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EXHIBIT 4.3
U.S. REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 10, 2004
AMONG
EMS TECHNOLOGIES, INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT
================================================================================
SUNTRUST ROBINSON HUMPHREY
(A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.)
AS LEAD ARRANGER
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TABLE OF CONTENTS
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U.S. REVOLVING CREDIT
AGREEMENT...................................................................
2
ARTICLE I
DEFINITIONS;
CONSTRUCTION.....................................................
2
SECTION 1.1.
DEFINITIONS...................................................................
2
SECTION 1.2.
CLASSIFICATIONS OF LOANS AND
BORROWINGS....................................... 24
SECTION 1.3.
ACCOUNTING TERMS AND
DETERMINATION............................................
24
SECTION 1.4.
TERMS GENERALLY; RULES OF
INTERPRETATION...................................... 25
ARTICLE II
AMOUNT AND TERMS OF THE
COMMITMENTS........................................... 25
SECTION 2.1. GENERAL
DESCRIPTION OF
FACILITIES.............................................
25
SECTION 2.2.
REVOLVING
LOANS...............................................................
26
SECTION 2.3.
PROCEDURE FOR REVOLVING
BORROWINGS............................................ 26
SECTION 2.4.
SWINGLINE
COMMITMENT..........................................................
26
SECTION 2.5.
PROCEDURE FOR SWINGLINE BORROWING;
ETC........................................ 27
SECTION 2.6.
INCREASE OF REVOLVING
COMMITMENTS.............................................
28
SECTION 2.7.
[RESERVED.]...................................................................
29
SECTION 2.8.
[RESERVED]....................................................................
29
SECTION 2.9.
FUNDING OF
BORROWINGS.........................................................
29
SECTION 2.10. INTEREST
ELECTIONS; CONVERSIONS;
CONTINUATIONS................................ 30
SECTION 2.11.
TERMINATION OF
COMMITMENTS....................................................
31
SECTION 2.12. REPAYMENT
OF
LOANS............................................................
31
SECTION 2.13. EVIDENCE
OF
INDEBTEDNESS......................................................
31
SECTION 2.14. OPTIONAL
AND MANDATORY
PREPAYMENTS............................................
32
SECTION 2.15. INTEREST
ON
LOANS.............................................................
34
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SECTION 2.16.
FEES..........................................................................
35
SECTION 2.17. EFFECTIVE
DATE FOR ADJUSTMENT TO APPLICABLE PERCENTAGE AND APPLICABLE
MARGIN........................................................................
36
SECTION 2.18.
COMPUTATION OF INTEREST AND
FEES.............................................. 36
SECTION 2.19. INABILITY
TO DETERMINE INTEREST
RATES......................................... 36
SECTION 2.20.
ILLEGALITY....................................................................
37
SECTION 2.21. INCREASED
COSTS...............................................................
37
SECTION 2.22. FUNDING
INDEMNITY.............................................................
38
SECTION 2.23.
TAXES.........................................................................
39
SECTION 2.24. PAYMENTS
GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS................... 40
SECTION 2.25. MITIGATION
OF OBLIGATIONS; REPLACEMENT OF LENDERS.............................
42
SECTION 2.26. LETTERS OF
CREDIT.............................................................
43
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF
CREDIT........................... 47
SECTION 3.1. CONDITIONS TO
EFFECTIVENESS...................................................
47
SECTION 3.2. EACH
CREDIT
EVENT.............................................................
51
SECTION 3.3.
DELIVERY OF
DOCUMENTS.........................................................
52
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES................................................
52
SECTION 4.1.
EXISTENCE;
POWER..............................................................
52
SECTION 4.2.
ORGANIZATIONAL POWER;
AUTHORIZATION...........................................
52
SECTION 4.3.
GOVERNMENTAL APPROVALS AND THIRD PARTY
APPROVALS.............................. 52
SECTION 4.4.
FINANCIAL
STATEMENTS..........................................................
53
SECTION 4.5.
LITIGATION AND ENVIRONMENTAL
MATTERS.......................................... 53
SECTION 4.6.
COMPLIANCE WITH LAWS AND
AGREEMENTS........................................... 54
SECTION 4.7.
INVESTMENT COMPANY ACT,
ETC................................................... 54
SECTION 4.8.
TAXES.........................................................................
54
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SECTION 4.9.
MARGIN
REGULATIONS............................................................
54
SECTION 4.10.
ERISA.........................................................................
54
SECTION 4.11. OWNERSHIP
OF
PROPERTY.........................................................
55
SECTION 4.12.
DISCLOSURE....................................................................
55
SECTION 4.13. LABOR
RELATIONS...............................................................
56
SECTION 4.14.
SUBSIDIARIES..................................................................
56
SECTION 4.15.
SOLVENCY......................................................................
56
SECTION 4.16.
INDEBTEDNESS AT CLOSING
DATE.................................................. 56
SECTION 4.17.
OFAC..........................................................................
56
SECTION 4.18. PATRIOT
ACT...................................................................
56
SECTION 4.19. DORMANT
COMPANIES.............................................................
57
ARTICLE V
AFFIRMATIVE
COVENANTS.........................................................
57
SECTION 5.1.
FINANCIAL STATEMENTS AND OTHER
INFORMATION.................................... 57
SECTION 5.2.
NOTICES OF MATERIAL
EVENTS....................................................
58
SECTION 5.3.
EXISTENCE.....................................................................
59
SECTION 5.4.
COMPLIANCE WITH LAWS,
ETC.....................................................
59
SECTION 5.5.
PAYMENT OF
OBLIGATIONS........................................................
59
SECTION 5.6.
BOOKS AND
RECORDS.............................................................
60
SECTION 5.7.
VISITATION, INSPECTION,
ETC................................................... 60
SECTION 5.8.
MAINTENANCE OF PROPERTIES;
INSURANCE.......................................... 60
SECTION 5.9. USE
OF PROCEEDS AND LETTERS OF
CREDIT......................................... 60
SECTION 5.10. ADDITIONAL
SUBSIDIARIES.......................................................
60
SECTION 5.11. AMENDMENT
TO CANADIAN LOAN
DOCUMENTS.......................................... 61
SECTION 5.12. ADDITIONAL
REAL PROPERTY; LEASED LOCATIONS....................................
61
SECTION 5.13. DISPUTE
RESERVE...............................................................
62
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SECTION 5.14. NOTICES IN
CONNECTION WITH MACDONALD DETTWILER CONTRACT.......................
62
SECTION 5.15. FURTHER
ASSURANCES............................................................
63
ARTICLE VI
FINANCIAL
COVENANTS...........................................................
63
SECTION 6.1.
LEVERAGE
RATIO................................................................
63
SECTION 6.2. FIXED CHARGE COVERAGE
RATIO...................................................
63
SECTION 6.3.
MINIMUM NET
WORTH.............................................................
64
SECTION 6.4.
MINIMUM
EBITDA................................................................
64
ARTICLE VII
NEGATIVE
COVENANTS............................................................
64
SECTION 7.1.
INDEBTEDNESS..................................................................
64
SECTION 7.2.
NEGATIVE
PLEDGE...............................................................
65
SECTION 7.3.
FUNDAMENTAL
CHANGES...........................................................
66
SECTION 7.4.
INVESTMENTS, LOANS, ACQUISITIONS,
ETC......................................... 66
SECTION 7.5.
RESTRICTED
PAYMENTS...........................................................
67
SECTION 7.6. SALE
OF
ASSETS................................................................
68
SECTION 7.7.
TRANSACTIONS WITH
AFFILIATES..................................................
68
SECTION 7.8.
RESTRICTIVE
AGREEMENTS........................................................
68
SECTION 7.9. SALE
AND LEASEBACK
TRANSACTIONS...............................................
69
SECTION 7.10. HEDGING
AGREEMENTS............................................................
69
SECTION 7.11. AMENDMENT
TO ORGANIZATION
DOCUMENTS........................................... 69
SECTION 7.12. ACCOUNTING
CHANGES; CHANGE OF FISCAL YEAR.....................................
69
SECTION 7.13. LIMITATION
ON LOCATION OF COLLATERAL..........................................
69
ARTICLE VIII
EVENTS OF
DEFAULT.............................................................
70
SECTION 8.1.
EVENTS OF
DEFAULT.............................................................
70
ARTICLE IX
THE ADMINISTRATIVE
AGENT......................................................
72
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SECTION 9.1.
APPOINTMENT OF ADMINISTRATIVE
AGENT........................................... 72
SECTION 9.2.
NATURE OF DUTIES OF ADMINISTRATIVE
AGENT...................................... 73
SECTION 9.3. LACK
OF RELIANCE ON THE ADMINISTRATIVE
AGENT.................................. 74
SECTION 9.4.
CERTAIN RIGHTS OF THE ADMINISTRATIVE
AGENT.................................... 74
SECTION 9.5.
RELIANCE BY ADMINISTRATIVE
AGENT.............................................. 74
SECTION 9.6. THE
ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY........................... 74
SECTION 9.7.
SUCCESSOR ADMINISTRATIVE
AGENT................................................ 74
SECTION 9.8.
AUTHORIZATION TO EXECUTE OTHER LOAN
DOCUMENTS................................. 75
ARTICLE X
MISCELLANEOUS.................................................................
75
SECTION 10.1.
NOTICES.......................................................................
75
SECTION 10.2. WAIVER;
AMENDMENTS............................................................
77
SECTION 10.3. EXPENSES;
INDEMNIFICATION.....................................................
78
SECTION 10.4. SUCCESSORS
AND ASSIGNS........................................................
79
SECTION 10.5. GOVERNING
LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.................... 82
SECTION 10.6. WAIVER OF
JURY
TRIAL..........................................................
83
SECTION 10.7. RIGHT OF
SETOFF...............................................................
83
SECTION 10.8.
COUNTERPARTS;
INTEGRATION.....................................................
83
SECTION 10.9.
SURVIVAL......................................................................
83
SECTION 10.10.
SEVERABILITY..................................................................
84
SECTION 10.12. INTEREST RATE
LIMITATION......................................................
84
SECTION 10.12.
CONFIDENTIALITY...............................................................
84
SECTION 10.13. WAIVER OF EFFECT
OF CORPORATE SEAL............................................
85
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Schedules
Schedule I
-
Applicable Margin and Applicable Percentage
Schedule II
- Real
Property
Schedule 1.1
-
Existing Letters of Credit
Schedule 4.3
-
Excluded Contractual Obligations
Schedule 4.5(a)
-
Litigation
Schedule 4.5(b)
-
Environmental Matters
Schedule 4.14
-
Subsidiaries and Affiliates
Schedule 4.16
-
Indebtedness
Schedule 4.19
-
Assets and Liabilities of Dormant
Companies
Schedule 7.2
-
Existing Liens
Schedule 7.4
-
Existing Investments
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Exhibits
Exhibit A
- Form
of Assignment and Acceptance
Exhibit B
- Form
of Pledge Agreement
Exhibit C
- Form
of Revolving Credit Note
Exhibit D
- Form
of Security Agreement
Exhibit E
- Form
of Subsidiary Guaranty Agreement
Exhibit F
- Form
of Swingline Note
Exhibit G
- Form
of Trademark Security Agreement
Exhibit H
- Form
of Patent Security Agreement
Exhibit I
- Form
of Opinion of Counsel to Loan Parties
Exhibit 2.3
- Form
of Notice of Revolving Borrowing
Exhibit 2.5
- Form
of Notice of Swingline Borrowing
Exhibit 2.10
- Form
of Notice of Continuation/Conversion
vii
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U.S. REVOLVING CREDIT AGREEMENT
THIS U.S. REVOLVING CREDIT AGREEMENT (this "Agreement") is made
and
entered into as of December 10, 2004 by and
among EMS TECHNOLOGIES, INC., a
Georgia corporation (the "Borrower"), the
several banks and other financial
institutions from time to time party hereto
(the "Lenders") and SUNTRUST BANK,
in its capacity as Administrative Agent for
the Lenders (the "Administrative
Agent").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish
a
$25,000,000 revolving credit facility in
favor of the Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement,
the
Lenders severally, to the extent of their
respective Commitments are willing to
establish the requested revolving credit
facility for the Borrower.
NOW, THEREFORE, in
consideration of the premises and the mutual
covenants herein contained, the Borrower,
the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms
defined
herein, the following terms used herein
shall have the meanings herein specified
(to be equally applicable to both the
singular and plural forms of the terms
defined):
"ACQUISITION" shall mean any acquisition, whether by stock or
other
equity purchase, asset purchase, merger,
consolidation or otherwise of a Person,
of all or substantially all of the assets
of a Person or a business line or
division of a Person.
"ADDITIONAL REVOLVING COMMITMENT AMOUNT" shall have the meaning
assigned to such term in Section
2.6(a).
"ADJUSTED LIBOR" shall mean, with respect to each Interest
Period
for a Eurodollar Borrowing, the rate per
annum obtained by multiplying (a) LIBOR
for such Interest Period by (b) the
Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such
term
in the opening paragraph hereof.
2
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"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in
the form provided by the
Administrative Agent and submitted to the
Administrative Agent duly completed by
such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more
intermediaries, Controls, is
Controlled by, or is under common Control
with, such Person.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving Commitments of all Lenders at any
time outstanding. On the Closing
Date, the Aggregate Revolving Commitments
equal $25,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for
each
Type of Loan, the "Lending Office" of such
Lender (or an Affiliate of such
Lender) designated for such Type of Loan in
the Administrative Questionnaire
submitted by such Lender or such other
office of such Lender (or an Affiliate of
such Lender) as such Lender may from time
to time specify to the Administrative
Agent and the Borrower as the office by
which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean, as of any date, with respect to
all
Eurodollar Loans and all Base Rate Loans
outstanding on any date, the percentage
per annum determined by reference to the
applicable Leverage Ratio in effect on
such date as set forth on Schedule I
attached hereto, as adjusted and otherwise
determined from time to time in accordance
with Section 2.17.
"APPLICABLE PERCENTAGE" shall mean, at any date, with respect to
the
commitment fee or the letter of credit fee,
as the case may be, the percentage
per annum determined by reference to the
applicable Leverage Ratio in effect on
such date as set forth on Schedule I
attached hereto, as adjusted and otherwise
determined from time to time in accordance
with Section 2.17.
"APPLICABLE PLEDGE AMOUNT" shall mean, in respect of the amount
of
capital stock or other equity interest of
any Foreign Subsidiary to be pledged
to the Collateral Agent pursuant to a
Pledge Agreement, the lesser of (a) 65% of
all outstanding capital stock or other
equity interest of such Foreign
Subsidiary and (b) the total amount of all
outstanding capital stock or other
equity interest of such Foreign Subsidiary
owned by the Borrower and its
domestic Subsidiaries.
"APPROVED FUND" shall mean any Person (other than a natural
Person)
that is (or will be) engaged in making,
purchasing, holding or otherwise
investing in commercial loans and similar
extensions of credit in the ordinary
course of its business and that is
administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity
or an Affiliate of an entity that
administers or manages a Lender.
"ASSET DISPOSITION" shall have the meaning assigned to that term
in
Section 7.6.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance
entered into by a Lender and an assignee
(with the consent of any party whose
consent is required by Section
3
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10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit A
attached hereto or any other form approved
by the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date
to
the Commitment Termination Date.
"BASE RATE" shall mean the higher of (a) the per annum rate
which
the Administrative Agent publicly announces
from time to time to be its prime
lending rate, as in effect from time to
time, and (b) the Federal Funds Rate, as
in effect from time to time, plus one-half
of one percent (0.50%). The
Administrative Agent's prime lending rate
is a reference rate and does not
necessarily represent the lowest or best
rate charged to customers. The
Administrative Agent may make commercial
loans or other loans at rates of
interest at, above or below the
Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime
lending rate shall be effective from
and including the date such change is
publicly announced as being effective.
"BORROWER" shall have the meaning given such term in the
introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (a) Loans of
the
same Class and Type, made, converted or
continued on the same date and in the
case of Eurodollar Loans, as to which a
single Interest Period is in effect, or
(b) a Swingline Loan.
"BUSINESS DAY" shall mean (a) any day other than a Saturday or
Sunday or other day on which commercial
banks in Atlanta, Georgia are authorized
or required by law to close and (b) if such
day relates to a Borrowing of, a
payment or prepayment of principal or
interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan
or a notice with respect to the
foregoing, any day on which dealings in
Dollars are carried on the London
interbank market.
"CANADIAN BORROWER" shall mean EMS Technologies Canada, Ltd.
"CANADIAN COLLATERAL AGENT" shall mean Bank of America,
National
Association (Canada Branch), in its
capacity as "Canadian Collateral Agent"
under and as defined in the Intercreditor
Agreement, or any other successor who
shall become Canadian Collateral Agent
pursuant to terms of the Intercreditor
Agreement.
"CANADIAN FACILITY INDEBTEDNESS" shall mean the Indebtedness of
the
Canadian Borrower owing to the "Lenders"
under and as defined in the Canadian
Revolving Credit Agreement.
"CANADIAN LENDERS" shall mean Bank of America, National
Association
(Canada Branch) and its assigns under the
Canadian Revolving Credit Agreement.
"CANADIAN LOAN DOCUMENTS" shall mean any or all of the Canadian
Revolving Credit Agreement and all other
instruments, agreements, documents and
writings executed in connection
therewith.
4
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"CANADIAN PREPAYMENT AMOUNT" shall mean the Dollar Equivalent of
the
amount prepaid by the Canadian Borrower in
connection with the Canadian Sale and
Prepayment Event; provided that such Dollar
Equivalent shall be rounded down to
the nearest multiple of $500,000.
"CANADIAN PRO RATA SHARE" shall mean, with respect to each
Canadian
Lender, the "Pro Rata Share" of such Lender
under the Canadian Revolving Credit
Agreement.
"CANADIAN REVOLVING CREDIT AGREEMENT" shall mean that certain
Canadian Revolving Credit Agreement dated
as of December 10, 2004 among the
Canadian Borrower, the Borrower, the
Canadian Lenders and Bank of America,
National Association, Canada Branch.
"CANADIAN SALE AND PREPAYMENT EVENT" shall mean the consummation
of
the sale of Space & Technology /
Montreal and the making of the prepayment
required under Section 2.11(b)(i) of the
Canadian Revolving Credit Agreement.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all
obligations
of such Person to pay rent or other amounts
under any lease (or other
arrangement conveying the right to use)
real or personal property, or a
combination thereof, which obligations are
required to be classified and
accounted for as capital leases on a
balance sheet of such Person under GAAP,
and the amount of such obligations shall be
the capitalized amount thereof
determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any property
(including
any interest in property) of the Borrower
or any of its Subsidiaries, any loss
of, damage to, or condemnation or other
taking of, such property for which the
Borrower or such Subsidiary receives
insurance proceeds, proceeds of a
condemnation award or other
compensation.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of
the
following events: (a) any sale, lease,
exchange or other transfer (in a single
transaction or a series of related
transactions) of all or substantially all of
the assets of the Borrower or the Canadian
Borrower to any Person or "group"
(within the meaning of the Securities
Exchange Act of 1934 and the rules of the
Securities and Exchange Commission as in
effect on the date hereof), (b) the
acquisition of ownership, directly or
indirectly, beneficially or of record, by
any Person or "group" (within the meaning
of the Securities Exchange Act of 1934
and the rules of the Securities and
Exchange Commission thereunder as in effect
on the date hereof) of 30% or more of the
outstanding shares of the voting stock
of the Borrower or the Canadian Borrower;
or (c) occupation of a majority of the
seats (other than vacant seats) on the
board of directors of the Borrower or the
Canadian Borrower by Persons who were
neither (i) nominated by the then current
board of directors or (ii) appointed by
directors so nominated.
"CHANGE IN LAW" shall mean (a) the adoption of any applicable
law,
rule or regulation after the date of this
Agreement, (b) any change in any
applicable law, rule or regulation, or any
change in the interpretation or
application thereof, by any Governmental
Authority after the date of this
Agreement, or (c) compliance by any Lender
(or its Applicable Lending Office) or
the Issuing Bank (or for purposes of
Section 2.21(b), by such Lender's or the
Issuing Bank's holding
5
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company, if applicable) with any request,
guideline or directive (whether or not
having the force of law) of any
Governmental Authority made or issued after the
date of this Agreement.
"CIBC" shall mean Canadian Imperial Bank of Commerce.
"CLASS", when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans
or Swingline Loans and when used in
reference to any Commitment, refers to
whether such Commitment is a Revolving
Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean December 13, 2004.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
and
in effect from time to time.
"COLLATERAL" shall mean any property directly or indirectly
securing
any of the Obligations or any other
obligation of a Person under or in respect
of any Loan Document to which it is a
party, and includes without limitation,
all "Collateral" under and as defined in
the Security Agreement and all "Pledged
Collateral" under and as defined under the
Pledge Agreement.
"COLLATERAL AGENT" shall mean SunTrust Bank, in its capacity as
"Collateral Agent" under and as defined in
the Intercreditor Agreement, or any
other successor who shall become Collateral
Agent pursuant to terms of the
Intercreditor Agreement.
"COLLATERAL DOCUMENTS" shall mean the Security Agreement, each
Pledge Agreement, each Real Estate
Document, the Trademark Security Agreement or
the Patent Security Agreement, or any or
all of the foregoing and any other
agreement or instrument now or hereafter
existing pursuant to which Liens are
granted to the Collateral Agent or the
Administrative Agent to secure any of the
Obligations.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as
the context shall permit or require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (a)
December 9, 2007 and (b) the date on which
all amounts outstanding under this
Agreement have been declared or have
automatically become due and payable
(whether by acceleration or otherwise).
"CONSOLIDATED EBITDA" shall mean, for the Consolidated Parties
for
any period, an amount equal to the sum of
(a) Consolidated Net Income for such
period plus (b) without duplication and
only to the extent deducted in
determining Consolidated Net Income for
such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii)
depreciation and amortization, and (iv)
such "add-backs" or adjustments as are
scheduled and approved by the
Administrative Agent in its sole
discretion.
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"CONSOLIDATED FIXED CHARGES" shall mean, for the Consolidated
Parties for any Test Period, the sum
(without duplication) of: (a) Consolidated
Interest Expense for such Test Period, (b)
scheduled principal payments (or the
equivalent thereof) made on or in respect
of Consolidated Total Funded Debt
during such Test Period and (c) (i)
dividends and other distributions to holders
of capital stock, options, warrants and
related instruments of the Borrower and
(ii) payments made with respect to the
purchase, redemption, retirement,
defeasance or other acquisition of capital
stock, options, warrants and related
instruments of the Borrower, made or paid
during such Test Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the
Consolidated
Parties for any period determined on a
consolidated basis in accordance with
GAAP, the sum of (a) total cash interest
expense, including without limitation
the interest component of any payments in
respect of Capital Lease Obligations
capitalized or expensed during such period
(whether or not actually paid during
such period) plus (b) the net amount
payable (or minus the net amount
receivable) under Hedging Transactions
relating to interest rate hedges during
such period (whether or not actually paid
or received during such period).
"CONSOLIDATED NET INCOME" shall mean, for any period, the net
income
(or loss) of the Consolidated Parties for
such period determined on a
consolidated basis in accordance with GAAP,
but excluding therefrom (to the
extent otherwise included therein): (a) any
extraordinary gains or losses, (b)
any gains attributable to write-ups of
assets, (c) any equity interest of any
Consolidated Party in the unremitted
earnings of any Person that is not a
Subsidiary, (d) any income (or loss) of any
Person accrued prior to the date
such Person becomes a Subsidiary or is
merged into or amalgamated or
consolidated with the Borrower or any
Subsidiary or the date that such Person's
assets are acquired by the Borrower or any
such Subsidiary and (e) any income of
any Subsidiary which is not a Subsidiary
Loan Party to the extent the payment of
such income in the form of dividends or
other distributions to either the
Borrower or any Subsidiary is then
prohibited, whether on account of
restrictions in such Subsidiary's
organizational documents or restrictions in
any agreement, document, contract, deed or
other instrument applicable to such
Subsidiary.
"CONSOLIDATED PARTIES" shall mean, at any time, the Borrower
and
each Consolidated Subsidiary of the
Borrower.
"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any Person
that,
in accordance with GAAP, would or should be
consolidated in the Borrower's
consolidated financial statements on such
date.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, at any time, all
then
outstanding obligations, liabilities and
indebtedness of the Consolidated
Parties on a consolidated basis of the
types described in the definition of
Indebtedness (other than clause (j) of the
definition thereof), including,
without limitation, all Obligations under
the Loan Documents; provided, however,
that Consolidated Total Funded Debt shall
not include any obligations of the
Canadian Borrower owing to CIBC described
in clause (k) of the defined term
Permitted Encumbrances.
7
<PAGE>
"CONTRACTUAL OBLIGATIONS" shall mean, as to any Person, any
provision of any security issued by such
Person or any agreement, instrument or
other undertaking to which such Person is a
party or by which such Person or any
of its properties is bound.
"CONTROL" shall mean the power, directly or indirectly, either
to
(a) vote 5% or more of securities having
ordinary voting power for the election
of directors (or persons performing similar
functions) of a Person or (b) direct
or cause the direction of the management
and policies of a Person, whether
through the ability to exercise voting
power, by contract or otherwise. The
terms "CONTROLLING", "CONTROLLED BY", and
"UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"DEBT ISSUANCE" shall mean the issuance or sale by the Borrower
or
any of its Subsidiaries of any debt
securities or similar indebtedness, whether
in a private or public offering or
otherwise; provided, however, that nothing
contained in this definition shall be
deemed or construed to permit any Debt
Issuance that is not otherwise expressly
permitted pursuant to the terms hereof.
"DEFAULT" shall mean any condition or event that, with the giving
of
notice or the lapse of time or both, would
constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning assigned to that term
in
Section 2.15(c).
"DEFAULTING LENDER" shall mean any Lender with respect to which
a
Lender Default is in effect.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the
United
States of America.
"DOLLAR EQUIVALENT" of any amount expressed in Canadian
dollars,
means the equivalent amount of Dollars as
of the most recent date on which the
Administrative Agent in its judgment
determines to make a foreign exchange
calculation, after giving effect to a
conversion of such amount of such Canadian
dollars to Dollars at the buy spot rate
quoted for wholesale transactions by the
Administrative Agent at approximately 11:00
a.m. on the date of determination in
accordance with its normal practices.
"DORMANT COMPANY" means Netsat 28 Company, LLC, a Delaware
limited
liability company.
"ELIGIBLE ASSIGNEE" shall mean (a) a Lender; (b) an Affiliate of
a
Lender; (c) an Approved Fund; and (d) any
other Person (other than a natural
Person) approved by the Administrative
Agent, and unless an Event of Default has
occurred and is continuing, the Borrower
(each such approval not to be
unreasonably withheld or delayed). If the
consent of the Borrower to an
assignment or to an Eligible Assignee is
required hereunder (including a consent
to an assignment which does not meet the
minimum assignment thresholds specified
in Section 10.4(b)), the Borrower shall be
deemed to have given its consent five
Business Days after the date notice
thereof
8
<PAGE>
has actually been delivered by the
assigning Lender (through the Administrative
Agent) to the Borrower, unless such consent
is expressly refused by the Borrower
prior to such fifth Business Day.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments,
injunctions, notices or binding
agreements issued, promulgated or entered
into by or with any Governmental
Authority, relating in any way to the
environment, preservation or reclamation
of natural resources, the management,
Release or threatened Release of any
Hazardous Material or to health and safety
matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent
or
otherwise (including any liability for
damages, costs of environmental
investigation and remediation, costs of
administrative oversight, fines, natural
resource damages, penalties or
indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or
based upon (a) any actual or alleged
violation of any Environmental Law, (b) the
generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any
Hazardous Materials, (d) the Release or
threatened Release of any Hazardous
Materials or (e) any contract, agreement or
other consensual arrangement pursuant to
which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY OFFERING means a private or public offering of any
capital
stock of the Borrower, or any debt security
convertible into or exchangeable for
capital stock of the Borrower (whether
conditionally or unconditionally
convertible or exchangeable or convertible
currently or in the future), or any
debt security issued with a warrant or
other instrument conferring upon its
owner the right to purchase capital stock
of the Borrower, in each case pursuant
to an effective registration statement
filed with the Securities and Exchange
Commission in accordance with the
Securities Act of 1933, as amended. In no
event shall an Equity Offering include any
issuances of stock and stock options
to employees and directors of the Borrower
or its Subsidiaries.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time, and any
successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or
not
incorporated), which, together with the
Borrower, is treated as a single
employer under Section 414(b) or (c) of the
Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the
Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations
issued thereunder with respect to a
Plan (other than an event for which the
30-day notice period is waived); (b) the
existence with respect to any Plan of an
"accumulated funding deficiency" (as
defined in Section 412 of the Code or
Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303 of
ERISA of an application for a waiver of the
minimum funding standard with
respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA
Affiliates of any liability under Title IV
of ERISA with respect to the
termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator
appointed by the PBGC of any notice
relating to an intention
9
<PAGE>
to terminate any Plan or Plans or to
appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any
of its ERISA Affiliates of any
liability with respect to the withdrawal or
partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of
any notice, or the receipt by any
Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability
or a determination that a Multiemployer
Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of
Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing,
refers
to whether such Loan, or the Loans
comprising such Borrowing, bears interest at
a rate determined by reference to the
Adjusted LIBOR and the Applicable Margin.
"EVENT OF DEFAULT" shall have the meaning provided in Article
VIII.
"EXCHANGE ACT" shall have the meaning provided in the defined
term
"Change of Control".
"EXCLUDED TAXES" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any
other recipient of any payment to be
made by or on account of any obligation of
the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by)
its net income by the United States
of America, or by the jurisdiction under
the laws of which such recipient is
organized or in which its principal office
is located or, in the case of any
Lender, in which its applicable lending
office is located, (b) any branch
profits taxes imposed by the United States
of America or any similar tax imposed
by any other jurisdiction in which any
Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that
(i) is imposed on amounts payable to
such Foreign Lender at the time such
Foreign Lender becomes a party to this
Agreement or (ii) is imposed on amounts
payable to such Foreign Lender at any
time that such Foreign Lender designates a
new lending office, other than taxes
that have accrued prior to the designation
of such lending office that are
otherwise not Excluded Taxes and (iii) is
attributable to such Foreign Lender's
failure to comply with Section 2.23(e).
"EXISTING LENDERS" means each of SunTrust Bank and CIBC.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued
for
the account of the Borrower or its
Subsidiaries prior to the Closing Date, all
as more particularly described on Schedule
1.1.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum
(rounded upwards, if necessary, to the next
1/100th of 1%) equal to the weighted
average of the rates on overnight Federal
funds transactions with member banks
of the Federal Reserve System arranged by
Federal funds brokers, as published by
the Federal Reserve Bank of New York on the
next succeeding Business Day or if
such rate is not so published for any
Business Day, the Federal Funds Rate for
such day shall be the average rounded
upwards, if necessary, to the next 1/100th
of 1% 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.
10
<PAGE>
"FIXED CHARGE COVERAGE RATIO" shall mean, for any Test Period,
the
ratio of (a) Consolidated EBITDA for such
Test Period minus cash payments for
all federal, state, provincial, local,
foreign and other income taxes paid by
the Loan Parties during such Test Period
minus all capital expenditures
(determined in accordance with GAAP) for
such Test Period to the extend paid in
cash to (b) Consolidated Fixed Charges for
such Test Period.
"FOREIGN LENDER" shall mean any Lender that is not a United
States
Person under Section 7701(a)(3) of the
Code.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect Subsidiary
of
the Borrower that is organized under the
laws of a jurisdiction other than the
United States of America or any political
subdivision thereof.
"GAAP" shall mean generally accepted accounting principles in
the
United States applied on a consistent basis
and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the
United
States of America, any other foreign
country or nation or any political
subdivision thereof, whether state or
local, and any agency, authority,
instrumentality, regulatory body, court,
central bank or other entity exercising
executive, legislative, judicial, taxing,
regulatory or administrative powers or
functions of or pertaining to government
(whether foreign or domestic).
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean
any
legally binding obligation, contingent or
otherwise, of the guarantor
guaranteeing or having the economic effect
of guaranteeing any Indebtedness or
other obligation of any other Person (the
"PRIMARY OBLIGOR") in any manner,
whether directly or indirectly and
including any obligation, direct or indirect,
of the guarantor (a) to purchase or pay (or
advance or supply funds for the
purchase or payment of) such Indebtedness
or other obligation or to purchase (or
to advance or supply funds for the purchase
of) any security for the payment
thereof, (b) to purchase or lease property,
securities or services for the
purpose of assuring the owner of such
Indebtedness or other obligation of the
payment thereof, (c) to maintain working
capital, equity capital or any other
financial statement condition or liquidity
of the primary obligor so as to
enable the primary obligor to pay such
Indebtedness or other obligation or (d)
as an account party in respect of any
letter of credit or letter of guaranty
issued in support of such Indebtedness or
obligation; provided, that the term
"Guarantee" shall not include endorsements
for collection or deposits in the
ordinary course of business. The amount of
any Guarantee shall be deemed to be
an amount equal to the stated or
determinable amount of the primary obligation
in respect of which Guarantee is made or,
if not so 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. The term "Guarantee" used as a verb
has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances
or wastes and all hazardous or toxic
substances, wastes or other pollutants,
including petroleum or petroleum
distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon
gas, infectious
11
<PAGE>
or medical wastes and all other substances
or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all
obligations of such Person, whether
absolute or contingent and howsoever and
whensoever created, arising, evidenced or
acquired under (a) any and all Hedging
Transactions, (b) any and all
cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions
and (c) any and all renewals,
extensions and modifications of any Hedging
Transactions and any and all
substitutions for any Hedging
Transactions.
"HEDGING TRANSACTION" of any Person shall mean any transaction
(including an agreement with respect
thereto) now existing or hereafter entered
into by such Person that is a rate swap,
basis swap, forward rate transaction,
commodity swap, interest rate option,
foreign exchange transaction, cap
transaction, floor transaction, collateral
transaction, forward transaction,
currency swap transaction, cross-currency
rate swap transaction, currency option
or any other similar transaction (including
any option with respect to any of
these transactions) or any combination
thereof, whether linked to one or more
interest rates, foreign currencies,
commodity prices, equity prices or other
financial measures.
"INDEBTEDNESS" of any Person shall mean, without duplication:
(a)
obligations of such Person for borrowed
money, (b) obligations of such Person
evidenced by bonds, debentures, notes or
other similar instruments, (c)
obligations of such Person in respect of
the deferred purchase price of property
or services (other than trade payables
incurred in the ordinary course of
business on terms customary in the trade),
(d) obligations of such Person under
any conditional sale or other title
retention agreement(s) relating to property
acquired by such Person, (e) Capital Lease
Obligations of such Person, (f)
obligations, contingent or otherwise, of
such Person in respect of letters of
credit, acceptances or similar extensions
of credit, (g) all indebtedness or
other obligations of another Person secured
by any Lien on property owned by
such Person, whether or not such
indebtedness or obligations have been assumed
by such Person, (h) all obligations of such
Person, contingent or otherwise, to
purchase, redeem, retire or otherwise
acquire for value any capital stock or
other security of such Person, (i)
off-balance sheet liability retained in
connection with asset securitization
programs, Synthetic Leases, sale and
leaseback transactions or other similar
obligations arising with respect to any
other transaction which is the functional
equivalent of or takes the place of
borrowing but which does not constitute a
liability on the consolidated balance
sheet of such Person and its Subsidiaries,
(j) obligations under any Hedging
Transaction or foreign exchange agreement,
and (k) guaranties by such Person of
the type of indebtedness described in
clauses (a) through (j) immediately above.
For purposes of determining Indebtedness
under clause (j) the obligations of the
Borrower or any Subsidiary in respect to
any Hedging Transaction at any time
shall be the maximum aggregate amount
(giving effect to any netting agreements)
that the Borrower or such Subsidiary would
be required to pay if such Hedging
Transaction were terminated at such
time.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
12
<PAGE>
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
Agreement dated as of the date hereof by
and among the Collateral Agent, the
Administrative Agent, the Canadian
Collateral Agent, the Lenders, the Canadian
Lenders and the other parties thereto.
"INTEREST PERIOD" shall mean (a) with respect to any Eurodollar
Borrowing, a period of one, two, three or
six months and (b) with respect to a
Swingline Loan, a period of such duration
not to exceed 7 days, as the Borrower
may request and the Swingline Lender may
agree in accordance with Section 2.5;
provided, that:
(i) the initial Interest Period for such Borrowing shall commence
on
the date
of such Borrowing (including the date of any conversion from a
Borrowing
of another Type) 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 would otherwise end on a day other
than
a Business
Day, such Interest Period shall be extended to the next
succeeding
Business Day, unless, in the case of a Eurodollar Borrowing,
such
Business Day falls in another calendar month, in which case
such
Interest
Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurodollar Borrowing
which
begins on
the last Business Day of a calendar month or on a day for which
there is
no numerically corresponding day in the calendar month at the
end
of such
Interest Period shall end on the last Business Day of such
calendar
month; and
(iv) no Interest Period may extend beyond the Commitment
Termination
Date or
the Swingline Termination Date, as the case may be.
"INVESTMENT" shall have the meaning given such term in Section
7.4.
"ISSUING BANK" shall mean SunTrust Bank, in its capacity as an
issuer of Letters of Credit pursuant to
Section 2.26, and its successors and
assigns in such capacity.
"LC COMMITMENT" shall mean that portion of the Aggregate
Revolving
Commitments that may be used by the
Borrower for the issuance of Letters of
Credit in an aggregate stated amount not to
exceed $10,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications, agreements and instruments
relating to the Letters of Credit.
"LC
EXPOSURE" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters
of Credit at such time, plus (b) the
aggregate amount of all LC
13
<PAGE>
Disbursements that have not been reimbursed
by or on behalf of the Borrower at
such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the
total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and
shall include, where appropriate, the
Swingline Lender.
"LENDER DEFAULT" shall mean (a) the failure (which has not been
cured) of any Lender to make available its
portion of any Borrowing or to fund
its portion of any unreimbursed payment
under Section 2.26 or (b) a Lender
having notified the Administrative Agent
and/or the Borrower that it does not
intend to comply with the obligations under
Sections 2.2, 2.5 and 2.26.
"LETTER OF CREDIT" shall mean any standby letter of credit
issued
pursuant to Section 2.26 by the Issuing
Bank for the account of the Borrower
pursuant to the LC Commitment and shall
include each Existing Letter of Credit.
"LEVERAGE RATIO" shall mean, as of any date of determination,
the
ratio of (a) Consolidated Total Funded Debt
as of such date minus, for any
period of determination from December 31,
2004 through December 31, 2005, all
cash and Permitted Investments held by the
Consolidated Parties (excluding (i)
any such cash and/or Permitted Investments
subject to any Liens other than in
favor of the Collateral Agent or the
Canadian Collateral Agent and (ii) any such
cash and/or Permitted Investments used to
satisfy the dispute reserve
requirement set forth in Section 5.13
hereof) plus any taxes or other costs
incurred or to be incurred by a Foreign
Subsidiary in connection with the
transfer or repatriation of such cash
and/or Permitted Investments to a
Consolidated Party located in the United
States to (b) Consolidated EBITDA for
the Test Period; provided, however, for
purposes of Section 2.17 and the defined
terms "Applicable Margin" and "Applicable
Percentage", the immediately preceding
clause (b) shall be Consolidated EBITDA for
the four fiscal quarters of the
Borrower ending on or most recently
preceding the date of determination.
"LIBOR" shall mean, for any applicable Interest Period with
respect
to any Eurodollar Loan, the British
Bankers' Association Interest Settlement
Rate per annum for deposits in Dollars for
a period equal to such Interest
Period appearing on the display designated
as Page 3750 on the Dow Jones Markets
Service (or such other page on that service
or such other service designated by
the British Bankers' Association for the
display of such Association's Interest
Settlement Rates for Dollar deposits) as of
11:00 a.m. (London, England time) on
the day that is two Business Days prior to
the first day of the Interest Period
or if such Page 3750 is unavailable for any
reason at such time, the rate which
appears on the Reuters Screen ISDA Page as
of such date and such time; provided,
that if the Administrative Agent determines
that the relevant foregoing sources
are unavailable for the relevant Interest
Period, LIBOR shall mean the rate of
interest determined by the Administrative
Agent to be the average (rounded
upward, if necessary, to the nearest
1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to
the Administrative Agent two Business
Days preceding the first day of such
Interest Period by leading banks in the
London interbank market as of 10:00 a. m.
(Atlanta, Georgia time) for delivery
on the first day of such Interest Period,
for the number of days comprised
therein and in an amount comparable to the
amount of the Eurodollar Loan of the
Administrative Agent.
14
<PAGE>
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge,
encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement
having the practical effect of the
foregoing or any preference, priority or
other security agreement or
preferential arrangement of any kind or
nature whatsoever (including any
conditional sale or other title retention
agreement and any capital lease having
the same economic effect as any of the
foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the LC Documents, all Notices of
Borrowing, all Notices of
Conversion/Continuation, the Subsidiary
Guaranty Agreement, the Collateral
Documents required to be entered into
pursuant to the terms hereof, and any and
all other instruments, agreements,
documents and writings executed in connection
with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Subsidiary Loan
Parties.
"LOANS" shall mean all Revolving Loans and Swingline Loans in
the
aggregate or any of them, as the context
shall require.
"MACDONALD DETTWILER" means MacDonald, Dettwiler and Associates
Ltd.
"MACDONALD DETTWILER CONTRACT" shall mean RADARSAT-2 Payload
Subcontract #SC29352RC/SC29352RC, as
amended between the Canadian Borrower and
MacDonald Dettwiler originally entered into
on September 1, 1998.
"MARGIN REGULATIONS" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of
the Federal Reserve System, as the
same may be in effect from time to
time.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any
event,
act, condition or occurrence of whatever
nature (including any adverse
determination in any litigation,
arbitration, or governmental investigation or
proceeding), a material adverse change in,
or a material adverse effect on, (a)
the business, operations, condition
(financial or otherwise), prospects, assets,
income or liabilities of the Consolidated
Parties taken as a whole, (b) the
ability of the Borrower or any Subsidiary
Loan Party to perform any of its
respective obligations under the Loan
Documents, (c) the rights, remedies or
benefits available to the Administrative
Agent, the Issuing Bank and/or the
Lenders under any of the Loan Documents,
(d) the legality, validity, binding
effect or enforceability of any of the Loan
Documents or (e) the attachment,
perfection or priority of any Lien of the
Administrative Agent under the
Security Agreement, the Pledge Agreement or
any other Loan Document.
"MATERIAL SUBSIDIARY" shall mean at any time of determination
any
direct or indirect Subsidiary of the
Borrower having: (a) assets in an amount
equal to $1,000,000 or more; (b) revenues
in an amount which equals or exceeds
2.5% of the total revenues of the Borrower
and its Subsidiaries on a
consolidated basis for the 12-month period
ending on the last day of the most
recent fiscal quarter of the Borrower at
such time; or (c) revenues in an amount
which, together with
15
<PAGE>
the revenues of all other direct or
indirect Subsidiaries which are not Material
Subsidiaries, equals or exceeds 10% of the
total revenues of the Borrower and
its Subsidiaries on a consolidated basis
for the 12-month period ending on the
last day of the most recent fiscal quarter
of the Borrower at such time.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section
4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean (a) in the case of any Debt Issuance,
the
aggregate cash proceeds received by the
Borrower and its Subsidiaries less
Transaction Costs, (b) in the case of any
Casualty Event, the aggregate cash
proceeds of insurance, condemnation awards
and other compensation received by
the Borrower and its Subsidiaries in
respect of such Casualty Event less
reasonable fees and expenses incurred by
the Borrower and its Subsidiaries in
connection therewith, (c) in the case of
any Asset Disposition, the aggregate
amount of all cash payments at any time
received by the Borrower and its
Subsidiaries in connection with such Asset
Disposition less (i) Transaction
Costs, (ii) Indebtedness to the extent the
amount thereof is secured by a Lien
on the property that is the subject of such
Asset Disposition and the transferee
of (or holder of the Lien on) such property
requires that such Indebtedness be
repaid as a condition to such Asset
Disposition, and (iii) any income or
transfer taxes paid or reasonably estimated
by the Borrower to be payable by the
Borrower and its Subsidiaries as a result
of such Asset Disposition and (d) in
the case of any Equity Offering, the
aggregate cash proceeds received by the
Borrower and its Subsidiaries less
Transaction Costs.
"NET WORTH" shall mean, as of any date, the total shareholders'
equity of the Consolidated Parties that
would be reflected on the Borrower's
consolidated balance sheet as of such date
prepared in accordance with GAAP.
"NON-DEFAULTING LENDER" shall mean and include each Lender
other
than a Defaulting Lender.
"NOTES" shall mean, collectively, the Revolving Credit Notes and
the
Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of
Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given
by
the Borrower to the Administrative Agent in
respect of the conversion or
continuation of an outstanding Borrowing as
provided in Section 2.10(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set
forth
in Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set
forth
in Section 2.5.
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<PAGE>
"OBLIGATIONS" shall mean all amounts owing by the Borrower or
its
Subsidiaries to the Administrative Agent,
the Issuing Bank, the Collateral Agent
or any Lender (including the Swingline
Lender) pursuant to or in connection with
this Agreement or any other Loan Document,
including without limitation, all
principal, interest (including any interest
accruing after the filing of any
petition in bankruptcy or the commencement
of any insolvency, reorganization or
like proceeding relating to the Borrower,
whether or not a claim for post-filing
or post-petition interest is allowed in
such proceeding), all reimbursement
obligations, fees, expenses,
indemnification and reimbursement payments, costs
and expenses (including all actual and
reasonable fees and expenses of counsel
to the Administrative Agent and any Lender
(including the Swingline Lender)
incurred pursuant to this Agreement or any
other Loan Document), whether direct
or indirect, absolute or contingent,
liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder,
and all Hedging Obligations owed to
the Administrative Agent, any Lender or any
of their Affiliates incurred in
compliance with Section 7.10 and all
obligations and liabilities incurred in
connection with collecting and enforcing
the foregoing, together with all
renewals, extensions, modifications or
refinancings thereof.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made
hereunder or from the execution, delivery
or enforcement of, or otherwise with
respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section
10.4(c).
"PATENT SECURITY AGREEMENT" shall have the meaning provided in
Section 3.1(b)(vii).
"PAYMENT OFFICE" shall mean the office of the Administrative
Agent
located at 303 Peachtree Street, N.E., 25th
Floor, Atlanta, Georgia 30308, or
such other location as to which the
Administrative Agent shall have given
written notice to the Borrower and the
other Lenders.
"PAYOFF LETTER" means a letter, in form and substance
reasonably
satisfactory to the Administrative Agent,
from all Existing Lenders, notifying
the Administrative Agent and the Borrower
of the amount necessary to repay in
full all of the obligations of the Borrower
and its Subsidiaries to the Existing
Lenders and committing to terminate and
release any and all Liens, if any,
existing in favor of the Existing Lenders
in the properties and assets of the
Borrower or any Subsidiary.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred
to and defined in ERISA, and any successor
entity performing similar functions.
"PENSION PLAN" shall mean any "employee pension benefit plan"
(as
such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is
sponsored or maintained by the
Borrower or any ERISA Affiliate or to which
the Borrower or any ERISA Affiliate
contributes or has an obligation to
contribute, or in the case of a multiple
employer or other plan described in Section
4064(a) of ERISA, has made
contributions at any time during the
immediately preceding five plan years.
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<PAGE>
"PERFECTION CERTIFICATES" shall have the meaning assigned to
such
term in the Security Agreement.
"PERMITTED ENCUMBRANCES" shall mean:
(a) Liens imposed by law for taxes, rates, assessments or other
charges of
Governmental Authorities not yet due or which are being
contested
in good faith by appropriate proceedings and with respect to
which
adequate reserves are being maintained in accordance with GAAP;
(b) inchoate or statutory Liens of landlords and Liens of
carriers,
warehousemen, mechanics, materialmen, craftsmen, builders,
contractors,
architects, engineers, subcontractors, and other Liens imposed by
law
created in
the ordinary course of business for amounts not yet due or
which are
being contested in good faith by appropriate proceedings and
with
respect to which adequate reserves are being maintained in
accordance
with
GAAP;
(c) pledges and deposits made in the ordinary course of business
in
compliance
with workers' compensation, unemployment insurance, employment
insurance
and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts,
leases,
statutory obligations, surety and appeal bonds, performance
bonds
and other
obligations of a like nature, in each case in the ordinary
course of
business;
(e) judgment and attachment liens not giving rise to an Event
of
Default or
Liens created by or existing from any litigation or legal
proceeding
that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are
being
maintained
in accordance with GAAP;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary
course of
business that do not secure any monetary obligations and do not
materially
detract from the value of the affected property or materially
interfere
with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
(g) title defects or irregularities which are of a minor nature
and
which do not materially
reduce the value of the affected asset or
materially
interfere with the use of such asset;
(h) with respect to any assets located in Canada, the
reservations,
limitations, provisos and conditions, if any, expressed in any
original
grant from
the Crown of any real property or any interest therein which do
not
materially reduce the value of the affected asset or materially
interfere
with the use of such asset;
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<PAGE>
(i) Liens given to a public utility or any municipality or
governmental or other public authority when required by such
utility or
other
authority in connection with the operation of business or the
ownership
of assets which do not materially reduce the value of the
affected
asset or materially interfere with the use of such asset;
(j) the right reserved to or vested in any Government Authority
by
any
statutory provision or by the terms of any lease, licence,
franchise,
grant or
permit of the Person, to terminate any such lease, licence,
franchise,
grant or permit, or to require annual or other payments as a
condition
to the continuance thereof; and
(k) Liens in favor of CIBC in cash on deposit with CIBC in
deposit
account
number 05-59911 Transit #2 to secure obligations of the
Canadian
Borrower
described under that certain letter agreement dated December
13,
2004
between CIBC and the Canadian Borrower; provided, that such
cash
collateral
shall not at any time exceed U.S.$4,715,398.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest
on which are unconditionally guaranteed by, the United States
(or
by any
agency thereof to the extent such obligations are backed by the
full faith
and credit of the United States), in each case maturing within
one year
from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case
maturing within
12 months
from the date of acquisition thereof;
(c) certificates of deposit, bankers' acceptances and time
deposits
maturing
within 360 days of the date of acquisition thereof issued or
guaranteed
by or placed with, and money market deposit accounts issued or
offered
by, any domestic office of any commercial bank organized under
the
laws of
the United States or any state thereof which has a combined
capital
and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of
not
more than
30 days for securities described in clause (a) above and
entered
into with
a financial institution satisfying the criteria described in
clause (c)
above;
(e) mutual funds investing solely in any one or more of the
Permitted
Investments described in clauses (a) through (d) above; and
(f) Investments in CIBC to the extent provided in clause (k) of
the
defined
term Permitted Encumbrances.
"PERSON" shall mean any individual, partnership, firm,
corporation,
association, joint venture, limited
liability company, trust or other entity, or
any Governmental Authority.
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<PAGE>
"PLAN" shall mean any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA)
established by the Borrower or, with respect
to any such plan that is subject to Section
412 of the Code or Title IV of
ERISA, any ERISA Affiliate.
"PLEDGE AGREEMENT" shall mean a Pledge Agreement in favor of
the
Collateral Agent in substantially the form
of Exhibit B.
"PRO RATA SHARE" shall mean, with respect to any Lender at any
time,
a percentage, the numerator of which shall
be the sum of such Lender's Revolving
Commitment and the denominator of which
shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving
Commitments have been terminated or
expired or if the Loans have been declared
to be due and payable, a percentage,
the numerator of which shall be such
Lender's Revolving Credit Exposure and the
denominator of which shall be the aggregate
Revolving Credit Exposure of all
Lenders.
"REAL ESTATE DOCUMENTS" shall mean collectively, all mortgages,
deeds of trust, deeds to secure debt,
assignments of rents and leases,
environmental indemnity agreements, and all
other documents, instruments,
agreements and certificates executed and
delivered by any Loan Party to the
Collateral Agent or the Administrative
Agent in connection with the foregoing.
"REAL PROPERTY" shall mean all real property owned or leased by
the
Borrower or Subsidiary Loan Party.
"REGULATION D" shall mean Regulation D of the Board of Governors
of
the Federal Reserve System, as the same may
be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified
Person,
such Person's Affiliates and the respective
directors, officers, employees,
agents and advisors of such Person and such
Person's Affiliates.
"RELEASE" shall mean any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal,
discharge, dispersal, leaching or
migration into the environment (including
ambient air, surface water,
groundwater, land surface or subsurface
strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Non-Defaulting
Lenders
holding 66 2/3% or more of the aggregate
outstanding Revolving Credit Exposures
of all Non-Defaulting Lenders at such time
or if the Non-Defaulting Lenders have
no Revolving Credit Exposure outstanding,
then Non-Defaulting Lenders holding 66
2/3% or more of the Aggregate Revolving
Commitments of all Non-Defaulting
Lenders; provided however, that if only two
Non-Defaulting Lenders exist
hereunder, Required Lenders shall mean both
such Non-Defaulting Lenders.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation, bylaws,
partnership certificate and agreement, or
limited liability company certificate of
organization and agreement, as the case
may be, and other organizational and
governing documents of such Person, and any
law, treaty, rule or regulation, or
determination of a
20
<PAGE>
Governmental Authority, in each case
applicable to or binding upon such Person
or any of its property or to which such
Person or any of its property is
subject.
"RESPONSIBLE OFFICER" shall mean any of the president, the
chief
executive officer, the chief operating
officer, the chief financial officer, the
treasurer, controller or a vice president
in the finance division of the
Borrower or such other representative of
the Borrower as may be designated in
writing by any one of the foregoing with
the consent of the Administrative
Agent; and, with respect to the financial
covenants only, the chief financial
officer or the treasurer of the
Borrower.
"RESTRICTED INVESTMENT" shall mean Investments in joint ventures
and
in Subsidiaries that are not Consolidated
Subsidiaries.
"RESTRICTED PAYMENT" shall have the meaning set forth in
Section
7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the
obligation of such Lender to make Revolving
Loans to the Borrower and to
participate in Letters of Credit and
Swingline Loans in an aggregate principal
amount not exceeding the amount set forth
with respect to such Lender on the
signature pages to this Agreement, or in
the case of a Person becoming a Lender
after the Closing Date, the amount of the
assigned "Revolving Commitment" as
provided in the Assignment and Acceptance
Agreement executed by such Person as
an assignee, as the same may be changed
pursuant to the terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender
at any time, the sum at such time, without
duplication, of (a) the outstanding
principal amount of such Lender's Revolving
Loans, (b) such Lender's LC Exposure
and (c) such Lender's Swingline
Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the
Borrower
payable to the order of a requesting Lender
in the principal amount of such
Lender's Revolving Commitment, in
substantially the form of Exhibit C.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than
the
Swingline Lender in its capacity as such)
to the Borrower under its Revolving
Commitment, which may be either a Base Rate
Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SECURITY AGREEMENT" shall mean the Security Agreement in the
form
of Exhibit D among the Loan Parties and the
Collateral Agent.
"SOLVENT" means, with respect to the Borrower as of a
particular
date, (a) the Borrower is able to pay its
debts and other liabilities,
contingent obligations and other
commitments as they mature in the normal course
of business, (b) the Borrower does not
intend to, and does not believe that it
will, incur debts or liabilities beyond the
Borrower's ability to pay as such
debts and liabilities mature in their
ordinary course, (c) the Borrower is not
engaged in a business or a transaction, and
is not about to engage in a business
or a transaction, for which the Borrower's
assets
21
<PAGE>
would constitute unreasonably small capital
after giving due consideration to
the prevailing practice in the industry in
which the Borrower is engaged or is
to engaged and (d) the aggregate fair
saleable value of the assets of the
Borrower will exceed its debts and other
liabilities (including contingent,
subordinated, unmatured and unliquidated
debts and liabilities). For purposes of
this definition, "debt" means any liability
on a claim, and "claim" means (i) a
right to a payment or (ii) a right to an
equitable remedy for breach of
performance, if in light of all of the
facts and circumstances existing at such
time, such right can reasonably be expected
to give rise to an actual or matured
liability.
"SPACE & TECHNOLOGY / MONTREAL" shall mean the Space &
Technology /
Montreal division of the Canadian
Borrower.
"STATEMENT OF FUNDS FLOW" shall mean that certain Statement of
Funds
Flow dated as of December 13, 2004 executed
by the Borrower and the
Administrative Agent on behalf of the
Lenders.
"STATUTORY RESERVE RATE" shall mean the aggregate of the
maximum
reserve percentages (including, without
limitation, any emergency, supplemental,
special or other marginal reserves)
expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any
day to which any Lender is subject with
respect to the Adjusted LIBOR pursuant to
regulations issued by the Board of
Governors of the Federal Reserve System (or
any Governmental Authority
succeeding to any of its principal
functions) with respect to eurocurrency
funding (currently referred to as
"eurocurrency liabilities" under Regulation
D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to
be subject to such reserve requirements
without benefit of or credit for
proration, exemptions or offsets that may
be available from time to time to any
Lender under Regulation D. The Statutory
Reserve Rate shall be adjusted
automatically on and as of the effective
date of any change in any reserve
percentage.
"SUBSIDIARY" shall mean, with respect to any Person (the
"PARENT"),
any corporation, partnership, joint
venture, limited liability company,
association or other entity the accounts of
which would or should be
consolidated with those of the parent in
the parent's consolidated financial
statements if such financial statements
were prepared in accordance with GAAP as
of such date, as well as any other
corporation, partnership, joint venture,
limited liability company, association or
other entity (a) of which securities
or other ownership interests representing
more than 50% of the equity or more
than 50% of the ordinary voting power, or
in the case of a partnership, more
than 50% of the general partnership
interests are, as of such date, owned,
Controlled or held, or (b) that is, as of
such date, otherwise Controlled by the
parent or one or more subsidiaries of the
parent or by the parent and one or
more subsidiaries of the parent. Unless
otherwise indicated, all references to
"Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the Subsidiary
Guaranty
Agreement, substantially in the form of
Exhibit E, made by the Subsidiary Loan
Parties in favor of the Administrative
Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Subsidiary, other than
the
Dormant Company, that is not a Foreign
Subsidiary.
22
<PAGE>
"SWINGLINE COMMITMENT" shall mean the commitment of the
Swingline
Lender to make Swingline Loans in an
aggregate principal amount at any time
outstanding not to exceed $5,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender,
the
principal amount of the Swingline Loans as
to which such Lender is legally
obligated either to make a Base Rate Loan
or to purchase a participation in
accordance with Section 2.5, which shall
equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE
LENDER" shall mean SunTrust Bank, and its successors and
assigns hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline
Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower
payable to the order of the Swingline
Lender in the principal amount of the
Swingline Commitment, substantially the
form of Exhibit F.
"SWINGLINE RATE" shall mean, for any Interest Period, the rate
as
offered by the Swingline Lender and
accepted by the Borrower in writing.
"SWINGLINE TERMINATION DATE" shall mean the date that is five
Business Days prior to the Commitment
Termination Date.
"SYNTHETIC LEASE" shall mean a lease transaction under which
the
parties intend that (a) the lease will be
treated as an "operating lease" by the
lessee pursuant to Statement of Financial
Accounting Standards No. 13, as
amended and (b) the lessee will be entitled
to various tax and other benefits
ordinarily available to owners (as opposed
to lessees) of like property.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or
withholdings imposed by any Governmental
Authority.
"TEST PERIOD" shall mean, for purposes of calculating and
determining compliance with the financial
covenants set forth in Sections 6.1
and 6.2, a period of four full fiscal
quarters of the Borrower, as selected by
the Borrower out of the six most recently
completed fiscal quarters of the
Borrower preceding the date of
determination; provided, however, that the
Borrower shall use the same four fiscal
quarters selected by the Borrower when
(a) determining and calculating compliance
with the Fixed Charge Coverage Ratio
at any time and (b) determining and
calculating compliance with both the
Leverage Ratio and the Fixed Charge
Coverage Ratio at any time; provided,
further, that any particular quarter
selected by the Borrower during any Test
Period may only be used once during such
Test Period.
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<PAGE>
"TRADEMARK SECURITY AGREEMENT" shall have the meaning provided
in
Section 3.1(b)(vii).
"TRANSACTION COSTS" shall mean, with respect to a given
transaction,
all investment banking fees, legal fees,
brokerage fees, finder's fees, printing
fees, filing fees and accountant's fees, in
each case directly related to such
transaction, and other out-of-pocket costs
and expenses incurred by a Loan Party
and directly related to such transaction;
provided, that any such fees, costs
and expenses paid to an Affiliate of the
Borrower shall be excluded from this
definition.
"TYPE", when used in reference to a Loan or Borrowing, refers
to
whether the rate of interest on such Loan,
or on the Loans comprising such
Borrowing, is determined by reference to
the Adjusted LIBOR or the Base Rate.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension
Plan's
benefit liabilities under Section
4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined
in accordance with the assumptions
used for funding the Pension Plan pursuant
to Section 412 of the Code for the
applicable plan year.
"WHOLLY-OWNED SUBSIDIARY" shall mean any Subsidiary all of the
shares of capital stock or other ownership
interests of which (except directors'
qualifying shares, or, in the case of any
Subsidiary which is not organized or
created under the laws of the United States
of America or any political
subdivision thereof, such nominal ownership
interests as are required to be held
by third parties under the laws of the
foreign jurisdiction under which such
Subsidiary was incorporated or organized)
are at the time directly or indirectly
owned by the Borrower.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer
Plan
as a result of a complete or partial
withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION
1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified
and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a
"Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving
Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g.
"Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class
and Type (e.g. "Revolving Eurodollar
Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise
defined or specified herein, all accounting
terms used herein shall be
interpreted, all accounting determinations
hereunder shall be made, and all
financial statements required to be
delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time
to time, applied on a basis
consistent (except for such changes
approved by the Borrower's independent
public accountants) with the most recent
audited consolidated financial
statement of the Borrower delivered
pursuant to Section 5.1(a); provided, that
all such accounting terms interpreted and
accounting determinations made shall,
in any event, include all activities,
operations and financial results of Space
&Technology / Montreal and any other
discontinued operations of the Borrower or
its Subsidiaries as if such division or
other
24
<PAGE>
discontinued operations were continuing
operations (other than accounting for
depreciation and valuation allowances of
such discontinued operations); provided
further, that if the Borrower notifies the
Administrative Agent that the
Borrower wishes to amend any covenant in
Article VI to eliminate the effect of
any change in GAAP on the operation of such
covenant (or if the Administrative
Agent notifies the Borrower that the
Required Lenders wish to amend Article VI
for such purpose), then the Borrower's
compliance with such covenant shall be
determined on the basis of GAAP in effect
immediately before the relevant change
in GAAP became effective, until either such
notice is withdrawn or such covenant
is amended in a manner satisfactory to the
Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY; RULES OF INTERPRETATION. 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". 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 word "to" means "to but
excluding". Unless the context
requires otherwise (a) any definition of or
reference to any agreement,
instrument or other document herein shall
be construed as referring to such
agreement, instrument or other document as
it was originally executed or as it
may from time to time be amended, restated,
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
permitted assigns, (c) the words "hereof",
"herein" and "hereunder" and words of
similar import shall be construed to refer
to this Agreement as a whole and not to any
particular provision hereof, (d) all
references to Articles, Sections, Exhibits
and Schedules shall be construed to
refer to Articles, Sections, Exhibits and
Schedules to this Agreement, (e) the
words "asset" and "property" shall be
construed to have the same meaning and
effect and to refer to any and all tangible
and intangible assets and
properties, including cash, securities,
accounts and contract rights, and (f)
all references to a specific time shall be
construed to refer to the time in the
city and state of the Administrative
Agent's principal office, unless otherwise
indicated. To the extent that any of the
representations and warranties
contained in Section IV under this
Agreement or in any of the other Loan
Documents is qualified by "Material Adverse
Effect", then the qualifier "in all
material respects" contained in Section
3.2(b) and the qualifier "in any
material respect" contained in Section
8.1(c) shall not apply. Unless otherwise
indicated, all references to time are
references to Eastern Standard Time or
Eastern Daylight Savings Time, as the case
may be.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and
upon
the terms and conditions herein set forth,
(a) the Lenders hereby establish in
favor of the Borrower a revolving credit
facility pursuant to which the Lenders
severally agree (to the extent of each
Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in
25
<PAGE>
accordance with Section 2.2, (b) the
Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.26, (c)
the Swingline Lender agrees to make
Swingline Loans in accordance with Section
2.4, and (d) each Lender agrees to
purchase a participation interest in the
Letters of Credit and the Swingline
Loans pursuant to the terms and conditions
hereof; provided, that in no event
shall the aggregate principal amount of all
outstanding Revolving Loans,
Swingline Loans and outstanding LC
Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in
effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and
conditions
set forth herein, each Lender severally
agrees to make Revolving Loans to the
Borrower from time to time on any Business
Day during the Availability Period,
in an aggregate principal amount
outstanding at any time that will not result in
(a) such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving
Commitment or (b) the sum of the aggregate
Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving
Commitments. During the Availability
Period, the Borrower shall be entitled to
borrow, prepay and reborrow Revolving
Loans in accordance with the terms and
conditions of this Agreement.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS. the Borrower
shall
give the Administrative Agent written
notice (or telephonic notice promptly
confirmed in writing) of each Revolving
Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "NOTICE OF
REVOLVING BORROWING") (i) prior to
11:00 a.m. (Atlanta, Georgia time) one
Business Day prior to the requested date
of each Base Rate Borrowing and (ii) prior
to 11:00 a.m. (Atlanta, Georgia time)
three Business Days prior to the requested
date of each Eurodollar Borrowing.
Each Notice of Revolving Borrowing shall be
irrevocable and shall specify: (i)
the aggregate principal amount of such
Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day),
(iii) the Type of such Revolving Loan
comprising such Borrowing, and (iv) in the
case of a Eurodollar Borrowing, the
duration of the initial Interest Period
applicable thereto (subject to the
provisions of the definition of Interest
Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of
each Eurodollar Borrowing shall be
not less than $1,000,000 or a larger
multiple of $500,000, and the aggregate
principal amount of each Base Rate
Borrowing shall not be less than $500,000 or
a larger multiple of $100,000; provided,
that Base Rate Loans made pursuant to
Section 2.5 or Section 2.26(e) may be made
in lesser amounts as provided
therein. At no time shall the total number
of Eurodollar Borrowings outstanding
at any time exceed six. Promptly following
the receipt of a Notice of Revolving
Borrowing in accordance herewith, the
Administrative Agent shall advise each
Lender of the details thereof and the
amount of such Lender's Revolving Loan to
be made as part of the requested Revolving
Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans
to the Borrower, from time to time from the
Closing Date to the Swingline
Termination Date, in an aggregate principal
amount outstanding at any time not
to exceed the lesser of (a) the Swingline
Commitment then in effect and (b) the
difference between the Aggregate Revolving
Commitments and the aggregate
Revolving Credit Exposures of all Lenders;
provided, that the Swingline Lender
shall not be required to make a Swingline
Loan to refinance an outstanding
Swingline Loan. The Borrower shall be
entitled to
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borrow, repay and reborrow Swingline Loans
in accordance with the terms and
conditions of this Agreement.
Notwithstanding anything herein to the contrary,
the Borrower is under no obligation to
accept any offer by the Swingline Lender
to make a Swingline Loan, and the Swingline
Lender is under no obligation
whatsoever to offer to make a Swingline
Loan to the Borrower.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) the
Borrower shall give the Administrative
Agent written notice (or telephonic
notice promptly confirmed in writing) of
each Swingline Borrowing substantially
in the form of Exhibit 2.5 attached hereto
("NOTICE OF SWINGLINE BORROWING")
prior to 11:00 a.m. (Atlanta, Georgia time)
on the requested date of each
Swingline Borrowing. Each Notice of
Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of
such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a
Business Day) and (iii) the account to
which the proceeds of such Swingline Loan
should be credited. The Administrative
Agent will promptly advise the Swingline
Lender of each Notice of Swingline
Borrowing. Each Swingline Loan shall accrue
interest at the Swingline Rate and
shall have an Interest Period (subject to
the definition thereof) as agreed
between the Borrower and the Swingline
Lender. The aggregate principal amount of
each Swingline Loan shall be not less than
$500,000 or a larger multiple of
$100,000, or such other minimum amounts
agreed to by the Swingline Lender and
the Borrower. The Swingline Lender will
make the proceeds of each Swingline Loan
available to the Borrower in Dollars in
immediately available funds at the
account specified by the Borrower in the
applicable Notice of Swingline
Borrowing not later than 3:00 p.m.
(Atlanta, Georgia time) on the requested date
of such Swingline Loan. The Administrative
Agent will notify the Lenders on a
quarterly basis if any Swingline Loans
occurred during such quarter.
(b) If (i) any Swingline Loan matures and remains unpaid; (ii)
any
Default or Event of Default occurs or (iii)
the Swingline Lender's total amount
of outstanding aggregate Revolving Credit
Exposures and Swingline Loans exceed
the Swingline Lender's Revolving
Commitment, the Swingline Lender may, on behalf
of the Borrower (which hereby irrevocably
authorizes and directs the Swingline
Lender to act on its behalf), give a Notice
of Revolving Borrowing to the
Administrative Agent requesting the Lenders
(including the Swingline Lender) to
make Base Rate Loans in an amount equal to
the unpaid principal amount of any
Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan
included in such Borrowing available to the
Administrative Agent for the account
of the Swingline Lender in accordance with
Section 2.9, which will be used
solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the
Administrative Agent), or is not, made
in accordance with the foregoing
provisions, then each Lender (other than the
Swingline Lender) shall purchase an
undivided participating interest in such
Swingline Loan in an amount equal to its
Pro Rata Share thereof on the date that
such Base Rate Borrowing should have
occurred. On the date of such required
purchase, each Lender shall promptly
transfer, in immediately available funds,
the amount of its participating interest to
the Administrative Agent for the
account of the Swingline Lender. If such
Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline
Loan shall automatically become a Base
Rate Loan on the effective date of any such
participation and interest shall
become payable on demand.
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<PAGE>
(d) Each Lender's obligation to make a Base Rate Loan pursuant
to
Section 2.5(b) or to purchase the
participating interests pursuant to Section
2.5(c) shall be absolute and unconditional
and shall not be affected by any
circumstance, including without limitation
(i) any setoff, counterclaim,
recoupment, defense or other right that
such Lender or any other Person may have
or claim against the Swingline Lender, the
Borrower or any other Person for any
reason whatsoever, (ii) the existence of a
Default or an Event of Default or the
termination of any Lender's Revolving
Commitment, (iii) the existence (or
alleged existence) of any event or
condition which has had or could reasonably
be expected to have a Material Adverse
Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower,
the Administrative Agent or any
Lender or (v) any other circumstance,
happening or event whatsoever, whether or
not similar to any of the foregoing. If
such amount is not in fact made
available to the Swingline Lender by any
Lender, the Swingline Lender shall be
entitled to recover such amount on demand
from such Lender, together with
accrued interest thereon for each day from
the date of demand thereof at the
Federal Funds Rate. Until such time as such
Lender makes its required payment,
the Swingline Lender shall be deemed to
continue to have outstanding Swingline
Loans in the amount of the unpaid
participation for all purposes of the Loan
Documents. In addition, such Lender shall
be deemed to have assigned any and all
payments made of principal and interest on
its Loans and any other amounts due
to it hereunder, to the Swingline Lender to
fund the amount of such Lender's
participation interest in such Swingline
Loans that such Lender failed to fund
pursuant to this Section, until such amount
has been purchased in full.
SECTION 2.6. INCREASE OF REVOLVING COMMITMENTS.
(a) Upon the Canadian Sale and Prepayment Event, the Aggregate
Revolving Commitments shall be increased by
$15,000,000 (the "Additional
Revolving Commitment Amount"). No less than
ten days prior to the consummation
of the Canadian Sale and Prepayment Event,
the Borrower shall give written
notice to the Administrative Agent (who
shall promptly notify the Lenders
thereof) of the date that the Canadian Sale
and Prepayment Event will be
effective. On the effective date of the
Canadian Sale and Prepayment Event, so
long as no Default or Event of Default has
occurred and is then continuing, each
Canadian Lender (or an Affiliate thereof
designated by such Canadian Lender who
becomes a party to this Agreement and is
otherwise reasonably acceptable to the
Borrower and the Administrative Agent (such
Affiliate, an "Approved Affiliate"))
shall be deemed to have increased its
Revolving Commitment by a principal amount
equal to its Canadian Pro Rata Share of the
Additional Revolving Commitment
Amount. No Lender (other than the Canadian
Lenders (or Approved Affiliates))
shall have any obligation to increase its
Revolving Commitment or its other
obligations under this Agreement and the
other Loan Documents.
(b) An increase in the Aggregate Revolving Commitments pursuant
to
this Section shall become effective as and
when provided in subsection (a)
above. The Canadian Lenders (or Approved
Affiliates) agree to enter into an
agreement in form and substance
satisfactory to the Administrative Agent setting
forth the new Revolving Commitments of such
Canadian Lenders (or Approved
Affiliate) and Annex I shall automatically
be deemed amended to reflect the
Revolving Commitments of all Lenders after
giving effect to the addition of such
Revolving Commitments.
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(c) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section,
within five Business Days, in the case of
any Base Rate Loans then outstanding, and
at the end of the then current
Interest Period with respect thereto, in
the case of any Eurodollar Loans then
outstanding, the Borrower shall prepay such
Loans in their entirety and, the
Borrower shall reborrow Loans from the
Lenders in proportion to their respective
Revolving Commitments after giving effect
to such increase, until such time as
all outstanding Loans are held by the
Lenders in such proportion.
SECTION 2.7. [RESERVED.].
SECTION 2.8. [RESERVED.]
SECTION 2.9. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Borrowing in Dollars
of
Revolving Loans to be made by it hereunder
on the proposed date thereof by wire
transfer in immediately available funds by
11:00 a.m. (Atlanta, Georgia time) to
the Administrative Agent at the Payment
Office. Swingline Loans will be made as
set forth in Section 2.5. The
Administrative Agent will make such Loans
available to the Borrower by promptly
crediting the amounts that it receives, in
like funds by the close of business on such
proposed date, to an account
maintained with the Administrative Agent
or, at the Borrower's option, by
effecting a wire transfer of such amounts
to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by
any
Lender prior to 3:00 p.m. (Atlanta, Georgia
time) one Business Day prior to the
date of a Borrowing in which such Lender is
participating that such Lender will
not make available to the Administrative
Agent such Lender's share of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
amount available to the Administrative
Agent on such date, and the
Administrative Agent, in reliance on such
assumption, may make available to the
Borrower on such date a corresponding
amount. If such corresponding amount is
not in fact made available to the
Administrative Agent by such Lender on the
date of such Borrowing, the Administrative
Agent shall be entitled to recover
such corresponding amount on demand from
such Lender together with interest at a
rate per annum equal to the Administrative
Agent's cost of funds for such amount
for up to two days and thereafter at the
rate specified for such Borrowing. If
such Lender does not pay such corresponding
amount forthwith upon the
Administrative Agent's demand therefor and
the Administrative Agent has made the
amount of such Borrowing available to the
Borrower, the Administrative Agent
shall promptly notify the Borrower, and the
Borrower shall immediately pay such
corresponding amount to the Administrative
Agent together with interest at the
rate specified for such Borrowing. Nothing
in this subsection shall be deemed to
relieve any Lender from its obligation to
fund its Pro Rata Share of any
Borrowing hereunder or to prejudice any
rights which the Borrower may have
against any Lender as a result of any
default by such Lender hereunder.
(c) All Revolving Loans shall be made by the Lenders on the basis
of
their respective Pro Rata Shares. No Lender
shall be responsible for any default
by any other Lender in its
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<PAGE>
obligations hereunder, and each Lender
shall be obligated to make its Loans
provided to be made by it hereunder,
regardless of the failure of any other
Lender to make its Loans hereunder.
SECTION 2.10. INTEREST ELECTIONS; CONVERSIONS; CONTINUATIONS.
(a) Each Borrowing initially shall be of the Type specified in
the
applicable Notice of Borrowing, and in the
case of a Eurodollar Borrowing, shall
have an initial Interest Period as
specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to
convert such Borrowing into a different
Type or to continue such Borrowing (subject
to satisfaction of any conditions
applicable to Borrowings of that Type), and
in the case of a Eurodollar
Borrowing, may elect Interest Periods
therefor, all as provided in this Section.
The Borrower may elect different options
with respect to different portions of
the affected Borrowing, in which case each
such portion shall be allocated
ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans
comprising each such portion shall be
considered a separate Borrowing. This
Section shall not apply to Swingline
Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower
shall
give the Administrative Agent prior written
notice (or telephonic notice
promptly confirmed in writing) of each
Borrowing substantially in the form of
Exhibit 2.10 attached hereto (a "NOTICE OF
CONVERSION/CONTINUATION") that is to
be converted or continued, as the case may
be, (x) prior to 11:00 a.m. (Atlanta,
Georgia time) one Business Day prior to the
requested date of a conversion into
a Base Rate Borrowing and (y) prior to
11:00 a.m. (Atlanta, Georgia time) three
Business Days prior to a continuation of or
conversion into a Eurodollar
Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which
such Notice of Continuation/Conversion
applies and if different options are being
elected with respect to different
portions thereof, the portions thereof that
are to be allocated to each
resulting Borrowing (in which case the
information to be specified pursuant to
clauses (iii) and (iv) shall be specified
for each resulting Borrowing); (ii)
the effective date of the election made
pursuant to such Notice of
Continuation/Conversion, which shall be a
Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to
be a Eurodollar Borrowing and the
duration of the Interest Period applicable
thereto after giving effect to such
election, which shall be a period
contemplated by the definition of "Interest
Period". If any such Notice of
Continuation/Conversion requests a Eurodollar
Borrowing but does not specify an Interest
Period, the Borrower shall be deemed
to have selected an Interest Period of one
month. The principal amount of any
resulting Borrowing shall satisfy the
minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set
forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any
Eurodollar Borrowing, the Borrower shall
have failed to deliver a Notice of
Conversion/Continuation, then, unless such
Borrowing is repaid as provided
herein, the Borrower shall be deemed to
have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may
be converted into, or continued as, a
Eurodollar Borrowing if a Default or an
Event of Default exists, unless the
Administrative Agent and each of the
Lenders shall have otherwise consented in
writing. Further, any Eurodollar Borrowing
that may not be continued as a
Eurodollar Borrowing as a result of a
Default or Event of Default shall
automatically convert to a Base Rate
Borrowing at the end of then
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applicable Interest Period, and such
Borrowing shall be subject to the increased
interest rate specified under Section
2.15(c) both before and after the
conversion thereof, such increased interest
rate commencing on and as of the
date of such Default or Event of Default.
No conversion of any Eurodollar Loans
shall be permitted except on the last day
of the Interest Period in respect
thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify
each Lender of the details thereof
and of such Lender's portion of each
resulting Borrowing.
SECTION 2.11. TERMINATION OF COMMITMENTS.
Unless previously terminated, all Revolving Commitments shall
terminate on the Commitment Termination
Date, except that the Swingline
Commitment shall terminate on the Swingline
Termination Date.
SECTION 2.12. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall
be
due and payable (together with accrued and
unpaid interest thereon) on the
Commitment Termination Date.
(b) The principal amount of each Swingline Loan shall be due
and
payable (together with accrued interest
thereon) on the earlier of (i) the last
day of the Interest Period applicable to
such Loan and (ii) the Swingline
Termination Date.
SECTION 2.13. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual
practice appropriate records evidencing
the Indebtedness of the Borrower to such
Lender resulting from each Loan made by
such Lender from time to time, including
the amounts of principal and interest
payable thereon and paid to such Lender
from time to time under this Agreement.
The Administrative Agent shall maintain
appropriate records in which shall be
recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the
Class and Type thereof and the Interest
Period applicable thereto, (iii) the date
of each continuation thereof pursuant
to Section 2.10, (iv) the date of each
conversion of all or a portion thereof to
another Type pursuant to Section 2.10, (v)
the date and amount of any principal
or interest due and payable or to become
due and payable from the Borrower to
each Lender hereunder in respect of such
Loans and (vi) both the date and amount
of any sum received by the Administrative
Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro
Rata Share thereof. The entries made
in such records shall be prima facie
evidence of the existence and amounts of
the obligations of the Borrower therein
recorded; provided, that the failure or
delay of any Lender or the Administrative
Agent in maintaining or making entries
into any such record or any error therein
shall not in any manner affect the
obligation of the Borrower to repay the
Loans (both principal and unpaid accrued
interest) of such Lender in accordance with
the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender)
at
any time, the Borrower agrees that it will
execute and deliver to such Lender a
Revolving Credit Note and, in the
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case of the Swingline Lender only, a
Swingline Note, payable to the order of
such Lender, and such Lender agrees, upon
receipt of such new Note and request
of the Borrower, such Lender will promptly
cancel and return any Note replaced
by such new Note to the Borrower.
SECTION 2.14. OPTIONAL AND MANDATORY PREPAYMENTS.
(a) Optional Prepayment. The Borrower shall have the right at
any
time and from time to time to prepay any
Borrowing, in whole or in part, without
premium or penalty, by giving irrevocable
written notice (or telephonic notice
promptly confirmed in writing) to the
Administrative Agent no later than (i) in
the case of prepayment of any Eurodollar
Borrowing, 11:00 a.m. (Atlanta, Georgia
time) not less than three Business Days
prior to any such prepayment, (ii) in
the case of any prepayment of any Base Rate
Borrowing, not less than one
Business Day prior to the date of such
prepayment, and (iii) in the case of
Swingline Borrowings, prior to 11:00 a.m.
(Atlanta, Georgia time) on the date of
such prepayment. Each such notice shall be
irrevocable and shall specify the
proposed date of such prepayment and the
principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt
of any such notice, the
Administrative Agent shall promptly notify
each affected Lender of the contents
thereof and of such Lender's Pro Rata Share
of any such prepayment. If such
notice is given, the aggregate amount
specified in such notice shall be due and
payable on the date designated in such
notice, together with accrued interest to
such date on the amount so prepaid in
accordance with Section 2.15(d); provided,
that if a Eurodollar Borrowing is prepaid
on a date other than the last day of
an Interest Period applicable thereto, the
Borrower shall also pay all amounts
required pursuant to Section 2.22. Each
partial prepayment of any Loan (other
than a Swingline Loan) shall be in minimum
amounts of $500,000 or larger
multiples of $100,000. Each prepayment of a
Borrowing shall be applied ratably
to the Loans comprising such Borrowing.
(b) Mandatory
Prepayment.
(i) Promptly
upon (and in any event not later than five
Business
Days after) its receipt thereof, the Borrower shall, subject to
clause
(iv) immediately below, prepay or cause to be prepaid the
outstanding principal amount of Revolving Loans in an amount equal
to 100%
of the Net
Proceeds from any Debt Issuance made after the Closing Date,
and will
deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by the Chief Financial Officer of
the
Borrower
in form and substance satisfactory to the Administrative Agent
and
setting forth the calculation of such Net Proceeds.
Notwithstanding
the
foregoing, nothing in this subsection (i) shall be deemed to
permit
any Debt
Issuance not expressly permitted under Section 7.1.
(ii) Promptly upon
(and in any event not later than five
Business
Days after) its receipt thereof, the Borrower shall, subject to
clause
(iv) immediately below, prepay or cause to be prepaid the
outstanding
principal amount of Revolving Loans in an amount equal to 50%
of the Net
Proceeds from any Asset Disposition (other than any Asset
Disposition under Section 7.6(b)) and will deliver to the
Administrative
Agent,
concurrently with such prepayment, a certificate signed by the
Chief
Financial Officer of the Borrower in form and substance
satisfactory
to the
Administrative Agent and setting forth the calculation of such
Net
Proceeds.
Notwithstanding the foregoing, nothing in this subsection (ii)
shall
be
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deemed to
permit any Asset Disposition not expressly permitted under
Section
7.6.
(iii) Not later than thirty days after its receipt of any
proceeds
of insurance, condemnation award or other compensation in
respect
of any
Casualty Event (and in any event upon its determination not to
repair or
replace any property subject to such Casualty Event), the
Borrower
shall, subject to clause (iv) immediately below, prepay or
cause
to be
prepaid the outstanding principal amount of Revolving Loans in
an
amount
equal to 100% of the Net Proceeds from such Casualty Event
(less
any
amounts theretofore applied, to be applied or contractually
committed
to be
applied within 180 days after the occurrence of such Casualty
Event
to the
repair or replacement of property subject to such Casualty
Event)
and will
deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by the Chief Financial Officer of
the
Borrower
in form and substance satisfactory to the Administrative Agent
and
setting forth the calculation of such Net Proceeds.
(iv) Each prepayment
of Revolving Loans made pursuant to
clauses
(i) through (iii) above shall be applied to reduce the
outstanding
principal
amount of Revolving Loans, with a corresponding permanent
reduction
to the Revolving Commitment in an amount equal to the amount of
the
prepayment required by this subsection (b); provided, however, that
so
long as a
prepayment of the Canadian Facility Indebtedness for the events
described
under clauses (i) through (iii) above would not have an adverse
tax
consequence for the Borrower or the Canadian Borrower (as
reasonably
determined
by the Borrower), each prepayment of Revolving Loans required
to be made
pursuant to clauses (i) through (iii) above shall be applied to
reduce the
outstanding principal amount of Revolving Loans and the
"Revolving
Loans" under and as defined in the Canadian Revolving Credit
Agreement,
pro rata based on the then outstanding principal amount under
this
Agreement and the Canadian Revolving Credit Agreement, with a
corresponding permanent reduction to the Revolving Commitment
hereunder
and a
corresponding permanent reduction to the "Revolving Commitment"
under and
as defined in the Canadian Revolving Credit Agreement, in each
case, in
an amount equal to the amount so prepaid; provided, further,
that
the
Canadian Prepayment Amount shall be applied solely towards the
prepayment
of the Canadian Facility Indebtedness.
(v) Each
prepayment of Loans made pursuant to this
subsection
(b) shall be first applied to the repayment of Base Rate Loans
until all
Base Rate Loans are paid in full, and then to Eurodollar Loans.
Each
prepayment of a Eurodollar Loan made pursuant to the provisions
of
this
subsection (b) on a day other than the last day of the Interest
Period
applicable thereto shall be made together with all amounts
required
under
Section 2.22.
(c) Additional Mandatory Reduction and Permanent Repayment.
Commencing on December 31, 2005 and
continuing on each June 30 and December 31
thereafter, the Aggregate Revolving
Commitment shall be automatically reduced in
an amount equal to $1,250,000 until such
time as the "Aggregate Revolving
Commitment" (as such term is defined in the
Canadian Credit Agreement) of the
Canadian Lenders under the Canadian
Revolving Credit Agreement is reduced to an
amount of not more than $22,500,000; for
greater certainty this obligation shall
cease at such time, if ever, that the
"Revolving Commitment" (as such term is
defined in the Canadian Credit
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<PAGE>
Agreement) under the Canadian Revolving
Credit Agreement is reduced to an amount
of not more than $22,500,000 in accordance
with Section 2.11(b)(i) thereof. If
at any time, as a result in the reduction
of the Aggregate Revolving Commitment
under this subsection (c), the sum of the
outstanding amount of the Loans plus
the LC Exposure exceeds the Aggregate
Revolving Commitment, then the Borrower
shall immediately pay the amount of such
excess to the Administrative Agent for
the respective accounts of the Lenders for
application: first, to unreimbursed
LC Disbursements; second, to the Swingline
Loans; third, to the Revolving Loans;
and fourth, to provide to the
Administrative Agent cash collateral for the
aggregate undrawn amount of all outstanding
Letters of Credit as contemplated by
Section 2.26(h). Each payment of any
unreimbursed LC Disbursements or prepayment
of Loans shall be allocated among the
Lenders, in proportion, as nearly as
practicable, to each unreimbursed LC
Disbursement or (as the case may be) the
respective unpaid principal amount of any
Loan owed to such Lender, with
adjustments to the extent practicable to
equalize any prior payments or
repayments not exactly in proportion.
SECTION 2.15. INTEREST ON LOANS.
(a) The Borrower shall pay interest (i) on each Base Rate Loan
at
the Base Rate in effect from time to time
plus the Applicable Margin in effect
from time to time for Base Rate Loans, and
(ii) on each Eurodollar Loan at the
Adjusted LIBOR for the applicable Interest
Period then in effect for such
Eurodollar Loan plus the Applicable Margin
in effect from time to time for
Eurodollar Loans.
(b) The Borrower shall pay interest on each Swingline Loan at
the
Swingline Rate in effect from time to
time.
(c) While an Event of Default exists or after acceleration, at
the
option of the Required Lenders, the
Borrower shall pay interest ("DEFAULT
INTEREST") with respect to all Eurodollar
Loans at the rate otherwise applicable
for the then-current Interest Period plus
an additional 2% per annum until the
last day of such Interest Period, and
thereafter, and with respect to all Base
Rate Loans and all other Obligations
hereunder (other than Loans), at the Base
Rate then in effect for Base Rate Loans
plus the Applicable Margin for Base Rate
Loans plus an additional 2.0% per annum.
While an Event of Default exists and
after acceleration, the Applicable
Percentage for the letter of credit fees
provided for under Section 2.16(c) shall be
increased by 2.0%.
(d) Interest on the principal amount of all Loans shall accrue
from
and including the date such Loans are made
to but excluding the date of any
repayment thereof, provided such Loans are
repaid within the times provided for
hereunder. Interest on all outstanding Base
Rate Loans shall be payable
quarterly in arrears on the last day of
each March, June, September and December
and on the Commitment Termination Date.
Interest on all outstanding Eurodollar
Loans shall be payable on the last day of
each Interest Period applicable
thereto, and, in the case of any Eurodollar
Loans having an Interest Period in
excess of three months or 90 days,
respectively, on each day which occurs every
three months or 90 days, as the case may
be, after the initial date of such
Interest Period, and on the Commitment
Termination Date. Interest on each
Swingline Loan shall be payable on the
maturity date of such Loan, which shall
be the last day of the Interest Period
applicable thereto, and on the Swingline
Termination Date. Interest on any Loan
which is converted into a Loan of another
Type or which is repaid or prepaid shall be
payable on the date of such
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conversion or on the date of any such
repayment or prepayment (on the amount
repaid or prepaid) thereof. All Default
Interest and increased letter of credit
fees payable under subsection (c) of this
Section shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall
promptly notify the Borrower and the
Lenders of such rate in writing (or by
telephone, promptly confirmed in
writing). Any such determination shall be
conclusive and binding for all
purposes, absent manifest error.
SECTION 2.16. FEES.
(a) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account
fees in the amounts and at the times
previously agreed upon by the Borrower and
the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative
Agent for the account of each Lender a
commitment fee, which fee shall accrue at
the Applicable Percentage on the average
daily amount of the unused Revolving
Commitment of such Lender during the
Availability Period. Accrued commitment
fees shall be payable in arrears on the
last day of each March, June, September
and December of each year and on the
Commitment Termination Date, commencing on
the first such date after the Closing Date.
For purposes of computing commitment
fees with respect to the Revolving
Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent
of the outstanding Revolving Loans and
LC Exposure of such Lender. Any Swingline
Loans outstanding shall be treated as
if such Loan were unused for purposes of
this subsection (b).
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to
the
Administrative Agent, for the account of
each Lender, a letter of credit fee
with respect to its participation in each
Letter of Credit (including the
Existing Letters of Credit), which shall
accrue at the Applicable Percentage
then in effect on the average daily amount
of such Lender's LC Exposure
(excluding any portion thereof attributable
to unreimbursed LC Disbursements)
attributable to such Letter of Credit
during the period from and including the
date of issuance of such Letter of Credit
to but excluding the date on which
such Letter of Credit expires or is drawn
in full (including without limitation
any LC Exposure that remains outstanding
after the Commitment Termination Date)
and (ii) to the Issuing Bank for its own
account a fronting fee, which shall
accrue at the rate of 0.125% per annum on
the average daily amount of the LC
Exposure (excluding any portion thereof
attributable to unreimbursed LC
Disbursements) during the Availability
Period (or until the date that such
Letter of Credit is irrevocably cancelled,
whichever is later), as well as the
Issuing Bank's standard fees with respect
to issuance, amendment, renewal or
extension of any Letter of Credit or
processing of drawings thereunder.
Notwithstanding any term of any letter of
credit application, reimbursement
agreement or other agreement entered into
between the Borrower and the Issuing
Bank in connection with any Existing Letter
of Credit which term relates to fees
payable in connection with such Existing
Letter of Credit, the terms of this
Section regarding letter of credit fees and
fronting fees shall control from and
after the Closing Date.
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(d) Payments. Accrued fees (other than the Administrative
Agent's
fees in subsection (a) above) shall be
payable quarterly in arrears on the last
day of each of March, June, September and
December, commencing on the first such
date after the Closing Date and on the
Commitment Termination Date (and if
later, the date the Loans and LC Exposure
shall be repaid in their entirety).
SECTION 2.17. EFFECTIVE DATE FOR ADJUSTMENT TO APPLICABLE
PERCENTAGE
AND APPLICABLE MARGIN. The Applicable
Percentage and Applicable Margin shall be
determined and adjusted quarterly on the
date that is two Business Days after
the date on which the Borrower provides the
officer's certificate in accordance
with the provisions of Section 5.1.(c)
(each "Margin Calculation Date");
provided, however that (i) the Applicable
Percentage and the Applicable Margin
from the Closing Date until the first
Margin Calculation Date subsequent to the
Closing Date shall be at Level V (as set
forth in Schedule I), and, thereafter,
such level shall be determined by the then
current Leverage Ratio, and (ii) if
the Borrower fails to provide the officer's
certificate to the Administrative
Agent by the date such certificate is
required to be delivered under Section
5.1.(c), the Applicable Percentage and the
Applicable Margin from such date
shall be at Level V until such time as an
appropriate officer's certificate is
provided, whereupon the level shall be
determined by the then current Leverage
Ratio. Except as set forth above, the
Applicable Percentage and the Applicable
Margin shall be effective from one Margin
Calculation Date until the next Margin
Calculation Date.
SECTION 2.18. COMPUTATION OF INTEREST AND FEES. All computations
of
interest and all fees hereunder shall be
made on the basis of a year of 360 days
and paid for the actual number of days
elapsed (including the first day but
excluding the last day). Each determination
by the Administrative Agent of an
interest amount or fee hereunder shall be
made in good faith and, except for
manifest error, shall be final, conclusive
and binding for all purposes.
SECTION 2.19. INABILITY TO DETERMINE INTEREST RATES. If prior to
the
commencement of any Interest Period for any
Eurodollar Borrowing,
(i) the
Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that, by
reason of
circumstances affecting the relevant interbank market, adequate
means do
not exist for ascertaining the LIBOR for such Interest Period,
or
(ii) the
Administrative Agent shall have received notice from the
Required
Lenders that the Adjusted LIBOR does not adequately and fairly
reflect
the cost to such Lenders of making, funding or maintaining
their
Eurodollar
Loans for such Interest Period,
the Administrative Agent shall give written
notice (or telephonic notice,
promptly confirmed in writing) to the
Borrower and to the Lenders as soon as
practicable thereafter. In the case of
Eurodollar Loans, until the
Administrative Agent shall notify the
Borrower and the Lenders that the
circumstances giving rise to such notice no
longer exist, (A) the obligations of
the Lenders to make Eurodollar Revolving
Loans or to continue or convert
outstanding Loans as or into Eurodollar
Loans shall be suspended and (B) all
such affected Loans shall be converted into
Base Rate Loans on the
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last day of the then current Interest
Period applicable thereto unless the
Borrower repays or prepays such Loans in
accordance with this Agreement. Unless
the Borrower notifies the Administrative
Agent at least one Business Day before
the date of any Eurodollar Borrowing for
which a Notice of Revolving Borrowing
has previously been given that it elects
not to borrow on such date, then such
Borrowing shall be made as a Base Rate
Borrowing.
SECTION 2.20. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to
make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the
Administrative Agent, the
Administrative Agent shall promptly give
notice thereof to the Borrower and the
other Lenders, whereupon until such Lender
notifies the Administrative Agent and
the Borrower that the circumstances giving
rise to such suspension no longer
exist, the obligation of such Lender to
make Eurodollar Revolving Loans or to
continue or convert outstanding Loans as or
into Eurodollar Loans shall be
suspended. In the case of the making of a
Eurodollar Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate
Loan as part of the same Borrowing
for the same Interest Period and if the
affected Eurodollar Loan is then
outstanding, such Loan shall be converted
to a Base Rate Loan either (i) on the
last day of the then current Interest
Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to
maintain such Loan to such date or (ii)
immediately if such Lender shall determine
that it may not lawfully continue to
maintain such Eurodollar Loan to such date.
Notwithstanding the foregoing, the
affected Lender shall, prior to giving such
notice to the Administrative Agent,
designate a different Applicable Lending
Office if such designation would avoid
the need for giving such notice and if such
designation would not otherwise be
disadvantageous to such Lender in the good
faith exercise of its discretion.
SECTION 2.21. INCREASED COSTS.
(a) If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special
deposit or
similar requirement that is not otherwise included in the
determination of the Adjusted LIBOR hereunder against assets of,
deposits
with or
for the account of, or credit extended by, any Lender (except
any
such
reserve requirement reflected in the Adjusted LIBOR ) or the
Issuing
Bank;
or
(ii) impose on any
Lender or on the Issuing Bank or the
Eurodollar
interbank market any other condition affecting this Agreement
or any
Eurodollar Loans made by such Lender or any Letter of Credit or
any
participation therein;
and the result of the foregoing is to
increase the cost to such Lender of
making, converting into, continuing or
maintaining a Eurodollar Loan, or to
increase the cost to such Lender or the
Issuing Bank of participating in or
issuing any Letter of Credit or to reduce
the amount received or receivable by
such Lender or the Issuing Bank hereunder
(whether of principal, interest or any
other amount), then the Borrower shall
promptly pay, upon written notice from
and demand by such Lender on the Borrower
(with a copy of such notice and demand
to the Administrative Agent), to the
Administrative Agent for the account of
such Lender, within five Business Days
after the date of
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such notice and demand, additional amount
or amounts sufficient to compensate
such Lender or the Issuing Bank, as the
case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that
on
or after the date of this Agreement any
Change in Law regarding capital
requirements has or would have the effect
of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or
on the capital of such Lender's or
the Issuing Bank's parent corporation) as a
consequence of its obligations
hereunder or under or in respect of any
Letter of Credit to a level below that
which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's
parent corporation could have achieved but
for such Change in Law (taking into
consideration such Lender's or the Issuing
Bank's policies or the policies of
such Lender's or the Issuing Bank's parent
corporation with respect to capital
adequacy) then, from time to time, within
five Business Days after receipt by
the Borrower of written demand by such
Lender (with a copy thereof to the
Administrative Agent), the Borrower shall
pay to such Lender such additional
amounts as will compensate such Lender or
the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for
any such reduction suffered.
(c) [RESERVED]
(d) [RESERVED]
(e) A certificate of a Lender or the Issuing Bank setting forth
the
amount or amounts necessary to compensate
such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding
company, as the case may be,
specified in paragraph (a) or (b) of this
Section shall be delivered to the
Borrower (with a copy to the Administrative
Agent) and shall be conclusive,
absent manifest error. The Borrower shall
pay any such Lender or the Issuing
Bank, as the case may be, such amount or
amounts within 10 days after receipt
thereof.
(f) Failure or delay on the part of any Lender or the Issuing
Bank
to demand compensation pursuant to this
Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right
to demand such compensation; provided,
that the Borrower shall not be required to
compensate a Lender or the Issuing
Bank under this Section for any increased
costs or reductions incurred more than
six months prior to the date that such
Lender or the Issuing Bank notifies the
Borrower of such increased costs or
reductions and of such Lender's or the
Issuing Bank's intention to claim
compensation therefore; provided further, that
if the Change in Law giving rise to such
increased costs or reductions is
retroactive, then such six-month period
shall be extended to include the period
of such retroactive effect.
SECTION 2.22. FUNDING INDEMNITY. In the event of (a) the payment
of
any principal of a Eurodollar Loan other
than on the last day of the Interest
Period applicable thereto (including as a
result of an Event of Default), (b)
the conversion or continuation of a
Eurodollar Loan other than on the last day
of the Interest Period applicable thereto
or (c) the failure by the Borrower to
borrow, prepay, convert or continue any
Eurodollar Loan on the date specified in
any applicable notice (regardless of
whether such notice is withdrawn or
revoked), then, in any such event, the
Borrower shall compensate each Lender,
within five Business Days after written
demand from such Lender, for any loss,
cost or expense attributable to such event.
In the case of a Eurodollar Loan,
such loss, cost
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or expense shall be deemed to include an
amount determined by such Lender to be
the excess, if any, of (i) the amount of
interest that would have accrued on the
principal amount of such Eurodollar Loan if
such event had not occurred at the
Adjusted LIBOR applicable to such
Eurodollar Loan for the period from the date
of such event to the last day of the then
current Interest Period therefor (or
in the case of a failure to borrow, convert
or continue, for the period that
would have been the Interest Period for
such Eurodollar Loan) over (ii) the
amount of interest that would accrue on the
principal amount of such Eurodollar
Loan for the same period if the Adjusted
LIBOR were set on the date such
Eurodollar Loan was prepaid or converted or
the date on which the Borrower
failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to
any additional amount payable under this
Section 2.22 submitted to the Borrower
by any Lender shall be conclusive, absent
manifest error.
SECTION 2.23. TAXES.
(a) Any and all payments by or on account of any obligation of
the
Borrower hereunder shall be made free and
clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided,
that if the Borrower shall be
required to deduct any Indemnified Taxes or
Other Taxes from such payments, then
(i) the sum payable shall be increased as
necessary so that after making all
required deductions (including deductions
applicable to additional sums payable
under this Section) the Administrative
Agent, any Lender or the Issuing Bank (as
the case may be) shall receive an amount
equal to the sum it would have received
had no such deductions been made, (ii) the
Borrower shall make such deductions
and (iii) the Borrower shall pay the full
amount deducted to the relevant
Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five
Business Days after written demand
therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or
the Issuing Bank, as the case may be,
on or with respect to any payment by or on
account of any obligation of the
Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or
asserted on or attributable to amounts
payable under this Section) and any
penalties, interest and reasonable expenses
arising therefrom or with respect
thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant
Governmental Authority. A
certificate as to the amount of such
payment or liability delivered to the
Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its
own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or
Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall
deliver to the Administrative Agent the
original or a certified copy of a
receipt issued by such Governmental
Authority evidencing such payment, a copy of
the return reporting such payment or other
evidence of such payment reasonably
satisfactory to the Administrative
Agent.
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(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the
Code, or any treaty to which the United
States is a party, with respect to payments
under this Agreement shall deliver
to the Borrower (with a copy to the
Administrative Agent), at the time or times
prescribed by applicable law, such properly
completed and executed documentation
prescribed by applicable law or reasonably
requested by the Borrower as will
permit such payments to be made without
withholding or at a reduced rate.
Without limiting the generality of the
foregoing, each Foreign Lender agrees
that it will deliver to the Administrative
Agent and the Borrower (or in the
case of a Participant, to the Lender from
which the related participation shall
have been purchased) two duly completed
copies of (i) Internal Revenue Service
Form W-8 ECI, or any successor form
thereto, certifying that the payments
received from the Borrower hereunder are
effectively connected with such Foreign
Lender's conduct of a trade or business in
the United States or (ii) Internal
Revenue Service Form W-8 BEN, or any
successor form thereto, certifying that
such Foreign Lender is entitled to benefits
under an income tax treaty to which
the Untied States is a party which reduces
the rate of withholding tax on
payments of interest or (iii) Internal
Revenue Service Form W-8 BEN, or any
successor form prescribed by the Internal
Revenue Service; or (iv) such other
Internal Revenue Service forms as may be
applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to
the Borrower and the Administrative Agent
such forms on or before the date that
it becomes a party to this Agreement (or in
the case of a Participant, on or
before the date such Participant purchases
the related participation). In
addition, each such Lender shall deliver
such forms promptly upon the
obsolescence or invalidity of any form
previously delivered by such Lender. Each
such Lender shall promptly notify the
Borrower and the Administrative Agent at
any time that it determines that
