 1/2
of 1%.
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(b)
Eurocurrency Loans. Each Eurocurrency Loan made or maintained
by
a Lender shall bear interest during each
Interest Period it is outstanding
(computed on the basis of a year of 360
days and actual days elapsed) on the
unpaid principal amount thereof from the
date such Loan is advanced or
continued, or created by conversion from a
Base Rate Loan, until maturity
(whether by acceleration or otherwise) at a
rate per annum equal to the sum of
the Applicable Margin plus the Adjusted
LIBOR applicable for such Interest
Period, payable on the last day of the
Interest Period and at maturity (whether
by acceleration or otherwise), and, if the
applicable Interest Period is longer
than three months, on each day occurring
every three months after the
commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate
per annum determined in accordance with the
following formula:
LIBOR
Adjusted LIBOR =
-----------------------------------
1 - Eurocurrency Reserve Percentage
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for
the applicable Interest Period of the
maximum rate, expressed as a decimal, at
which reserves (including, without
limitation, any supplemental, marginal, and
emergency reserves) are imposed
during such Interest Period by the Board of
Governors of the Federal Reserve
System (or any successor) on "eurocurrency
liabilities", as defined in such
Board's Regulation D (or in respect of any
other category of liabilities that
includes deposits by reference to which the
interest rate on Eurocurrency Loans
is determined or any category of extensions
of credit or other assets that
include loans by non-United States offices
of any Lender to United States
residents), subject to any amendments of
such reserve requirement by such Board
or its successor, taking into account any
transitional adjustments thereto. For
purposes of this definition, the
Eurocurrency Loans shall be deemed to be
"eurocurrency liabilities" as defined in
Regulation D without benefit or credit
for any prorations, exemptions or offsets
under Regulation D.
"LIBOR" means, for an Interest Period for a Borrowing of
Eurocurrency
Loans, (a) the LIBOR Index Rate for such
Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate
cannot be determined, the arithmetic
average of the rates of interest per annum
(rounded upwards, if necessary, to
the nearest 1/100 of 1%) at which deposits
in U.S. Dollars or the relevant
Alternative Currency, as appropriate, in
immediately available funds are offered
to the Administrative Agent at 11:00 a.m.
(London, England time) two (2)
Business Days before the beginning of such
Interest Period by three (3) or more
major banks in the interbank eurodollar
market selected by the Administrative
Agent for delivery on the first day of and
for a period equal to such Interest
Period and in an amount equal or comparable
to the principal amount of the
Eurocurrency Loan scheduled to be made by
the Administrative Agent as part of
such Borrowing.
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"LIBOR Index Rate" means, for any Interest Period, the rate per
annum
(rounded upwards, if necessary, to the next
higher one hundred-thousandth of a
percentage point) for deposits in U.S.
Dollars for a period equal to such
Interest Period, which appears on the
appropriate Telerate Page for such
currency as of 11:00 a.m. (London, England
time) on the day two (2) Business
Days before the commencement of such
Interest Period.
"Telerate Page" means the display designated on the Telerate
Service
(or such other service as may be nominated
by the British Bankers' Association
as the information vendor for the purpose
of displaying British Bankers'
Association Interest Settlement Rates for
the applicable currency).
(c) Rate Determinations. The
Administrative Agent shall determine
each interest rate applicable to the
Revolving Loans, Swing Loans and the
Reimbursement Obligations hereunder, and
its determination thereof shall be
conclusive and binding except in the case
of manifest error. The Original Dollar
Amount of each Eurocurrency Loan
denominated in an Alternative Currency shall be
determined or redetermined, as applicable,
effective as of the first day of each
Interest Period applicable to such
Loan.
Section 1.4. Minimum Borrowing Amounts; Maximum Eurocurrency
Loans.
Each Borrowing of Base Rate Loans shall be
in an amount not less than $500,000
and in integral multiples of $100,000. Each
Borrowing of Eurocurrency Loans
advanced, continued or converted shall be
in an amount not less than an Original
Dollar Amount of $1,000,000 and in integral
multiples of 100,000 units of the
relevant currency as would have the
Original Dollar Amount most closely
approximately $100,000 or an integral
multiple thereof. Without the
Administrative Agent's consent, there shall
not be more than eight (8)
Borrowings of Eurocurrency Loans
outstanding at any one time.
Section 1.5. Manner of Borrowing Loans and Designating
Applicable
Interest Rates. (a) Notice to the
Administrative Agent. The Company, on behalf
of the applicable Borrower, shall give
notice to the Administrative Agent by no
later than 10:00 a.m. (Chicago time): (i)
at least four (4) Business Days before
the date the Company, on behalf of the
applicable Borrower, requests the Lenders
to advance a Borrowing of Eurocurrency
Loans denominated in an Alternative
Currency, (ii) at least three (3) Business
Days before the date on which the
Company, on behalf of the applicable
Borrower, requests the Lenders to advance a
Borrowing of Eurocurrency Loans and (iii)
on the date the Company, on behalf of
the applicable Borrower, requests the
Lenders to advance a Borrowing of Base
Rate Loans. The Loans included in each
Borrowing shall bear interest initially
at the type of rate specified in such
notice of a new Borrowing. Thereafter,
subject to the terms and conditions hereof,
the Company, on behalf of the
applicable Borrower, may from time to time
elect to change or continue the type
of interest rate borne by each Borrowing
or, subject to the minimum amount
requirement for each outstanding Borrowing
contained in Section 1.4, a portion
thereof, as follows: (i) if such Borrowing
is of Eurocurrency Loans, on the last
day of the Interest Period applicable
thereto, the Company, on behalf of the
applicable Borrower, may continue part or
all of such Borrowing as Eurocurrency
Loans or, if such Eurocurrency Loan is
denominated in U.S. Dollars, convert part
or all of such Borrowing into Base Rate
Loans or (ii) if such Borrowing is of
Base Rate Loans, on any Business Day, the
Company, on behalf of the applicable
Borrower, may convert all or part of such
Borrowing into Eurocurrency Loans
denominated in U.S. Dollars for an Interest
Period or Interest Periods specified
by the Company, on behalf of the applicable
Borrower.
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The Company, on behalf of the applicable
Borrower, shall give all such notices
requesting the advance, continuation or conversion of a Borrowing to the
Administrative Agent by telephone or
telecopy (which notice shall be irrevocable
once given and, if by telephone, shall be promptly confirmed in writing),
substantially in the form attached hereto as
Exhibit B (Notice of Borrowing) or
Exhibit C (Notice of Continuation/Conversion),
as applicable, or in
such other
form acceptable to the Administrative Agent. Notice of the continuation of a
Borrowing of Eurocurrency Loans denominated in U.S. Dollars for an additional
Interest Period or of the conversion of
part or all of a Borrowing of Base Rate
Loans into Eurocurrency Loans denominated in U.S. Dollars must
be given by no
later than 10:00 a.m. (Chicago time) at
least three (3) Business Days before the
date of the requested continuation or
conversion. Notices of the continuation of
a Borrowing of Eurocurrency Loans
denominated in an Alternative Currency must be
given no later than 10:00 a.m. (Chicago time) at least four (4)
Business Day
before the requested continuation. All such notices concerning the advance,
continuation or conversion of a Borrowing shall specify the date of the
requested advance, continuation or conversion of a
Borrowing (which shall be a
Business Day), the amount of the requested
Borrowing to be
advanced,
continued
or converted, the type of Loans to comprise
such new, continued or converted
Borrowing and, if such Borrowing is to be
comprised of Eurocurrency Loans, the
currency and Interest Period applicable thereto. The Borrowers agree that the
Administrative Agent may rely on any such
telephonic or telecopy notice given by
any person the Administrative Agent in good faith believes is an Authorized
Representative without the necessity of
independent
investigation, and in
the
event any such notice by telephone
conflicts with any written confirmation such
telephonic notice shall govern if the
Administrative Agent has acted in reliance
thereon.
(b) Notice
to the Lenders. The Administrative Agent shall give
prompt telephonic or telecopy notice to
each Lender of any notice from the
Company received pursuant to Section 1.5(a)
above and, if such notice requests
the Lenders to make Eurocurrency Loans, the
Administrative Agent shall give
notice to the applicable Borrower and each
Lender by like means of the interest
rate applicable thereto and if such
Borrowing is denominated in an Alternative
Currency, of the Original Dollar Amount
thereof, promptly after the
Administrative Agent has made such
determination.
(c)
Borrowers' Failure to Notify; Automatic Continuations and
Conversions. Any outstanding Borrowing of
Base Rate Loans shall automatically be
continued for an additional Interest Period
on the last day of its then current
Interest Period unless the Company has
notified the Administrative Agent within
the period required by Section 1.5(a) that
the applicable Borrower intends to
convert such Borrowing, subject to Section
7.1 hereof, into a Borrowing of
Eurocurrency Loans or such Borrowing is
prepaid in accordance with Section
1.8(a). If the Company fails to give notice
pursuant to Section 1.5(a) above of
the continuation or conversion of any
outstanding principal amount of a
Borrowing of Eurocurrency Loans denominated
in U.S. Dollars before the last day
of its then current Interest Period within
the period required by Section 1.5(a)
or, whether or not such notice has been
given, one or more of the conditions set
forth in Section 7.1 for the continuation
or conversion of a Borrowing of
Eurocurrency Loans would not be satisfied,
and such Borrowing is not prepaid in
accordance with Section 1.8(a), such
Borrowing shall automatically be converted
into a Borrowing of Base Rate Loans. If the
Company fails to give notice
pursuant to Section 1.5(a) above of the
continuation of any outstanding
principal amount of a Borrowing of
Eurocurrency Loans denominated in an
Alternative Currency before the last day of
its then current Interest Period
within the period required by Section
1.5(a) and has not notified the
Administrative Agent within the period
required by Section 1.8(a) that it
intends to prepay such Borrowing, such
Borrowing shall automatically be
continued as a Borrowing of Eurocurrency
Loans in the same Alternative Currency
with an Interest Period of one month,
subject to Section 6.2 hereof, including
the application of Section 1.3 and of the
restrictions contained in the
definition of Interest Period.
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<PAGE>
(d)
Disbursement of Loans. Not later than 1:00 p.m. (Chicago time)
on the date of any requested advance of a
new Borrowing, subject to Section 7
hereof, each Lender shall make available
its Loan comprising part of such
Borrowing in funds immediately available
(or, in the case of a Borrowing
denominated in an Alternative Currency, in
such funds as are then customary for
the settlement of international
transactions in such currency) at the principal
office of the Administrative Agent in
Chicago, Illinois. The Administrative
Agent shall make the proceeds of each new
Borrowing available to the applicable
Borrower at the Administrative Agent's
principal office in Chicago, Illinois, by
depositing such proceeds to the credit of
the applicable Borrower's operating
account maintained with the Administrative
Agent or as such Borrower and the
Administrative Agent may otherwise
agree.
(e)
Administrative Agent Reliance on Lender Funding. Unless the
Administrative Agent shall have been
notified by a Lender prior to (or, in the
case of a Borrowing of Base Rate Loans, by
1:00 p.m. (Chicago time) on) the date
on which such Lender is scheduled to make
payment to the Administrative Agent of
the proceeds of a Revolving Loan (which
notice shall be effective upon receipt)
that such Lender does not intend to make
such payment, the Administrative Agent
may assume that such Lender has made such
payment when due and the
Administrative Agent may in reliance upon
such assumption (but shall not be
required to) make available to the
applicable Borrower the proceeds of the Loan
to be made by such Lender and, if any
Lender has not in fact made such payment
to the Administrative Agent, such Lender
shall, on demand, pay to the
Administrative Agent the amount made
available to the applicable Borrower
attributable to such Lender together with
interest thereon in respect of each
day during the period commencing on the
date such amount was made available to
the applicable Borrower and ending on (but
excluding) the date such Lender pays
such amount to the Administrative Agent at
a rate per annum equal to: (i) from
the date the related advance was made by
the Administrative Agent to the date
two (2) Business Days after payment by such
Lender is due hereunder, the Federal
Funds Rate for each such day and (ii) from
the date two (2) Business Days after
the date such payment is due from such
Lender to the date such payment is made
by such Lender, the Base Rate in effect for
each such day. If such amount is not
received from such Lender by the
Administrative Agent immediately upon demand,
the applicable Borrower will, on demand,
repay to the Administrative Agent the
proceeds of the Loan attributable to such
Lender with interest thereon at a rate
per annum equal to the interest rate
applicable to the relevant Loan, but
without such payment being considered a
payment or prepayment of a Loan under
Section 1.12 hereof so that such Borrower
will have no liability under such
Section with respect to such payment.
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<PAGE>
Section 1.6. Interest Periods. As provided in Section 1.5(a) and
1.14
hereof, at the time of each request to
advance, continue or create by conversion
a Borrowing of Eurocurrency Loans or Swing
Loans, the Company, on behalf of the
applicable Borrower, shall select an
Interest Period applicable to such Loans
from among the available options. The term
"Interest Period" means the period
commencing on the date a Borrowing of Loans
is advanced, continued or created by
conversion and ending: (a) in the case of
Base Rate Loans, on the last day of
the calendar quarter (i.e., the last day of
March, June, September or December,
as applicable) in which such Borrowing is
advanced, continued or created by
conversion (or on the last day of the
following calendar quarter if such Loan is
advanced, continued or created by
conversion on the last day of a calendar
quarter), (b) in the case of a Eurocurrency
Loan, 1, 2, 3 or 6 months
thereafter, and (c) in the case of a Swing
Loan, on the date 1 to 5 days
thereafter as mutually agreed to by the
Company and the Administrative Agent;
provided, however, that:
(i) any
Interest Period for a Borrowing of Revolving Loans or Swing
Loans consisting of Base Rate Loans that
otherwise would end after the Revolving
Credit Termination Date shall end on the
Revolving Credit Termination Date;
(ii) no Interest
Period with respect to any portion of the Loans
shall extend beyond the Revolving Credit
Termination Date;
(iii) whenever the
last day of any Interest Period would otherwise be
a day that is not a Business Day, the last
day of such Interest Period shall be
extended to the next succeeding Business
Day, provided that, if such extension
would cause the last day of an Interest
Period for a Borrowing of Eurocurrency
Loans to occur in the following calendar
month, the last day of such Interest
Period shall be the immediately preceding
Business Day; and
(iv) for
purposes of determining an Interest Period for a Borrowing
of Eurocurrency Loans, a month means a
period starting on one day in a calendar
month and ending on the numerically
corresponding day in the next calendar
month; provided, however, that if there is
no numerically corresponding day in
the month in which such an Interest Period
is to end or if such an Interest
Period begins on the last Business Day of a
calendar month, then such Interest
Period shall end on the last Business Day
of the calendar month in which such
Interest Period is to end.
Section 1.7. Maturity of Loans. Each Revolving Loan and Swing
Loan,
both for principal and interest not sooner
paid, shall mature and become due and
payable by the applicable Borrower on the
Revolving Credit Termination Date.
Section 1.8. Prepayments. (a) Optional. Each Borrower may prepay
in
whole or in part (but, if in part, then:
(i) if such Borrowing is of Base Rate
Loans, in an amount not less than $500,000,
(ii) if such Borrowing is of
Eurocurrency Loans denominated in U.S.
Dollars, in an amount not less than
$500,000, (iii) if such is of Eurocurrency
Loans denominated in an Alternative
Currency, an amount for which the U.S.
Dollar Equivalent is not less than
$500,000, and (iv) in each case, in an
amount such that the minimum amount
required for a Borrowing pursuant to
Section 1.4 and 1.14 hereof remains
outstanding) any Borrowing of Eurocurrency
Loans at any time upon (i) if such
Loan is denominated in U.S. Dollars, three
(3) Business Days prior notice by the
Company to the Administrative Agent, (ii)
if such Loan is denominated in an
Alternative Currency, four (4) Business
Days prior notice by the Company to the
Administrative Agent, or (iii) in the case
of a Borrowing of Base Rate Loans,
notice delivered by the Company to the
Administrative Agent no later than 10:00
a.m. (Chicago time) on the date of
prepayment (or, in any case, such shorter
period of time then agreed to by the
Administrative Agent), such prepayment to
be made by the payment of the principal
amount to be prepaid and, in the case of
any Eurocurrency Loans or Swing Loans,
accrued interest thereon to the date
fixed for prepayment plus any amounts due
the Lenders under Section 1.11 hereof.
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<PAGE>
(b)
Mandatory. The Borrowers shall, on each date the Revolving
Credit Commitments are reduced pursuant to
Section 1.12 hereof, prepay the
Revolving Loans, Swing Loans, and, if
necessary, prefund the L/C Obligations by
the amount, if any, necessary to reduce the
sum of the Original Dollar Amount of
Revolving Loans, Swing Loans, and L/C
Obligations then outstanding to the amount
to which the Revolving Credit Commitments
have been so reduced.
(c)
Application. Unless the Company otherwise directs, prepayments
of Loans under this Section 1.8(b) shall be
applied first to Borrowings of Base
Rate Loans until payment in full thereof
with any balance applied to Borrowings
of Eurocurrency Loans in the order in which
their Interest Periods expire. Each
prepayment of Loans under this Section
1.8(b) shall be made by the payment of
the principal amount to be prepaid and, in
the case of any Eurocurrency Loans or
Swing Loans, accrued interest thereon to
the date of prepayment together with
any amounts due the Lenders under Section
1.11 hereof. Each prefunding of L/C
Obligations shall be made in accordance
with Section 9.4 hereof.
Section 1.9.
Default Rate. Notwithstanding anything to the contrary
contained herein, while any Event of
Default exists or after acceleration, the
Borrowers shall pay interest (after as well
as before entry of judgment thereon
to the extent permitted by law) on the
principal amount of all Loans and
Reimbursement Obligations, and letter of
credit fees at a rate per annum equal
to:
(a) for
any Base Rate Loan or any Swing Loan bearing interest based
on the Base Rate, the sum of 2.0% plus the
Applicable Margin plus the Base Rate
from time to time in effect;
(b) for
any Eurocurrency Loan denominated in U.S. Dollars or any
Swing Loan bearing interest at the
Administrative Agent's Quoted Rate, the sum
of 2.0% plus the rate of interest in effect
thereon at the time of such default
until the end of the Interest Period
applicable thereto and, thereafter, at a
rate per annum equal to the sum of 2.0%
plus the Applicable Margin for Base Rate
Loans plus the Base Rate from time to time
in effect;
(c) for
any Eurocurrency Loan denominated in an Alternative
Currency, the sum of two percent (2%) plus
the rate of interest in effect
thereon at the time of such default until
the end of the Interest Period
applicable thereto and, thereafter, at a
rate per annum equal to the sum of the
Applicable Margin for Eurocurrency Loans
plus two percent (2%) plus the rate of
interest per annum as determined by the
Administrative Agent (rounded upwards,
if necessary, to the next higher one
hundred-thousandth of a percentage point)
at which overnight or weekend deposits (or,
if such amount due remains unpaid
more than three (3) Business Days, then for
such other period of time not longer
than one (1) month as the Administrative
Agent may elect in its absolute
discretion) of the relevant Alternative
Currency for delivery in immediately
available and freely transferable funds
would be offered by the Administrative
Agent to major banks in the interbank
market upon request of such major banks
for the applicable period as determined
above and in an amount comparable to the
unpaid principal amount of any such
Eurocurrency Loan (or, if the Administrative
Agent is not placing deposits in such
currency in the interbank market, then the
Administrative Agent's cost of funds in
such currency for such period); and
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<PAGE>
(d) for
any Reimbursement Obligation, the sum of 2.0% plus the
amounts due under Section 1.2 with respect
to such Reimbursement Obligation; and
(e)
for any
Letter of Credit, the sum of 2.0% plus the letter of
credit fee due under Section 2.1 with
respect to such Letter of Credit;
provided, however, that in the absence of
acceleration, any adjustments pursuant
to this Section shall be made at the
election of the Administrative Agent,
acting at the request or with the consent
of the Required Lenders, with written
notice to the Company. While any Event of
Default exists or after acceleration,
interest shall be paid on demand of the
Administrative Agent at the request or
with the consent of the Required
Lenders.
Section 1.10. The Notes. (a) The Revolving Loans made to a Borrower
by
a Lender shall be evidenced by a single
promissory note of such Borrower issued
to such Lender in the form of Exhibit D-1
hereto. Each such promissory note is
hereinafter referred to as a "Revolving
Note" and collectively such promissory
notes are referred to as the "Revolving
Notes."
(b) The
Swing Loans made to the Company by the Administrative Agent
shall be evidenced by a single promissory
note of the Company issued to the
Administrative Agent in the form of Exhibit
D-2 hereto. Such promissory note is
hereinafter referred to as the "Swing
Note."
(c) Each
Lender shall record on its books and records or on a
schedule to its appropriate Note the amount
of each Loan advanced, continued or
converted by it, all payments of principal
and interest and the principal
balance from time to time outstanding
thereon, the type of such Loan, and, for
any Eurocurrency Loan or Swing Loan, the
Interest Period, currency and the
interest rate applicable thereto. The
record thereof, whether shown on such
books and records of a Lender or on a
schedule to the relevant Note, shall be
prima facie evidence as to all such
matters; provided, however, that the failure
of any Lender to record any of the
foregoing or any error in any such record
shall not limit or otherwise affect the
obligation of a Borrower to repay all
Loans made to it hereunder together with
accrued interest thereon. At the
request of any Lender and upon such Lender
tendering to a Borrower the
appropriate Note to be replaced, such
Borrower shall furnish a new Note to such
Lender to replace any outstanding Note.
Section 1.11. Funding Indemnity. If any Lender shall incur any
loss,
cost or expense (including, without
limitation, any loss of profit, and any
loss, cost or expense incurred by reason of
the liquidation or re-employment of
deposits or other funds acquired by such
Lender to fund or maintain any
Eurocurrency Loan or Swing Loan or the
relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender)
as a result of:
(a) any
payment, prepayment or conversion of a Eurocurrency Loan or
Swing Loan on a date other than the last
day of its Interest Period,
(b) any
failure (because of a failure to meet the conditions of
Section 7 or otherwise) by a Borrower to
borrow or continue a Eurocurrency Loan
or Swing Loan, or to convert a Base Rate
Loan into a Eurocurrency Loan or Swing
Loan, on the date specified in a notice
given pursuant to Section 1.5(a) or 1.14
hereof,
(c) any
failure by a Borrower to make any payment of principal on
any Eurocurrency Loan or Swing Loan when
due (whether by acceleration or
otherwise), or
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(d) any
acceleration of the maturity of a Eurocurrency Loan or Swing
Loan as a result of the occurrence of any
Event of Default hereunder,
then, upon the demand of such Lender, the
applicable Borrower shall pay to such
Lender such amount as will reimburse such
Lender for such loss, cost or expense.
If any Lender makes such a claim for
compensation, it shall provide to the
Company, with a copy to the Administrative
Agent, a certificate setting forth
the amount of such loss, cost or expense in
reasonable detail (including an
explanation of the basis for and the
computation of such loss, cost or expense)
and the amounts shown on such certificate
shall be deemed prime facie correct.
Section 1.12. Revolving Credit Commitment Terminations. (a) The
Company
shall have the right at any time and from
time to time, upon three (3) Business
Days prior written notice to the
Administrative Agent (or such shorter period of
time agreed to by the Administrative
Agent), to terminate the Revolving Credit
Commitments without premium or penalty and
in whole or in part, any partial
termination to be (i) in an amount not less
than $5,000,000 and in integral
multiples of $1,000,000 and (ii) allocated
ratably among the Lenders in
proportion to their respective Percentages,
provided that the Revolving Credit
Commitments may not be reduced to an amount
less than the sum of the Original
Dollar Amount of Revolving Loans, Swing
Loans, and L/C Obligations then
outstanding. Any termination of the
Revolving Credit Commitments below the L/C
Sublimit, Swing Line Sublimit or other
sublimit applicable to a particular
Borrower as provided in Section 1.1 hereof
then in effect shall reduce the L/C
Sublimit, Swing Line Sublimit or such other
sublimit, as applicable, by a like
amount. The Administrative Agent shall give
prompt notice to each Lender of any
such termination of the Revolving Credit
Commitments.
(b) Any
termination of the Revolving Credit Commitments pursuant to
this Section 1.12 may not be
reinstated.
Section 1.13. Substitution of Lenders. In the event (a) the
Company
receives a claim from any Lender for
compensation under Section 10.3 or 13.1
hereof, (b) the Company receives notice
from any Lender of any illegality
pursuant to Section 10.1 hereof, (c) any
Lender is in default in any material
respect with respect to its obligations
under the Loan Documents, or (d) a
Lender fails to consent to an amendment or
waiver requested under Section 13.13
hereof at a time when the Required Lenders
have approved such amendment or
waiver (any such Lender referred to in
clause (a), (b), (c), or (d) above being
hereinafter referred to as an "Affected
Lender"), the Company may, in addition
to any other rights the Company may have
hereunder or under applicable law,
require, at its expense, any such Affected
Lender to assign, at par plus accrued
interest and fees, without recourse, all of
its interest, rights, and
obligations hereunder (including its
Revolving Credit Commitment and the Loans
and participation interests in Letters of
Credit and other amounts at any time
owing to it hereunder and the other Loan
Documents) to a commercial bank or
other financial institution specified by
the Company, provided that (i) such
assignment shall not conflict with or
violate any law, rule or regulation or
order of any court or other governmental
authority, (ii) the Company shall have
received the written consent of the
Administrative Agent, which consent shall
not be unreasonably withheld, to such
assignment, (iii) the Borrowers shall have
paid to the Affected Lender all monies
(together with amounts due such Affected
Lender under Section 1.11 hereof as if the
Loans owing to it were prepaid rather
than assigned) other than such principal
owing to it hereunder, and (iv) the
assignment is entered into in accordance
with the other requirements of Section
13.12 hereof (provided any assignment fees
and reimbursable expenses due
thereunder shall be paid by the
Company).
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Section 1.14. Swing Loans. (a) Generally. Subject to the terms
and
conditions hereof, as part of the Revolving
Credit, the Administrative Agent
agrees to make loans to the Company under
the Swing Line (individually a "Swing
Loan" and collectively the "Swing Loans")
which shall not in the aggregate at
any time outstanding exceed the Swing Line
Sublimit. The Swing Loans may be
availed of the Company from time to time
and borrowings thereunder may be repaid
and used again during the period ending on
the Revolving Credit Termination
Date; provided that each Swing Loan must be
repaid on the last day of the
Interest Period applicable thereto. Each
Swing Loan shall be in a minimum amount
of $500,000 or such greater amount which is
an integral multiple of $100,000.
(b)
Interest on Swing Loans. Each Swing Loan shall bear interest
until maturity (whether by acceleration or
otherwise) at a rate per annum equal
to (i) the sum of the Base Rate plus the
Applicable Margin for Base Rate Loans
under the Revolving Credit as from time to
time in effect (computed on the basis
of a year of 365 or 366 days, as the case
may be, for the actual number of days
elapsed) or (ii) the Administrative Agent's
Quoted Rate (computed on the basis
of a year of 360 days for the actual number
of days elapsed). Interest on each
Swing Loan shall be due and payable on the
last day of its Interest Period and
at maturity (whether by acceleration or
otherwise).
(c)
Requests
for Swing Loans. The Company shall give the
Administrative Agent prior notice (which
may be written or oral) no later than
12:00 Noon (Chicago time) on the date upon
which the Company requests that any
Swing Loan be made, of the amount and date
of such Swing Loan, and the Interest
Period requested therefor. Within 30
minutes after receiving such notice, the
Administrative Agent shall in its
discretion quote an interest rate to the
Company at which the Administrative Agent
would be willing to make such Swing
Loan available to the Company for the
Interest Period so requested (the rate so
quoted for a given Interest Period being
herein referred to as "Administrative
Agent's Quoted Rate"). The Company
acknowledges and agrees that the interest
rate quote is given for immediate and
irrevocable acceptance. If the Company
does not so immediately accept the
Administrative Agent's Quoted Rate for the
full amount requested by the Company for
such Swing Loan, the Administrative
Agent's Quoted Rate shall be deemed
immediately withdrawn and such Swing Loan
shall bear interest at the rate per annum
determined by adding the Applicable
Margin for Base Rate Loans under the
Revolving Credit to the Base Rate as from
time to time in effect. Subject to the
terms and conditions hereof, the proceeds
of such Swing Loan shall be made available
to the Company on the date so
requested at the offices of the
Administrative Agent in Chicago, Illinois, by
depositing such proceeds to the credit of
the Company's operating account
maintained with the Administrative Agent or
as the Company and the
Administrative Agent may otherwise agree.
Anything contained in the foregoing to
the contrary notwithstanding, (i) the
obligation of the Administrative Agent to
make Swing Loans shall be subject to all of
the terms and conditions of this
Agreement and (ii) the Administrative Agent
shall not be obligated to make more
than one Swing Loan during any one day.
-13-
<PAGE>
(d)
Refunding Loans. In its sole and absolute discretion, the
Administrative Agent may at any time, on
behalf of the Company (which hereby
irrevocably authorizes the Administrative
Agent to act on its behalf for such
purpose) and with notice to the Company,
request each Lender to make a Revolving
Loan in the form of a Base Rate Loan in an
amount equal to such Lender's
Percentage of the amount of the Swing Loans
outstanding on the date such notice
is given. Unless an Event of Default
described in Section 9.1(j) or 9.1(k)
exists with respect to the Company,
regardless of the existence of any other
Event of Default, each Lender shall make
the proceeds of its requested Revolving
Loan available to the Administrative Agent,
in immediately available funds, at
the Administrative Agent's principal office
in Chicago, Illinois, before 12:00
Noon (Chicago time) on the Business Day
following the day such notice is given.
The proceeds of such Borrowing of Revolving
Loans shall be immediately applied
to repay the outstanding Swing Loans.
(e)
Participations. If any Lender refuses or otherwise fails to
make
a Revolving Loan when requested by the
Administrative Agent pursuant to Section
1.14(d) above (because an Event of Default
described in Section 9.1(j) or 9.1(k)
exists with respect to any Borrower or
otherwise), such Lender will, by the time
and in the manner such Revolving Loan was
to have been funded to the
Administrative Agent, purchase from the
Administrative Agent an undivided
participating interest in the outstanding
Swing Loans in an amount equal to its
Percentage of the aggregate principal
amount of Swing Loans that were to have
been repaid with such Revolving Loans. Each
Lender that so purchases a
participation in a Swing Loan shall
thereafter be entitled to receive its
Percentage of each payment of principal
received on the Swing Loan and of
interest received thereon accruing from the
date such Lender funded to the
Administrative Agent its participation in
such Loan. The several obligations of
the Lenders under this Section shall be
absolute, irrevocable and unconditional
under any and all circumstances whatsoever
and shall not be subject to any
set-off, counterclaim or defense to payment
which any Lender may have or have
had against any Borrower, any other Lender
or any other Person whatever. Without
limiting the generality of the foregoing,
such obligations shall not be affected
by any Default or Event of Default or by
any reduction or termination of the
Revolving Credit Commitment of any Lender,
and each payment made by a Lender
under this Section shall be made without
any offset, abatement, withholding or
reduction whatsoever.
Section 1.15. Increase in Revolving Credit Commitments. The
Company
may, on any Business Day prior to the
Revolving Credit Termination Date, with
the written consent of the Administrative
Agent (which consent shall not be
unreasonably withheld or delayed), increase
the aggregate amount of the
Revolving Credit Commitments by delivering
a Commitment Amount Increase Request
at least five (5) Business Days prior to
the desired effective date of such
increase (the "Commitment Amount Increase")
identifying an additional Lender (or
additional Revolving Credit Commitments for
existing Lender(s)) and the amount
of its Revolving Credit Commitment (or
additional amount of its Revolving Credit
Commitment(s)); provided, however, that (i)
any increase of the aggregate amount
of the Revolving Credit Commitments to an
amount in excess of $175,000,000 will
require the approval of all the Lenders,
and (ii) any increase of the aggregate
amount of the Revolving Credit Commitments
shall be in an amount not less than
$5,000,000. The effective date of the
Commitment Amount Increase shall be agreed
upon by the Company and the Administrative
Agent. Upon the effectiveness
thereof, the new Lender(s) (or, if
applicable, existing Lender(s)) shall advance
Loans in an amount sufficient such that
after giving effect to its Loans each
Lender shall have outstanding its pro rata
share of Loans. It shall be a
condition to such effectiveness that (i) no
Eurocurrency Loans be outstanding on
the date of such effectiveness and (ii) the
Company shall not have terminated
any portion of the Revolving Credit
Commitments pursuant to Section 1.12 hereof.
The Borrowers agree to pay any reasonable
expenses of the Administrative Agent
relating to any Commitment Amount Increase.
Notwithstanding anything herein to
the contrary, no Lender shall have any
obligation to increase its Revolving
Credit Commitment and no Lender's Revolving
Credit Commitment shall be increased
without its consent thereto, and each
Lender may at its option, unconditionally
and without cause, decline to increase its
Revolving Credit Commitment.
-14-
<PAGE>
SECTION 2. FEES.
Section 2.1. Fees. (a) Revolving Credit Commitment Fee. The
Borrowers
shall pay to the Administrative Agent for
the ratable account of the Lenders in
accordance with their Percentages a
commitment fee at the rate per annum equal
to the Applicable Margin (computed on the
basis of a year of 360 days and the
actual number of days elapsed) on the
average daily Unused Revolving Credit
Commitments. Such commitment fee shall be
payable quarterly in arrears on the
last day of each March, June, September,
and December in each year (commencing
on the first such date occurring after the
date hereof) and on the Revolving
Credit Termination Date, unless the
Revolving Credit Commitments are terminated
in whole on an earlier date, in which event
the commitment fee for the period to
the date of such termination in whole shall
be paid on the date of such
termination.
(b) Letter
of Credit Fees. On the date of issuance or extension, or
increase in the amount, of any Letter of
Credit pursuant to Section 1.3 hereof,
the Company shall pay to the L/C Issuer for
its own account a fronting fee equal
to 0.125% of the face amount of (or of the
increase in the face amount of) such
Letter of Credit. Quarterly in arrears, on
the last day of each March, June,
September, and December, commencing on the
first such date occurring after the
date hereof, the Company shall pay to the
Administrative Agent, for the ratable
benefit of the Lenders in accordance with
their Percentages, a letter of credit
fee at a rate per annum equal to the
Applicable Margin (computed on the basis of
a year of 360 days and the actual number of
days elapsed) in effect during each
day of such quarter applied to the daily
average face amount of Letters of
Credit outstanding during such quarter. In
addition, the Company shall pay to
the L/C Issuer for its own account the L/C
Issuer's standard issuance, drawing,
negotiation, amendment, and other
administrative fees for each Letter of Credit
as established by the L/C Issuer from time
to time.
(c) Administrative Agent Fees.
The Borrowers shall pay to the
Administrative Agent, for its own use and
benefit, the fees agreed to between
the Administrative Agent and the Company in
a fee letter dated September 16,
2005, or as otherwise agreed to in writing
between them.
-15-
<PAGE>
SECTION 3. PLACE AND
APPLICATION OF PAYMENTS.
Section 3.1. Place and Application of Payments. All payments of
principal of and interest on the Loans and
the Reimbursement Obligations, and of
all other Obligations payable by the
Borrowers under this Agreement and the
other Loan Documents, shall be made by the
Borrowers to the Administrative Agent
by no later than 12:00 Noon (Chicago time)
on the due date thereof at the office
of the Administrative Agent in Chicago,
Illinois (or such other location as the
Administrative Agent may designate to the
Company) for the benefit of the Lender
or Lenders entitled thereto. Any payments
received after such time shall be
deemed to have been received by the
Administrative Agent on the next Business
Day. All such payments shall be made (i) in
U.S. Dollars, in immediately
available funds at the place of payment or
(ii) in the case amounts payable
hereunder in an Alternative Currency, in
such Alternative Currency in such funds
then customary for the settlement of
international transactions in such
currency, in each case without set-off or
counterclaim. The Administrative Agent
will promptly thereafter cause to be
distributed like funds relating to the
payment of principal or interest on Loans
and on Reimbursement Obligations in
which the Lenders have purchased
Participating Interests ratably to the Lenders
and like funds relating to the payment of
any other amount payable to any Lender
to such Lender, in each case to be applied
in accordance with the terms of this
Agreement. If the Administrative Agent
causes amounts to be distributed to the
Lenders in reliance upon the assumption
that the Borrowers will make a scheduled
payment and such scheduled payment is not
so made, each Lender shall, on demand,
repay to the Administrative Agent the
amount distributed to such Lender together
with interest thereon in respect of each
day during the period commencing on the
date such amount was distributed to such
Lender and ending on (but excluding)
the date such Lender repays such amount to
the Administrative Agent, at a rate
per annum equal to: (i) from the date the
distribution was made to the date two
(2) Business Days after payment by such
Lender is due hereunder, the Federal
Funds Rate for each such day and (ii) from
the date two (2) Business Days after
the date such payment is due from such
Lender to the date such payment is made
by such Lender, the Base Rate in effect for
each such day.
Anything contained herein to the contrary notwithstanding
(including,
without limitation, Section 1.9(b) hereof),
all payments and collections
received in respect of the Obligations, by
the Administrative Agent or any of
the Lenders after acceleration or the final
maturity of the Obligations or
termination of the Revolving Credit
Commitments as a result of an Event of
Default shall be remitted to the
Administrative Agent and distributed as
follows:
(a) first,
to the payment of any outstanding costs and expenses
incurred by the Administrative Agent in
protecting, preserving or enforcing
rights under the Loan Documents, and in any
event including all costs and
expenses of a character which the Borrowers
have agreed to pay the
Administrative Agent under Section 13.15
hereof (such funds to be retained by
the Administrative Agent for its own
account unless it has previously been
reimbursed for such costs and expenses by
the Lenders, in which event such
amounts shall be remitted to the Lenders to
reimburse them for payments
theretofore made to the Administrative
Agent);
(b)
second, to the payment of principal and interest on the Swing
Note until paid in full;
(c) third,
to the payment of any outstanding interest and fees due
under the Loan Documents to be allocated
pro rata in accordance with the
aggregate unpaid amounts owing to each
holder thereof;
-16-
<PAGE>
(d)
fourth, to the payment of principal on the Notes, unpaid
Reimbursement Obligations, together with
amounts to be held by the
Administrative Agent as collateral security
for any outstanding L/C Obligations
pursuant to Section 9.4 hereof (until the
Administrative Agent is holding an
amount of cash equal to the then
outstanding amount of all such L/C
Obligations), and Hedging Liability, the
aggregate amount paid to, or held as
collateral security for, the Lenders and,
in the case of Hedging Liability,
their Affiliates to be allocated pro rata
in accordance with the aggregate
unpaid amounts owing to each holder
thereof;
(e) fifth,
to the payment of all other unpaid Obligations to be
allocated pro rata in accordance with the
aggregate unpaid amounts owing to each
holder thereof; and
(f)
finally, to the Company or whoever else may be lawfully
entitled
thereto.
Section 3.2. Account Debit. Each Borrower hereby irrevocably
authorizes
the Administrative Agent to charge such
Borrower's deposit account or accounts
maintained with the Administrative Agent
for the amounts from time to time
necessary to pay any then due Obligations;
provided that each Borrower
acknowledges and agrees that the
Administrative Agent shall not be under an
obligation to do so and the Administrative
Agent shall not incur any liability
to any Borrower or any other Person for the
Administrative Agent's failure to do
so.
SECTION 4. GUARANTIES.
Section 4.1. Guaranties. The payment and performance of the
Obligations, Hedging Liability, and Funds
Transfer and Deposit Account Liability
shall at all times be guaranteed by the
Company and each direct and indirect
Material Subsidiary of the Company
(individually a "Guarantor" and collectively
the "Guarantors") pursuant to Section 12
hereof or pursuant to one or more
guaranty agreements in form and substance
acceptable to the Administrative
Agent, as the same may be amended, modified
or supplemented from time to time
(individually a "Guaranty" and collectively
the "Guaranties"); provided,
however, that unless otherwise required by
the Administrative Agent or the
Required Lenders during the existence of
any Event of Default, a Foreign
Subsidiary shall not be required to be a
Guarantor hereunder if providing such
Guaranty would cause a material adverse
effect on the Company's federal income
tax liability.
Section 4.2. Further Assurances. The Company agrees that it shall,
and
shall cause each other Guarantor to, from
time to time at the request of the
Administrative Agent or the Required
Lenders, execute and deliver such documents
and do such acts and things as the
Administrative Agent or the Required Lenders
may reasonably request in order to provide
for a Guaranty as required by Section
4.1. In the event the Company or any other
Guarantor forms or acquires any other
Material Subsidiary after the date hereof,
except as otherwise provided in
Section 4.1 above, the Company shall
promptly upon such formation or acquisition
cause such newly formed or acquired
Material Subsidiary to execute a Guaranty as
the Administrative Agent may then require,
and the Company shall also deliver to
the Administrative Agent, or cause such
Material Subsidiary to deliver to the
Administrative Agent, at the Borrowers'
cost and expense, such other
instruments, documents, certificates, and
opinions reasonably required by the
Administrative Agent in connection
therewith.
-17-
<PAGE>
SECTION 5. DEFINITIONS;
INTERPRETATION.
Section 5.1. Definitions. The following terms when used herein
shall
have the following meanings:
"Acquired Business" means the entity or assets acquired by the
Company
or a Subsidiary in an Acquisition, whether
before or after the date hereof.
"Acquisition" means any transaction or series of related
transactions
for the purpose of or resulting, directly
or indirectly, in (a) the acquisition
of all or substantially all of the assets
of a Person, or of any business or
division of a Person, (b) the acquisition
of in excess of 50% of the capital
stock, partnership interests, membership
interests or equity of any Person
(other than a Person that is a Subsidiary),
or otherwise causing any Person to
become a Subsidiary, or (c) a merger or
consolidation or any other combination
with another Person (other than a Person
that is a Subsidiary), provided that
the Company or the Subsidiary is the
surviving entity.
"Adjusted LIBOR" is defined in Section 1.3(b) hereof.
"Administrative Agent" means Harris N.A. and any successor pursuant
to
Section 11.7 hereof.
"Administrative Agent's Quoted Rate" is defined in Section
1.14(c)
hereof.
Administrative Questionnaire" means an administrative questionnaire
in
a form supplied by the Administrative
Agent.
"Affiliate" means any Person directly or indirectly controlling
or
controlled by, or under direct or indirect
common control with, another Person.
A Person shall be deemed to control another
Person for the purposes of this
definition if such Person possesses,
directly or indirectly, the power to
direct, or cause the direction of, the
management and policies of the other
Person, whether through the ownership of
voting securities, common directors,
trustees or officers, by contract or
otherwise; provided that, in any event for
purposes of this definition, any Person
that owns, directly or indirectly, 5% or
more of the securities having the ordinary
voting power for the election of
directors or governing body of a
corporation or 5% or more of the partnership or
other ownership interest of any other
Person (other than as a limited partner of
such other Person) will be deemed to
control such corporation or other Person.
"Agreement" means this Credit Agreement, as the same may be
amended,
modified, restated or supplemented from
time to time pursuant to the terms
hereof.
"Alternative Currency" means any of Euros, Pound Sterling, and
any
other currency approved by all the Lenders,
in each case for so long as such
currency is readily available to all the
Lenders and is freely transferable and
freely convertible to U.S. Dollars and the
Dow Jones Telerate Service or Reuters
Monitor Money Rates Service (or any
successor to either) reports a LIBOR for
such currency for interest periods of one,
two, three and six calendar months;
provided that if any Lender provides
written notice to the Company (with a copy
to the Administrative Agent) that any
currency control or other exchange
regulations are imposed in the country in
which any such Alternative Currency is
issued and that in the reasonable opinion
of such Lender funding a Loan in such
currency is impractical, then such currency
shall cease to be an Alternative
Currency hereunder until such time as all
the Lenders reinstate such country's
currency as an Alternative Currency.
-18-
<PAGE>
"Applicable Margin" means, with respect to Loans, Reimbursement
Obligations, and the commitment fees and
letter of credit fees payable under
Section 2.1 hereof, until the first Pricing
Date, the rates per annum shown
opposite Level I below, and thereafter from
one Pricing Date to the next the
Applicable Margin means the rates per annum
determined in accordance with the
following schedule:
<TABLE>
<CAPTION>
APPLICABLE MARGIN FOR APPLICABLE
MARGIN
TOTAL SENIOR FUNDED BASE RATE
LOANS AND
FOR EUROCURRENCY LOANS APPLICABLE MARGIN
DEBT/EBITDA RATIO
REIMBURSEMENT
AND LETTER OF CREDIT FOR COMMITMENT
FEE
LEVEL FOR SUCH
PRICING DATE OBLIGATIONS SHALL BE:
FEE
SHALL BE:
SHALL BE:
-----
------------------------- --------------------- ----------------------
------------------
<S> <C>
<C>
<C>
<C>
V Greater
than or equal to
2.50 to 1.0
0%
1.125%
0.20%
IV Less
than 2.50 to 1.0,
but greater
than
or
equal to 2.00 to 1.0
0%
0.875%
0.175%
III Less
than 2.0 to 1.0,
but greater
than
or
equal to 1.5 to 1.0
0%
0.75%
0.15%
II Less
than 1.5 to 1.0,
but greater
than
or
equal to 1.0 to 1.0
0%
0.625%
0.125%
I Less than
1.0 to 1.0
0%
0.50%
0.10%
</TABLE>
For purposes hereof, the term "Pricing
Date" means, for any fiscal quarter of
the Company ending on or after September
30, 2005, the date on which the
Administrative Agent is in receipt of the
Company's most recent financial
statements (and, in the case of the
year-end financial statements, audit report)
for the fiscal quarter then ended, pursuant
to Section 8.5 hereof. The
Applicable Margin shall be established
based on the Total Senior Debt/EBITDA
Ratio for the most recently completed
fiscal quarter and the Applicable Margin
established on a Pricing Date shall remain
in effect until the next Pricing
Date. If the Company has not delivered its
financial statements by the date such
financial statements (and, in the case of
the year-end financial statements,
audit report) are required to be delivered
under Section 8.5 hereof, until such
financial statements and audit report are
delivered, the Applicable Margin shall
be the highest Applicable Margin (i.e.,
Level V shall apply). If the Company
subsequently delivers such financial
statements before the next Pricing Date,
the Applicable Margin established by such
late delivered financial statements
shall take effect from the date of delivery
until the next Pricing Date. In all
other circumstances, the Applicable Margin
established by such financial
statements shall be in effect from the
Pricing Date that occurs immediately
after the end of the fiscal quarter covered
by such financial statements until
the next Pricing Date. Each determination
of the Applicable Margin made by the
Administrative Agent in accordance with the
foregoing shall be conclusive and
binding on the Borrowers and the Lenders if
reasonably determined.
-19-
<PAGE>
"Application" is defined in Section 1.2(b) hereof.
"Authorized Representative" means those persons shown on the list
of
officers provided by the Company pursuant
to Section 7.2 hereof or on any update
of any such list provided by the Company to
the Administrative Agent, or any
further or different officers of the
Company so named by any Authorized
Representative of the Company in a written
notice to the Administrative Agent.
"Base Rate" is defined in Section 1.3(a) hereof.
"Base Rate Loan" means a Loan bearing interest at a rate specified
in
Section 1.3(a) hereof.
"Borrower" and "Borrowers" are each defined in the introductory
paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest
Period, or converted from a different type
into such type by the Lenders under a
Credit on a single date and, in the case
of Eurocurrency Loans, for a single
Interest Period. Borrowings of Loans are
made and maintained ratably from each of
the Lenders under a Credit according to
their Percentages of such Credit. A
Borrowing is "advanced" on the day Lenders
advance funds comprising such Borrowing to
the applicable Borrower, is
"continued" on the date a new Interest
Period for the same type of Loans
commences for such Borrowing, and is
"converted" when such Borrowing is changed
from one type of Loans to the other, all as
determined pursuant to Section 1.5
hereof. Borrowings of Swing Loans are made
by the Administrative Agent in
accordance with the procedures set forth in
Section 1.14 hereof.
"Business Day" means any day other than a Saturday or Sunday on
which
Banks are not authorized or required to
close in Chicago, Illinois and, if the
applicable Business Day relates to the
borrowing or payment of a Eurocurrency
Loan, on which banks are dealing in U.S.
Dollar deposits or the relevant
Alternative Currency in the interbank
market in London, England and, if the
applicable Business Day relates to the
borrowing or payment of a Eurocurrency
Loan denominated in an Alternative
Currency, on which banks and foreign exchange
markets are open for business in the city
where disbursements of or payments on
such Loan are to be made and, if such
Alternative Currency is the Euro or any
national currency of a nation that is a
member of the European Economic and
Monetary Union, which is a TARGET
Settlement Day.
"Capital Lease" means any lease of Property which in accordance
with
GAAP is required to be capitalized on the
balance sheet of the lessee.
-20-
<PAGE>
"Capitalized Lease Obligation" means, for any Person, the amount of
the
liability shown on the balance sheet of
such Person in respect of a Capital
Lease determined in accordance with
GAAP.
"Capitalized Rentals" shall mean as of the date of any
determination
the amount at which the aggregate Rentals
due and to become due under all
Capitalized Leases under which any Borrower
or any Subsidiary is a lessee would
be reflected as a liability on a
consolidated balance sheet of the Company and
its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response,
Compensation
and Liability Act of 1980, as amended by
the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C.
Sections 9601 et seq., and any future
amendments.
"CETCO Europe" is defined in the introductory paragraph of this
Agreement.
"Change of Control" means any of (a) the acquisition by any
"person" or
"group" (as such terms are used in sections
13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) at any
time of beneficial ownership of 20% or
more of the outstanding capital stock or
other equity interests of the Company
on a fully-diluted basis, (b) the failure
of individuals who are members of the
board of directors (or similar governing
body) of the Company on the Closing
Date (together with any new or replacement
directors whose initial nomination
for election was approved by a majority of
the directors who were either
directors on the Closing Date or previously
so approved) to constitute a
majority of the board of directors (or
similar governing body) of the Company,
or (c) any "Change of Control" (or words of
like import), as defined in any
agreement or indenture relating to any
issue of Indebtedness shall occur.
"Closing Date" means the date of this Agreement or such later
Business
Day upon which each condition described in
Section 7.2 shall be satisfied or
waived in a manner acceptable to the
Administrative Agent in its discretion.
"Code" means the Internal Revenue Code of 1986, as amended, and
any
successor statute thereto.
"Collateral Account" is defined in Section 9.4 hereof.
"Colin Stewart" is defined in the introductory paragraph of
this
Agreement.
"Commitment Amount Increase" is defined in Section 1.15 hereof.
"Commitment Amount Increase Request" means a Commitment Amount
Increase
Request in the form of Exhibit E
hereto.
"Company" is defined in the introductory paragraph of this
Agreement.
-21-
<PAGE>
"Consolidated Current Liabilities" as of the date of any
determination
thereof shall mean such liabilities of the
Company and its Subsidiaries on a
consolidated basis as shall be determined
in accordance with GAAP to constitute
current liabilities.
"Consolidated Net Tangible Assets" shall mean as of the date of
any
determination thereof the total amount of
all Tangible Assets of the Company and
its Subsidiaries after deducting all items
which in accordance with GAAP would
be included on the liability side of a
consolidated balance sheet, except
deferred income taxes, deferred investment
tax credits, capital stock of any
class, surplus, and Funded Debt.
"Consolidated Tangible Net Worth" shall mean, as of the date of
any
determination thereof, Consolidated Net
Tangible Assets less all outstanding
Funded Debt, deferred income taxes,
deferred investment tax credits and Minority
Interests, all determined in accordance
with GAAP consolidating the Company and
its Subsidiaries.
"Consolidated Total Capitalization" shall mean, as of the date of
any
determination thereof, the total amount of
all assets of the Company and its
Subsidiaries after deducting all items
which in accordance with GAAP would be
included on the liability side of a
consolidated balance sheet, except capital
stock of any class, surplus (net of
treasury stock and loans to officers), and
Funded Debt.
"Contingent Obligations" of any Person shall mean all
obligations
(other than endorsements in the ordinary
course of business of negotiable
instruments for deposit or collection) of
such Person guaranteeing or in effect,
guaranteeing any Indebtedness, dividend or
other obligation, of any other Person
(the "primary obligor") in any manner,
whether directly or indirectly,
including, without limitation, all
obligations incurred through an agreement,
contingent or otherwise, by such Person:
(i) to purchase such Indebtedness or
obligation or any property or assets
constituting security therefor, (ii) to
advance or supply funds (x) for the
purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital
or other balance sheet condition or
otherwise to advance or make available
funds for the purchase or payment of such
Indebtedness or obligation, or (iii) to
lease property or to purchase Securities
or other property or services primarily for
the purpose of assuring the owner of
such Indebtedness or obligation of the
ability of the primary obligor to make
payment of the Indebtedness or obligation,
or (iv) otherwise to assure the owner
of the Indebtedness or obligation of the
primary obligor against loss in respect
thereof. For the purposes of all
computations made under this Agreement, a
guaranty in respect of any Indebtedness
shall be deemed to be Indebtedness equal
to the principal amount of such
Indebtedness which has been guaranteed, and a
guaranty in respect of any other obligation
or liability or any dividend shall
be deemed to be Indebtedness equal to the
maximum aggregate amount of such
obligation, liability or dividend.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses
(whether or not incorporated) under
common control which, together with any
Borrower, are treated as a single
employer under Section 414 of the Code.
"Credit" means either of the Revolving Credit or the Swing
Line.
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<PAGE>
"Credit Event" means the advancing of any Loan, the continuation of
or
conversion into a Eurocurrency Loan, or the
issuance of, or extension of the
expiration date or increase in the amount
of, any Letter of Credit.
"Current Debt" as of the date of any determination thereof shall
mean
(i) all Indebtedness other than Funded
Debt, (ii) letter of credit obligations
and (iii) Contingent Obligations with
respect to Current Debt of others.
"Default" means any event or condition the occurrence of which
would,
with the passage of time or the giving of
notice, or both, constitute an Event
of Default.
"EBITDA" means, with reference to any period, Net Income for
such
period plus the sum of all amounts deducted
in arriving at such Net Income
amount in respect of (a) Interest Expense
for such period, (b) federal, state,
and local income taxes for such period, and
(c) depreciation of fixed assets and
amortization of intangible assets for such
period.
"Eligible Line of Business" means any business engaged in as of
the
date of this Agreement by the Company or
any of its Subsidiaries.
"Environmental Claim" means any investigation, notice,
violation,
demand, allegation, action, suit,
injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding or claim
(whether administrative, judicial or
private in nature) arising (a) pursuant to,
or in connection with an actual or
alleged violation of, any Environmental
Law, (b) in connection with any
Hazardous Material, (c) from any abatement,
removal, remedial, corrective or
response action in connection with a
Hazardous Material, Environmental Law or
order of a governmental authority or (d)
from any actual or alleged damage,
injury, threat or harm to health, safety,
natural resources or the environment.
"Environmental Law" means any current or future Legal
Requirement
pertaining to (a) the protection of health,
safety and the indoor or outdoor
environment, (b) the conservation,
management or use of natural resources and
wildlife, (c) the protection or use of
surface water or groundwater, (d) the
management, manufacture, possession,
presence, use, generation, transportation,
treatment, storage, disposal, Release,
threatened Release, abatement, removal,
remediation or handling of, or exposure to,
any Hazardous Material or (e)
pollution (including any Release to air,
land, surface water or groundwater),
and any amendment, rule, regulation, order
or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended, or any successor statute
thereto.
"Euro" and "(euro)" means the lawful currency of the member states
of
the European Union that adopt a single
currency in accordance with the Treaty on
European Union signed February 7, 1992.
"Eurocurrency Loan" means a Loan bearing interest at the rate
specified
in Section 1.3(b) hereof.
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<PAGE>
"Eurocurrency Reserve Percentage" is defined in Section 1.3(b)
hereof.
"Event of Default" means any event or condition identified as such
in
Section 9.1 hereof.
"Existing Letters of Credit" is defined in Section 1.2(a)
hereof.
"Federal Funds Rate" means the fluctuating interest rate per
annum
described in part (x) of clause (ii) of the
definition of Base Rate appearing in
Section 1.3(a) hereof.
"Foreign Subsidiary" means each Subsidiary which (a) is organized
under
the laws of a jurisdiction other than the
United States of America or any state
thereof, (b) conducts substantially all of
its business outside of the United
States of America, and (c) has
substantially all of its assets outside of the
United States of America.
"Funded Debt" of any Person shall mean (i) all Indebtedness having
a
final maturity of one or more than one year
from the date of origin thereof (or
which is renewable or extendible at the
option of the obligor for a period or
periods more than one year from the date of
origin), including all payments in
respect thereof that are required to be
made within one year from the date of
any determination of Funded Debt, whether
or not included in Consolidated
Current Liabilities, (ii) all Capitalized
Rentals, and (iii) all Contingent
Obligations with respect to Funded Debt of
others (unless such Funded Debt is
included in subclauses (i) or (ii) above).
"Consolidated" when used as a prefix
to any Funded Debt shall mean the aggregate
amount of all such Funded Debt of
the Company and its Subsidiaries on a
consolidated basis eliminating
intercompany items.
"Funds Transfer and Deposit Account Liability" means the liability
of
any Borrower or any Subsidiary owing to any
of the Lenders, or any Affiliates of
such Lenders, arising out of (a) the
execution or processing of electronic
transfers of funds by automatic clearing
house transfer, wire transfer or
otherwise to or from deposit accounts of
any Borrower and/or any Subsidiary now
or hereafter maintained with any of the
Lenders or their Affiliates, (b) the
acceptance for deposit or the honoring for
payment of any check, draft or other
item with respect to any such deposit
accounts, and (c) any other deposit,
disbursement, and cash management services
afforded to any Borrower or any
Subsidiary by any of such Lenders or their
Affiliates.
"GAAP" means generally accepted accounting principles set forth
from
time to time in the opinions and
pronouncements of the Accounting Principles
Board and the American Institute of
Certified Public Accountants and statements
and pronouncements of the Financial
Accounting Standards Board (or agencies with
similar functions of comparable stature and
authority within the U.S. accounting
profession), which are applicable to the
circumstances as of the date of
determination.
"Guarantor" and "Guarantors" are each defined in Section 4.1
hereof.
"Guaranty" and "Guaranties" are each defined in Section 4.1
hereof.
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<PAGE>
"Hazardous Material" means any substance, chemical, compound,
product,
solid, gas, liquid, waste, byproduct,
pollutant, contaminant or material which
is hazardous or toxic, and includes,
without limitation, (a) asbestos,
polychlorinated biphenyls and petroleum
(including crude oil or any fraction
thereof) and (b) any material classified or
regulated as "hazardous" or "toxic"
or words of like import pursuant to an
Environmental Law.
"Hazardous Material Activity" means any activity, event or
occurrence
involving a Hazardous Material, including,
without limitation, the manufacture,
possession, presence, use, generation,
transportation, treatment, storage,
disposal, Release, threatened Release,
abatement, removal, remediation, handling
of or corrective or response action to any
Hazardous Material.
"Hedging Liability" means the liability of any Borrower or any
Subsidiary to any of the Lenders, or any
Affiliates of such Lenders, in respect
of any interest rate, foreign currency,
and/or commodity swap, exchange, cap,
collar, floor, forward, future or option
agreement, or any other similar
interest rate, currency or commodity
hedging arrangement, as such Borrower or
such Subsidiary, as the case may be, may
from time to time enter into with any
one or more of the Lenders party to this
Agreement or their Affiliates.
"Hostile Acquisition" means the acquisition of the capital stock
or
other equity interests of a Person through
a tender offer or similar
solicitation of the owners of such capital
stock or other equity interests which
has not been approved (prior to such
acquisition) by resolutions of the Board of
Directors of such Person or by similar
action if such Person is not a
corporation, and as to which such approval
has not been withdrawn.
"Indebtedness" means for any Person (without duplication) (a)
all
indebtedness created, assumed or incurred
in any manner by such Person
representing money borrowed (including by
the issuance of debt securities), (b)
all indebtedness for the deferred purchase
price of property or services (other
than trade accounts payable arising in the
ordinary course of business which are
not more than thirty (30) days past due),
(c) all indebtedness secured by any
Lien upon Property of such Person, whether
or not such Person has assumed or
become liable for the payment of such
indebtedness, (d) all Capitalized Lease
Obligations of such Person, (e) all
obligations of such Person on or with
respect to letters of credit, bankers'
acceptances and other extensions of
credit whether or not representing
obligations for borrowed money, (f)
liabilities of such Person in respect of
any so-called "synthetic" leases or
other transactions which is the functional
equivalent of or takes the place of
borrowing but which does not constitute a
liability on such Person's balance
sheet and (g) net obligations under any
Swap Contract in an amount equal to the
Swap Termination Value thereof.
"Interest Expense" means, with reference to any period, the sum of
all
interest charges (including imputed
interest charges with respect to Capitalized
Lease Obligations and all amortization of
debt discount and expense) of the
Company and its Subsidiaries for such
period determined on a consolidated basis
in accordance with GAAP.
"Interest Period" is defined in Section 1.6 hereof.
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<PAGE>
"L/C Issuer" means the Administrative Agent, or any other
Lender
requested by the Company and approved by
the Administrative Agent in its sole
discretion with respect to any Letter of
Credit.
"L/C Obligations" means the aggregate undrawn face amounts of
all
outstanding Letters of Credit and all
unpaid Reimbursement Obligations.
"L/C Sublimit" means $25,000,000, as reduced pursuant to the
terms
hereof.
"Legal Requirement" means any treaty, convention, statute, law,
regulation, ordinance, license, permit,
governmental approval, injunction,
judgment, order, consent decree or other
requirement of any governmental
authority, whether federal, state, or
local.
"Lenders" means and includes the financial institutions from time
to
time party to this Agreement, including
each assignee Lender pursuant to Section
13.12 hereof.
"Lending Office" is defined in Section 10.4 hereof.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"LIBOR" is defined in Section 1.3(b) hereof.
"Lien" means any mortgage, lien, security interest, pledge, charge
or
encumbrance of any kind in respect of any
Property, including the interests of a
vendor or lessor under any conditional
sale, Capital Lease or
