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Exhibit 4.6
REVOLVING CREDIT AGREEMENT
THIS
REVOLVING CREDIT AGREEMENT, dated as of December 20, 2005, among
the
following:
(I) OM GROUP, INC., a Delaware corporation (herein, together with
its
successors and assigns, the "BORROWER");
(II) the lending institutions signatory hereto (each a "LENDER"
and
collectively, the "LENDERS"); and
(III) NATIONAL CITY BANK, a national banking association, as a
Lender,
the
Swing Line Lender, the Letter of Credit Issuer, and as the
administrative agent (the "ADMINISTRATIVE AGENT"), the collateral
agent
(the
"COLLATERAL AGENT"), book running manager (the "BOOK RUNNING
MANAGER"), and lead arranger (the "LEAD ARRANGER"):
PRELIMINARY STATEMENTS:
(1)
Unless otherwise defined herein, all capitalized terms used herein
and
defined in section 1 are used herein as so defined.
(2)
The Borrower has applied to the Lenders for revolving credit
facilities
in an aggregate amount of $100,000,000 to refinance certain
existing
indebtedness, to support working capital needs, and for general
corporate
purposes.
(3)
Subject to and upon the terms and conditions set forth herein,
the
Lenders are willing to make available to the Borrower the credit
facility
provided for herein.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND TERMS
1.1.
CERTAIN DEFINED TERMS. As used herein, the following terms shall
have
the meanings herein specified unless the context otherwise
requires.
"ACQUISITION" shall mean and include (i) any acquisition on a going
concern
basis (whether by purchase, lease or otherwise) of any facility
and/or business
operated by any Person who is not a Subsidiary of the Borrower, and
(ii)
acquisitions of a majority of the outstanding equity or other
similar interests
in any such Person (whether by merger, stock purchase or
otherwise).
"ADDITIONAL SECURITY DOCUMENT" shall have the meaning provided in
section
8.12(b).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the
first
paragraph of this Agreement and shall include any successor to
the
Administrative Agent appointed pursuant to section 11.9.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" shall mean, with respect to any Person, any other
Person
directly or indirectly controlling, controlled by, or under direct
or indirect
common control with such Person, or, in the case of any Lender
which is an
investment fund, the investment advisor thereof and any investment
fund having
the same investment advisor. A Person shall be deemed to control a
second Person
if such first Person possesses, directly or indirectly, the power
(i) to vote
20% or more of the securities having ordinary voting power for the
election of
directors or managers of such second Person or (ii) to direct or
cause the
direction of the management and policies of such second Person,
whether
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through the ownership of voting securities, by contract or
otherwise.
Notwithstanding the foregoing, (x) a director, officer or employee
of a Person
shall not, solely by reason of such status, be considered an
Affiliate of such
Person; and (y) neither the Administrative Agent nor any Lender
shall in any
event be considered an Affiliate of the Borrower or any other
Credit Party or
any of their respective Subsidiaries.
"AGREEMENT" shall mean this Revolving Credit Agreement, as the same
may be
from time to time further modified, amended, restated, amended and
restated
and/or supplemented.
"ALTERNATIVE CURRENCY" shall mean and include (i) Euros, if at the
time
such currency is readily and freely transferable and convertible
into Dollars,
and (ii) any other lawful currency other than Dollars that is
readily and freely
transferable and convertible into Dollars and is acceptable to the
Lenders and
any applicable Letter of Credit Issuer.
"ALTERNATIVE CURRENCY SUBLIMIT" shall mean $25,000,000.
"AIRCRAFT LEASE" shall mean the lease between the Borrower and G.E.
Capital
dated as of September 28, 2000 with respect to the Borrower's
corporate
aircraft.
"ANTI-TERRORISM LAW" means the USA Patriot Act or any other law
pertaining
to the prevention of future acts of terrorism, in each case as such
law may be
amended from time to time.
"APPLICABLE COMMITMENT FEE" shall mean a rate per annum set forth
in the
Pricing Grid in section 2.7(g).
"APPLICABLE EUROCURRENCY MARGIN" shall have the meaning provided in
section
2.7(g).
"APPLICABLE LENDING OFFICE" shall mean, with respect to each
Lender, (i)
such Lender's Domestic Lending Office in the case of Borrowings
consisting of
Prime Rate Loans and (ii) such Lender's Eurocurrency Lending Office
in the case
of Borrowings consisting of Eurocurrency Loans, and (iii) in the
case of
Borrowings from the Swing Line Lender which consist of Money Market
Rate Loans,
the Domestic Lending Office of the Swing Line Lender.
"APPLICABLE PRIME RATE MARGIN" shall have the meaning provided in
section
2.7(g).
"ASSET SALE" shall mean, with respect to any Person, any sale,
lease,
transfer or other disposition by such Person (including a
consolidation or
merger or other sale of any Subsidiary of such Person with, into or
to any other
Person in a transaction in which such Subsidiary ceases to be a
Subsidiary) of
(i) all or substantially all of the assets of any division or line
of business
of such Person or any of its Subsidiaries, (ii) any manufacturing
or processing
plant or facility of such Person or any of its Subsidiaries, (iii)
shares of
capital stock or other equity interests (or any options, warrants
or rights to
acquire any such shares or other equity interests) of a Subsidiary,
with the
result that the Borrower's fully diluted direct and indirect
percentage
ownership interest in such Subsidiary is reduced, including any
such transaction
resulting in such Subsidiary ceasing to be a Subsidiary, or
effected by means of
a liquidation of a corporation, partnership or limited liability
company which
is not a Wholly-Owned Subsidiary, or (iv) other non-cash assets or
rights of
such Person or any Subsidiary outside the ordinary course of
business, PROVIDED
that the term Asset Sale specifically excludes (x) any sales,
transfers or other
dispositions of inventory, or obsolete or excess furniture,
fixtures, equipment
or other property, real or personal, tangible or intangible, in
each case in the
ordinary course of business, (y) any Event of Loss, and (z) any
sale of
marketable securities in the ordinary course of business. The term
Asset Sale
specifically includes any Sale and Lease-Back Transaction.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into
by a Lender and an Eligible Assignee (with the consent of any party
whose
consent is required by section 12.4), and accepted by the
Administrative Agent,
in substantially the form of Exhibit C or any other form approved
by the
Administrative Agent.
"AUTHORIZED OFFICER" shall mean any officer or employee of the
Borrower
designated as such in writing to the Administrative Agent by the
Borrower.
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"BANKRUPTCY CODE" shall have the meaning provided in section
10.1(h).
"BASKET INVESTMENTS AND GUARANTEES" has the meaning provided in
section
9.5(n).
"BORROWER" shall have the meaning provided in the first paragraph
of this
Agreement.
"BORROWING" shall mean a Revolving Borrowing or a Swing Line
Borrowing, as
the case may be.
"BUSINESS DAY" shall mean (i) for all purposes other than as
covered by
clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be
in the city in which the applicable Payment Office is located a
legal holiday or
a day on which banking institutions are authorized by law or other
governmental
actions to close and (ii) with respect to all notices and
determinations in
connection with, and payments of principal and interest on,
Eurocurrency Loans,
any day which is a Business Day described in clause (i) and which
is also a day
on which dealings are carried on in the London interbank market and
banks are
open for business in London and in the country of issue of any
Alternative
Currency in which any applicable Eurocurrency Loans are
denominated.
"CAPITAL LEASE" as applied to any Person shall mean any lease of
any
property (whether real, personal or mixed) by that Person as lessee
which, in
conformity with GAAP, is accounted for as a capital lease on the
balance sheet
of that Person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under
Capital
Leases of the Borrower or any of its Subsidiaries in each case
taken at the
amount thereof accounted for as liabilities identified as "capital
lease
obligations" (or any similar words) on a consolidated balance sheet
of the
Borrower and its Subsidiaries prepared in accordance with GAAP.
"CASH EQUIVALENTS" shall mean any of the following:
(i) securities
issued or directly and fully guaranteed or insured by
the
United States of America or any agency or instrumentality
thereof
(PROVIDED that the full faith and credit of the United States of
America is
pledged in support thereof) having maturities of not more than one
year
from
the date of acquisition;
(ii) U.S. dollar denominated time deposits, certificates of
deposit
and
bankers' acceptances of (x) any Lender or (y) any bank whose
short-term
commercial paper rating from S&P is at least A-1 or the
equivalent thereof
or
from Moody's is at least P-1 or the equivalent thereof (any such
bank,
an
"APPROVED BANK"), in each case with maturities of not more than
three
months from the date of acquisition;
(iii) commercial paper issued by any Lender or Approved Bank or by
the
parent company of any Lender or Approved Bank and commercial paper
issued
by,
or guaranteed by, any industrial or financial company with a
short-
term
commercial paper rating of at least A-1 or the equivalent thereof
by
S&P or at least P-1 or the equivalent thereof by Moody's, or
guaranteed by
any
industrial company with a long term unsecured debt rating of at
least A
or
A2, or the equivalent of each thereof, from S&P or Moody's, as
the case
may
be, and in each case maturing within 90 days after the date of
acquisition;
(iv) fully collateralized repurchase agreements entered into with
any
Lender or Approved Bank having a term of not more than 30 days and
covering
securities described in clause (i) above;
(v) investments in money market funds substantially all the assets
of
which are comprised of securities of the types described in clauses
(i)
through (iv) above;
(vi) investments in money market funds access to which is provided
as
part
of "sweep" accounts maintained with a Lender or an Approved
Bank;
(vii) investments in industrial development revenue bonds which
(A)
"re-set" interest rates not less frequently than quarterly, (B)
are
entitled to the benefit of a remarketing arrangement with an
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established broker dealer, and (C) are supported by a direct pay
letter of
credit covering principal and accrued interest which is issued by
an
Approved Bank;
(viii) investments in pooled funds or investment accounts
consisting
of
investments of the nature described in the foregoing clause (vii);
and
(ix) in the case of any Foreign Subsidiary only, short term
deposits,
certificates of deposit, repurchase agreements and similar
financial
instruments, in any currency, with or issued by any local or
international
financial institution with
undivided capital and surplus of at least
$350,000,000 (or the equivalent in any applicable currency).
"CASH FLOW COVERAGE RATIO" shall mean, for any Testing Period, the
ratio of
(x) Consolidated EBITDA for such Testing Period,
TO
(y) the sum of (A) Consolidated Interest Expense and (B)
Consolidated
Capital Expenditures (other than any capital expenditures which are
funded
with
the proceeds of Indebtedness permitted hereunder (other than
Revolving
Loans)), for such Testing Period.
"CASH PROCEEDS" shall mean, with respect to (i) any Asset Sale,
the
aggregate cash payments (including any cash received by way of
deferred payment
pursuant to a note receivable issued in connection with such Asset
Sale, other
than the portion of such deferred payment constituting interest,
but only as and
when so received) received by the Borrower and/or any Subsidiary
from such Asset
Sale, and (ii) any Event of Loss, the aggregate cash payments,
including all
insurance proceeds and proceeds of any award for condemnation or
taking,
received in connection with such Event of Loss.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation,
and Liability Act of 1980, as the same may be amended from time to
time, 42
U.S.C. Section 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the
following:
(I) during any period of two consecutive calendar years,
individuals
who
at the beginning of such period constituted the Borrower's Board
of
Directors (together with any new directors (x) whose election by
the
Borrower's Board of Directors was, or (y) whose nomination for
election by
the
Borrower's shareholders was (prior to the date of the proxy or
consent
solicitation relating to such nomination), approved by a vote of at
least
two-thirds of the directors then still in office who either were
directors
at
the beginning of such period or whose election or nomination
for
election was previously so approved), shall cease for any reason
to
constitute a majority of the directors then in office;
(II) any Person or group (as such term is defined in section
13(d)(3)
of
the 1934 Act) shall acquire, directly or indirectly, beneficial
ownership (within the meaning of Rule 13d-3 and 13d-5 of the 1934
Act) of
more
than 50%, on a fully diluted basis, of the economic or voting
interest
in
the Borrower's capital stock;
(III) the shareholders of the Borrower approve a merger or
consolidation of the Borrower with any other Person, OTHER than a
merger or
consolidation which would result in the voting securities of the
Borrower
outstanding immediately prior thereto continuing to represent
(either by
remaining outstanding or by being converted or exchanged for
voting
securities of the surviving or resulting entity) more than 50% of
the
combined voting power of the voting securities of the Borrower or
such
surviving or resulting entity outstanding after such merger or
consolidation;
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(IV) the shareholders of the Borrower approve a plan of
complete
liquidation of the Borrower or an agreement or agreements for the
sale or
disposition by the Borrower of all or substantially all of the
Borrower's
assets; and/or
(V) any "change in control" or any similar term as defined in any
of
the
indentures, credit agreements or other instruments governing
any
Indebtedness of the Borrower or any of its Subsidiaries with an
outstanding
principal amount, or providing for commitments to lend in an
outstanding
principal amount, of at least $10,000,000 (or the equivalent amount
in any
other currency).
"CHARGES" has the meaning provided in section 12.25.
"CIP
REGULATIONS" has the meaning provided in section 11.11.
"CLOSING DATE" shall mean the date, on or after the Effective Date,
upon
which the conditions specified in section 6.1 are satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time
to time, and the regulations promulgated and the rulings issued
thereunder.
Section references to the Code are to the Code, as in effect at the
Effective
Date and any subsequent provisions of the Code, amendatory thereof,
supplemental
thereto or substituted therefor.
"COLLATERAL" shall mean any collateral covered by any Security
Document.
"COLLATERAL AGENT" shall mean the Administrative Agent acting as
Collateral
Agent for the Lenders pursuant to the Security Documents.
"COLLATERAL ASSIGNMENT OF PATENTS" shall mean each collateral
assignment of
patents substantially in the form of Exhibit D-1, executed and
delivered in
connection herewith, as the same may be amended, restated, amended
and restated,
supplemented or otherwise modified from time to time.
"COLLATERAL ASSIGNMENT OF TRADEMARKS" shall mean each collateral
assignment
of trademarks substantially in the form of Exhibit D-2, heretofore
or hereafter
executed and delivered in connection herewith, as the same may be
amended,
restated, amended and restated, supplemented or otherwise modified
from time to
time.
"COMMITMENT" shall mean, with respect to each Lender, its
Revolving
Commitment and its Swing Line Commitment, if any, or either or both
of such
Commitments of a Lender, as applicable.
"COMMITMENT FEE" shall have the meaning provided in section
4.1(a).
"CONFIDENTIAL INFORMATION" has the meaning provided in section
12.15(b).
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period,
all
amortization expenses of the Borrower and its Subsidiaries, all as
determined
for the Borrower and its Subsidiaries on a consolidated basis in
accordance with
GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period,
the
aggregate of all expenditures (whether paid in cash or accrued as
liabilities
and including in all events amounts expended or capitalized under
Capital Leases
and Synthetic Leases but excluding any amount representing
capitalized interest)
by the Borrower and its Subsidiaries during that period that, in
conformity with
GAAP, are or are required to be included in the property, plant or
equipment
reflected in the consolidated balance sheet of the Borrower and
its
Subsidiaries.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period,
all
depreciation expenses of the Borrower and its Subsidiaries, all as
determined
for the Borrower and its Subsidiaries on a consolidated basis in
accordance with
GAAP.
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"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income
for such period; PLUS (A) the sum of the amounts for such period
included in
determining such Consolidated Net Income of (i) Consolidated
Interest Expense,
(ii) Consolidated Income Tax Expense, (iii) Consolidated
Depreciation Expense,
(iv) Consolidated Amortization Expense, (v) non-cash losses and
charges which
are properly classified as extraordinary or non-recurring, (vi)
non-cash charges
associated with FAS 142 and FAS 144, and (vii) charges associated
with the
termination of the Aircraft Lease LESS (B) gains on sales of assets
and other
extraordinary gains and other non-recurring non-cash gains; all as
determined
for the Borrower and its Subsidiaries on a consolidated basis in
accordance with
GAAP; EXCEPT that in computing Consolidated Net Income for purposes
of this
definition, there shall be excluded therefrom (x) the income, (or
loss) of any
entity (other than Subsidiaries of the Borrower) in which the
Borrower or any of
its Subsidiaries has a joint or minority interest, except to the
extent of the
amount of dividends or other distributions actually paid to the
Borrower or any
of its Subsidiaries during such period, and (y) the income of any
Subsidiary of
the Borrower to the extent that the declaration or payment of
dividends or
similar distributions by that Subsidiary of that income is not at
the time
permitted by operation of the terms of its charter or any
agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to
that Subsidiary; and PROVIDED THAT "Consolidated EBITDA" shall in
any event
include the insurance proceeds received by the Borrower related to
the
shareholder litigation settlement in November 2005.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any period,
all
provisions for taxes based on the net income of the Borrower or any
of its
Subsidiaries (including, without limitation, any additions to such
taxes, and
any penalties and interest with respect thereto), all as determined
for the
Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, total
interest
expense (including that which is capitalized, that which is
attributable to
Capital Leases or Synthetic Leases and the pre-tax equivalent of
dividends
payable on Redeemable Stock) of the Borrower and its Subsidiaries
on a
consolidated basis with respect to all outstanding Indebtedness of
the Borrower
and its Subsidiaries including, without limitation, all
commissions, discounts
and other fees and charges owed with respect to letters of credit
and net costs
under Hedge Agreements, BUT EXCLUDING, HOWEVER, any amortization or
write-off of
deferred financing costs and any charges for prepayment penalties
on prepayment
of Indebtedness.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income
(or
loss), without deduction (or increase) for minority interests, of
the Borrower
and its Subsidiaries on a consolidated basis for such period taken
as a single
accounting period determined in conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean the sum (without duplication)
of all
Indebtedness of the Borrower and of each of its Subsidiaries, all
as determined
on a consolidated basis.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to a
continuation of
Eurocurrency Loans for an additional Interest Period as provided in
section 2.8.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of
Loans of one Type into Loans of another Type, pursuant to section
2.6, 2.8(b),
2.9 or 5.2.
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the
Subsidiary
Guaranty, the Security Documents, and any Letter of Credit
Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the
issuance of
any Letter of Credit.
"CREDIT PARTY" shall mean the Borrower and each of the
Borrower's
Subsidiaries and Affiliates which is a party to any Credit
Document.
"DEFAULT" shall mean any event, act or condition which with notice
or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender
Default is in effect.
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"DESIGNATED HEDGE AGREEMENT" shall mean any Hedge Agreement to
which the
Borrower or any of its Subsidiaries is a party which, pursuant to
(x) a written
instrument signed by the Administrative Agent and (y) the following
provisions,
has been designated as a Designated Hedge Agreement so that the
Borrower's or
Subsidiary's counterparty's credit exposure thereunder will be
entitled to share
in the benefits of the Subsidiary Guaranty and the Security
Documents to the
extent the Subsidiary Guaranty and such Security Documents provide
guarantees or
security for creditors of the Borrower or any Subsidiary under
Designated Hedge
Agreements:
(i) The Administrative Agent will, without the approval or consent
of
the
Lenders, designate a Hedge Agreement entered into with any Lender
or
any
Affiliate of any Lender as a Designated Hedge Agreement so long as
the
Administrative Agent reasonably determines, at the time of such
designation
and
after giving effect thereto, in accordance with its own
customary
valuation practices, that the maximum aggregate credit exposure to
the
Borrower and its Subsidiaries of all counterparties under all
Designated
Hedge Agreements is not more than $30,000,000;
(ii) The Administrative Agent may, without the approval or consent
of
the
Lenders, designate a Hedge Agreement as a Designated Hedge
Agreement so
long
as the Administrative Agent reasonably determines, at the time of
such
designation and after giving effect thereto, in accordance with its
own
customary valuation practices, that the maximum aggregate credit
exposure
to
the Borrower and its Subsidiaries of all counterparties under
all
Designated Hedge Agreements is not more than $30,000,000;
(iii) The Administrative Agent will not designate any Hedge
Agreement
as a
Designated Hedge Agreement without the approval, consent or
instructions of the Required Lenders if the Administrative Agent
reasonably
determines, at the time of such designation and after giving
effect
thereto, in accordance with its own customary valuation practices,
that the
maximum aggregate credit exposure to the Borrower and its
Subsidiaries of
all
counterparties under all Designated Hedge Agreements is more
than
$30,000,000; and
(iv) It shall be a condition to the rights of any counterparty
creditor of the Borrower or any Subsidiary under any Designated
Hedge
Agreement (other than in the case of a Lender or an Affiliate of
any
Lender) to share in any recoveries of enforcement of the
Subsidiary
Guaranty and of the Security Documents, that such counterparty
creditor
shall have entered into an intercreditor or similar agreement with
the
Administrative Agent under which recoveries from the Borrower and
its
Subsidiaries with respect to such Designated Hedge Agreement will
be shared
in a
manner consistent with the provisions of section 10.3 hereof;
provided, however, that notwithstanding the foregoing, the existing
Hedge
Agreements set forth on Annex VII hereto shall in any event be
Designated Hedge
Agreements.
"DESIGNATING LENDER" has the meaning provided in section
12.4(j).
"DOLLARS", "U.S. DOLLARS" and the sign "$" each means lawful money
of the
United States.
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender,
the
affiliate, branch or office of such Lender specified as its
Domestic Lending
Office in the Administrative Questionnaire delivered by it to the
Administrative
Agent or in the Assignment and Assumption pursuant to which it
became a Lender,
or such other affiliate, branch or office of such Lender as such
Lender may from
time to time specify to the Borrower and the Administrative
Agent.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary organized under the
laws of
the United States of America, any State thereof, the District of
Columbia, or
any United States possession, the chief executive office and
principal place of
business of which is located in, and which conducts the majority of
its business
within, the United States of America and its territories and
possessions;
excluding, however, any Subsidiary of a Foreign Subsidiary.
"EFFECTIVE DATE" shall have the meaning provided in section
12.10.
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"ELIGIBLE ASSIGNEE" shall mean (a) a Lender; (b) an Affiliate of a
Lender;
and (c) any other Person (other than a natural person) that is an
"accredited
investor" (as defined in SEC Regulation D) approved by (i) the
Administrative
Agent and (ii) unless a Default or Event of Default shall have
occurred and be
continuing, the Borrower (each such approval of the Administrative
Agent and the
Borrower not to be unreasonably withheld or delayed); provided
that
notwithstanding the foregoing, "Eligible Assignee" shall not
include the
Borrower or any of the Borrower's Affiliates or Subsidiaries and
shall further
not include any direct competitor of the Borrower or any Person
engaged in the
same or similar principal lines of business as the Borrower and its
Subsidiaries
considered as a whole, or an Affiliate of any such competitor or
Person.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of
non-compliance or violation, investigations or proceedings relating
in any way
to any Environmental Law or any permit issued under any such law
(hereafter
"CLAIMS"), including, without limitation, (i) any and all Claims by
governmental
or regulatory authorities for enforcement, cleanup, removal,
response, remedial
or other actions or damages pursuant to any applicable
Environmental Law, and
(ii) any and all Claims by any third party seeking damages,
contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from
the storage, treatment or Release (as defined in CERCLA) of any
Hazardous
Materials or arising from alleged injury or threat of injury to
health, safety
or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state,
foreign or
local statute, law, rule, regulation, ordinance, code, binding and
enforceable
guideline, binding and enforceable written policy and rule of
common law now or
hereafter in effect and in each case as amended, and any binding
and enforceable
judicial or administrative interpretation thereof, including any
judicial or
administrative order, consent, decree or judgment issued to or
rendered against
the Borrower or any of its Subsidiaries relating to the
environment, employee
health and safety or Hazardous Materials, including, without
limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, 33 U.S.C. Section
2601 ET SEQ.;
the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the Safe
Drinking Water Act,
42 U.S.C. Section 3803 ET SEQ.; the Oil Pollution Act of 1990, 33
U.S.C. Section
2701 ET SEQ.; the Emergency Planning and the Community
Right-to-Know Act of
1986, 42 U.S.C. Section 11001 ET SEQ., the Hazardous Material
Transportation
Act, 49 U.S.C. Section 1801 ET SEQ. and the Occupational Safety and
Health Act,
29 U.S.C. Section 651 ET SEQ. (to the extent it regulates
occupational exposure
to Hazardous Materials); and any state and local or foreign
counterparts or
equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended from time to time, and the regulations promulgated and
rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect
at the
Effective Date and any subsequent provisions of ERISA, amendatory
thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in section
3(9) of
ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be
deemed to be a "single employer" (i) within the meaning of section
414(b), (c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a
Subsidiary of
the Borrower being or having been a general partner of such
person.
"EURO" shall mean the single currency of the Participating Member
States of
the European Union.
"EUROCURRENCY LENDING OFFICE" shall mean, with respect to any
Lender, the
affiliate, branch or office of such Lender specified as its
Eurocurrency Lending
Office in the Administrative Questionnaire delivered by it to the
Administrative
Agent or in the Assignment and Assumption pursuant to which it
became a Lender,
or such other affiliate, branch or office or offices of such Lender
as such
Lender may from time to time specify to the Borrower and the
Administrative
Agent.
"EUROCURRENCY LOANS" shall mean each Loan bearing interest at the
rates
provided in section 2.7(b).
"EUROCURRENCY RATE" shall mean with respect to each Interest Period
for a
Eurocurrency Loan, (A) either (i) the rate per annum for deposits
in Dollars for
a maturity most nearly comparable to such Interest Period which
appears on page
3740 or 3750, as applicable, of the Dow Jones Telerate Screen as of
11:00 A.M.
(local time at the Notice Office) on the date which is two Business
Days prior
to the commencement of such Interest Period, or (ii) if such a rate
does not
appear on such a page, an interest rate per annum equal to the
average (rounded
to the nearest
8
<PAGE>
ten thousandth of 1% per annum, if such average is not such a
multiple) of the
rate per annum at which deposits in Dollars are offered to each of
the Reference
Banks by prime banks in the London interbank Eurocurrency market
for deposits of
amounts in same day funds comparable to the outstanding principal
amount of the
Eurocurrency Loan for which an interest rate is then being
determined with
maturities comparable to the Interest Period to be applicable to
such
Eurocurrency Loan, determined as of 11:00 A.M. (London time) on the
date which
is two Business Days prior to the commencement of such Interest
Period, in each
case divided (and rounded to the nearest ten thousandth of 1%) by
(B) a
percentage equal to 100% minus the then stated maximum rate of all
reserve
requirements (including, without limitation, any marginal,
emergency,
supplemental, special or other reserves) applicable to any member
bank of the
Federal Reserve System in respect of Eurocurrency liabilities as
defined in
Regulation D (or any successor category of liabilities under
Regulation D);
PROVIDED, HOWEVER, that in the event that the rate referred to in
clause (i)
above is not available at any such time for any reason, then the
rate referred
to in clause (i) shall instead be the average (rounded to the
nearest ten
thousandth of 1%) of the rates at which U.S. dollar deposits of
$5,000,000 are
offered to the Reference Banks in the London interbank market at
approximately
11:00 a.m. (London time), two Business Days prior to the
commencement of such
Interest Period, for contracts which would be entered into at the
commencement
of such Interest Period.
"EVENT OF DEFAULT" shall have the meaning provided in section
10.1.
"EVENT OF LOSS" shall mean, with respect to any property, (i) the
actual or
constructive total loss of such property or the use thereof,
resulting from
destruction, damage beyond repair, or the rendition of such
property permanently
unfit for normal use from any casualty or similar occurrence
whatsoever, (ii)
the destruction or damage of a portion of such property from any
casualty or
similar occurrence whatsoever under circumstances in which such
damage cannot
reasonably be expected to be repaired, or such property cannot
reasonably be
expected to be restored to its condition immediately prior to such
destruction
or damage, within 90 days after the occurrence of such destruction
or damage,
(iii) the condemnation, confiscation or seizure of, or requisition
of title to
or use of, any property, or (iv) in the case of any property
located upon a
Leasehold, the termination or expiration of such Leasehold.
"EXISTING CREDIT AGREEMENT" means the $150,000,000 Revolving
Credit
Agreement, dated as of August 7, 2003, by and among the Borrower,
the financial
institutions party thereto, and NCB, as administrative agent.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section
7.17.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meanings provided
in
section 7.17.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in
section
3.1(d).
"FACILITY" shall mean the Revolving Facility and the Swing Line
Facility,
or both of them, as applicable.
"FACING FEE" shall have the meaning provided in section 4.1(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a
fluctuating
interest rate equal for each day during such period to the weighted
average of
the rates on overnight Federal Funds transactions with members of
the Federal
Reserve System arranged by Federal Funds brokers, as published for
such day (or,
if such day is not a Business Day, for the next preceding Business
Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any
day which is a Business Day, the average of the quotations for such
day on such
transactions received by the Administrative Agent from three
Federal Funds
brokers of recognized standing selected by the Administrative
Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to
in,
section 4.1.
"FOREIGN LENDER" means a Person which is not a United States person
(as
such term is defined in section 7701(a)(30) of the Code) for
Federal Income Tax
purposes.
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<PAGE>
"FOREIGN SUBSIDIARY" shall mean any Subsidiary which is not
incorporated
(or otherwise organized) in the United States and substantially all
of whose
assets and properties are located, or substantially all of whose
business is
carried on, outside the United States.
"GAAP" shall mean generally accepted accounting principles in the
United
States of America as in effect from time to time; it being
understood and agreed
that determinations in accordance with GAAP for purposes of section
9, including
defined terms as used therein, are subject (to the extent provided
therein) to
sections 1.3 and 12.7(a).
"GUARANTY OBLIGATIONS" shall mean as to any Person (without
duplication)
any obligation of such Person guaranteeing any Indebtedness
("PRIMARY
INDEBTEDNESS") of any other Person (the "PRIMARY OBLIGOR") in any
manner,
whether directly or indirectly, including, without limitation, any
obligation of
such Person, whether or not contingent, (a) to purchase any such
primary
Indebtedness or any property constituting direct or indirect
security therefor,
(b) to advance or supply funds (i) for the purchase or payment of
any such
primary Indebtedness or (ii) to maintain working capital or equity
capital of
the primary obligor or otherwise to maintain the net worth or
solvency of the
primary obligor, (c) to purchase property, securities or services
primarily for
the purpose of assuring the owner of any such primary Indebtedness
of the
ability of the primary obligor to make payment of such primary
Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary
Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term
Guaranty
Obligation shall not include endorsements of instruments for
deposit or
collection in the ordinary course of business. The amount of any
Guaranty
Obligation shall be deemed to be an amount equal to the stated or
determinable
amount of the primary Indebtedness in respect of which such
Guaranty Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated
liability in respect thereof (assuming such Person is required to
perform
thereunder) as determined by such Person in good faith.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or
petroleum
products, radioactive materials, asbestos in any form that is or
could become
friable, urea formaldehyde foam insulation, transformers or other
equipment that
contain dielectric fluid containing levels of polychlorinated
biphenyls, and
radon gas; and (ii) any chemicals, materials or substances defined
as or
included in the definition of "hazardous substances", "hazardous
wastes",
"hazardous materials", "restricted hazardous materials", "extremely
hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic
pollutants",
"contaminants" or "pollutants", or words of similar meaning and
regulatory
effect, under any applicable Environmental Law.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement,
interest
rate cap agreement, interest rate collar agreement or other similar
agreement or
arrangement (ii) any currency swap agreement, forward currency
purchase
agreement or similar agreement or arrangement designed to protect
against
fluctuations in currency exchange rates, and (iii) any forward
commodity
purchase agreement or similar agreement or arrangement designed to
protect
against fluctuations in raw material or other commodity prices.
"INCREMENTAL REVOLVING FACILITY AMOUNT" shall mean the difference
between
(i) $150,000,000 and (ii) the Total Revolving Commitment in effect
at such time.
"INCREMENTAL REVOLVING LENDER" shall have the meaning provided in
section
2.1(c) hereof.
"INDEBTEDNESS" of any Person shall mean without duplication:
(i) all indebtedness of such Person for borrowed money;
(ii) all bonds, notes, debentures and similar debt securities of
such
Person;
(iii) the deferred purchase price of capital assets or services
which
in accordance with
GAAP would be shown on the liability side of the balance
sheet of such Person;
(iv) the face amount of all letters of credit or bankers'
acceptances
issued for the account of such Person and, without duplication, all
drafts
drawn thereunder;
10
<PAGE>
(v) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances;
(vi) all Indebtedness of a second Person secured by any Lien on
any
property owned by such first Person, whether or not such
Indebtedness has
been
assumed;
(vii) all Capitalized Lease Obligations of such Person;
(viii) the present value, determined on the basis of the
implicit
interest rate, of all basic rental obligations under all Synthetic
Leases
of
such Person;
(ix) all net obligations of such Person under Hedge Agreements;
(x) the full outstanding balance of trade receivables, notes or
other
instruments sold with full recourse (and the portion thereof
subject to
potential recourse, if sold with limited recourse), other than in
any such
case
any thereof sold solely for purposes of collection of
delinquent
accounts;
(xi) the stated value, or liquidation value if higher, of all
Redeemable Stock of such Person; and
(xii) all Guaranty Obligations of such Person;
PROVIDED that (x) neither trade payables nor other similar accrued
expenses, in
each case arising in the ordinary course of business, nor
obligations in respect
of insurance policies or performance or surety bonds which
themselves are not
guarantees of Indebtedness (nor drafts, acceptances or similar
instruments
evidencing the same nor obligations in respect of letters of credit
supporting
the payment of the same), shall constitute Indebtedness; and (y)
the
Indebtedness of any Person shall in any event include (without
duplication) the
Indebtedness of any other entity (including any general partnership
in which
such Person is a general partner) to the extent such Person is
liable thereon as
a result of such Person's ownership interest in or other
relationship with such
entity, except to the extent the terms of such Indebtedness provide
expressly
that such Person is not liable thereon.
"INDEMNITEES" has the meaning provided in section 12.1(g).
"INTEREST PERIOD" with respect to any Eurocurrency Loan shall mean
the
interest period applicable thereto, as determined pursuant to
section 2.8.
"JUDGMENT CURRENCY" has the meaning provided in section 12.24.
"JUDGMENT CURRENCY CONVERSION DATE" has the meaning provided in
section
12.24.
"LEAD ARRANGER" shall have the meaning provided in the preamble to
this
Agreement.
"LC PARTICIPANT" shall have
the meaning provided in section 3.4(a).
"LEASEHOLDS" of any Person shall mean all the right, title and
interest of
such Person as lessee or licensee in, to and under leases or
licenses of land,
improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of
this
Agreement, and shall include any Incremental Revolving Lender that
becomes a
Lender hereunder pursuant to section 2.1(c).
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted)
of a Lender in violation of the requirements of this Agreement to
make available
its portion of any incurrence of Loans, to fund its Swing Line
Participation
Amount under section 2.4(b), or to fund its portion of any
unreimbursed payment
under section 3.4(c) or (ii) a Lender having notified the
Administrative Agent
and/or the Borrower that it does not intend to comply with the
obligations under
section 2.1, section 2.4(b) and/or section 3.4(c), in the case of
either (i) or
(ii) as a result of the
11
<PAGE>
appointment of a receiver or conservator with respect to such
Lender at the
direction or request of any regulatory agency or authority.
"LENDER REGISTER" shall have the meaning provided in section
12.16.
"LETTER OF CREDIT" shall have the meaning provided in section
3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in
section
3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section
4.1(b).
"LETTER OF CREDIT ISSUER" shall mean in respect of any Letter of
Credit,
(1) NCB, and/or (2) such other Lender that is requested, and
agrees, to so act
by the Borrower, and is approved by the Administrative Agent.
"LETTER OF CREDIT OBLIGOR" shall have the meaning provided in
section
3.1(a).
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum,
without
duplication, of the Dollar amount of (i) the aggregate Stated
Amount of all
outstanding Letters of Credit and (ii) the aggregate amount of all
Unpaid
Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in
section
3.2(a).
"LEVERAGE RATIO" has the meaning provided in section 9.7.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance,
lien or charge of any kind (including any agreement to give any of
the
foregoing, any conditional sale or other title retention agreement
or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1.
"MARGIN STOCK" shall
have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean any or all of the following:
(i) any
material adverse effect on the business, operations, property,
assets,
liabilities or condition (financial or otherwise) of, when used
with reference
to the Borrower and/or any of its Subsidiaries, the Borrower and
its
Subsidiaries, taken as a whole, or when used with reference to any
other Person,
such Person and its Subsidiaries, taken as a whole, as the case may
be; (ii) any
material adverse effect on the ability of the Borrower or any other
Credit Party
to perform its obligations under the Credit Documents to which it
is a party;
(iii) any material adverse effect on the ability of the Borrower
and its
Subsidiaries, taken as a whole, to pay their liabilities and
obligations as they
mature or become due; or (iv) any material adverse effect on the
validity,
effectiveness or enforceability, as against any Credit Party, of
any of the
Credit Documents to which it is a party.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to
any
Person, any Subsidiary of such Person (i) that has assets at such
time
comprising 5% or more of the consolidated assets of such Person and
its
Subsidiaries, or (ii) whose operations in the current fiscal year
are expected
to, or whose operations in the most recent fiscal year did (or
would have if
such Person had been a Subsidiary for such entire fiscal year),
represent 5% or
more of the consolidated earnings before interest, taxes,
depreciation and
amortization of such Person and its Subsidiaries for such fiscal
year.
"MATURITY DATE" shall mean December 20, 2010, or such earlier date
as the
Total Revolving Commitment is terminated.
"MAXIMUM RATE" has the meaning provided in section 12.25.
"MINIMUM BORROWING AMOUNT" shall mean:
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<PAGE>
(i) with respect to Borrowings under the Revolving Facility
consisting
of
(x) Prime Rate Loans, $2,500,000, with minimum increments
thereafter of
$500,000, or (y) Eurocurrency Loans, $5,000,000 with minimum
increments
thereafter of $1,000,000; or
(ii) with respect to a Borrowing under the Swing Line Facility
consisting of (x) a Prime Rate Loan, $100,000, with minimum
increments
thereafter of $50,000, or (y) a Money Market Rate Loan, $250,000,
with
minimum increments thereafter of $50,000.
"MONEY MARKET RATE LOAN" shall mean each Swing Line Loan bearing
interest
at a rate provided in section 2.7(c).
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in
section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or
accruing an obligation to make contributions or has within any of
the preceding
three plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other
than a
Multiemployer Plan, to which the Borrower or any ERISA Affiliate,
and one or
more employers other than the Borrower or an ERISA Affiliate, is
making or
accruing an obligation to make contributions or, in the event that
any such plan
has been terminated, to which the Borrower or an ERISA Affiliate
made or accrued
an obligation to make contributions during any of the five plan
years preceding
the date of termination of such plan.
"NCB" shall mean National City Bank, a national banking
association,
together with its successors and assigns.
"NET
CASH PROCEEDS" shall mean, with respect to (i) any Asset Sale,
the
Cash Proceeds resulting therefrom net of (A) reasonable and
customary expenses
of sale incurred in connection with such Asset Sale, and other
reasonable and
customary fees and expenses incurred, and all state and local taxes
paid or
reasonably estimated to be payable by such Person, as a consequence
of such
Asset Sale and the payment of principal, premium and interest of
Indebtedness
(other than the Obligations) secured by the asset which is the
subject of the
Asset Sale and required to be, and which is, repaid under the terms
thereof as a
result of such Asset Sale, (B) amounts of any distributions payable
to holders
of minority interests in the relevant Person or in the relevant
property or
assets and (C) incremental federal, state and local income taxes
paid or payable
as a result thereof; and (ii) any Event of Loss, the Cash Proceeds
resulting
therefrom net of (A) reasonable and customary expenses incurred in
connection
with such Event of Loss, and local taxes paid or reasonably
estimated to be
payable by such Person, as a consequence of such Event of Loss and
the payment
of principal, premium and interest of Indebtedness (other than the
Obligations)
secured by the asset which is the subject of the Event of Loss and
required to
be, and which is, repaid under the terms thereof as a result of
such Event of
Loss, (B) amounts of any distributions payable to holders of
minority interests
in the relevant Person or in the relevant property or assets and
(C) incremental
federal, state and local income taxes paid or payable as a result
thereof.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"NON-DEFAULTING LENDER" shall mean each Lender other than a
Defaulting
Lender.
"NOTE" shall mean a Revolving Note or the Swing Line Note, as
applicable.
"NOTICE OF BORROWING" shall have the meaning provided in section
2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section
2.6.
"NOTICE OFFICE" shall mean the office of the Administrative Agent
at
National City Center, 629 Euclid Avenue, Cleveland, Ohio 44114,
Attention:
Agency Services Group (facsimile: (216) 222-0012), or such
other
13
<PAGE>
office, located in a city in the United States Eastern Time Zone,
as the
Administrative Agent may designate to the Borrower from time to
time.
"NOTICE OF SWING LINE REFUNDING" shall have the meaning provided in
section
2.4(a).
"OBLIGATIONS" shall
mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing,
owing by the
Borrower or any other Credit Party to the Administrative Agent, the
Collateral
Agent, any Lender or any Letter of Credit Issuer pursuant to the
terms of this
Agreement or any other Credit Document.
"OPERATING LEASE" as applied to any Person shall mean any lease of
any
property (whether real, personal or mixed) by that Person as lessee
which, in
conformity with GAAP, is not accounted for as a Capital Lease on
the balance
sheet of that Person.
"PARTICIPANT" has the meaning assigned to such term in section
12.4(d).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
at
National City Center, 629 Euclid Avenue, Cleveland, Ohio 44114,
Attention:
Agency Services Group (facsimile: (216) 222-0012), or such other
office, located
in a city in the United States Eastern Time Zone, as the
Administrative Agent
may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established
pursuant to section 4002 of ERISA, or any successor thereto.
"PERCENTAGE" shall mean at any time for any Lender with a
Commitment under
any Facility (other than the Swing Line Facility), the percentage
obtained by
dividing such Lender's aggregate Commitment under such Facilities,
as
applicable, by the Total Commitment (exclusive of the Swing Line
Commitment),
PROVIDED, that if the Total Commitment has been terminated, the
Percentage for
each Lender shall be determined by dividing such Lender's aggregate
outstanding
Loans (exclusive of the Swing Line Loans) by the total of all
outstanding Loans
for all Lenders (exclusive of the Swing Line Loans).
"PERMITTED ACQUISITION" shall mean and include any Acquisition as
to which
all of the following conditions are satisfied:
(i) such Acquisition involves a line or lines of business which
is
complementary to the lines of business in which the Borrower and
its
Subsidiaries, considered as an entirety, are engaged on the
Effective Date,
UNLESS the Required Lenders specifically approve or consent to
such
Acquisition in writing;
(ii) such Acquisition is not actively opposed by the Board of
Directors (or similar governing body) of the selling Person or the
Person
whose equity interests are to be acquired, UNLESS all of the
Lenders
specifically approve or consent to such Acquisition in writing;
and
(iii) at least 10 Business Days prior to the completion of any
such
Acquisition involving aggregate consideration, including the
principal
amount of any assumed Indebtedness and (without duplication)
any
Indebtedness of any acquired Person or Persons, in excess of
$10,000,000,
the
Borrower shall have delivered to the Lenders (A) audited
financial
statements for the acquired businesses for the most recent fiscal
year,
unless the same are unavailable and unaudited financial statements
are
acceptable to the Required Lenders and (B) a certificate of an
Authorized
Officer of the Borrower demonstrating, in reasonable detail,
compliance
with
the ratios referred to in sections 9.7 and 9.8 on a Pro Forma
Basis;
PROVIDED, that the term Permitted Acquisition specifically excludes
any loans,
advances or minority investments otherwise permitted pursuant to
section 9.5.
"PERMITTED LIENS" shall mean Liens permitted by section 9.3.
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<PAGE>
"PERSON" shall mean any individual, partnership, joint venture,
firm,
corporation, limited liability company, association, trust, company
or other
enterprise or any government or political subdivision or any
agency, department
or instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as
defined in
section 4001 of ERISA, which is maintained or contributed to by (or
to which
there is an obligation to contribute by) the Borrower or a
Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five
year period
immediately following the latest date on which the Borrower, or a
Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or
had an
obligation to contribute to such plan.
"PLEDGE AGREEMENT"
shall mean each pledge agreement substantially in the
form of Exhibit E, executed and delivered in connection herewith,
as the same
may be amended, restated, amended and restated, supplemented or
otherwise
modified from time to time.
"PRICING GRID TABLE"
shall have the meaning provided in section 2.7(g).
"PRIME RATE" shall mean, for any period, a fluctuating interest
rate per
annum as shall be in effect from time to time which rate per annum
shall at all
times be equal to the greater of (i) the rate of interest
established by the
Administrative Agent from time to time, as its prime rate, whether
or not
publicly announced, which interest rate may or may not be the
lowest rate
charged by it for commercial loans or other extensions of credit;
and (ii) the
Federal Funds Effective Rate in effect from time to time PLUS 1/2
of 1% per
annum.
"PRIME RATE LOAN" shall mean each Loan, bearing interest at the
rate
provided in section 2.7(a).
"PRINCIPAL PARTY" has the meaning provided in section
10.1(h)(i).
"PRO
FORMA BASIS" shall mean, with respect to compliance with any test
or
covenant hereunder, in connection with or after the occurrence of
any
Acquisition or any Asset Sale, compliance with such covenant or
test after
giving effect to such Acquisition or Asset Sale, (including pro
forma
adjustments arising out of events which are directly attributable
to such
proposed Acquisition or Asset Sale, are factually supportable and
are expected
to have a continuing impact, in each case determined on a basis
consistent with
Article 11 of Regulation S-X of the Securities Act of 1933, as
amended, and as
interpreted by the Staff of the Securities and Exchange Commission
using, for
purposes of determining such compliance, the historical financial
statements of
all entities or assets so acquired or to be acquired (or the assets
so disposed
of or to be disposed of in the Asset Sale) and the consolidated
financial
statements of the Borrower and its Subsidiaries which shall be
reformulated as
if such Acquisition, such Asset Sale, and any other Acquisitions or
Asset Sales
that have been consummated during the relevant period, and the
incurrence,
assumption and/or repayment of any Indebtedness or other
liabilities incurred in
connection with any such Acquisitions or related to the Assets so
disposed of or
to be disposed of in any such Asset Sale or otherwise during the
relevant period
had been consummated, incurred or repaid, respectively, at the
beginning of such
period and assuming that any such Indebtedness bears interest
during any portion
of the applicable measurement period prior to the relevant
Acquisition or Asset
Sale at the interest rates applicable to outstanding Loans during
such period.
For the avoidance of doubt, to the extent the Borrower or any
Subsidiary has, at
the end of any Testing Period, assets on its balance sheet
classified as "Assets
held for Sale", such assets, and the related financial items,
including income
and expense items, shall be included in calculating compliance with
covenants or
tests on a Pro Forma Basis.
"PRO
FORMA COMPLIANCE" shall mean, at any date of determination, that
the
Borrower shall be in pro forma compliance with the covenants set
forth in
Sections 9.7, 9.8 and 9.9 as of the last day of the most recent
fiscal
quarter-end (computed on the basis of (a) balance sheet amounts as
of the most
recently completed fiscal quarter, and (b) income statement amounts
for the most
recently completed period of four consecutive fiscal quarters, in
each case, for
which financial statements have been delivered to the
Administrative Agent and
calculated on a Pro Forma Basis.
"PROHIBITED TRANSACTION" shall mean a transaction with respect to a
Plan
that is prohibited under section 4975 of the Code or section 406 of
ERISA and
not exempt under section 4975 of the Code or section 408 of
ERISA.
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<PAGE>
"PUBLIC NOTES" shall mean the Borrower's 9.25% Senior Subordinated
Notes
due 2011 in the original aggregate principal amount of
$400,000,000.
"PUBLIC NOTES DOCUMENTS" shall mean each of (i) the Public Notes
Indenture,
(ii) the Public Notes, and (iii) each other document, agreement or
instrument
delivered in connection therewith.
"PUBLIC NOTES INDENTURE" shall mean (i) the Indenture dated as of
December
12, 2001 among the Borrower, as Issuer, and Wells Fargo, as
successor trustee,
pursuant to which the Public Notes were issued.
"PURCHASE DATE" shall have the meaning provided in section
2.4(b).
"QUOTED RATE" shall have the meaning provided in section
2.3(c).
"RCRA" shall mean the Resource Conservation and Recovery Act, as
the same
may be amended from time to time, 42 U.S.C. Section 6901 ET
SEQ.
"REAL PROPERTY" of any Person shall mean all of the right, title
and
interest of such Person in and to land, improvements and fixtures,
including
Leaseholds.
"REDEEMABLE STOCK" shall mean with respect to any Person any
capital stock
or similar equity interests of such Person that (i) is by its terms
subject to
mandatory redemption, in whole or in part, pursuant to a sinking
fund, scheduled
redemption or similar provisions, at any time prior to the latest
Maturity Date;
or (ii) otherwise is required to be repurchased or retired on a
scheduled date
or dates, upon the occurrence of any event or circumstance, at the
option of the
holder or holders thereof, or otherwise, at any time prior to the
latest
Maturity Date under this Agreement, other than any such repurchase
or retirement
occasioned by a "change of control" or similar event.
"REFERENCE BANKS" shall mean (i) NCB and (ii) any other Lender or
Lenders
selected as a Reference Bank by the Administrative Agent and the
Required
Lenders, PROVIDED, that if any of such Reference Banks is no longer
a Lender,
such other Lender or Lenders as may be selected by the
Administrative Agent
acting on instructions from the Required Lenders.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor to all
or a portion thereof establishing margin requirements.
"RELATED PARTIES" means, with respect to any specified Person,
such
Person's Affiliates and the respective directors, officers,
trustees, employees,
agents and advisors of such Person and such Person's
Affiliates.
"REPORTABLE EVENT" shall mean an event described in section 4043 of
ERISA
or the regulations thereunder with respect to a Plan, other than
those events as
to which the notice requirement is waived under subsections .22,
.23, .25, .27,
.28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of
PBGC Regulation
section 4043.
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders whose
outstanding
Revolving Loans and Unutilized Revolving Commitments constitute at
least 51% of
the sum of the total outstanding Revolving Loans and Unutilized
Revolving
Commitments of Non-Defaulting Lenders (PROVIDED that, for purposes
hereof,
neither the Borrower, nor any of its Affiliates, shall be included
in (i) the
Lenders holding such amount of the Revolving Loans or having such
amount of the
Unutilized Revolving Commitments, or (ii) determining the aggregate
unpaid
principal amount of the Revolving Loans or Unutilized Revolving
Commitments).
"RESTRICTED PAYMENT" shall mean (i) any dividend or other
distribution
(whether in cash, securities or other property) with respect to any
shares of
any class of capital stock of the Borrower or any Subsidiary, or
(ii) any
payment (whether in cash, securities or other property), including
any sinking
fund or similar deposit, on account of
16
<PAGE>
the purchase, redemption, retirement, acquisition, cancellation or
termination
of any such shares of capital stock of the Borrower or any option,
warrant or
other right to acquire any such shares of capital stock of the
Borrower.
"REVOLVING BORROWING" shall mean the incurrence of Revolving
Loans
consisting of one Type of Loan, by the Borrower from all of the
Lenders having
Commitments in respect thereof on a PRO RATA basis on a given date
(or resulting
from Conversions or Continuations on a given date), having in the
case of
Eurocurrency Loans the same Interest Period.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
amount
set forth opposite such Lender's name in Annex I hereto as its
"Revolving
Commitment" as the same may be reduced from time to time pursuant
to section
4.2, 4.3, 5.2 and/or 10.2, increased from time to time pursuant to
section
2.1(c) hereof or adjusted from time to time as a result of
assignments to or
from such Lender pursuant to section 12.4.
"REVOLVING FACILITY" shall mean the credit facility evidenced by
the Total
Revolving Commitment.
"REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender, the
percentage obtained by dividing such Lender's Revolving Commitment
by the Total
Revolving Commitment, PROVIDED, that if the Total Revolving
Commitment has been
terminated, the Revolving Facility Percentage for each Lender shall
be
determined by dividing such Lender's Revolving Loans by the total
of all
outstanding Revolving Loans for all Lenders.
"REVOLVING LOAN" shall have the meaning provided in section
2.1(a).
"REVOLVING NOTE" shall have the meaning provided in section
2.5(a).
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with
any
Person providing for the leasing by the Borrower or any Subsidiary
of the
Borrower of any property (except for temporary leases for a term,
including any
renewal thereof, of not more than one year and except for leases
between the
Borrower and a Subsidiary or between Subsidiaries), which property
has been or
is to be sold or transferred by the Borrower or such Subsidiary to
such Person.
"S&P" shall mean Standard & Poor's Ratings Group, a
division of McGraw
Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC
REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect
from time to
time.
"SECTION 5.4(B)(II) CERTIFICATE" shall have the meaning provided in
section
5.4(b)(ii).
"SECURITY AGREEMENT" shall mean each security agreement
substantially in
the form of Exhibit F executed and delivered in connection
herewith, as the same
may be amended, restated, amended and restated, supplemented or
otherwise
modified from time to time.
"SECURITY DOCUMENTS" shall mean each Security Agreement, each
Pledge
Agreement, each Collateral Assignment of Patents, each Collateral
Assignment of
Trademarks, and each other document pursuant to which any Lien or
security
interest is granted by any Credit Party to the Collateral Agent as
security for
any of the Obligations.
"STANDARD PERMITTED LIENS" shall mean the following:
(i) Liens for taxes not yet delinquent or Liens for taxes being
contested in good faith and by appropriate proceedings for which
adequate
reserves (in the good faith judgment of the management of the
Borrower)
have
been established;
(ii) Liens in respect of property or assets imposed by law which
were
incurred in the ordinary course of business, such as carriers',
warehousemen's, materialmen's and mechanics' Liens and other
17
<PAGE>
similar Liens arising in the ordinary course of business, which do
not in
the
aggregate materially detract from the value of such property or
assets
or
materially impair the use thereof in the operation of the business
of
the
Borrower or any Subsidiary;
(iii) Liens created by this Agreement or the other Credit
Documents;
(iv) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under section
10.1(g);
(v) Liens (other than any Lien imposed by ERISA) incurred or
deposits
made
in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security;
and
mechanic's Liens, carrier's Liens, and other Liens to secure
the
performance of tenders, statutory obligations, contract bids,
government
contracts, performance and return-of-money bonds and other
similar
obligations, incurred in the ordinary course of business (exclusive
of
obligations in respect of the payment for borrowed money), whether
pursuant
to
statutory requirements, common law or consensual arrangements;
(vi) Leases or subleases granted to others not interfering in
any
material respect with the business of the Borrower or any of
its
Subsidiaries and any interest or title of a lessor under any lease
not in
violation of this Agreement;
(vii) easements, rights-of-way, zoning or other restrictions,
charges,
encumbrances, defects in title, prior rights of other Persons,
and
obligations contained in similar instruments, in each case which do
not
involve, and are not likely to involve at any future time,
either
individually or in the aggregate, (A) a substantial and
prolonged
interruption or disruption of the business activities of the
Borrower and
its
Subsidiaries considered as an entirety, or (B) a Material
Adverse
Effect;
(viii) Liens arising from the rights of lessors under leases
(including financing statements regarding property subject to
lease) not in
violation of the requirements of this Agreement, PROVIDED that such
Liens
are
only in respect of the property subject to, and secure only,
the
respective lease (and any other lease with the same or an
affiliated
lessor); and
(ix) rights of consignors of goods purchased or possessed by
the
Borrower or any of its Subsidiaries for inclusion in their
inventory,
whether or not such consignment is perfected by the filing of any
financing
statement under the UCC.
"STATED AMOUNT" of each Letter of Credit shall mean the maximum
available
to be drawn thereunder (regardless of whether any conditions or
other
requirements for drawing could then be met).
"SUBSIDIARY" of any Person shall mean and include (i) any
corporation more
than 50% of whose stock of any class or classes having by the terms
thereof
ordinary voting power to elect a majority of the directors of such
corporation
(irrespective of whether or not at the time stock of any class or
classes of
such corporation shall have or might have voting power by reason of
the
happening of any contingency) is at the time owned by such Person
directly or
indirectly through Subsidiaries and (ii) any partnership,
association, joint
venture or other entity in which such Person directly or indirectly
through
Subsidiaries, has more than a 50% equity interest at the time.
Unless otherwise
expressly provided, all references herein to "Subsidiary" shall
mean a
Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary which is a party
to the
Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" means any subsidiary guaranty substantially
in the
form of Exhibit G executed and delivered in connection herewith, as
the same may
be amended, restated, amended and restated, supplemented or
otherwise modified
from time to time.
18
<PAGE>
"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness which has
been
subordinated to the Obligations in such manner and to such extent
as the
Administrative Agent (acting on instructions from the Required
Lenders) may
require.
"SWING LINE BORROWING" shall mean the incurrence of a single Type
of Swing
Line Loan from the Swing Line Lender on a given date.
"SWING LINE CAP" shall mean $15,000,000.
"SWING LINE COMMITMENT" shall mean, with respect to the Swing Line
Lender,
the amount set forth opposite such Lender's name in Annex I as its
"Swing Line
Commitment" as the same may be reduced from time to time pursuant
to section
4.2, 4.3 and/or 10.2 or adjusted from time to time as a result of
assignments to
or from the Swing Line Lender pursuant to section 12.4.
"SWING LINE EXPOSURE" shall mean, with respect to any Lender at any
time,
such Lender's obligation to refund or purchase a participation
equal to, its
Revolving Facility Percentage of the aggregate Swing Line Loans
outstanding
advanced to the Borrower.
"SWING LINE FACILITY" shall mean the credit facility evidenced by
the Swing
Line Commitment.
"SWING LINE LENDER" shall mean the Lender indicated in Annex I
hereto as
having the "Swing Line Commitment" and shall include any other
single Lender to
whom the Swing Line Lender has transferred its entire Swing Line
Commitment and
any Swing Line Loans.
"SWING LINE LOAN" shall have the meaning provided in section
2.1(b).
"SWING LINE NOTE" shall have the meaning provided in section
2.5(a).
"SWING LINE PARTICIPATION AMOUNT" shall have the meaning provided
in
section 2.4(b).
"SYNTHETIC LEASE" shall mean any lease (i) which is accounted for
by the
lessee as an Operating Lease, and (ii) under which the lessee is
intended to be
the "owner" of the leased property for Federal income tax
purposes.
"TAXES" shall have the meaning provided in section 5.4.
"TESTING PERIOD" shall mean for any determination a single
period
consisting of the four consecutive fiscal quarters of the Borrower
then last
ended (whether or not such quarters are all within the same fiscal
year), EXCEPT
that if a particular provision of this Agreement indicates that a
Testing Period
shall be of a different specified duration, such Testing Period
shall consist of
the particular fiscal quarter or quarters then last ended which are
so indicated
in such provision.
"TOTAL COMMITMENT" shall mean the sum of the Commitments of the
Lenders.
"TOTAL REVOLVING COMMITMENT" shall mean the Revolving Commitments
of the
Lenders, including any increase thereto pursuant to section
2.1(c).
"TYPE" shall mean any type of Loan determined with respect to the
interest
option applicable thereto, I.E., a Prime Rate Loan, a Eurocurrency
Loan or a
Money Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNCOLLATERALIZED PROPERTY" shall have the meaning provided in
section
8.12(a).
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if
any, by
which the actuarial present value of the accumulated plan benefits
under the
Plan as of the close of its most recent plan year exceeds the
fair
19
<PAGE>
market value of the assets allocable thereto, each determined in
accordance with
Statement of Financial Accounting Standards No. 87, based upon the
actuarial
assumptions used by the Plan's actuary in the most recent annual
valuation of
the Plan.
"UNITED STATES" and "U.S." shall each mean the United States of
America.
"UNPAID DRAWING" shall have the meaning provided in section
3.3(a).
"UNUTILIZED REVOLVING COMMITMENT" shall mean, with respect to any
Lender
and its Revolving Commitment, at any time, the excess of (i) such
Lender's
Revolving Commitment at such time over (ii) the sum of (x) the
principal amount
of Revolving Loans made by such Lender and outstanding at such
time, and (y)
such Lender's Revolving Facility Percentage of Letter of Credit
Outstandings at
such time.
"UNUTILIZED SWING LINE COMMITMENT" shall mean, at any time, the
excess of
(i) the Swing Line Commitment at such time over (ii) the aggregate
principal
amount of all Swing Line Loans then outstanding.
"UNUTILIZED TOTAL COMMITMENT" shall mean, at any time, the excess
of (i)
the Total Commitment at such time over (ii) the sum of (x) the
aggregate
principal amount of all Loans then outstanding plus (y) the
aggregate Letter of
Credit Outstandings at such time.
"UNUTILIZED TOTAL REVOLVING COMMITMENT" shall mean, at any time,
the excess
of (i) the Total Revolving Commitment at such time over (ii) the
sum of (x) the
aggregate principal amount of all Revolving Loans then outstanding
plus (y) the
aggregate Letter of Credit Outstandings at such time.
"USA
PATRIOT ACT" means the Uniting and Strengthening America by
Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act)
Act of 2001.
"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the
Borrower at
least 95% of whose capital stock, equity interests and partnership
interests,
other than director's qualifying shares or similar interests, are
owned directly
or indirectly by the Borrower.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of
written
communication or a communication by means of telex, facsimile
transmission,
telegraph or cable.
1.2.
COMPUTATION OF TIME PERIODS. In this Agreement in the computation
of
periods of time from a specified date to a later specified date,
the word "from"
means "from and including" and the words "to" and "until" each
means "to but
excluding".
1.3.
ACCOUNTING TERMS. Except as otherwise specifically provided
herein,
all terms of an accounting or financial nature shall be construed
in accordance
with GAAP, as in effect from time to time; PROVIDED that, if the
Borrower
notifies the Administrative Agent that the Borrower requests an
amendment to any
provision of section 8 or 9 hereof to eliminate the effect of any
change
occurring after the Effective Date in GAAP or in the application
thereof to such
provision (or if the Administrative Agent notifies the Borrower
that the
Required Lenders request an amendment to any such provision hereof
for such
purposes), regardless of whether any such notice is given before or
after such
change in GAAP or in the application thereof, then such provision
shall be
interpreted on the basis of GAAP as in effect and applied
immediately before
such change shall have become effective until such notice shall
have been
withdrawn or such provision amended in accordance with the
requirements of this
Agreement.
1.4.
TERMS GENERALLY. The definitions of terms herein shall apply
equally
to the singular and plural forms of the terms defined. Whenever the
context may
require, any pronoun shall include the corresponding masculine,
feminine and
neuter forms. The words "include", "includes" and "including" shall
be deemed to
be followed by the phrase "without limitation". The word "will"
shall be
construed to have the same meaning and effect as the word "shall".
Unless the
context requires otherwise, (a) any definition of or reference to
any agreement,
instrument or other document herein shall be construed as referring
to such
agreement, instrument or other document
20
<PAGE>
as from time to time amended, supplemented or otherwise modified
(subject to any
restrictions on such amendments, supplements or modifications set
forth herein),
(b) any reference herein to any Person shall be construed to
include such
Person's successors and assigns, (c) the words "herein", "hereof"
and
"hereunder", and words of similar import, shall be construed to
refer to this
Agreement in its entirety and not to any particular provision
hereof, (d) all
references herein to sections, Annexes and Exhibits shall be
construed to refer
to sections of, and Annexes and Exhibits to, this Agreement, and
(e) the words
"asset" and "property" shall be construed to have the same meaning
and effect
and to refer to any and all real property, tangible and intangible
assets and
properties, including cash, securities, accounts and contract
rights, and
interests in any of the foregoing.
1.5.
CURRENCY EQUIVALENTS. For purposes of this Agreement, except as
otherwise specified herein, (i) the equivalent in Dollars of
Alternative
Currency shall be determined by using the quoted spot rate at which
the
Administrative Agent offers to exchange Dollars for Alternative
Currency at its
Payment Office at 9:00 A.M. (local time at the Payment Office) two
Business Days
prior to the date on which such equivalent is to be determined and
(ii) the
equivalent in Alternative Currency of Dollars shall be determined
by using the
quoted spot rate at which the Administrative Agent's Payment Office
offers to
exchange Alternative Currency for Dollars at the Payment Office at
9:00 A.M.
(local time at the Payment Office) two Business Days prior to the
date on which
such equivalent is to be determined; PROVIDED that (A) the
equivalent in Dollars
of each Eurocurrency Loan made in Alternative Currency shall be,
for the
purposes of determining the unused portion of each Lender's
Commitment, or any
or all Loan or Loans outstanding on such date, calculated or
recalculated, as
the case may be, on the date that the Eurocurrency Rate applicable
to such Loan
is established, on the last day of the Interest Period applicable
thereto, and
on each date that it shall be necessary (or the Administrative
Agent shall
elect) to determine the unused portion of each Lender's Commitment;
(B) the
equivalent in Dollars of any Unpaid Drawing in respect of any
Letter of Credit
denominated in Alternative Currency shall be determined at the time
the drawing
under such Letter of Credit was paid or disbursed by the applicable
Letter of
Credit Issuer; (C) for purposes of determining the Letter of Credit
Outstandings
or the Unutilized Total Revolving Commitment as contemplated by
sections 2.1(a),
3.1(b) and 5.2, the equivalent in Dollars of the Stated Amount of
any Letter of
Credit denominated in Alternative Currency shall be calculated (x)
on the date
of the issuance of the respective Letter of Credit, and (y) in any
other case
where the same is required or permitted to be calculated, on such
other day as
the Administrative Agent may, in its sole discretion, consider
appropriate; and
(D) for purposes of sections 4.1(b) and (c), the equivalent in
Dollars of the
Stated Amount of any Letter of Credit denominated in Alternative
Currency shall
be calculated for the applicable quarterly period at the time of
invoicing for
such quarterly period in which the respective payment is due
pursuant to said
sections.
1.6.
PRO FORMA CALCULATIONS. Notwithstanding anything to the contrary
in
this Agreement, with respect to any period during which any
Permitted
Acquisition or any Asset Sale occurs as permitted pursuant to the
terms hereof,
for purposes of determining compliance with the covenants set forth
in sections
9.7 and 9.8, such compliance shall be determined on the basis of
Pro Forma
Compliance and, accordingly, Consolidated EBITDA, Consolidated
Total Debt and
the Cash Flow Coverage Ratio shall be calculated with respect to
such periods on
a Pro Forma Basis.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1.
COMMITMENTS FOR LOANS. Subject to and upon the terms and
conditions
herein set forth, each Lender severally agrees to make a loan or
loans (each a
"LOAN" and, collectively, the "LOANS") to the Borrower, which Loans
shall be
drawn, to the extent such Lender has a commitment under a Facility
for the
Borrower, under the applicable Facility, as set forth below:
(A)
REVOLVING FACILITY. Loans to the Borrower under the Revolving
Facility
(each a "REVOLVING LOAN" and, collectively, the "REVOLVING LOANS"):
(i) may be
incurred by the Borrower at any time and from time to time on and
after the
Closing Date and prior to the date the Total Revolving Commitment
expires or is
terminated; (ii) except as otherwise provided, may, at the option
of the
Borrower be incurred and maintained as, or Converted into,
Revolving Loans which
are Prime Rate Loans or Eurocurrency Loans, in each case
denominated in Dollars
or Alternative Currency, PROVIDED that all Revolving Loans made as
part of the
same Revolving Borrowing shall, unless otherwise specifically
provided herein,
consist of Revolving Loans of the same Type and currency, and
provided further
that the aggregate principle amount of loans denominated in
Alternative Currency
shall not exceed at any time outstanding the Alternative Currency
Sublimit;
(iii) may be repaid or prepaid and reborrowed in accordance with
the provisions
hereof; (iv) may only be made if after giving effect thereto the
Unutilized
Total
21
<PAGE>
Revolving Commitment exceeds the outstanding Swing Line Loans; and
(v) shall not
exceed for any Lender at any time outstanding that aggregate
principal amount
which, when added to the sum of (1) such Lender's Swing Line
Exposure plus (2)
the product at such time of (A) such Lender's Revolving Facility
Percentage,
TIMES (B) the aggregate Letter of Credit Outstandings, equals the
Revolving
Commitment of such Lender at such time.
(B)
SWING LINE FACILITY. Loans to the Borrower under the Swing Line
Facility (each a "SWING LINE LOAN" and, collectively, the "SWING
LINE LOANS"):
(i) shall be made only by the Swing Line Lender; (ii) may be made
at any time
and from time to time on and after the Closing Date and prior to
the earlier of
(x) the date the Swing Line Commitment expires or is terminated, or
(y) the date
the Total Revolving Commitment expires or is terminated; (iii)
shall be made
only in Dollars; (iv) shall have a maturity of no longer than one
Business Day;
(v) may be incurred as either a Prime Rate Loan or a Money Market
Rate Loan;
(vi) may be repaid or prepaid and reborrowed in accordance with the
provisions
hereof; (vii) may only be made if after giving effect thereto the
Unutilized
Total Revolving Commitment exceeds the outstanding Swing Line
Loans; and (viii)
shall not exceed for the Swing Line Lender at any time outstanding
its Swing
Line Commitment at such time; and (ix) shall not exceed in the
aggregate, the
Swing Line Cap.
(C)
INCREASE IN REVOLVING CREDIT COMMITMENTS. (i) The Borrower may,
by
written notice to the Administrative Agent from time to time,
request that the
Total Revolving Commitment be increased by an amount not to exceed
the
Incremental Revolving Facility Amount available at such time. Such
notice shall
set forth the amount of the requested increase in the Total
Revolving Commitment
(which shall be in minimum increments of $5,000,000 and a minimum
amount of
$10,000,000 or equal to the Incremental Revolving Facility Amount
available at
such time) and the date on which such increase is requested to
become effective
(which shall be not less than 10 Business Days nor more than 60
days after the
date of such notice and which, in any event, must be on or prior to
the
Revolving Maturity Date). Upon the approval of such request by
the
Administrative Agent (which approval shall not be unreasonably
withheld), the
Borrower may arrange for one or more banks or other entities, in
each case
acceptable to the Administrative Agent (any such bank or other
entity referred
to in this clause being an "INCREMENTAL REVOLVING LENDER"), which
may include
any Lender, to extend Revolving Commitments or increase their
existing Revolving
Commitments in an aggregate amount equal to the requested increase
in the Total
Revolving Commitment. The Borrower and each Incremental Revolving
Lender shall
execute all such documentation as the Administrative Agent shall
reasonably
specify to evidence its Revolving Commitment and/or its status as a
Lender with
a Revolving Commitment hereunder. Any increase in the Total
Revolving Commitment
may be made in an amount which is less than the increase requested
by the
Borrower if the Borrower is unable to arrange for Incremental
Revolving Lenders.
(ii)
Each of the parties hereto agrees that the Administrative Agent
may
take any and all actions as may be reasonably necessary to ensure
that, after
giving effect to any increase in the Total Revolving Commitment
pursuant to this
Section 2.1(c), the outstanding Revolving Loans (if any) are held
by the Lenders
with Revolving Commitments in accordance with their new Revolving
Facility
Percentages. This may be accomplished at the discretion of the
Administrative
Agent (w) by requiring the outstanding Revolving Loans to be
prepaid with the
proceeds of new Revolving Borrowings, (x) by causing Lenders to
assign portions
of their outstanding Revolving Loans to other Lenders, (y) by
permitting the
Revolving Borrowings outstanding at the time of any increase in the
Total
Revolving Commitment pursuant to this section 2.1(c) to remain
outstanding until
the last days of the respective Interest Periods therefor, even
though the
Lenders would hold such Revolving Borrowings other than in
accordance with their
new Revolving Facility Percentages, or (z) by any combination of
the foregoing.
Any prepayment or assignment described in this paragraph (ii) shall
be subject
to section 2.10 hereof but otherwise without premium or
penalty.
(iii) Notwithstanding the foregoing, no increase in the Total
Revolving
Commitment (or in the Revolving Credit Commitment of any Lender) or
addition of
a new Lender shall become effective under this section 2.1(c)
unless, (x) on the
date of such increase, the conditions set forth in section 6.2
shall be
satisfied and the Administrative Agent shall have received a
certificate to that
effect dated such date and executed by a responsible financial
officer of the
Borrower, and (y) the Administrative Agent shall have received
(with sufficient
copies for each of the Lenders with Revolving Commitments) legal
opinions, board
resolutions and an officer's certificate consistent with those
delivered on the
Closing Date under sections 6.1(e), (g) and (j) and such other
items as the
Administrative Agent shall reasonably request.
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<PAGE>
2.2.
MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by the Borrower shall
not be less
than the Minimum Borrowing Amount. More than one Borrowing may be
incurred by
the Borrower on any day, PROVIDED that (i) if there are two or more
Borrowings
on a single day by the Borrower which consist of Eurocurrency
Loans, each such
Borrowing shall have a different initial Interest Period, (ii) only
one
Borrowing may be made under the Swing Line Facility on any day, and
(iii) at no
time shall there be more than 8 Borrowings of Eurocurrency Loans
outstanding
hereunder.
(b)
All Borrowings under the Revolving Facility shall be made by
the
Lenders having Revolving Commitments PRO RATA on the basis of their
respective
Revolving Commitments. It is understood that no Lender shall be
responsible for
any default by any other Lender in its obligation to make Loans
hereunder and
that each Lender shall be obligated to make the Loans provided to
be made by it
hereunder, regardless of the failure of any other Lender to fulfill
its
Commitment hereunder.
2.3.
PROCEDURES FOR BORROWING AND DISBURSEMENT OF FUNDS. (a) NOTICE
OF
BORROWING. Whenever the Borrower desires to incur Loans, it shall
give the
Administrative Agent at its Notice Office,
(A) BORROWINGS OF PRIME RATE LOANS UNDER THE REVOLVING FACILITY:
in
the
case of any Borrowing under the Revolving Facility of Prime Rate
Loans
to
be made hereunder, prior to 12:00 noon (local time at its
Notice
Office), at least one Business Day's prior written or telephonic
notice
thereof (in the case of telephonic notice, promptly confirmed in
writing if
so
requested by the Administrative Agent); or
(B) BORROWINGS OF EUROCURRENCY LOANS UNDER THE REVOLVING
FACILITY
DENOMINATED IN DOLLARS: in the case of any Borrowing under the
Revolving
Facility of Eurocurrency Loans denominated in Dollars to be made
hereunder,
prior to 12:00 noon (local time at its Notice Office), at least
three
Business Days' prior written or telephonic notice thereof (in the
case of
telephonic notice, promptly confirmed in writing if so requested by
the
Administrative Agent); or
(C) BORROWINGS OF EUROCURRENCY LOANS UNDER THE REVOLVING
FACILITIES
DENOMINATED IN AN ALTERNATIVE CURRENCY: in the case of any
Borrowing under
the
Revolving Facility of Eurocurrency Loans denominated in an
Alternative
Currency to be made hereunder, prior to 12:00 noon (local time at
its
Notice Office), at least five Business Days' prior written or
telephonic
notice thereof (in the case of telephonic notice, promptly
confirmed in
writing if so requested by the Administrative Agent); or
(D) BORROWINGS UNDER THE SWING LINE FACILITY: in the case of
any
Borrowing under the Swing Line Facility of (1) a Prime Rate Loan to
be made
hereunder, prior to 1:00 P.M. (local time at its Notice Office), at
least
same
Business Day's prior written or telephonic notice thereof (in the
case
of
telephonic notice, promptly confirmed in writing if so requested by
the
Administrative Agent); or (2) a Money Market Rate Loan to be
made
hereunder, if the Administrative Agent shall have furnished the
Borrower
with
a Quoted Rate therefor, prior to 1:00 P.M. (local time at its
Notice
Office), at least same Business Day's prior written or telephonic
notice
thereof (in the case of telephonic notice, promptly confirmed in
writing if
so
requested by the Administrative Agent), which proposed Borrowing
shall
be
within such period as the Administrative Agent shall have specified
for
such
Quoted Rate.
Each such notice (each such notice, a "NOTICE OF BORROWING") shall
(if requested
by the Administrative Agent to be confirmed in writing), be
substantially in the
form of Exhibit B-1, and in any event shall be irrevocable and
shall specify:
(i) the aggregate principal amount of the Loans to be made pursuant
to such
Borrowing; (ii) the date of the Borrowing (which shall be a
Business Day); (iii)
whether the Borrowing shall consist of Prime Rate Loans,
Eurocurrency Loans or a
Money Market Rate Loan; (iv) if the Borrowing consists of a Swing
Line Loan
which is a Money Market Rate Loan, the Quoted Rate therefor; (v) if
the
requested Borrowing consists of Eurocurrency Loans, the Interest
Period to be
initially applicable thereto; and (vi) in the case of a requested
Borrowing of
Revolving Loans consisting of Loans which are Eurocurrency Loans
whether the
Loans are to be denominated in Dollars or Alternative Currency. The
stated
maturity date of any Swing Line Loan shall be the Business Day
which immediately
follows the date such Swing Line Loan is made, subject to any
reborrowing
thereof as provided in section 2.1(b). The Administrative Agent
shall promptly
give each Lender written notice (or telephonic notice
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promptly confirmed in writing) of each proposed Revolving
Borrowing, of such
Lender's proportionate share thereof and of the other matters
covered by the
Notice of Borrowing relating thereto.
(B)
BORROWINGS OF EUROCURRENCY LOANS DENOMINATED IN ALTERNATIVE
CURRENCY.
In the case of a proposed Borrowing comprised of Revolving Loans
which are
Eurocurrency Loans denominated in Alternative Currency, the
obligation of each
affected Lender to make its Eurocurrency Loan in Alternative
Currency as part of
such Borrowing is subject to the confirmation by the Administrative
Agent to the
Borrower not later than the fourth Business Day before the
requested date of
such Borrowing that such Alternative Currency is readily and freely
transferable
and convertible into Dollars. If the Administrative Agent shall not
have
provided the confirmation referred to above the Administrative
Agent shall
promptly notify the Borrower and each Lender, whereupon the
Borrower may by
notice to the Administrative Agent not later than the third
Business Day before
the requested date of such Borrowing, withdraw the Notice of
Borrowing relating
to such requested Borrowing. If the Borrower does so withdraw such
Notice of
Borrowing, the Borrowing requested in such Notice of Borrowing
shall not occur
and the Administrative Agent shall promptly so notify each Lender.
If the
Borrower does not so withdraw such Notice of Borrowing, the
Administrative Agent
shall promptly so notify each Lender and such Notice of Borrowing
shall be
deemed to be a Notice of Borrowing which requests a Borrowing of
Loans comprised
of Eurocurrency Loans in an aggregate amount in Dollars equivalent,
on the date
the Administrative Agent so notifies each Lender, to the amount of
the
originally requested Borrowing in Alternative Currency and in such
notice by the
Administrative Agent to each Lender the Administrative Agent shall
state such
aggregate equivalent amount of such Borrowing in Dollars and such
Lender's
ratable portion of such Borrowing.
(C)
BORROWINGS OF MONEY MARKET RATE LOANS. Whenever the Borrower
proposes
to submit a Notice of Borrowing with respect to a Swing Line Loan
which will be
a Money Market Rate Loan, it will prior to submitting such Notice
of Borrowing
notify the Administrative Agent of its intention and request the
Administrative
Agent to quote a fixed or floating interest rate (the "QUOTED
RATE") to be
applicable thereto prior to the proposed maturity thereof. The
Administrative
Agent will immediately so notify the Swing Line Lender, and if the
Swing Line
Lender is agreeable to a particular interest rate for the proposed
Money Market
Rate Loan if such Loan is made on or prior to a specified date,
the
Administrative Agent shall quote such interest rate to the Borrower
as the
Quoted Rate applicable to such proposed Money Market Rate Loan if
made on or
before such specified date for a maturity of one Business Day as so
proposed by
the Borrower. The Swing Line Lender contemplates that any Quoted
Rate will be a
rate of interest which reflects a margin corresponding to (or
greater than) the
Applicable Eurocurrency Margin in effect at the time of quotation
of any Quoted
Rate over the then prevailing fully absorbed average cost of funds
of the Swing
Line Lender, Federal Funds Effective Rate, commercial paper, call
money,
overnite repurchase or other commonly quoted interest rate, in each
case as
selected by the Swing Line Lender. Nothing herein shall be deemed
to permit any
Lender other than the Swing Line Lender any right of approval with
respect to a
Quoted Rate.
(D)
ACTIONS BY ADMINISTRATIVE AGENT ON TELEPHONE NOTICE. Without in any
way
limiting the obligation of the Borrower to confirm in writing any
telephonic
notice permitted to be given hereunder, the Administrative Agent
may act prior
to receipt of written confirmation without liability upon the basis
of such
telephonic notice believed by the Administrative Agent in good
faith to be from
an Authorized Officer of the Borrower entitled to give telephonic
notices under
this Agreement on behalf of the Borrower. In each such case, the
Administrative
Agent's record of the terms of such telephonic notice shall be
conclusive absent
manifest error.
(E)
DISBURSEMENT OF FUNDS. (i) No later than 2:00 P.M. (local time at
the
Payment Office) on the date specified in each Notice of Borrowing,
each Lender
will make available its PRO RATA share, if any, of each Borrowing
requested to
be made on such date in the manner provided below. All amounts
shall be made
available to the Administrative Agent in Dollars or Alternative
Currency, as
applicable, and in immediately available funds at the Payment
Office and the
Administrative Agent promptly will make available to the Borrower
by depositing
to its account at the Payment Office the aggregate of the amounts
so made
available in the type of funds received.
(ii) Unless the Administrative Agent shall have been notified by
any
Lender prior to the date of Borrowing that such Lender does not
intend to
make
available to the Administrative Agent its portion of the Borrowing
or
Borrowings to be made on such date, the Administrative Agent may
assume
that
such Lender has made such amount available to the Administrative
Agent
on
such date of Borrowing, and the Administrative Agent, in reliance
upon
such
assumption, may (in its sole discretion and without any obligation
to
do
so) make available to the Borrower a corresponding amount. If
such
corresponding
24
<PAGE>
amount is not in fact made available to the Administrative Agent by
such
Lender and the Administrative Agent has made available same to
the
Borrower, the Administrative Agent shall be entitled to recover
such
corresponding amount from such Lender. If such Lender does not pay
such
corresponding amount forthwith upon the Administrative Agent's
demand
therefor, the Administrative Agent shall promptly notify the
Borrower, and
the
Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be
entitled to
recover from such Lender or the Borrower, as the case may be,
interest on
such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent
to the
Borrower to the date such corresponding amount is recovered by
the
Administrative Agent, at a rate per annum equal to (x) if paid by
such
Lender, the overnight Federal Funds Effective Rate, in the case of
any Loan
denominated in Dollars, or at the weighted average overnight or
weekend
borrowing rate for immediately available and freely transferable
funds in
the
applicable Alternative Currency which is offered to the
Administrative
Agent in the international markets, in the case of any Loan
denominated in
Alternative Currency, or (y) if paid by the Borrower, the then
applicable
rate
of interest, calculated in accordance with section 2.7, for the
respective Loans (but without any requirement to pay any amounts in
respect
thereof pursuant to section 2.10).
(iii) Nothing in this section 2.3(e) and no subsequent termination
of
the
Commitments pursuant to section 4.2 or 4.3 shall be deemed to
relieve
any
Lender from its obligation to fulfill its Commitment hereunder and
in
existence from time to time or to prejudice any rights which the
Borrower
may
have against any Lender as a result of any default by such
Lender
hereunder.
2.4.
REFUNDING OF, OR PARTICIPATION IN, SWING LINE LOANS. (a) If any
Event
of Default exists, the Swing Line Lender may, in its sole and
absolute
discretion, direct that the Swing Line Loans owing to it be
refunded by
delivering a notice to such effect to the Administrative Agent,
specifying the
aggregate principal amount thereof (a "NOTICE OF SWING LINE
REFUNDING").
Promptly upon receipt of a Notice of Swing Line Refunding, the
Administrative
Agent shall give notice of the contents thereof to the Lenders and,
unless an
Event of Default specified in section 10.1(h) in respect of the
Borrower has
occurred, also to the Borrower. Each such Notice of Swing Line
Refunding shall
be deemed to constitute delivery by the Borrower of a Notice of
Borrowing
requesting Revolving Loans denominated in Dollars and consisting of
Prime Rate
Loans in the amount of the Swing Line Loans to which it relates.
Each Lender
with a Revolving Commitment (including the Swing Line Lender in its
capacity as
a Lender) hereby unconditionally agrees (notwithstanding that any
of the
conditions specified in section 6.2 hereof or elsewhere in this
Agreement shall
not have been satisfied, but subject to the provisions of paragraph
(b) below)
to make a Revolving Loan to the Borrower in an amount equal to such
Lender's
Revolving Facility Percentage of the aggregate Dollar amount of the
Swing Line
Loans to which such Notice of Swing Line Refunding relates. Each
such Lender
shall make the amount of such Revolving Loan available to the
Administrative
Agent in immediately available funds at the Payment Office not
later than 2:00
P.M. (local time at the Payment Office), if such notice is received
by such
Lender prior to 11:00 A.M. (local time at its Domestic Lending
Office), or not
later than 2:00 P.M. (local time at the Payment Office) on the next
Business
Day, if such notice is received by such Lender after such time. The
proceeds of
such Revolving Loans shall be made immediately available to the
Swing Line
Lender and applied by it to repay the principal amount of the Swing
Line Loans
to which such Notice of Swing Line Refunding related.
(b)
If prior to the time a Revolving Loan would otherwise have been
made as
provided above as a consequence of a Notice of Swing Line
Refunding, any of the
events specified in section 10.1(h) shall have occurred in respect
of the
Borrower or one or more of the Lenders with Revolving Commitments
shall
determine that it is legally prohibited from making a Revolving
Loan under such
circumstances, each Lender (other than the Swing Line Lender), or
each Lender
(other than the Swing Line Lender) so prohibited, as the case may
be, shall, on
the date such Revolving Loan would have been made by it (the
"PURCHASE DATE"),
purchase an undivided participating interest in the outstanding
Swing Line Loans
to which such Notice of Swing Line Refunding related, in an amount
(the "SWING
LINE PARTICIPATION AMOUNT") equal to such Lender's Revolving
Facility Percentage
of such Swing Line Loans. On the Purchase Date, each such Lender or
each such
Lender so prohibited, as the case may be, shall pay to the Swing
Line Lender in
immediately available funds, such Lender's Swing Line Participation
Amount, and
promptly upon receipt thereof the Swing Line Lender shall, if
requested by such
other Lender, deliver to such Lender a participation certificate,
dated the date
of the Swing Line Lender's receipt of the funds from, and
evidencing such
Lender's participating interest in such Swing Line Loans and its
Swing Line
Participation Amount
25
<PAGE>
in respect thereof. If any amount required to be paid by a Lender
to the Swing
Line Lender pursuant to the above provisions in respect of any
Swing Line
Participation Amount is not paid on the date such payment is due,
such Lender
shall pay to the Swing Line Lender on demand interest on the amount
not so paid
at the overnight Federal Funds Effective Rate from the due date
until such
amount is paid in full.
(c)
Whenever, at any time after the Swing Line Lender has received from
any
other Lender such Lender's Swing Line Participation Amount, the
Swing Line
Lender receives any payment from or on behalf of the Borrower on
account of the
related Swing Line Loans, the Swing Line Lender will promptly
distribute to such
Lender its Revolving Facility Percentage of such payment on account
of its Swing
Line Participation Amount (appropriately adjusted, in the case of
interest
payments, to reflect the period of time during which such Lender's
participating
interest was outstanding and funded); PROVIDED, HOWEVER, that in
the event such
payment received by the Swing Line Lender is required to be
returned, such
Lender will return to the Swing Line Lender any portion thereof
previously
distributed to it by the Swing Line Lender.
(d)
Each Lender's obligation to make Revolving Loans and/or to
purchase
participations in connection with a Notice of Swing Line Refunding
(which shall
in all events be within such Lender's Unutilized Revolving
Commitment, taking
into account all outstanding participations in connection with
Swing Line
Refundings) shall be subject to the conditions that:
(i) such Lender shall have received a Notice of Swing Line
Refunding
complying with the provisions hereof, and
(ii) at the time the Swing Line Loans which are the subject of
such
Notice of Swing Line Refunding were made, the Swing Line Lender had
no
actual written notice from another Lender notifying the Swing Line
Lender
that
an Event of Default had occurred and was continuing under this
Agreement and that any further increases in the aggregate principal
amount
of
Swing Line Loans would not be entitled to the benefit of the
participation arrangements provided in this section 2.4,
but otherwise shall be absolute and unconditional, shall be solely
for the
benefit of the Swing Line Lender and shall not be affected by any
circumstance,
including, without limitation, (A) any set-off, counterclaim,
recoupment,
defense or other right which such Lender may have against any other
Lender, any
Credit Party, or any other Person, or any Credit Party may have
against any
Lender or other Person, as the case may be, for any reason
whatsoever; (B) the
occurrence or continuance of a Default or Event of Default; (C) any
event or
circumstance involving a Material Adverse Effect upon the Borrower;
(D) any
breach of any Credit Document by any party thereto; or (E) any
other
circumstance, happening or event, whether or not similar to any of
the
foregoing.
2.5.
NOTES; LOAN ACCOUNTS (a) FORMS OF NOTES. The obligation of the
Borrower to pay the principal of, and interest on, the Loans made
to it by each
Lender shall be evidenced hereunder and (i) if a Revolving Loan,
and if so
requested by any Lender with a Revolving Commitment, by a
promissory note of the
Borrower substantially in the form of Exhibit A-1 with blanks
appropriately
completed in conformity herewith (each a "REVOLVING NOTE" and,
collectively, the
"REVOLVING NOTES"), and (ii) if a Swing Line Loan, by a promissory
note of the
Borrower substantially in the form of Exhibit A-2 with blanks
appropriately
completed in conformity herewith (the "SWING LINE NOTE").
(B)
REVOLVING NOTES. The Revolving Note issued by the Borrower to a
Lender
with a Revolving Commitment shall: (i) be executed only by the
Borrower; (ii) be
payable to the order of such Lender and be dated on or prior to the
Closing
Date; (iii) be payable in the principal amount of Revolving Loans
evidenced
thereby; (iv) mature on the Maturity Date; (v) bear interest as
provided in
section 2.7 in respect of the Prime Rate Loans or Eurocurrency
Loans, as the
case may be, evidenced thereby; (vi) be subject to mandatory
prepayment as
provided in section 5.2; and (vii) be entitled to the benefits of
this Agreement
and the other Credit Documents.
(C)
SWING LINE NOTE. The Swing Line Revolving Note issued to the Swing
Line
Lender shall: (i) be executed by the Borrower; (ii) be payable to
the order of
such Lender and be dated on or prior to the date the first Loan
evidenced
thereby is made; (iii) be in a stated principal amount equal to the
Swing Line
Commitment of such Lender and be payable in the principal amount of
Swing Line
Loans evidenced thereby; (iv) mature as to any Swing Line Loan
evidenced thereby
on the first Business Day following the date such Swing Line Loan
was made; (v)
bear
26
<PAGE>
interest as provided in section 2.7 in respect of the Prime Rate
Loans or Money
Market Rate Loans, as the case may be, evidenced thereby; (vi) be
subject to
mandatory prepayment as provided in section 5.2; and (vii) be
entitled to the
benefits of this Agreement and the other Credit Documents.
(D)
LOAN ACCOUNTS OF LENDERS. Each Lender shall maintain in accordance
with
its usual practice an account or accounts evidencing the
indebtedness of the
Borrower to such Lender resulting from each Loan made by such
Lender, including
the amounts of principal and interest payable and paid to such
Lender from time
to time hereunder.
(E)
LOAN ACCOUNTS OF ADMINISTRATIVE AGENT. The Administrative Agent
shall
maintain accounts in which it shall record (i) the amount of each
Loan made
hereunder, the Type thereof, and the particular Facility under
which such Loan
was made, (ii) the Interest Period and applicable interest rate if
such Loan is
a Eurocurrency Loan, (iii) the maturity date and interest rate if
such Loan is a
Swing Line Loan, (iv) the amount of any principal due and payable
or to become
due and payable from the Borrower to each Lender hereunder, and (v)
the amount
of any sum received by the Administrative Agent hereunder for the
account of the
Lenders and each Lender's share thereof.
(F)
EFFECT OF LOAN ACCOUNTS, ETC. The entries made in the accounts
maintained pursuant to section 2.5(d) and (e) shall be PRIMA FACIE
evidence of
the existence and amounts of payments and amounts of the
obligations recorded
therein; PROVIDED, that the failure of any Lender or the
Administrative Agent to
maintain such accounts or any error therein shall not in any manner
affect the
obligation of the Borrower to repay or prepay the Loans in
accordance with the
terms of this Agreement.
(G)
ENDORSEMENTS OF AMOUNTS ON NOTES PRIOR TO TRANSFER. Each Lender
will,
prior to any transfer of any of the Notes issued to it by the
Borrower, endorse
on the reverse side thereof or the grid attached thereto the
outstanding
principal amount of Loans evidenced thereby. Failure to make any
such notation
or any error in any such notation shall not affect the Borrower's
obligations in
respect of such Loans.
2.6.
VOLUNTARY CONVERSIONS OF REVOLVING LOANS DENOMINATED IN
DOLLARS.
The
Borrower shall have the option to Convert on any Business Day all
or a
portion at least equal to the applicable Minimum Borrowing Amount
of the
outstanding principal amount of its Revolving Loans denominated in
Dollars of
one Type owing by it into a Revolving Borrowing or Revolving
Borrowings of
another Type of Loans denominated in Dollars, PROVIDED that:
(i) any Conversion of Eurocurrency Loans into Prime Rate Loans
shall
be
made on, and only on, the last day of an Interest Period for
such
Eurocurrency Loans;
(ii) Prime Rate Loans may only be Converted into Eurocurrency Loans
if
no
Default under section 10.1(a) or Event of Default is in existence
on the
date
of the Conversion unless the Required Lenders otherwise agree;
(iii) Prime Rate Loans may not be Converted into Eurocurrency
Loans
during any period when such Conversion is not permitted under
section 2.9;
and
(iv) Borrowings of Eurocurrency Loans resulting from this section
2.6
shall conform to the requirements of section 2.2.
Each such Conversion shall be effected by the Borrower giving the
Administrative
Agent at its Notice Office, prior to 12:00 noon (local time at such
Notice
Office), at least three Business Days', in the case of Conversion
into a
Eurocurrency Loans (or prior to 12:00 noon (local time at such
Notice Office)
same Business Day's, in the case of a Conversion into Prime Rate
Loans), prior
written notice (or telephonic notice promptly confirmed in writing
if so
requested by the Administrative Agent) (each a "NOTICE OF
CONVERSION"),
substantially in the form of Exhibit B-2, specifying the Revolving
Loans to be
so Converted, the Type of Loans to be Converted into and, if to be
Converted
into a Borrowing of Eurocurrency Loans, the Interest Period to be
initially
applicable thereto. The Administrative Agent shall give each Lender
prompt
notice of any such proposed Conversion. For the avoidance of doubt,
the
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prepayment or repayment of any Revolving Loans out of the proceeds
of other
Revolving Loans by the Borrower is not considered a Conversion of
Revolving
Loans into other Revolving Loans. Revolving Loans denominated in
Alternative
Currency may be continued as Revolving Loans denominated in
Alternative
Currency, bearing interest based on the Eurocurrency Rate, at the
end of any
relevant Interest Period.
2.7.
INTEREST. (a) INTEREST ON PRIME RATE LOANS. During such periods as
a
Revolving Loan is a Prime Rate Loan, it shall bear interest at a
fluctuating
rate per annum which shall at all times be equal to the Prime Rate
in effect
from time to time PLUS the Applicable Prime Rate Margin in effect
from time to
time for such Revolving Loan.
(B)
INTEREST ON EUROCURRENCY LOANS. During such periods as a Revolving
Loan
is a Eurocurrency Loan, it shall bear interest at a rate per annum
which shall
at all times during an Interest Period therefor be the relevant
Eurocurrency
Rate for such Eurocurrency Loan for such Interest Period PLUS the
Applicable
Eurocurrency Margin in effect from time to time for such Revolving
Loan.
(C)
INTEREST ON MONEY MARKET RATE LOANS. During such periods as a
Swing
Line Loan is a Money Market Rate Loan, it shall bear interest until
maturity
(whether by acceleration or otherwise) at the rate per annum which
shall be
equal to the Quoted Rate therefor.
(D)
DEFAULT INTEREST. Notwithstanding the above provisions, if a
Default
under section 10.1(a) or Event of Default is in existence, all
outstanding
amounts of principal and, to the extent permitted by law, all
overdue interest,
in respect of each Loan shall (i) at the election of the Required
Lenders bear
interest, payable on demand, at a rate per annum equal to 2% per
annum above the
interest rate which is or would be applicable from time to time
pursuant to
section 2.7(a) or (ii) in the event such an election is not made by
the Required
Lenders, at the rate specified in subpart (C) of section 2.7(g). If
any amount
(other than the principal of and interest on the Loans) payable by
the Borrower
under the Credit Documents is not paid when due, such amount shall
at the option
of the Required Lenders bear interest, payable on demand, at a rate
per annum
equal to 2% per annum above the interest rate which is or would be
applicable
from time to time pursuant to section 2.7(a).
(E)
ACCRUAL AND PAYMENT OF INTEREST. Interest shall accrue from and
including the date of any Borrowing to but excluding the date of
any prepayment
or repayment thereof and shall be payable:
(i) in respect of any Swing Line Loan, monthly in arrears on the
first
Business Day of the next succeeding month;
(ii) in respect of each Prime Rate Loan under the Revolving
Facility,
quarterly in arrears on each April 1, July 1, October 1 and January
1, and
(iii) in respect of each Eurocurrency Loan under the Revolving
Facility, on the last day of each Interest Period applicable
thereto and,
in
the case of an Interest Period in excess of three months, on the
dates
which are successively three months after the commencement of such
Interest
Period, and
(iv) in the case of any Loan under any Facility, on any
repayment,
prepayment or Conversion (on the amount repaid, prepaid or
Converted), at
maturity (whether by acceleration or otherwise) and, after such
maturity,
on
demand.
(F)
COMPUTATIONS OF INTEREST. All computations of interest hereunder
shall
be made in accordance with section 12.7(b).
(G)
INTEREST RATE MARGINS. As used herein the terms "APPLICABLE PRIME
RATE
MARGIN", "APPLICABLE EUROCURRENCY MARGIN" and "APPLICABLE
COMMITMENT FEE" shall
mean the particular rate per annum determined by the Administrative
Agent in
accordance with the Pricing Grid Table which appears below (the
"PRICING GRID
TABLE"), based on the Borrower's ratio of Consolidated Total Debt
to
Consolidated EBITDA, as computed in accordance with section 9.7
hereof, and such
Pricing Grid Table, and the following provisions:
28
<PAGE>
(A) Initially, until changed hereunder in accordance with the
following provisions, the Applicable Prime Rate Margin for
Revolving Loans
and
Swing Line Loans will be 0 basis points per annum, the
Applicable
Eurocurrency Margin for Revolving Loans will be 100 basis points
per annum,
and
the Applicable Commitment Fee shall be 25 basis points per
annum.
(B) Commencing with the fiscal quarter of the Borrower ended on
or
nearest to December 31, 2005, and continuing with each fiscal
quarter
thereafter, the Administrative Agent will determine the Applicable
Prime
Rate
Margin or Applicable Eurocurrency Margin for any Revolving Loan
or
Swing Line Loan and the Applicable Commitment Fee in accordance
with the
Pricing Grid Table, based on the Borrower's ratio of (x)
Consolidated Total
Debt
as of the end of the fiscal quarter, to (y) Consolidated EBITDA
for
the
Testing Period ended on the last day of the fiscal quarter, as
computed
in
accordance with section 9.7 hereof, and identified in such Pricing
Grid
Table. Changes in the Applicable Prime Rate Margin, Applicable
Eurocurrency
Margin or Applicable Commitment Fee based upon changes in such
ratio shall
become effective on the first day of the month following the
receipt by the
Administrative Agent pursuant to section 8.1(a) or (b) of the
financial
statements of the Borrower, accompanied by the certificate and
calculations
referred to in section 8.1(c), demonstrating the computation of
such ratio,
based upon the ratio in effect at the end of the applicable period
covered
(in
whole or in part) by such financial statements.
(C) Notwithstanding the above provisions and subject to section
2.7(d), during any period when (1) the Borrower has failed to
timely
deliver its consolidated financial statements referred to in
section 8.1(a)
or
(b), accompanied by the certificate and calculations referred to
in
section 8.1(c), (2) a Default under section 10.1(a) has occurred
and is
continuing, or (3) an Event of Default has occurred and is
continuing, the
Applicable Prime Rate Margin and the Applicable Eurocurrency Margin
for
Revolving Loans and Swing Line Loans and the Applicable Commitment
Fee
shall be the highest rate per annum indicated therefor in the
Pricing Grid
Table, regardless of the Borrower's ratio of Consolidated Total
Debt to
Consolidated EBITDA at such time.
(D) Any changes in the Applicable Prime Rate Margin or
Applicable
Eurocurrency Margin for
Revolving Loans or Swing Line Loans and the
Applicable Commitment Fee shall be determined by the Administrative
Agent
in
accordance with the above provisions and the Administrative Agent
will
promptly provide notice of such determinations to the Borrower and
the
Lenders. Any such determination by the Administrative Agent
pursuant to
this
section 2.7(g) shall be conclusive and binding absent manifest
error.
PRICING GRID TABLE
FOR
REVOLVING LOANS AND SWING LINE LOANS
(EXPRESSED IN BASIS POINTS)
<TABLE>
<CAPTION>
RATIO OF
CONSOLIDATED TOTAL DEBT
APPLICABLE
APPLICABLE
TO
APPLICABLE PRIME
EUROCURRENCY
COMMITMENT FEE
CONSOLIDATED EBITDA
RATE MARGIN
MARGIN
RATE
-----------------------
----------------
------------
--------------
<S>
<C>
<C>
<C>
Equal to or greater than 3.00
0
100
25.0
Equal to or greater than 2.50 and less than 3.00
0
80
20.0
Equal to or greater than 2.00 and less than 2.50
0
70
17.5
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
RATIO OF
CONSOLIDATED TOTAL DEBT
APPLICABLE
APPLICABLE
TO
APPLICABLE PRIME
EUROCURRENCY
COMMITMENT FEE
CONSOLIDATED EBITDA
RATE MARGIN
MARGIN
RATE
-----------------------
----------------
------------
--------------
<S>
<C>
<C>
<C>
Equal to or greater than 1.50 and less than 2.00
0
60
15.0
Less than 1.50
0
50
12.5
</TABLE>
(H)
INFORMATION AS TO INTEREST RATES. The Administrative Agent upon
determining the interest rate for any Borrowing shall promptly
notify the
Borrower and the Lenders thereof. If the Administrative Agent is
unable to
determine the Eurocurrency Rate for any Borrowing of Eurocurrency
Loans based on
the quotation service referred to in clause (i) of the definition
of the term
Eurocurrency Rate, it will promptly so notify the Reference Banks
and each
Reference Bank will furnish the Administrative Agent timely
information for the
purpose of determining the Eurocurrency Rate for such Borrowing. If
any one or
more of the Reference Banks shall not timely furnish such
information, the
Administrative Agent shall determine the Eurocurrency Rate for such
Borrowing on
the basis of timely information furnished by the remaining
Reference Banks.
2.8.
SELECTION AND CONTINUATION OF INTEREST PERIODS. (a) The Borrower
shall
have the right
(x) at the time it gives a Notice of Borrowing or Notice of
Conversion
in
respect of the making of, or Conversion into, a Borrowing of
Eurocurrency Loans, to select in such Notice the Interest Period to
be
applicable to such Borrowing, and
(y) prior to 12:00 noon (local time at the Notice Office) on the
third
Business Day prior to the expiration of an Interest Period
applicable to a
Borrowing under the Revolving Facility of Eurocurrency Loans, to
elect by
giving the Administrative Agent written or telephonic notice (in
the case
of
telephonic notice, promptly confirmed in writing if so requested by
the
Administrative Agent) to Continue all or the Minimum Borrowing
Amount of
the
principal amount of such Revolving Loans as one or more Borrowings
of
Eurocurrency Loans and to select the Interest Period to be
applicable to
any
such Borrowing (any such notice, a "NOTICE OF CONTINUATION"),
which Interest Period shall, at the option of the Borrower, be a
one, two, three
or six month period; PROVIDED, that notwithstanding anything to the
contrary
contained above, the Borrower's right to select an Interest Period
or to effect
any Continuation shall be subject to the applicable provisions of
section 2.9
and to the following:
(i) the initial Interest Period for any Borrowing of
Eurocurrency
Loans shall commence on the date of such Borrowing (the date of a
Borrowing
resulting from a Conversion or Continuation shall be the date of
such
Conversion or Continuation) and each Interest Period occurring
thereafter
in
respect of such Borrowing shall commence on the day on which the
next
preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no
numerically corresponding day in the calendar month at the end of
such
Interest Period, such
Interest Period shall end on the last Business Day of
such
calendar month;
(iii) if any Interest Period would otherwise expire on a day which
is
not
a Business Day, such Interest Period shall expire on the next
succeeding Business
Day, PROVIDED that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day
of the
month after which no further Business Day occurs in such month,
such
Interest Period shall expire on the next preceding Business
Day;
30
<PAGE>
(iv) no Interest Period for any Eurocurrency Loan may be
selected
which would end after the Maturity Date applicable thereto;
(v) each Borrowing resulting from a Continuation shall be in at
least
the
Minimum Borrowing Amount applicable thereto; and
(vi) no Interest Period may be elected at any time when a
Default
under section 10.1(a) or an Event of Default is then in existence
unless
the
Required Lenders otherwise agree.
(b)
If upon the expiration of any Interest Period the Borrower has
failed
to (or may not) elect a new Interest Period to be applicable to the
respective
Borrowing of Eurocurrency Loans as provided above, in the case of
any such
Eurocurrency Loans which are denominated in Dollars, the Borrower
shall be
deemed to have elected to convert such Borrowing to Prime Rate
Loans effective
as of the expiration date of such current Interest Period, and in
the case of
any such Eurocurrency Loans which are denominated in Alternative
Currency, the
Borrower shall be deemed to have elected effective as of the
expiration date of
such current Interest Period to continue such Loans in such
Alternative Currency
with an Interest Period of one month.
2.9.
INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the
case of clause (i) below, the Administrative Agent or (y) in the
case of clauses
(ii) and (iii) below, any Lender, shall have determined on a
reasonable basis
(which determination shall, absent manifest error, be final and
conclusive and
binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate for
Eurocurrency
Loans denominated in Dollars or in Alternative Currency for any
Interest
Period that, by reason of any changes arising after the Effective
Date
affecting the interbank Eurocurrency market, adequate and fair
means do not
exist for ascertaining the applicable interest rate on the basis
provided
for
in the definition of Eurocurrency Rate; or
(ii) at any time, that such Lender shall incur increased costs
or
reductions in the amounts received or receivable hereunder in an
amount
which such Lender deems material with respect to any Eurocurrency
Loans
(other than any increased cost or reduction in the amount received
or
receivable resulting from the imposition of or a change in the rate
of
taxes or similar charges) because of (x) any change since the
Effective
Date
in any applicable law, governmental rule, regulation, guideline,
order
or
request (whether or not having the force of law), or in the
interpretation or administration thereof and including the
introduction of
any
new law or governmental rule, regulation, guideline, order or
request
(such as, for example, but not limited to, a change in official
reserve
requirements, but, in all events, excluding reserves includable in
the
Eurocurrency Rate pursuant to the definition thereof) and/or (y)
other
circumstances adversely affecting the interbank Eurocurrency market
or the
position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurocurrency
Loan
denominated in Dollars or in Alternative Currency has become
unlawful
by
compliance by such Lender in good faith with any change since
the
Effective Date in any law, governmental rule, regulation, guideline
or
order, or the interpretation or application thereof, or would
conflict with
any
thereof not having the force of law but with which such Lender
customarily complies or has become impracticable as a result of
a
contingency occurring after the Effective Date which materially
adversely
affects the interbank Eurocurrency market;
THEN, and in any such event, such Lender (or the Administrative
Agent in the
case of clause (i) above) shall (x) on or promptly following such
date or time
and (y) within 10 Business Days of the date on which such event no
longer exists
give notice (by telephone confirmed in writing) to the Borrower and
to the
Administrative Agent of such determination (which notice the
Administrative
Agent shall promptly transmit to each of the other applicable
Lenders).
Thereafter (x) in the case of clause (i) above, Eurocurrency Loans
shall no
longer be available in the applicable currency until such time as
the
Administrative Agent notifies the Borrower and the applicable
Lenders that the
circumstances giving rise to such notice by the Administrative
Agent no longer
exist, and any Notice of Borrowing, Notice of Conversion or Notice
of
Continuation given by the Borrower or with respect to Eurocurrency
Loans
denominated in Dollars or in Alternative Currency which have not
yet been
incurred, Converted or Continued shall be deemed rescinded or, in
the case of a
Notice of Borrowing, shall, at the option of the Borrower, be
deemed
31
<PAGE>
converted into a Notice of Borrowing for Prime Rate Loans to be
made on the date
of Borrowing contained in such Notice of Borrowing, (y) in the case
of clause
(ii) above, the Borrower shall pay to such Lender, upon written
demand therefor,
such additional amounts (in the form of an increased rate of, or a
different
method of calculating, interest or otherwise as such Lender shall
determine) as
shall be required to compensate such Lender, for such increased
costs or
reductions in amounts receivable hereunder (a written notice as to
the
additional amounts owed to such Lender, showing the basis for the
calculation
thereof, which basis must be reasonable, submitted to the Borrower
by such
Lender shall, absent manifest error, be final and conclusive and
binding upon
all parties hereto) and (z) in the case of clause (iii) above, the
Borrower
shall take one of the actions specified in section 2.9(b) as
promptly as
possible and, in any event, within the time period required by
law.
(b)
At any time that any Eurocurrency Loan denominated in Dollars or
in
Alternative Currency is affected by the circumstances described in
section
2.9(a)(ii) or (iii), the Borrower may (and in the case of a
Eurocurrency Loan
affected pursuant to section 2.9(a)(iii), shall) either (i) if the
affected
Eurocurrency Loan is then being made pursuant to a Borrowing, by
giving the
Administrative Agent telephonic notice (confirmed promptly in
writing) thereof
on the same date that the Borrower was notified by a Lender
pursuant to section
2.9(a)(ii) or (iii), cancel said Borrowing, convert the related
Notice of
Borrowing into one requesting a Borrowing of Prime Rate Loans or
require the
affected Lender to make its requested Revolving Loan as a Prime
Rate Loan, or
(ii) if the affected Eurocurrency Loan is then outstanding, upon at
least one
Business Day's notice to the Administrative Agent, require the
affected Lender
to Convert each such Eurocurrency Loan into a Prime Rate Loan
denominated in
Dollars, PROVIDED that if more than one Lender is affected at any
time, then all
affected Lenders must be treated the same pursuant to this section
2.9(b).
(c)
If any Lender shall have determined that after the Effective Date,
the
adoption of any applicable law, rule or regulation regarding
capital adequacy,
or any change therein, or any change in the interpretation or
administration
thereof by any governmental authority, central bank or comparable
agency charged
by law with the interpretation or administration thereof, or
compliance by such
Lender or its parent corporation with any request or directive
regarding capital
adequacy (whether or not having the force of law) of any such
authority, central
bank, or comparable agency, in each case made subsequent to the
Effective Date,
has or would have the effect of reducing by an amount reasonably
deemed by such
Lender to be material the rate of return on such Lender's or its
parent
corporation's capital or assets as a consequence of such Lender's
commitments or
obligations hereunder to a level below that which such Lender or
its parent
corporation could have achieved but for such adoption,
effectiveness, change or
compliance (taking into consideration such Lender's or its parent
corporation's
policies with respect to capital adequacy), then from time to time,
within 15
days after demand by such Lender (with a copy to the Administrative
Agent), the
Borrower shall pay to such Lender such additional amount or amounts
as will
compensate such Lender or its parent corporation for such
reduction. Each
Lender, upon determining in good faith that any additional amounts
will be
payable pursuant to this section 2.9(c), will give prompt written
notice thereof
to the Borrower, which notice shall set forth, in reasonable
detail, the basis
of the calculation of such additional amounts, which basis must be
reasonable,
although the failure to give any such notice shall not release or
diminish any
of the Borrower's obligations to pay additional amounts pursuant to
this section
2.9(c) upon the subsequent receipt of such notice.
(d)
Notwithstanding anything in this Agreement to the contrary, (i)
no
Lender shall be entitled to compensation or payment or
reimbursement of other
amounts under section 2.9, 3.5 or 5.4 for any amounts incurred or
accruing more
than 270 days prior to the giving of notice to the Borrower of
additional costs
or other amounts of the nature described in such sections, and (ii)
no Lender
shall demand compensation for any reduction referred to in section
2.9(c) or
payment or reimbursement of other amounts under section 3.5 or 5.4
if it shall
not at the time be the general policy or practice of such Lender to
demand such
compensation, payment or reimbursement in similar circumstances
under comparable
provisions of other credit agreements.
2.10. BREAKAGE COMPENSATION. The Borrower shall compensate each
applicable
Lender, upon its written request (which request shall set forth the
detailed
basis for requesting and the method of calculating such
compensation), for all
reasonable losses, expenses and liabilities (including, without
limitation, any
loss, expense or liability incurred by reason of the liquidation or
reemployment
of deposits or other funds required by such Lender to fund its
Eurocurrency
Loans or Money Market Rate Loans) which such Lender may sustain:
(i) if for any
reason (other than a default by such Lender or the Administrative
Agent), (A) a
Borrowing of Eurocurrency Loans does not occur on a date specified
therefor in a
Notice of Borrowing, Notice of Conversion or Notice of
Continuation
32
<PAGE>
(whether or not rescinded or withdrawn by or on behalf of the
Borrower or deemed
rescinded or withdrawn pursuant to section 2.9(a)), or (B) a
Borrowing of Money
Market Rate Loans does not occur on a date specified therefor in a
Notice of
Borrowing; (ii) if any repayment, prepayment, Conversion or
Continuation of any
of its Eurocurrency Loans occurs on a date which is not the last
day of an
Interest Period applicable thereto; (iii) if any repayment or
prepayment of any
Money Market Rate Loan occurs on a date which is not the maturity
date thereof;
(iv) if any prepayment of any Eurocurrency Loans or Money Market
Rate Loans, as
the case may be, is not made on any date specified in a notice of
prepayment
given by or on behalf of the Borrower; (v) if the Borrower,
pursuant to section
2.11(b) hereof, requires any Lender (other than a Defaulting
Lender) to transfer
its Eurocurrency Loans and/or Money Market Rate Loans, as the case
may be, on
any date other than the last day of the Interest Period or maturity
date
thereof; or (vi) as a consequence of (x) any other default by the
Borrower to
repay its Eurocurrency Loans or Money Market Rate Loans, as the
case may be,
when required by the terms of this Agreement or (y) an election
made pursuant to
section 2.9(b). Such loss, cost, expense and liability to any
Lender shall be
deemed to include an amount determined by such Lender to be the
excess, if any,
of (i) the amount of interest which would have accrued on the
principal amount
of such Loan had such event not occurred, at the interest rate that
would have
been applicable to such Loan, for the period from the date of such
event to the
last day of the then current Interest Period therefor or the then
maturity date
thereof in the case of any Money Market Rate Loan (or, in the case
of a failure
to effect a Borrowing, Conversion or Continuation, for the period
that would
have been the Interest Period for such Loan or the period to
maturity of such
Loan, in the case of a Money Market Rate Loan), over (ii) the
amount of interest
which would accrue on such principal amount for such period at the
interest rate
which such Lender would bid were it to bid, at the commencement of
such period,
for Dollar deposits of a comparable amount and period from other
banks in the
London interbank market. A certificate of any Lender setting forth
any amount or
amounts that such Lender is entitled to receive pursuant to this
section shall
be delivered to the Borrower and shall be conclusive absent
convincing evidence
of error. The Borrower shall pay such Lender the amount shown as
due on any such
request as soon as practicable but in any event within 30 days
after receipt by
the Borrower thereof.
2.11. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each
Lender
agrees that, upon the occurrence of any event giving rise to the
operation of
section 2.9(a)(ii) or (iii), 2.9(c), 3.5 or 5.4 with respect to
such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject
to overall
policy considerations of such Lender) to designate another
Applicable Lending
Office for any Loans or Commitment affected by such event, PROVIDED
that such
designation is made on such terms that such Lender and its
Applicable Lending
Office suffer no economic, legal or regulatory disadvantage, with
the object of
avoiding the consequence of the event giving rise to the operation
of any such
section.
(b)
If any Lender requests any compensation, reimbursement or other
payment
under section 2.9(a)(ii) or (iii), 2.9(c) or 3.5 with respect to
such Lender, or
if the Borrower is required to pay any additional amount to any
Lender or
governmental authority pursuant to section 5.4, or if any Lender is
a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon
notice to
such Lender and the Administrative Agent, require such Lender to
assign and
delegate, without recourse (in accordance with the restrictions
contained in
section 12.4(b)), all its interests, rights and obligations under
this Agreement
to an assignee that shall assume such obligations (which assignee
may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the
Borrower
shall have received the prior written consent of the Administrative
Agent, which
consent shall not be unreasonably withheld, (ii) such Lender shall
have received
payment of an amount equal to the outstanding principal of its
Loans, accrued
interest thereon, accrued fees and all other amounts payable to it
hereunder,
from the assignee (to the extent of such outstanding principal and
accrued
interest and fees) or the Borrower (in the case of all other
amounts, including
any breakage compensation under section 2.10 hereof), and (iii) in
the case of
any such assignment resulting from a claim for compensation,
reimbursement or
other payments required to be made under section 2.9(a)(ii) or
(iii), 2.9(c) or
3.5 with respect to such Lender, or resulting from any required
payments to any
Lender or governmental authority pursuant to section 5.4, such
assignment will
result in a reduction in such compensation, reimbursement or
payments. A Lender
shall not be required to make any such assignment and delegation
if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances
entitling the Borrower to require such assignment and delegation
cease to apply.
(c)
Nothing in this section 2.11 shall affect or postpone any of
the
obligations of the Borrower or the right of any Lender provided in
section 2.9,
3.5 or 5.4.
33
<PAGE>
SECTION 3. LETTERS OF CREDIT
3.1.
LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions
herein set forth, the Borrower may request a Letter of Credit
Issuer at any time
and from time to time on or after the Closing Date and prior to the
date that is
60 Business Days prior to the Revolving Maturity Date to issue, for
the account
of the Borrower or any of its Subsidiaries (the Borrower or any
such Subsidiary,
a "LETTER OF CREDIT OBLIGOR"), and in support of worker
compensation, liability
insurance, releases of contract retention obligations, contract
performance
guarantee requirements and other bonding obligations of the
Borrower or any such
other Letter of Credit Obligor incurred in the ordinary course of
its business,
and such other standby obligations of the Borrower and the other
Letter of
Credit Obligors that are acceptable to the Letter of Credit Issuer,
and subject
to and upon the terms and conditions herein set forth, such Letter
of Credit
Issuer agrees to issue from time to time, irrevocable standby
letters of credit
denominated and payable in Dollars or Alternative Currency in such
form as may
be approved by such Letter of Credit Issuer and the Administrative
Agent (each
such letter of credit (and each Existing Letter of Credit described
in section
3.1(d)), a "LETTER OF CREDIT" and collectively, the "LETTERS OF
CREDIT").
(b)
Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued,
and the Stated Amount of any outstanding Letter of Credit shall not
be
increased, if after giving effect thereto the Letter of Credit
Outstandings
would exceed either (x) $25,000,000 or (y) when added to the
aggregate principal
amount of all Revolving Loans and Swing Line Loans then
outstanding, an amount
equal to the Total Revolving Commitment at such time; (ii) no
individual Letter
of Credit (other than any Existing Letter of Credit) shall be
issued which has
an initial Stated Amount less than $100,000 unless such lesser
Stated Amount is
acceptable to the Letter of Credit Issuer; and (iii) each Letter of
Credit shall
have an expiry date (including any renewal periods) occurring not
later than the
earlier of (A) one year from the date of issuance thereof, unless a
longer
period is approved by the relevant Letter of Credit Issuer and
Lenders (other
than any Defaulting Lender) holding a majority of the Total
Revolving
Commitment, and (B) 15 Business Days prior to the Revolving
Maturity Date, in
each case on terms acceptable to the Administrative Agent and the
relevant
Letter of Credit Issuer.
(c) Notwithstanding
the foregoing, in the event a Lender Default exists, no
Letter of Credit Issuer shall be required to issue any Letter of
Credit unless
either (i) such Letter of Credit Issuer has entered into
arrangements
satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's
risk with respect to the participation in Letters of Credit of the
Defaulting
Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or
Lenders' Revolving Facility Percentage of the Letter of Credit
Outstandings; or
(ii) the issuance of such Letter of Credit, taking into account the
potential
failure of the Defaulting Lender or Lenders to risk participate
therein, will
not cause the Letter of Credit Issuer to incur aggregate credit
exposure
hereunder with respect to Revolving Loans and Letter of Credit
Outstandings in
excess of its Revolving Commitment, and the Borrower has
undertaken, for the
benefit of such Letter of Credit Issuer, pursuant to an instrument
satisfactory
in form and substance to such Letter of Credit Issuer, not to
thereafter incur
Loans or Letter of Credit Outstandings hereunder which would cause
the Letter of
Credit Issuer to incur aggregate credit exposure hereunder with
respect to
Revolving Loans and Letter of Credit Outstandings in excess of its
Revolving
Commitment.
(d)
Annex VI hereto contains a description of all letters of credit
outstanding on, and to continue in effect after, the Closing Date.
Each such
letter of credit issued by a bank that is or becomes a Lender under
this
Agreement on the Effective Date (each, an "EXISTING LETTER OF
CREDIT") shall
constitute a "Letter of Credit" for all purposes of this Agreement,
issued, for
purposes of section 3.4(a), on the Closing Date, and the Borrower,
the
Administrative Agent and the applicable Lenders hereby agree that,
from and
after such date, the terms of this Agreement shall apply to such
Letters of
Credit, superseding any other agreement theretofore applicable to
them to the
extent inconsistent with the terms hereof.
3.2.
LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give
the
Administrative Agent and the Letter of Credit Issuer written or
telephonic
notice (in the case of telephonic notice, promptly confirmed in
writing if so
requested by the Administrative Agent) which, if in the form of
written notice
shall be substantially in the form of Exhibit B-3, or transmit by
electronic
communication (if arrangements for doing so have been approved by
the Letter of
Credit Issuer), prior to 12:00 noon (local time at its Notice
Office) at least
three Business Days (or such shorter period as may be acceptable to
the relevant
Letter of Credit Issuer), in the case of Letters of Credit
denominated in
Dollars, or at least five Business Days, in the case of Letters of
Credit
denominated in an Alternative Currency, prior to the proposed date
of issuance
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(which shall be a Business Day) (each a "LETTER OF CREDIT
REQUEST"), which
Letter of Credit Request shall include such supporting documents
that such
Letter of Credit Issuer customarily requires in connection
therewith (including,
in the case of a Letter of Credit for an account party other than
the Borrower,
an application for, and if applicable a reimbursement agreement
with respect to,
such Letter of Credit). Any such documents executed in connection
with the
issuance of a Letter of Credit, including the Letter of Credit
itself, are
herein referred to as "LETTER OF CREDIT DOCUMENTS". In the event of
any
inconsistency between any of the terms or provisions of any Letter
of Credit
Document and the terms and provisions of this Agreement respecting
Letters of
Credit, the terms and provisions of this Agreement shall control.
The
Administrative Agent shall promptly notify each Lender of each
Letter of Credit
Request.
(b)
Each Letter of Credit Issuer shall, on the date of each issuance of
a
Letter of Credit by it, give the Administrative Agent, each
applicable Lender
and the Borrower written notice of the issuance of such Letter of
Credit,
accompanied by a copy to the Administrative Agent of the Letter of
Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall
provide to
the Administrative Agent a quarterly (or monthly if requested by
any applicable
Lender) summary describing each Letter of Credit issued by such
Letter of Credit
Issuer and then outstanding and an identification for the relevant
period of the
daily aggregate Letter of Credit Outstandings represented by
Letters of Credit
issued by such Letter of Credit Issuer.
3.3.
AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby
agrees to reimburse (or cause any Letter of Credit Obligor for
whose account a
Letter of Credit was issued to reimburse) each Letter of Credit
Issuer, by
making payment directly to such Letter of Credit Issuer in
immediately available
funds at the payment office of such Letter of Credit Issuer, for
any payment or
disbursement made by such Letter of Credit Issuer under any Letter
of Credit
(each such amount so paid or disbursed until reimbursed, an "UNPAID
DRAWING")
immediately after, and in any event on the date on which, such
Letter of Credit
Issuer notifies the Borrower (or any such other Letter of Credit
Obligor for
whose account such Letter of Credit was issued) of such payment or
disbursement
(which notice to the Borrower (or such other Letter of Credit
Obligor) shall be
delivered reasonably promptly after any such payment or
disbursement), such
payment to be made in Dollars (and in the amount which is the
Dollar equivalent
of any such payment or disbursement made or denominated in
Alternative
Currency), with interest on the amount so paid or disbursed by such
Letter of
Credit Issuer, to the extent not reimbursed prior to 1:00 P.M.
(local time at
the payment office of the Letter of Credit Issuer) on the date of
such payment
or disbursement, from and including the date paid or disbursed to
but not
including the date such Letter of Credit Issuer is reimbursed
therefor at a rate
per annum which shall be the rate then applicable to Prime Rate
Loans (plus an
additional 2% per annum if not reimbursed on the date of such
payment or
disbursement), any such interest also to be payable on demand.
(b)
The Borrower's obligation under this section 3.3 to reimburse, or
cause
another Letter of Credit Obligor to reimburse, each Letter of
Credit Issuer with
respect to Unpaid Drawings (including, in each case, interest
thereon) shall be
absolute and unconditional under any and all circumstances and
irrespective of
any setoff, counterclaim or defense to payment which the Borrower
or any other
Letter of Credit Obligor may have or have had against such Letter
of Credit
Issuer, the Administrative Agent, any other Letter of Credit Issuer
or any
Lender, including, without limitation, any defense based upon the
failure of any
drawing under a Letter of Credit to conform to the terms of the
Letter of Credit
or any non-application or misapplication by the beneficiary of the
proceeds of
such drawing, PROVIDED, HOWEVER that the Borrower shall not be
obligated to
reimburse, or cause another Letter of Credit Obligor to reimburse,
a Letter of
Credit Issuer for any wrongful payment made by such Letter of
Credit Issuer
under a Letter of Credit as a result of acts or omissions
constituting willful
misconduct or gross negligence on the part of such Letter of Credit
Issuer.
3.4.
LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the issuance
by
a Letter of Credit Issuer of any Letter of Credit (and on the
Closing Date with
respect to any Existing Letter of Credit), such Letter of Credit
Issuer shall be
deemed to have sold and transferred to each Lender with a Revolving
Commitment,
and each such Lender (each a "LC PARTICIPANT") shall be deemed
irrevocably and
unconditionally to have purchased and received from such Letter of
Credit
Issuer, without recourse or warranty, an undivided interest and
participation,
to the extent of such Lender's Revolving Facility Percentage, in
such Letter of
Credit, each substitute letter of credit, each drawing made
thereunder, the
obligations of the Borrower under this Agreement with respect
thereto (although
Letter of Credit Fees shall be payable directly to the
Administrative Agent for
the account of the Lenders as provided in section 4.1(b) and the LC
Participants
shall have no right to receive any portion of any fees of the
nature
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contemplated by section 4.1(c)), the obligations of any Letter of
Credit Obligor
under any Letter of Credit Documents pertaining thereto, and any
security for,
or guaranty pertaining to, any of the foregoing. Upon any change in
the
Revolving Commitments of the Lenders pursuant to section 12.4(b),
it is hereby
agreed that, with respect to all outstanding Letters of Credit and
Unpaid
Drawings, there shall be an automatic adjustment to the
participations pursuant
to this section 3.4 to reflect the new Revolving Facility
Percentages of the
assigning and assignee Lender.
(b)
In determining whether to pay under any Letter of Credit, a Letter
of
Credit Issuer shall not have any obligation relative to the LC
Participants
other than to determine that any documents required to be delivered
under such
Letter of Credit have been delivered and that they appear to comply
on their
face with the requirements of such Letter of Credit. Any action
taken or omitted
to be taken by a Letter of Credit Issuer under or in connection
with any Letter
of Credit if taken or omitted in the absence of gross negligence or
willful
misconduct, shall not create for such Letter of Credit Issuer any
resulting
liability.
(c)
In the event that a Letter of Credit Issuer makes any payment under
any
Letter of Credit and the Borrower shall not have reimbursed (or
caused any
applicable Letter of Credit Obligor to reimburse) such amount in
full to such
Letter of Credit Issuer pursuant to section 3.3(a), such Letter of
Credit Issuer
shall promptly notify the Administrative Agent, and the
Administrative Agent
shall promptly notify each LC Participant of such failure, and each
LC
Participant shall promptly and unconditionally pay to the
Administrative Agent
for the account of such Letter of Credit Issuer, the amount of such
LC
Participant's Revolving Facility Percentage of such payment in
Dollars (the
Administrative Agent having determined in the case of any payment
by a Letter of
Credit Issuer made in Alternative Currency the equivalent thereof
in Dollars)
and in same day funds, PROVIDED, HOWEVER, that no LC Participant
shall be
obligated to pay to the Administrative Agent its Revolving Facility
Percentage
of such unreimbursed amount for any wrongful payment made by such
Letter of
Credit Issuer under a Letter of Credit as a result of acts or
omissions
constituting willful misconduct or gross negligence on the part of
such Letter
of Credit Issuer. If the Administrative Agent so notifies any LC
Participant
required to fund a payment under a Letter of Credit prior to 11:00
A.M. (local
time at its Notice Office) on any Business Day, such LC Participant
shall make
available to the Administrative Agent for the account of the
relevant Letter of
Credit Issuer such LC Participant's Revolving Facility Percentage
of the amount
of such payment on such Business Day in same day funds. If and to
the extent
such LC Participant shall not have so made its Revolving Facility
Percentage of
the amount of such payment available to the Administrative Agent
for the account
of the relevant Letter of Credit Issuer, such LC Participant agrees
to pay to
the Administrative Agent for the account of such Letter of Credit
Issuer,
forthwith on demand such amount, together with interest thereon,
for each day
from such date until the date such amount is paid to the
Administrative Agent
for the account of such Letter of Credit Issuer at the Federal
Funds Effective
Rate. The failure of any LC Participant to make available to the
Administrative
Agent for the account of the relevant Letter of Credit Issuer its
Revolving
Facility Percentage of any payment under any Letter of Credit shall
not relieve
any other LC Participant of its obligation hereunder to make
available to the
Administrative Agent for the account of such Letter of Credit
Issuer its
Revolving Facility Percentage of any payment under any Letter of
Credit on the
date required, as specified above, but no LC Participant shall be
responsible
for the failure of any other LC Participant to make available to
the
Administrative Agent for the account of such Letter of Credit
Issuer such other
LC Participant's Revolving Facility Percentage of any such
payment.
(d)
Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has
received for
the account of such Letter of Credit Issuer any payments from the
LC
Participants pursuant to section 3.4(c) above, such Letter of
Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent
shall
promptly pay to each LC Participant which has paid its Revolving
Facility
Percentage thereof, in Dollars and in same day funds, an amount
equal to such LC
Participant's Revolving Facility Percentage of the principal amount
thereof and
interest thereon accruing after the purchase of the respective
participations,
as and to the extent so received.
(e)
The obligations of the LC Participants to make payments to the
Administrative Agent for the account of each Letter of Credit
Issuer with
respect to Letters of Credit shall be irrevocable and not subject
to
counterclaim, set-off or other defense or any other qualification
or exception
whatsoever and shall be made in accordance with the terms and
conditions of this
Agreement under all circumstances, including, without limitation,
any of the
following circumstances:
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(i) any lack of validity or enforceability of this Agreement or any
of
the
other Credit Documents;
(ii) the existence of any claim, set-off defense or other right
which
the
Borrower (or any other Letter of Credit Obligor) may have at any
time
against a beneficiary named in a Letter of Credit, any transferee
of any
Letter of Credit (or any Person for whom any such transferee may
be
acting), the Administrative Agent, any Letter of Credit Issuer, any
Lender,
or
other Person, whether in connection with this Agreement, any Letter
of
Credit, the transactions contemplated herein or any unrelated
transactions
(including any underlying transaction between the Borrower (or any
other
Letter of Credit Obligor) and the beneficiary named in any such
Letter of
Credit), other than any claim which the Borrower (or any other
Letter of
Credit Obligor which is the account party with respect to a Letter
of
Credit) may have against any applicable Letter of Credit Issuer for
gross
negligence or willful misconduct of such Letter of Credit Issuer in
making
payment under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under
the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient
in
any respect or any statement therein being untrue or inaccurate in
any
respect;
(iv) the surrender or impairment of any security for the
performance
or
observance of any of the terms of any of the Credit Documents:
or
(v) the occurrence of any Default or Event of Default.
(f)
To the extent the Letter of Credit Issuer is not indemnified by
the
Borrower, the LC Participants will reimburse and indemnify the
Letter of Credit
Issuer, in proportion to their respective Revolving Facility
Percentages, for
and against any and all liabilities, obligations, losses, damages,
penalties,
claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind
or nature which may be imposed on, asserted against or incurred by
the Letter of
Credit Issuer in performing its respective duties in any way
related to or
arising out of its issuance of Letters of Credit, PROVIDED that no
LC
Participants shall be liable for any portion of such liabilities,
obligations,
losses, damages, penalties, claims, actions, judgments, costs,
expenses or
disbursements resulting from the Letter of Credit Issuer's gross
negligence or
willful misconduct.
3.5.
INCREASED COSTS. If after the Effective Date, the adoption of
any
applicable law, rule or regulation, or any change therein, or any
change in the
interpretation or administration thereof by any governmental
authority, central
bank or comparable agency charged with the interpretation or
administration
thereof, or compliance by any Letter of Credit Issuer or any Lender
with any
request or directive (whether or not having the force of law) by
any such
authority, central bank or comparable agency (in each case made
subsequent to
the Effective Date) shall either (i) impose, modify or make
applicable any
reserve, deposit, capital adequacy or similar requirement against
Letters of
Credit issued by such Letter of Credit Issuer or such Lender's
participation
therein, or (ii) shall impose on such Letter of Credit Issuer or
any Lender any
other conditions affecting this Agreement, any Letter of Credit or
such Lender's
participation therein; and the result of any of the foregoing is to
increase the
cost to such Letter of Credit Issuer or such Lender of issuing,
maintaining or
participating in any Letter of Credit, or to reduce the amount of
any sum
received or receivable by such Letter of Credit Issuer or such
Lender hereunder
(other than any increased cost or reduction in the amount received
or receivable
resulting from the imposition of or a change in the rate of taxes
or similar
charges), then, upon demand to the Borrower by such Letter of
Credit Issuer or
such Lender (a copy of which notice shall be sent by such Letter of
Credit
Issuer or such Lender to the Administrative Agent), the Borrower
shall pay to
such Letter of Credit Issuer or such Lender such additional amount
or amounts as
will compensate any such Letter of Credit Issuer or such Lender on
an after tax
basis for such increased cost or reduction. A certificate submitted
to the
Borrower by any Letter of Credit Issuer or any Lender, as the case
may be (a
copy of which certificate shall be sent by such Letter of Credit
Issuer or such
Lender to the Administrative Agent), setting forth, in reasonable
detail, the
basis for the determination of such additional amount or amounts
necessary to
compensate any Letter of Credit Issuer or such Lender as aforesaid
shall be
conclusive and binding on the Borrower absent manifest error,
although the
failure to deliver any such certificate shall not release or
diminish any of the
Borrower's obligations to pay additional amounts pursuant to this
section 3.5.
Reference is hereby made to the provisions of section 2.9(d) for
certain
limitations upon the rights of a Letter of Credit Issuer or Lender
under this
section.
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3.6.
GUARANTY OF LETTER OF CREDIT OBLIGATIONS OF OTHER LETTER OF
CREDIT
OBLIGORS. (a) The Borrower hereby unconditionally guarantees, for
the benefit of
the Administrative Agent and the Lenders, the full and punctual
payment of the
Obligations of each other Letter of Credit Obligor under each
Letter of Credit
Document to which such other Letter of Credit Obligor is now or
hereafter
becomes a party. Upon failure by any such other Letter of Credit
Obligor to pay
punctually any such amount, the Borrower shall forthwith on demand
by the
Administrative Agent pay the amount not so paid at the place and in
the currency
and otherwise in the manner specified in this Agreement or any
applicable Letter
of Credit Document.
(b)
As a separate, additional and continuing obligation, the
Borrower
unconditionally and irrevocably undertakes and agrees, for the
benefit of the
Administrative Agent and the Lenders, that, should any amounts not
be
recoverable from the Borrower under section 3.6(a) for any reason
whatsoever
(including, without limitation, by reason of any provision of any
Credit
Document or any other agreement or instrument executed in
connection therewith
being or becoming void, unenforceable, or otherwise invalid under
any applicable
law) then, notwithstanding any notice or knowledge thereof by any
Lender, the
Administrative Agent, any of their respective Affiliates, or any
other Person,
at any time, the Borrower as sole, original and independent
obligor, upon demand
by the Administrative Agent, will make payment to the
Administrative Agent, for
the account of the Lenders and the Administrative Agent, of all
such obligations
not so recoverable by way of full payment therefor, in such
currency and
otherwise in such manner as is provided in the Credit
Documents.
(c)
The obligations of the Borrower under this section shall be
unconditional and absolute and, without limiting the generality of
the foregoing
shall not be released, discharged or otherwise affected by the
occurrence, one
or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release
in
respect to any obligation of any other Letter of Credit Obligor
under
any
Letter of Credit Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement,
any
Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any direct
or
indirect security for any obligation of the Borrower under this
Agreement,
any
Note or any other Credit Document or of any other Letter of
Credit
Obligor under any Letter of Credit Document;
(iv) any change in the corporate existence, structure or ownership
of
any
other Letter of Credit Obligor or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any other
Letter of
Credit Obligor or its assets or any resulting release or discharge
of any
obligation of any other Letter of Credit Obligor contained in any
Letter of
Credit Document;
(v) the existence of any claim, set-off or other rights which
the
Borrower may have at any time against any other Letter of Credit
Obligor,
the
Administrative Agent, any Lender or any other Person, whether
in
connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against
any
other Letter of Credit Obligor for any reason of any Letter of
Credit
Document, or any provision of applicable law or regulation
purporting to
prohibit the payment by any other Letter of Credit Obligor of
any
Obligations in respect of any Letter of Credit; or
(vii) any other act or omission to act or delay of any kind by
any
other Letter of Credit Obligor, the Administrative Agent, any
Lender or any
other Person or any other circumstance whatsoever which might, but
for the
provisions of this section, constitute a legal or equitable
discharge of
the
Borrower's obligations under this section.
(d)
The Borrower's obligations under this section shall remain in
full
force and effect until the Commitments shall have terminated and
the principal
of and interest on the Notes and all other amounts payable by
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the Borrower under the Credit Documents and by any other Letter of
Credit
Obligor under the Letter of Credit Documents shall have been paid
in full. If at
any time any payment of any of the Obligations of any other Letter
of Credit
Obligor in respect of any Letter of Credit Documents is rescinded
or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization
of such other Letter of Credit Obligor, the Borrower's obligations
under this
section with respect to such payment shall be reinstated at such
time as though
such payment had been due but not made at such time.
(e)
The Borrower irrevocably waives acceptance hereof, presentment,
demand,
protest and any notice not provided for herein, as well as any
requirement that
at any time any action be taken by any Person against any other
Letter of Credit
Obligor or any other Person, or against any collateral or guaranty
of any other
Person.
(f)
Until the indefeasible payment in full of all of the Obligations
and
the termination of the Commitments of the Lenders hereunder, the
Borrower shall
have no rights, by operation of law or otherwise, upon making any
payment under
this section to be subrogated to the rights of the payee against
any other
Letter of Credit Obligor with respect to such payment or otherwise
to be
reimbursed, indemnified or exonerated by any other Letter of Credit
Obligor in
respect thereof.
(g)
In the event that acceleration of the time for payment of any
amount
payable by any other Letter of Credit Obligor under any Letter of
Credit
Document is stayed upon insolvency, bankruptcy or reorganization of
such other
Letter of Credit Obligor, all such amounts otherwise subject to
acceleration
under the terms of any applicable Letter of Credit Document shall
nonetheless be
payable by the Borrower under this section forthwith on demand by
the
Administrative Agent.
SECTION 4. FEES; COMMITMENTS
4.1.
FEES. (a) COMMITMENT FEES. The Borrower agrees to pay to the
Administrative Agent fees ("COMMITMENT FEES") for the account of
each
Non-Defaulting Lender for the period from and including the
Effective Date to,
but not including, the Maturity Date or, if earlier, the date upon
which the
Total Revolving Commitment has been terminated, computed for each
day at a rate
per annum equal to the Applicable Commitment Fee for such day on
the amount of
such Lender's Revolving Facility Percentage of the Total Revolving
Commitment
for such day. Commitment Fees shall be due and payable in arrears
on April 1,
July 1, October 1 and January 1 and on the Maturity Date or, if
earlier, the
date upon which the Total Revolving Commitment has been
terminated.
(B)
LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative
Agent, for the account of each Non-Defaulting Lender, PRO RATA on
the basis of
its Revolving Facility Percentage, a fee in respect of each Letter
of Credit
(the "LETTER OF CREDIT FEE"), computed for each day at the rate per
annum equal
to the Applicable Eurocurrency Margin then in effect for Revolving
Loans on the
Stated Amount of all Letters of Credit outstanding on such day.
Accrued Letter
of Credit Fees shall be due and payable quarterly in arrears on
each April 1,
July 1, October 1 and January 1 and on the date when the Total
Revolving
Commitment expires or is terminated and no Letters of Credit remain
outstanding.
The Borrower also agrees to pay to the Administrative Agent, for
the account of
each Non-Defaulting Lender which has a Revolving Commitment, PRO
RATA on the
basis of its Revolving Facility Percentage, additional Letter of
Credit Fees, on
demand, at the rate of 200 basis points per annum, on the Stated
Amount of each
Letter of Credit, for any period when a Default under section
10.1(a) or Event
of Default is in existence.
(C)
FACING FEES. The Borrower agrees to pay directly to each Letter
of
Credit Issuer a fee in respect of each Letter of Credit issued by
it (a "FACING
FEE"), computed for each day at the rate of 1/8 of 1% per annum on
the Stated
Amount of such Letter of Credit issued by such Letter of Credit
Issuer which is
outstanding on such day. Accrued Facing Fees shall be due and
payable quarterly
in arrears on April 1, July 1, October 1 and January 1 and on the
date on which
the Total Revolving Commitment expires or is terminated and no
Letters of Credit
remain outstanding.
(D)
ADDITIONAL CHARGES OF LETTER OF CREDIT ISSUER. The Borrower agrees
to
pay directly to each Letter of Credit Issuer upon each issuance of,
drawing
under, and/or amendment, extension, renewal or transfer of, a
Letter of Credit
issued by it such amount as shall at the time of such issuance,
drawing,
amendment, extension, renewal or transfer be the administrative or
processing
charge which such Letter of Credit Issuer is customarily
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charging for issuances of, drawings under or amendments,
extensions, renewals or
transfers of, letters of credit issued by it.
(E)
OTHER FEES. The Borrower shall pay to the Administrative Agent
and/or
the Lead Arranger, on the Effective Date and thereafter, for its or
their own
account and/or for distribution to the Lenders, such fees as have
heretofore
been agreed by the Borrower in a letter among the Borrower, the
Administrative
Agent and the Lead Arranger.
(F)
COMPUTATIONS OF FEES. All computations of Fees shall be made in
accordance with section 12.7(b).
4.2.
VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS. Upon at least
three
Business Days' prior written notice (or telephonic notice confirmed
in writing)
to the Administrative Agent at its Notice Office (which notice
the
Administrative Agent shall promptly transmit to each of the
Lenders), the
Borrower shall have the right to:
(a)
terminate the Total Revolving Commitment, PROVIDED that (i) all
outstanding Loans are contemporaneously prepaid in accordance with
section 5.1,
and (ii) either (A) no Letters of Credit remain outstanding, or (B)
the Borrower
shall contemporaneously either (x) cause all outstanding Letters of
Credit to be
surrendered for cancellation (any such Letters of Credit to be
replaced by
letters of credit issued by other financial institutions acceptable
to each
Letter of Credit Issuer and the Required Lenders), or (y) the
Borrower shall pay
to the Collateral Agent an amount in cash and/or Cash Equivalents
equal to 100%
of the Letter of Credit Outstandings and the Collateral Agent shall
hold such
payment as security for the reimbursement obligations of the
Borrower and the
other Letter of Credit Obligors in respect of Letters of Credit
pursuant to a
cash collateral agreement to be entered into in form and substance
reasonably
satisfactory to the Collateral Agent, each Letter of Credit Issuer
and the
Borrower (which shall permit certain investments in Cash
Equivalents
satisfactory to the Collateral Agent, each Letter of Credit Issuer
and the
Borrower until the proceeds are applied to the secured
obligations);
(b)
partially and permanently reduce the Total Revolving
Commitment,
PROVIDED that:
(i) any such reduction shall apply to proportionately and
permanently
reduce the Revolving Commitment of each of the Lenders;
(ii) any partial reduction of the Total Revolving Commitment
pursuant
to
this section 4.2(b) shall be in the amount of at least $5,000,000
(or,
if
greater, in integral multiples of $1,000,000);
(iii) the Total Revolving Commitment as so reduced shall be at
least
$25,000,000; and
(iv) after giving effect to any such partial reduction of the
Total
Revolving Commitment, (x) the Total Revolving Commitment then in
effect
shall exceed the aggregate of the Swing Line Commitment then in
effect by
at
least $25,000,000, and (y) the resulting Total Revolving
Commitment
shall exceed the outstanding Swing Line Loans, if any, by at
least
$25,000,000;
(c)
partially and permanently reduce the Swing Line Commitment,
PROVIDED
that any partial reduction of the Unutilized Swing Line Commitment
pursuant to
this section 4.2(c) shall be in the amount of at least $1,000,000
(or, if
greater, in integral multiples of $1,000,000).
4.3.
MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Revolving
Commitment (and the Revolving Commitment of each Lender) shall
terminate on the
earlier of (x) the Maturity Date and (y) the date on which a Change
of Control
occurs.
(b)
The Swing Line Commitment shall terminate on the earlier of (x)
the
Maturity Date and (y) the date on which a Change of Control
occurs.
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<PAGE>
(c)
The Total Revolving Commitment shall be permanently reduced,
without
premium or penalty, at the time that any mandatory prepayment of
Revolving Loans
would be made pursuant to section 5.2(f), (g), (h) or (i) as if
Revolving Loans
were then outstanding in the full amount of the Total Revolving
Commitment, in
an amount equal to the required prepayment of principal of
Revolving Loans which
would be required to be made in such circumstance; PROVIDED that no
such
reduction in the Total Revolving Commitment shall be required as a
result of any
required prepayment of Revolving Loans which would be attributable
to the
receipt of Net Cash Proceeds representing proceeds of business
interruption
insurance or insurance on inventory pursuant to section 5.2(h). Any
such
required reduction shall apply to proportionately and permanently
reduce the
Revolving Commitment of each of the Lenders. The Borrower will
provide at least
three Business Days' prior written notice (or telephonic notice
confirmed in
writing) to the Administrative Agent at its Notice Office (which
notice the
Administrative Agent shall promptly transmit to each of the
Lenders), of any
reduction of the Total Revolving Commitment pursuant to this
section 4.3(c),
specifying the date and amount of the reduction.
SECTION 5. PAYMENTS
5.1.
VOLUNTARY PREPAYMENTS. The Borrower shall have the right to prepay
any
of its Loans, in whole or in part, without premium or penalty, from
time to
time, but only on the following terms and conditions:
(A)
NOTICES: the Borrower shall give the Administrative Agent at the
Notice
Office written or telephonic notice (in the case of telephonic
notice, promptly
confirmed in writing if so requested by the Administrative Agent)
of its intent
to prepay the Loans, t
