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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 30, 2002
KENNAMETAL INC.
(Exact name of registrant as specified in its charter)
Commission file number 1-5318
PENNSYLVANIA 25-0900168
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
WORLD HEADQUARTERS
1600 TECHNOLOGY WAY
P.O. BOX 231
LATROBE, PENNSYLVANIA 15650-0231
(Address of registrant's principal executive offices)
Registrant's telephone number, including area code: (724) 539-5000
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 30, 2002, Kennametal Inc. announced that it has completed the
previously reported acquisition of the Widia Group from Milacron Inc. for EUR
188 million subject to post-closing adjustments.
Widia, with approximately $240 million in sales, is a leading manufacturer and
marketer of metalworking tools, engineered products and related services in
Europe and India. Widia has an extensive product line of metalworking
consumables, and is a recognized leader in milling applications. The company
employs approximately 3,400 employees, and operates eight manufacturing
facilities in Europe and two in India. Management currently intends to continue
using the acquired assets for such purpose and to integrate the operations of
the Widia Group into existing operations. Widia sells primarily through direct
sales and has sales and service personnel in many European countries.
On August 30, 2002, to fund the acquisition, Kennametal Inc. borrowed EUR 188
million under its new revolving credit facility.
The press release regarding the closing of the Widia acquisition and the new
credit facility are filed herewith.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following financial statements and exhibits are filed in accordance with the
provisions of Item 601 of Regulation S-K:
(a) Financial statements of business acquired - not required
(b) Pro-forma financial information - not required
(c) Exhibits
(2) Plan of Acquisition, Reorganization, Arrangement, Liquidation or
Succession
2.1 Stock Purchase Agreement dated May 3, 2002 among Milacron
Inc., Milacron B.V. and Kennametal Inc. Exhibit 2.1 of the
May 6, 2002 Form 8-K is incorporated herein by reference.
(10) Material Contracts
10.1 Credit Agreement dated as of June 27, 2002 among Kennametal
Inc., and the several lenders from time to time parties
thereto, Bank of Tokyo-Mitsubishi Trust Company; Bank One,
N.A.; Fleet National Bank; and PNC Bank, NA as the
Co-Syndication Agents, and JP Morgan Chase Bank, as the
Administrative Agent. Filed herewith.
(99) Additional Exhibits
99.1 Press Release dated August 30, 2002. Filed herewith.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
KENNAMETAL INC.
Date: September 11, 2002 By: /s/ TIMOTHY A. HIBBARD
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Timothy A. Hibbard
Corporate Controller and
Chief Accounting Officer
Exhibit 10.1
EXECUTION COPY
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$650,000,000
CREDIT AGREEMENT
among
KENNAMETAL Inc.,
The Several Lenders from Time to Time Parties Hereto,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
BANK ONE, NA,
FLEET NATIONAL BANK, and
PNC BANK NATIONAL ASSOCIATION,
as the Co-Syndication Agents,
and
JPMORGAN CHASE BANK,
as the Administrative Agent
Dated as of June 27, 2002
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J.P. Morgan Securities Inc.,
as the Sole Advisor, Lead Arranger and Bookrunner
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
BANK ONE, NA,
FLEET NATIONAL BANK,
KEYBANK NATIONAL ASSOCIATION, and
PNC BANK NATIONAL ASSOCIATION,
as Co-Arrangers
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS.................................................................................1
1.1 Defined Terms....................................................................................1
1.2 Other Definitional Provisions...................................................................24
1.3 Currency Conversion.............................................................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS............................................................25
2.1 Commitments.....................................................................................25
2.2 Procedure for Revolving Loan Borrowing..........................................................26
2.3 Competitive Bid Procedure.......................................................................27
2.4 Swingline Commitment............................................................................29
2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans.................................29
2.6 L/C Commitment..................................................................................31
2.7 Procedure for Issuance of Letters of Credit.....................................................32
2.8 L/C Participations..............................................................................32
2.9 Reimbursement Obligation of the Borrower........................................................33
2.10 Obligations Absolute............................................................................33
2.11 Letter of Credit Payments.......................................................................34
2.12 Applications....................................................................................34
2.13 Certain Reporting Requirements..................................................................34
2.14 Fees and Other Charges, etc.....................................................................34
2.15 Optional Termination or Reduction of Commitments................................................35
2.16 Optional Prepayments............................................................................35
2.17 Mandatory Prepayments...........................................................................36
2.18 Conversion and Continuation Options.............................................................37
2.19 Limitations on Eurocurrency Tranches............................................................38
2.20 Interest Rates and Payment Dates................................................................38
2.21 Computation of Interest and Fees................................................................38
2.22 Inability to Determine Interest Rate............................................................39
2.23 Pro Rata Treatment and Payments.................................................................40
2.24 Requirements of Law.............................................................................41
2.25 Taxes ..........................................................................................44
2.26 Indemnity.......................................................................................45
2.27 Change of Lending Office........................................................................46
2.28 Replacement of Lenders..........................................................................46
2.29 Judgment Currency...............................................................................46
2.30 Foreign Currency Exchange Rate..................................................................47
2.31 Certain Borrowings of Dollar Revolving Loans and Refunding of Multicurrency Loans...............47
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SECTION 3. REPRESENTATIONS AND WARRANTIES.............................................................48
3.1 Financial Condition.............................................................................48
3.2 No Change.......................................................................................49
3.3 Existence; Compliance with Law..................................................................49
3.4 Power; Authorization; Enforceable Obligations...................................................49
3.5 No Legal Bar....................................................................................50
3.6 Litigation......................................................................................50
3.7 No Default......................................................................................50
3.8 Ownership of Property; Liens....................................................................50
3.9 Intellectual Property...........................................................................50
3.10 Taxes ..........................................................................................50
3.11 Federal Regulations.............................................................................51
3.12 ERISA ..........................................................................................51
3.13 Investment Company Act; Other Regulations.......................................................51
3.14 Use of Proceeds.................................................................................52
3.15 Environmental Matters...........................................................................52
3.16 Accuracy of Information, etc....................................................................52
3.17 Solvency........................................................................................53
3.18 Insurance.......................................................................................53
3.19 Subsidiaries....................................................................................53
SECTION 4. CONDITIONS PRECEDENT.......................................................................53
4.1 Conditions to Initial Extension of Credit.......................................................53
4.2 Conditions to Each Extension of Credit..........................................................54
SECTION 5. AFFIRMATIVE COVENANTS......................................................................55
5.1 Financial Statements............................................................................55
5.2 Certificates; Other Information.................................................................55
5.3 Payment of Obligations..........................................................................56
5.4 Maintenance of Existence; Compliance............................................................56
5.5 Maintenance of Property; Insurance..............................................................56
5.6 Inspection of Property; Books and Records; Discussions..........................................57
5.7 Notices.........................................................................................57
5.8 ERISA ..........................................................................................57
5.9 Continuation of or Change in Business...........................................................58
5.10 Further Assurances..............................................................................58
SECTION 6. NEGATIVE COVENANTS.........................................................................58
6.1 Financial Condition Covenants...................................................................58
6.2 Indebtedness....................................................................................59
6.3 Liens ..........................................................................................60
6.4 Fundamental Changes.............................................................................61
6.5 Transactions with Affiliates....................................................................62
6.6 Negative Pledge Clauses.........................................................................62
6.7 Clauses Restricting Subsidiary Distributions....................................................62
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6.8 Amendment of Credit Documentation...............................................................63
6.9 Off-Balance Sheet Financings....................................................................63
6.10 Disposition of Property.........................................................................63
6.11 Investments.....................................................................................64
SECTION 7. EVENTS OF DEFAULT..........................................................................65
SECTION 8. THE AGENTS.................................................................................68
8.1 Appointment.....................................................................................68
8.2 Delegation of Duties............................................................................68
8.3 Exculpatory Provisions..........................................................................69
8.4 Reliance by Administrative Agent................................................................69
8.5 Notice of Default...............................................................................69
8.6 Non-Reliance on Agents and Other Lenders........................................................70
8.7 Indemnification.................................................................................70
8.8 Agent in Its Individual Capacity................................................................71
8.9 Successor Administrative Agent..................................................................71
8.10 Co-Syndication Agents...........................................................................71
SECTION 9. MISCELLANEOUS..............................................................................71
9.1 Amendments and Waivers..........................................................................71
9.2 Notices.........................................................................................72
9.3 No Waiver; Cumulative Remedies..................................................................73
9.4 Survival of Representations and Warranties......................................................74
9.5 Payment of Expenses and Taxes...................................................................74
9.6 Successors and Assigns; Participations and Assignments..........................................75
9.7 Adjustments; Set-off............................................................................78
9.8 Counterparts....................................................................................79
9.9 Severability....................................................................................79
9.10 Integration.....................................................................................79
9.11 GOVERNING LAW...................................................................................79
9.12 Submission To Jurisdiction; Waivers.............................................................80
9.13 Acknowledgements................................................................................80
9.14 Confidentiality.................................................................................80
9.15 WAIVERS OF JURY TRIAL...........................................................................81
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ANNEX:
A Pricing Grid
SCHEDULES:
1.1 Commitments
2.6 Designated Letters of Credit
3.15 Environmental Disclosures
3.19 Subsidiaries
6.2(d) Existing Indebtedness
6.3(f) Existing Liens
6.5 Affiliate Transactions
6.6 Negative Pledge Clauses
6.10 Permitted Dispositions
EXHIBITS:
A Form of Compliance Certificate
B Form of Closing Certificate
C Form of Assignment and Assumption
D Form of Legal Opinion of Buchanan Ingersoll Professional Corporation
E Form of Exemption Certificate
F Form of Competitive Bid Request
G Form of Issuing Lender Agreement
H Form of Guarantee
CREDIT AGREEMENT (this "Agreement"), dated as of June 27,
2002, among KENNAMETAL Inc., a Pennsylvania corporation (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, BANK ONE, NA, FLEET NATIONAL BANK and PNC BANK NATIONAL ASSOCIATION, as
co-syndication agents (in such capacity, the "Co-Syndication Agents"), and
JPMorgan Chase Bank, as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 0.50%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank
as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by JPMorgan
Chase Bank in connection with extensions of credit to debtors). Any change in
the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Applicable Margin": the ABR Applicable Margin shall be
determined pursuant to the Pricing Grid.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Administrative Agent": JPMorgan Chase Bank, together with its
affiliates, as the administrative agent for the Lenders under this Agreement and
the other Loan Documents, together with any of its successors.
"Advisor": J.P. Morgan Securities Inc., in its capacity as
sole advisor.
"Affected Foreign Currency": as defined in Section 2.22(c).
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 15% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
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"Agents": the collective reference to the Co-Syndication
Agents and the Administrative Agent.
"Agreement": as defined in the preamble hereto.
"Agreement Currency": as defined in Section 2.29(b).
"Applicable Creditor": as defined in Section 2.29(b).
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
open a Letter of Credit.
"Approved Fund": as defined in Section 9.6(b)(ii).
"Arranger": J.P. Morgan Securities Inc., in its capacity as
lead arranger and bookrunner.
"Assignee": as defined in Section 9.6(b)(i).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit C.
"Assured Obligation" as defined in the term "Guarantee
Equivalent".
"Attributable Debt": as of any date of determination, the
aggregate amount of the outstanding Investment by third parties in respect of
each Qualified Receivables Transaction.
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Commitment then in
effect over (b) such Lender's Outstanding Committed Extensions of Credit.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower Debt Ratings": the senior unsecured non-credit
enhanced long-term debt rating of the Borrower by Moody's and the senior
unsecured non-credit enhanced long-term corporate credit rating of the Borrower
by S&P respectively.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2, Section 2.3(a) or Section 2.5 as a date on which the
Borrower requests the Lenders to make Revolving Loans, Competitive Loans or
Swingline Loans, as the case may be, hereunder.
"Borrowing Percentage": with respect to Dollar Revolving Loans
to be made by any Lender at any time, the ratio (expressed as a percentage) of
the amount of such Lender's Available Commitment at such time to the aggregate
amount of the Available Commitments of all the Lenders at such time; provided,
that in determining any Lender's Available Commitment for purpose of determining
such Lender's Borrowing Percentage of any such Dollar Revolving
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Loans whose proceeds will be simultaneously applied to repay Swingline Loans or
to pay Reimbursement Obligations, such Lender's Revolving Percentage of the
amount of such Swingline Loans and Reimbursement Obligations will not be
considered Outstanding Committed Extensions of Credit of such Lender (such
Borrowing Percentage of each Lender at any time to be calculated by the
Administrative Agent on the basis of its most recent calculations of the
Available Commitments of the Lenders).
"Business": as defined in Section 3.15(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close; provided, that, when used in connection with a Eurocurrency Revolving
Loan or a Eurocurrency Competitive Loan, the term "Business Day" shall also
exclude any day on which banks are not open for international business
(including dealings in Dollar deposits) in the London interbank market;
provided, further, when used in connection with Eurocurrency Loans denominated
in Euros, the term "Business Day" shall also exclude any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System
(TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is not open for settlement of payment in Euros.
"Calculation Date": with respect to each Foreign Currency, the
fifteenth and last day of each calendar month (or, if such day is not a Business
Day, the next succeeding Business Day) and such other days from time to time as
the Administrative Agent shall designate as a "Calculation Date", provided that
the third Business Day preceding each Borrowing Date with respect to, and each
date of any continuation of, any Multicurrency Loan shall also be a "Calculation
Date" with respect to the relevant Foreign Currency.
"Canadian Dollars": the lawful currency of Canada.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (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, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Collateral Account": as defined in Section 2.17(a).
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurocurrency time deposits or overnight
bank deposits having maturities of six months or less from the date of
3
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by Moody's, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"CLO": as defined in Section 9.6(b)(ii).
"Closing Date": the date on which the conditions precedent set
forth in Section 4.1 shall have been satisfied, which date is June 27, 2002.
"Co-Arrangers": Bank of Tokyo-Mitsubishi Trust Company, Bank
One, NA, Fleet National Bank, KeyBank National Association and PNC Bank National
Association, in their capacities as co-arrangers.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Committed Swingline Lender": JPMorgan Chase Bank, in its
capacity as the maker of Committed Swingline Loans.
"Committed Swingline Loan": as defined in Section 2.4(a).
"Commitment": as to any Lender, the obligation of such Lender,
if any, to make Revolving Loans (which, in the case of Multicurrency Lenders,
includes Multicurrency Loans) and participate in Swingline Loans and Letters of
Credit in an aggregate principal and/or face amount not to exceed the amount set
forth under the heading "Commitment" opposite such Lender's name on Schedule 1.1
or in the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Commitments is $650,000,000.
"Commitment Period": the period from and including the Closing
Date to the Termination Date.
"Commitment Utilization Percentage": on any day the percentage
equivalent to a fraction (a) the numerator of which is the Total Outstanding
Extensions of Credit and (b) the
4
denominator of which is the Total Commitments (or, on any day after termination
of the Total Commitments, the Total Commitments in effect immediately preceding
such termination).
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Competitive Bid": an offer by a Lender to make a Competitive
Loan in accordance with Section 2.3.
"Competitive Bid Rate": with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request": a request substantially in the form
Exhibit F by the Borrower for Competitive Bids in accordance with Section 2.3.
"Competitive Loan": a Loan made pursuant to Section 2.3.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit A.
"Conduit Lender": any special purpose corporation organized
and administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a written
instrument; provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to Section 2.24, 2.25, 2.26 or 9.5 than the
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any
Commitment.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated May 2002, as updated to the Closing Date and
furnished to the Lenders by posting on Intralinks.
"Consolidated Adjusted Interest Expense": for any period, the
interest expense of the Borrower and its consolidated Subsidiaries for such
period (exclusive of nonrecurring fees which the Borrower or its consolidated
Subsidiaries expense as interest expense), all as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Capital Expenditures": for any period, the
expenditures for purchases of property, plant and equipment of the Borrower and
its consolidated Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
5
"Consolidated EBITDA": for any period, (a) the sum for such
period of (i) Consolidated Net Income, (ii) interest expense of the Borrower and
its consolidated Subsidiaries (inclusive of nonrecurring fees which the Borrower
or its consolidated Subsidiaries expense as interest expense), (iii) charges
against income of the Borrower and its consolidated Subsidiaries for foreign,
federal, state and local income taxes, and (iv) depreciation and amortization
expense of the Borrower and its consolidated Subsidiaries, minus (b)
extraordinary gains to the extent included in determining such Consolidated Net
Income, all as determined on a consolidated basis in accordance with GAAP, plus
(c) any other non-cash charges, non-cash expenses or non-cash losses of the
Borrower or any of its consolidated Subsidiaries; provided, however, that cash
payments made in such period or in any future period in respect of such non-cash
charges, expenses or losses shall be subtracted from Consolidated Net Income in
calculating Consolidated EBITDA in the period when such payments are made.
"Consolidated Fixed Charge Coverage Ratio": as of the last day
of any fiscal quarter, (a) Consolidated EBITDA minus Consolidated Capital
Expenditures, divided by (b) Consolidated Adjusted Interest Expense, in each
case for the four fiscal quarters ending on such day, considered as a single
accounting period and expressed as a ratio. If any acquisition of a business
occurs during such period, each element of the Consolidated Fixed Charge
Coverage Ratio shall be calculated on a pro forma basis as if the acquisition
had been made, and any Indebtedness or other obligations issued or incurred in
connection therewith had been issued or incurred, as of the first day of such
period. In making such pro forma calculation of the Consolidated Adjusted
Interest Expense with respect to Indebtedness or other obligations issued or
incurred in connection with the acquisition, interest expense thereon shall be
calculated on the basis of an interest rate per annum not less than the
one-month Eurocurrency Rate as of the last day of such period plus an Applicable
Margin determined on the basis of the Borrower Debt Ratings as of the last day
of such period. If the Borrower issues capital stock for cash during such period
and promptly applies the net proceeds thereof to permanent reduction of
Indebtedness of the Borrower or its consolidated Subsidiaries, Consolidated
Adjusted Interest Expense for such period shall be calculated on a pro forma
basis as if such permanent reduction of Indebtedness had been made as of the
first day of such period.
"Consolidated Leverage Ratio": as of the last day of any
fiscal quarter, (a) aggregate Indebtedness of the Borrower and its consolidated
Subsidiaries as of such day, divided by (b) Consolidated EBITDA for the four
fiscal quarters ending on such day, considered as a single accounting period and
expressed as a ratio. If any acquisition of a business occurs during such
period, Consolidated EBITDA shall be calculated on a pro forma basis as if such
acquisition had been made as of the first day of such period.
"Consolidated Net Income": for any period, the net earnings
(or loss) after taxes of the Borrower and its consolidated Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth": at any time, the total amount of
shareholders' equity of the Borrower and its consolidated Subsidiaries at such
time, determined on a consolidated basis in accordance with GAAP; provided, that
each item of the following types shall be deducted, to the extent such item is
positive and is otherwise included therein: (a) any write-ups or other
revaluation after the Closing Date in the book value of any asset owned by the
Borrower
6
or any of its consolidated Subsidiaries (other than (i) write-ups resulting from
the acquisition of assets of a business made within one year after such
acquisition and accounted for by purchase accounting, (ii) write-ups resulting
from the valuation in the ordinary course of business of investment securities
and inventory at the lower of cost or market, (iii) foreign currency translation
adjustments, (iv) adjustments to minimum pension liability and (v) accounting
for derivative financial instruments), (b) all investments in and loans and
advances to (x) unconsolidated Subsidiaries of the Borrower, and (y) Persons
that are not Subsidiaries of the Borrower (other than temporary cash equivalent
investments), (c) treasury stock and (d) Disqualified Capital Stock of the
Borrower or of any Subsidiary of the Borrower.
"Consolidated Tangible Assets": at any date, the total amount
of assets of the Borrower and its consolidated Subsidiaries at such date, as
determined on a consolidated basis in accordance with GAAP (less applicable
reserves and other properly deductible items) after deducting therefrom all
goodwill, trade names, trademarks, patents, unamortized debt premium or discount
and expense and other like intangible assets, determined in accordance with
GAAP.
"Continuing Directors": the directors of the Borrower on the
Closing Date, after giving effect to the transactions contemplated hereby, and
each other director, if, in each case, such other director's nomination for
election to the board of directors of the Borrower is recommended by at least
50% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Co-Syndication Agents": as defined in the preamble hereto.
"Deemed Guarantor": as defined in the term "Guarantee
Equivalent".
"Deemed Obligor": as defined in the term "Guarantee
Equivalent".
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Designated Letter of Credit": each letter of credit issued by
an Issuing Lender under either of the Existing Credit Agreements or otherwise
that is designated on the Closing Date by the Borrower, with the consent of such
Issuing Lender, as a "Letter of Credit" hereunder in such Issuing Lender's
Issuing Lender Agreement and in Schedule 2.6.
"Disqualified Capital Stock": any shares of capital stock or
other equity interest that, other than solely at the option of the issuer
thereof, by their terms (or by the terms of any security into which they are
convertible or exchangeable) are, or upon the happening of an event or the
passage of time would be, required to be redeemed or repurchased, in whole or in
part, or have, or upon the happening of an event or the passage of time would
have, a redemption or similar payment due on or prior to the Termination Date.
"Disqualified Indebtedness": any Indebtedness that, other than
solely at the option of the issuer thereof, by its terms (or by the terms of any
security, instrument or
7
obligations into which it is convertible or exchangeable), (i) matures in whole
or in part prior to the Termination Date, (ii) is (or upon the happening of an
event or the passage of time would be) required to be redeemed or repurchased,
in whole or in part, on or prior to the Termination Date, or (iii) has (or upon
the happening of an event or the passage of time would have) a redemption or
similar payment, in whole or in part, due on or prior to the Termination Date.
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollar Equivalent": at any time as to any amount denominated
in a Foreign Currency, the equivalent amount in Dollars as determined by the
Administrative Agent at such time on the basis of the Exchange Rate for the
purchase of Dollars with such Foreign Currency on the most recent Calculation
Date for such Foreign Currency.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Dollar Revolving Loans": as defined in Section 2.1(a).
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Applicable Margin": the Eurocurrency Applicable
Margin will be determined pursuant to the Pricing Grid.
"Eurocurrency Base Rate": with respect to an Interest Period
pertaining to any Eurocurrency Loan, the rate of interest determined on the
basis of the rate for deposits in Dollars or the relevant Foreign Currency, as
the case may be, for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Telerate Screen
as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on such page of the
Telerate Screen (or otherwise on the Telerate Service), the "Eurocurrency Base
Rate" shall instead be the interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the average of the rates at which
deposits in Dollars or the relevant Foreign Currency, as the case may be,
approximately equal in principal amount to (i) in the case of a Eurocurrency
Tranche, the portion of such Eurocurrency Tranche of the Lender serving as
Administrative Agent and (ii) in the case of Eurodollar Competitive Loans,
$5,000,000, and, in each case, for a maturity comparable to such Interest
Period, are offered by the principal London office of JPMorgan Chase Bank for
8
immediately available funds in the London interbank market at approximately
11:00 A.M., London time, two Business Days prior to the commencement of such
Interest Period.
"Eurocurrency Loans": Loans the rate of interest applicable to
which is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
--------------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurocurrency Revolving Loan": any Revolving Loan which is a
Eurocurrency Loan.
"Eurocurrency Tranche": the collective reference to
Eurocurrency Loans denominated in the same currency made by the Lenders to the
Borrower, the then current Interest Periods with respect to all of which begin
on the same date and end on the same later date (whether or not such
Eurocurrency Loans shall originally have been made on the same day).
"Eurodollar Competitive Loan": any Competitive Loan bearing
interest at a rate determined by reference to the Eurocurrency Base Rate.
"Euros": the single currency of participating member states of
the European Monetary Union introduced in accordance with the provisions of
Article 109(1)4 of the Treaty of Rome of March 25, 1957 (as amended by the
Single European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992 and came into force on November 1, 1993) as
amended from time to time) and as referred to in legislative measures of the
European Union for the introduction of, changeover to or operating of the euro
in one or more member states.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Utilization Day": each day on which the Commitment
Utilization Percentage exceeds 33 1/3%.
"Exchange Rate": on any day, with respect to any currency, the
rate at which such currency may be exchanged into any other currency, as set
forth at approximately 11:00
9
A.M., London time, on such date on the Reuters World Currency Page for such
currency. In the event that such rate does not appear on any Reuters World
Currency Page, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be selected by
the Administrative Agent, or, in the event no such service is selected, such
Exchange Rate shall instead be the arithmetic average of the spot rates of
exchange of the Administrative Agent in the market where its foreign currency
exchange operations in respect of such currency are then being conducted, at or
about 10:00 A.M., local time, on such date for the purchase of the relevant
currency for delivery two Business Days later; provided that if at the time of
any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent, after consultation with the Borrower, may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error; provided,
further, that in any event, the Administrative Agent shall provide the Borrower
with reasonable details of the source for such rate.
"Exemption Certificate": a certificate substantially in the
form of Exhibit E.
"Existing Credit Agreements": the collective reference to (i)
the Credit Agreement, dated as of November 17, 1997, as amended, among the
Borrower, as the borrower, the lenders from time to time parties thereto,
BankBoston, N.A., Deutsche Bank AG, New York Branch and/or Cayman Islands
Branch, and PNC Bank, National Association, as the syndication agents, and
Mellon Bank, N.A., as administrative agent, and (ii) the Credit Agreement, dated
as of December 20, 2000, among the Borrower, as the borrower, the lenders from
time to time parties thereto, and Deutsche Bank AG, New York Branch, as
administrative agent.
"Facility Fee Rate": the Facility Fee Rate will be determined
pursuant to the Pricing Grid.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by JPMorgan Chase Bank
from three federal funds brokers of recognized standing selected by it.
"Fixed Rate": with respect to any Competitive Loan (other than
a Eurodollar Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan": a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Currency": Euros, Canadian Dollars, Sterling and Yen.
"Foreign Currency Equivalent": at any time as to any amount
denominated in Dollars, the equivalent amount in the relevant Foreign Currency
as determined by the Administrative Agent at such time on the basis of the
Exchange Rate for the purchase of such Foreign Currency with Dollars on the date
of determination thereof.
10
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Funding Office": the office or offices of the Administrative
Agent specified in Section 9.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by written notice
to the Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 3.1, except for the adoption
of SFAS 142.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members": the collective reference to the Borrower and
its Subsidiaries.
"Guarantee": the Guarantee, dated as of June 27, 2002, by each
Subsidiary Guarantor in favor of the Administrative Agent for the benefit of the
Lenders, substantially in the form of Exhibit H.
"Guarantee Equivalent": a Person (the "Deemed Guarantor")
shall be deemed to be subject to a Guarantee Equivalent in respect of any
obligation (the "Assured Obligation") of another Person (the "Deemed Obligor")
if the Deemed Guarantor directly or indirectly guarantees, becomes surety for,
endorses, assumes, agrees to indemnify the Deemed Obligor against, or otherwise
agrees, becomes or remains liable (contingently or otherwise) for, such Assured
Obligation, in whole or in part. Without limitation, a Guarantee Equivalent
shall be deemed to exist if a Deemed Guarantor enters into, agrees, becomes or
remains liable (contingently or otherwise), directly or indirectly, to do any of
the following: (a) purchase or assume, or to supply funds for the payment,
purchase or satisfaction of, an Assured Obligation, (b) make any loan, advance,
capital contribution or other investment in, or to purchase or lease any
property or services from, a Deemed Obligor (i) to maintain the solvency of the
Deemed Obligor, (ii) to enable the Deemed Obligor to meet any other financial
condition, (iii) to enable the Deemed Obligor to satisfy any Assured Obligation
or to make any Stock Payment or any other payment, or (iv) to assure the holder
of such Assured Obligation against loss, (c) purchase or lease property or
services from the Deemed Obligor regardless of the non-delivery of or failure to
furnish of such property or services, (d) a transaction having the
characteristics of a take-or-pay or throughput contract, (e) be or become
liable, contingently or otherwise, to reimburse a third party in respect of a
letter of credit, surety bond or other form of credit support issued for the
account of the Deemed Obligor, which letter of credit, surety bond or other
credit support is used or available for use to supply funds for the satisfaction
of an Assured Obligation, or (f) any other transaction the effect of which is to
assure the payment or performance (or payment of damages or other remedy in the
event of nonpayment or nonperformance) in whole
11
or in part of any Assured Obligation; provided, however, that the term Guarantee
Equivalent shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Equivalent of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Equivalent is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Equivalent, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Equivalent
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Immaterial Subsidiary": any Subsidiary that has assets with a
total book value and fair market value of less than $10,000,000.
"Indebtedness": of a Person (without duplication): (a) all
obligations on account of money borrowed by, or for or on account of deposits
with or advances to, such Person, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person for the deferred purchase price of property or services (except trade
accounts payable arising in the ordinary course of business), (d) all
obligations secured by a Lien on property owned by such Person (whether or not
assumed, and without regard to any limitation of the rights and remedies of the
holder of such Lien to repossession or sale of such property), (e) all
obligations of such Person under leases which are, or which should in accordance
with GAAP be accounted for as, Capital Lease Obligations (without regard to any
limitation of the rights and remedies of the lessor under such capitalized lease
to repossession or sale of such property), (f) the unreimbursed amount of all
drawings under any letter of credit issued for the account of such Person, (g)
all obligations of such Person in respect of acceptances or similar obligations
issued for the account of such Person, (h) the maximum repurchase price of any
Disqualified Capital Stock of such Person, and (i) all Indebtedness of others of
as to which such Person is the Deemed Guarantor under a Guarantee Equivalent.
"Indemnitee": as defined in Section 9.5(d).
"Indemnified Liabilities": as defined in Section 9.5(d).
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, domain names, technology, know-how and processes, and all
12
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurocurrency Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such
Interest Period, (d) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the borrowing of which such Loan is a part and, in
the case of a Fixed Rate Loan with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such borrowing, (e) with respect to any Swingline
Loan, the date established as such by the Borrower and the relevant Swingline
Lender, as the case may be, prior to the making thereof (but in any event no
later than the Termination Date) and (f) as to any Loan (other than any
Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any
repayment or prepayment made in respect thereof.
"Interest Period": (a) as to any Eurocurrency Loan, (i)
initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurocurrency Loan and ending one, two or three
weeks or one, two, three or six months thereafter, as selected by the Borrower
in its notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurocurrency Loan
and ending one, two or three weeks or one, two, three or six months thereafter,
as selected by the Borrower by irrevocable notice to the Administrative Agent
not later than 11:00 A.M., New York City time, in the case of Revolving Loans
denominated in Dollars, and 3:00 P.M., London time, in the case of Multicurrency
Loans, three Business Days prior to the last day of the then current Interest
Period with respect thereto and (b) with respect to any Fixed Rate Borrowing,
the period (which shall not be less than 7 days or more than 360 days)
commencing on the date of such Borrowing and ending on the date specified in the
applicable Competitive Bid Request; provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period that would
extend beyond the Termination Date; and
(iii) any Interest Period that 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
13
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Investment Grade Rating Condition": the Borrower shall be
deemed to have satisfied this requirement on a particular day if and only if, on
such day, the Borrower Debt Rating is rated BBB- or higher by S&P and Baa3 or
higher by Moody's (or in each case, a comparable rating from a generally
recognized successor to such rating agency).
"Investments": as defined in Section 6.11.
"Issuing Lender": any Lender designated as an Issuing Lender
in an Issuing Lender Agreement executed by such Lender, the Borrower and the
Administrative Agent; provided, that the Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by any of its Lender
Affiliates (in which case the term "Issuing Lender" shall include such Lender
Affiliate with respect to Letters of Credit issued by such Lender Affiliate).
"Issuing Lender Agreement": an agreement, substantially in the
form of Exhibit G, executed by a Lender, the Borrower, and the Administrative
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder.
"Judgment Currency": as defined in Section 2.29(b).
"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": (a) the third Business Day following
the last day of each March, June, September and December and (b) the last day of
the Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit (including the Dollar Equivalent of Letters of Credit issued
in Foreign Currencies) and (b) the aggregate amount of drawings under Letters of
Credit (including the Dollar Equivalent of drawings in Foreign Currencies which
have not been converted to Dollars) that have not then been reimbursed pursuant
to Section 2.9.
"L/C Participants": the collective reference to all the
Lenders other than the relevant Issuing Lender.
"Lender Affiliate": (a) any Affiliate of any Lender, (b) any
Person that is administered or managed by any Lender or any Affiliate of any
Lender and that is engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary course of
its business and (c) with respect to any Lender which is a fund that invests in
commercial loans and similar extensions of credit, any other fund that invests
in commercial loans and similar extensions of credit and is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such Lender
or investment advisor.
"Lenders": as defined in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.
14
"Letters of Credit": as defined in Section 2.6(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest 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
substantially the same economic effect as any of the foregoing). For the
avoidance of doubt, "Liens" shall not include provisions in agreements governing
Indebtedness permitted under Section 6.2(h) of Foreign Subsidiaries (or of
Domestic Subsidiaries relating to borrowings by foreign divisions thereof), and
in guaranties of such Indebtedness by the Borrower or its Subsidiaries permitted
under this Agreement, whereby the Borrower or a Subsidiary (i) has agreed, upon
demand by the lender of such Indebtedness, either to grant Liens on its property
to secure such Indebtedness or guaranty or to pay or cause to be paid such
Indebtedness, or (ii) has granted Liens on property in the possession of the
lender of such Indebtedness from time to time to secure such Indebtedness or
guaranty; provided, that the Borrower or any Subsidiary (x) may not actually
grant any Lien pursuant to the foregoing clause (i) or (y) may not actually
permit any Lien to attach to any property described in the foregoing clause
(ii), except, under the foregoing clause (ii), freely transferable deposits
maintained with such lender and other cash equivalent items deposited with such
lender in the ordinary course of the Borrower's or such Subsidiary's cash
management operations and not for the purpose of securing obligations owed to
such lender.
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Guarantee and the Notes.
"Loan Parties": each Group Member that is a party to a Loan
Document.
"Margin": with respect to any Competitive Loan bearing
interest at a rate based on the Eurodollar Base Rate, the marginal rate of
interest, if any, to be added to or subtracted from the Eurodollar Base Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"Material Adverse Effect": a material adverse effect on (a)
the business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder. It is hereby understood that the contemplated charge to be recorded
in the fiscal quarter ending June 30, 2002 in the amount of approximately
$250,000,000 relating to the implementation of SFAS 142, which was previously
disclosed by the Borrower to the Administrative Agent and the Lenders, shall
not, in and of itself, constitute a Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
15
"Multicurrency Percentage": as to any Multicurrency Lender at
any time, the percentage which such Lender's Multicurrency Subcommitment then
constitutes of the aggregate amount of Multicurrency Subcommitments.
"Multicurrency Lender": each Lender with a Multicurrency
Subcommitment.
"Multicurrency Loans": as defined in Section 2.1(b).
"Multicurrency Subcommitment": as to any Lender, the
obligation of such Lender, if any, to make Multicurrency Loans in an aggregate
principal amount not to exceed the amount set forth under the heading
"Multicurrency Subcommitment" opposite such Lender's name on Schedule 1.1 or in
the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the Multicurrency Subcommitments is
$400,000,000.
"Multicurrency Sublimit": $400,000,000.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Non-Guarantor Investments": at any time, the aggregate
amount of Investments (other than the Widia Acquisition) and Restricted Payments
made by the Borrower and the Subsidiary Guarantors after the Closing Date in or
to any Non-Guarantor Subsidiary pursuant to Sections 6.11(d), (e) and (f)
(including, without limitation, Investments which result in the acquisition or
creation of a Non-Guarantor Subsidiary or the acquisition of any Capital Stock
of any Person incorporated or formed under the laws of any jurisdiction (other
than the United States of America or any State thereof)) or which is not a
Subsidiary Guarantor minus the aggregate amount of Investments and Restricted
Payments made by Non-Guarantor Subsidiaries after the Closing Date in or to the
Borrower or any Subsidiary Guarantor pursuant to Sections 6.11(d), (e) and (f).
"New York Process Agent": as defined in Section 9.12(b).
"Non-Excluded Taxes": as defined in Section 2.25(a).
"Non-Guarantor Subsidiary": any Subsidiary that is not a
Subsidiary Guarantor.
"Non-U.S. Lender": as defined in Section 2.25(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": with respect to the Borrower, the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans and Reimbursement Obligations and 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)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender (or, in the case of Specified Hedge
Agreements, any affiliate of any Lender), whether direct or indirect,
16
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement,
any other Loan Document, the Letters of Credit, any Specified Hedge Agreement or
any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all reasonable fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": 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.
"Outstanding Committed Extensions of Credit": as to any Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans (or the Dollar Equivalent thereof in the case of
Multicurrency Loans) held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding, and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Committed
Swingline Loans then outstanding.
"Participant": as defined in Section 9.6(c)(i).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Liens: as defined in Section 6.3.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
17
"Pricing Grid": the table set forth below:
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Level I Level II Level III Level IV Level V
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Based upon the Borrower Debt Ratings Baa1 by Moody's and Baa2 by Moody's Baa3 by Moody's Ba1 by Moody's Ba2 by Moody's
(shown in basis points): BBB+ by S&P or and BBB by S&P and BBB- by S&P and BB+ by S&P and BB by S&P
better or less
- -----------------------------------------------------------------------------------------------------------------------------------
Facility Fee Rate 15.0 20.0 22.5 30.0 35.0
- -----------------------------------------------------------------------------------------------------------------------------------
Eurocurrency Applicable Margin 60.0 80.0 102.5 145.0 165.0
- -----------------------------------------------------------------------------------------------------------------------------------
Utilization Fee Rate 12.5 12.5 25.0 25.0 25.0
- -----------------------------------------------------------------------------------------------------------------------------------
ABR Applicable Margin 0.0 0.0 2.5 45.0 65.0
- -----------------------------------------------------------------------------------------------------------------------------------
Standby Letter of Credit Fee Rate 60.0 80.0 102.5 145.0 165.0
- -----------------------------------------------------------------------------------------------------------------------------------
Trade Letter of Credit Fee Rate 30.0 40.0 51.25 72.5 82.5
- -----------------------------------------------------------------------------------------------------------------------------------
For purposes of the foregoing, if (a) the Borrower Debt
Ratings fall within different consecutive Levels, the lower-numbered Level shall
apply (e.g., if the Borrower were to be rated Baa2 by Moody's and BBB- by S&P,
Level II pricing would apply), (b) the Borrower Debt Ratings fall within
different Levels, and the higher numbered Level is more than one numbered Level
higher than the lower numbered Level, then the next higher numbered Level from
that of the lower numbered Level shall apply (e.g., if the Borrower were to be
rated Baa1 by Moody's and BB+ by S&P, Level II pricing would apply), (c) the
Borrower Debt Rating of only one of the Moody's and S&P is available, then the
Level determined by Moody's or S&P, as available, shall apply and (d) a Borrower
Debt Rating is available from neither of Moody's or S&P, then Level V shall
apply.
"Properties": as defined in Section 3.15(a).
"Qualified Receivables Transaction": any transaction or series
of transactions that may be entered into by the Borrower or any of its
Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Borrower or any of its Subsidiaries) or (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Borrower or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, the proceeds of such receivables and other assets
which are customarily transferred, or in respect of which security interests are
customarily granted, in connection with asset securitization involving accounts
receivable.
18
"Quoted Rate Swingline Lender": with respect to Quoted
Swingline Loans, any Lender designated from time to time by the Borrower, and
approved by such Lender, as a "Quoted Rate Swingline Lender".
"Quoted Swingline Loans": as defined in Section 2.4(a).
"Quoted Swingline Rate": as defined in Section 2.4(a).
"Recapture Indebtedness": as defined in Section 6.2(g).
"Receivables Entity": a Wholly Owned Subsidiary of the
Borrower (or another Person in which the Borrower or any Subsidiary makes an
Investment pursuant to Section 6.11(h) and to which the Borrower or any
Subsidiary transfers accounts receivable and related assets pursuant to a
Qualified Receivables Transaction) which engages in no activities other than in
connection with the financing of accounts receivable and whose assets consist
solely of receivables and related assets transferred to such entity in
connection with a Qualified Receivables Transaction:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Borrower or any Subsidiary
(excluding guarantees of obligations (other than the principal
of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
(ii) is recourse to or obligates the Borrower or any
Subsidiary in any way other than pursuant to Standard
Securitization Undertakings; or
(iii) subjects any property or asset of the Borrower
or any Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(b) with which neither the Borrower nor any Subsidiary has any
material contact, agreement, arrangement or understanding (except in
connection with a Qualified Receivables Transaction) other than on
terms no less favorable to the Borrower or such Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates
of the Borrower, other than fees payable in the ordinary course of
business in connection with servicing accounts receivable; and
(c) to which neither the Borrower nor any Subsidiary has any
obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results
(except pursuant to Standard Securitization Undertakings).
Any designation by the Borrower of a Wholly Owned Subsidiary
as a Receivables Entity shall be evidenced to the Administrative Agent by filing
with the Administrative Agent a
19
certificate from a Responsible Officer of the Borrower certifying that such
designation complied with the foregoing conditions.
"Refunded Swingline Loans": as defined in Section 2.4(c).
"Refunding Date": as defined in Section 2.4(d).
"Register": as defined in Section 9.6(b)(iv).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the relevant Issuing Lender pursuant to Section 2.9 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. Section 4043.
"Requested Multicurrency Loans": as defined in Section
2.31(a).
"Required Lenders": at any time, the holders of more than 50%
of the Total Commitments then in effect or, if the Commitments have been
terminated, the Total Outstanding Extensions of Credit.
"Required Multicurrency Lenders": at any time, the holders of
more than 50% of the Multicurrency Subcommitments then in effect.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other 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.
"Reset Date": as defined in Section 2.30.
"Responsible Officer": the chief executive officer, president,
chief financial officer, treasurer or controller of the Borrower, but in any
event, with respect to financial matters, the chief financial officer, treasurer
or controller of the Borrower.
"Restricted Payments": the declaration or payment of any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or the making of any payment on account of, or the
setting apart of assets for a sinking or other analogous fund for, or the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Group Member, whether now or hereafter outstanding, or the
making of
20
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Group Member
"Revolving Loans": the collective reference to Dollar
Revolving Loans and Multicurrency Loans.
"Revolving Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the Total
Commitments or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's
Outstanding Committed Extensions of Credit then outstanding constitutes of the
aggregate Outstanding Committed Extensions of Credit.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"SFAS 142": FASB statement of Financial Accounting Standards
No. 142 "Goodwill and Other Intangible Assets".
"Significant Subsidiary": any Subsidiary of the Borrower (a)
which, together with its Subsidiaries (determined on a consolidated basis), has
assets with a book value greater than or equal to $75,000,000 (or, if less,
commencing with the first fiscal quarter ending after the Closing Date, 5% of
the total assets of the Borrower and its Subsidiaries (determined on a
consolidated basis) as of the end of the most recently completed fiscal quarter
for which financial information is available), determined in accordance with
GAAP (b) which, together with its Subsidiaries (determined on a consolidated
basis), has net outside sales greater than or equal to $75,000,000 (or, if less,
commencing with the first fiscal quarter after the Closing Date, 5% of the net
outside sales of the Borrower and its Subsidiaries (determined on a consolidated
basis) for the most recent four fiscal quarters for which financial information
is available), determined in accordance with GAAP or (c) designated by the
Borrower as a Significant Subsidiary by written notice to the Administrative
Agent. As used in the foregoing definition, "net outside sales" means gross
sales to Persons other than the Borrower and its consolidated Subsidiaries, net
of cash discounts, customer returns and allowances.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they
21
mature. For purposes of this definition, (i) "debt" means liability on a
"claim", and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Specified Hedge Agreement": any Hedge Agreement entered into
by the Borrower and any Lender or Lender Affiliate.
"Standard Securitization Undertakings": representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary which are reasonably customary in securitization of accounts
receivables transactions (it being understood that in no event shall Standard
Securitization Undertakings include any Guarantee Equivalents in respect of
principal or interest on the financing for any Qualified Receivables
Transaction).
"Standby Letter of Credit": a standby letter of credit issued
to support obligations of the Borrower or its Subsidiaries, contingent or
otherwise.
"Standby Letter of Credit Fee Rate": the Standby Letter of
Credit Fee Rate shall be determined pursuant to the Pricing Grid.
"Sterling": British Pounds Sterling, the lawful currency of
the United Kingdom.
"Stock Payment": by any Person, any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock or other equity
interests (or warrants, options or rights therefor) of such Person, including
but not limited to any payment on account of the purchase, redemption,
retirement, defeasance or acquisition of any shares of the capital stock or
other equity interests (or warrants, options or rights therefor) of such Person,
in each case regardless of whether required by the terms of such capital stock
or other equity interest (or warrants, options or rights) or any other agreement
or instrument.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Significant Subsidiary of the
Borrower which is a Domestic Subsidiary.
22
"Swingline Commitment": the obligation of the Committed
Swingline Lender to make Committed Swingline Loans pursuant to Section 2.4 in an
aggregate principal amount at any one time outstanding not to exceed
$25,000,000.
"Swingline Exposure": at any time, the sum of the aggregate
outstanding principal amount of Committed Swingline Loans at such time. The
Swingline Exposure of any Lender at any time shall mean its Revolving Percentage
of the Swingline Exposure at such time.
"Swingline Lenders": the collective reference to the Committed
Swingline Lender and the Quoted Rate Swingline Lenders (each, a "Swingline
Lender").
"Swingline Loans": the collective reference to the Committed
Swingline Loans and the Quoted Swingline Loans.
"Swingline Participation Amount": as defined in Section
2.5(d).
"Termination Date": June 27, 2005.
"Total Commitments": at any time, the aggregate amount of the
Commitments then in effect.
"Total Outstanding Extensions of Credit": at any time, the sum
of (a) the aggregate amount of the Outstanding Committed Extensions of Credit of
the Lenders outstanding at such time plus (b) the aggregate outstanding
principal amount of any Quoted Swingline Loans and (c) the aggregate principal
amount of all Competitive Loans then outstanding.
"Trade Letter of Credit": a trade letter of credit issued to
provide a primary means of payment in respect of the purchase of goods or
services by the Borrower or its Subsidiaries in the ordinary course of business.
"Trade Letter of Credit Fee Rate": the Trade Letter of Credit
Fee Rate shall be determined pursuant to the Pricing Grid.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurocurrency Loan.
"United States": the United States of America.
"U.S. Person": a citizen, national or resident of the United
States of America, or an entity organized in or under the laws of the United
States of America.
"Utilization Fee": as defined in Section 2.14(b).
"Utilization Fee Rate": the Utilization Fee Rate will be
determined pursuant to the Pricing Grid.
"Widia": the European and Indian metalworking divisions of
Milacron Inc.
23
"Widia Acquisition": the acquisition by the Borrower of Widia
for approximately E 188 million.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
"Yen": the lawful currency of Japan.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) 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, Capital Stock, securities, accounts receivable, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.3 Currency Conversion. (a) If more than one currency or
currency unit are at the same time recognized by the central bank of any country
as the lawful currency of that country, then (i) any reference in the Loan
Documents to, and any obligations arising under the Loan Documents in, the
currency of that country shall be translated into or paid in the currency or
currency unit of that country designated by the Administrative Agent and (ii)
any translation from one currency or currency unit to another shall be at the
official rate of exchange recognized by the central bank for conversion of that
currency or currency unit into the other, rounded up or down by the
Administrative Agent as it deems appropriate.
24
(b) If a change in any currency of a country occurs, this
Agreement shall be amended (and each party hereto agrees to enter into any
supplemental agreement necessary to effect any such amendment) to the extent
that the Administrative Agent determines such amendment to be necessary to
reflect the change in currency and to put the Lenders in the same position, so
far as possible, that they would have been in if no change in currency had
occurred.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans denominated
in Dollars ("Dollar Revolving Loans") to the Borrower from time to time during
the Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Revolving Percentage of the
Outstanding Committed Extensions of Credit, shall not exceed such Lender's
Commitment. The Borrower shall not request and no Lender shall be required to
make any Dollar Revolving Loan if, after making such Dollar Revolving Loan, the
Total Outstanding Extensions of Credit shall exceed the Total Commitments then
in effect. During the Commitment Period, the Borrower may use the Commitments by
borrowing, prepaying and reborrowing the Dollar Revolving Loans in whole or in
part, all in accordance with the terms and conditions hereof. The failure of any
Lender to make any Dollar Revolving Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Dollar Revolving Loans as required. The
Dollar Revolving Loans may from time to time be Eurocurrency Loans or ABR Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2(a) and 2.18.
(b) The Borrower shall repay all outstanding Dollar Revolving
Loans borrowed by it on the earlier of the Termination Date and the date on
which the Dollar Revolving Loans shall become due and payable in accordance with
Section 7.
(c) Subject to the terms and conditions hereof (including,
without limitation, Section 2.31), each Multicurrency Lender severally agrees,
from time to time during the Commitment Period, to make revolving credit loans
denominated in one or more Foreign Currencies ("Multicurrency Loans") to the
Borrower in an aggregate principal amount (based on the Dollar Equivalent of
such Multicurrency Loans) at any one time outstanding which (a) shall not exceed
such Multicurrency Lender's Multicurrency Subcommitment and (b) when added to
such Lender's Revolving Percentage of the Outstanding Committed Extensions of
Credit, shall not exceed such Lender's Commitment. The Borrower shall not
request and no Multicurrency Lender shall be required to make any Multicurrency
Loan if, after making such Multicurrency Loan (i) the Total Outstanding
Extensions of Credit shall exceed the Total Commitments then in effect or (ii)
the Dollar Equivalent of the aggregate outstanding Multicurrency Loans shall
exceed the Multicurrency Sublimit. During the Commitment Period, the Borrower
may borrow, prepay and reborrow Multicurrency Loans, in whole or in part, all in
accordance with the terms and conditions hereof. All Multicurrency Loans shall
be Eurocurrency Loans.
(d) The Borrower shall repay all outstanding Multicurrency
Loans borrowed by it on the earlier of the Termination Date and the date on
which the Multicurrency Loans shall become due and payable in accordance with
Section 7.
25
2.2 Procedure for Revolving Loan Borrowing. (a) The
Borrower may borrow Dollar Revolving Loans under the Commitments during the
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent (a) prior to 11:00 A.M., New York City time, three Business
Days prior to the requested Borrowing Date, in the case of Eurocurrency Loans or
(b) prior to 11:00 A.M., New York City time, on the requested Borrowing Date, in
the case of ABR Loans), specifying (i) the amount and Type of Dollar Revolving
Loans to be borrowed, (ii) the requested Borrowing Date, and (iii) in the case
of Eurocurrency Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Any Dollar Revolving
Loans made on the Closing Date shall initially be ABR Loans. Each borrowing of
Dollar Revolving Loans under the Commitments shall be in an amount equal to (x)
in the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans,
$3,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
aggregate Available Commitments are less than $1,000,000, such lesser amount);
provided, that the Committed Swingline Lender and the Quoted Rate Swingline
Lenders may request, on behalf of the Borrower, borrowings under the Commitments
that are ABR Loans in other amounts pursuant to Section 2.5. Upon receipt of any
such notice from the Borrower, the Administrative Agent shall promptly notify
each Lender thereof. Subject to Section 2.31, each Lender will make the amount
of its pro rata share of each borrowing of Dollar Revolving Loans available to
the Administrative Agent for the account of the Borrower at the Funding Office
prior to 12:00 Noon, New York City time on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Subject to
Section 2.31, such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available in Dollars to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent or by wire transfer of such amounts to an account
designated in writing by the Borrower to the Administrative Agent in connection
with the relevant borrowing.
(b) The Borrower may borrow Multicurrency Loans under the
Multicurrency Subcommitments during the Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 3:00
P.M., London time, three Business Days prior to the requested Borrowing Date),
specifying (i) the requested Borrowing Date, (ii) the respective amounts of each
Multicurrency Loan in each Foreign Currency and (iii) the respective lengths of
the initial Interest Period therefor. Each borrowing under the Multicurrency
Subcommitments shall be in an amount equal to (w) in the case of Multicurrency
Loans denominated in Sterling, L1,000,000 or a whole multiple of L100,000 in
excess thereof, (x) in the case of Multicurrency Loans denominated in Euros,
E1,000,000 or a whole multiple of E100,000 in excess thereof, (y) in the case of
Multicurrency Loans denominated in Canadian Dollars, C1,000,000 or a whole
multiple of C100,000 in excess thereof and (z) in the case of Multicurrency
Loans denominated in Yen, Y100,000,000 or a whole multiple of Y10,000,000 in
excess thereof. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Multicurrency Lender thereof.
Each Multicurrency Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 12:00 Noon, London time, in each case, on the
Borrowing Date
26
requested by the Borrower in funds immediately available in the relevant Foreign
Currency to the Administrative Agent. Such borrowing will then be made available
to the Borrower by the Administrative Agent crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Multicurrency Lenders and in like
funds as received by the Administrative Agent or by wire transfer of such
amounts to an account designated in writing by the Borrower to the
Administrative Agent in connection with the relevant borrowing.
2.3 Competitive Bid Procedure(a) . (a) Subject to the terms
and conditions set forth herein, from time to time during the Commitment Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans in Dollars;
provided that, after making such Competitive Loans, the Total Outstanding
Extensions of Credit shall not exceed the Total Commitments then in effect. To
request Competitive Bids, the Borrower shall notify the Administrative Agent of
such request by telephone, in the case of a Eurodollar Competitive Loan, not
later than 11:00 A.M., New York City time, five Business Days before the date of
the proposed borrowing and, in the case of a Fixed Rate Loan, not later than
10:00 A.M., New York City time, one Business Day before the date of the proposed
borrowing; provided that the Borrower may only submit one Competitive Bid
Request on any day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information:
(i) the aggregate amount of the requested borrowing;
(ii) the Borrowing Date, which shall be a Business Day;
(iii) whether such borrowing is to be a Eurodollar Competitive
Loan or a Fixed Rate Loan;
(iv) the Interest Period to be applicable to such borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section 2.3, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Loan, not later than 9:30
A.M., New York City time, four Business Days before the proposed date of such
27
borrowing of a Competitive Loan, and in the case of a Fixed Rate Loan, not later
than 9:30 A.M., New York City time, on the date of such borrowing of such Fixed
Rate Loan. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender and the
Borrower as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $10,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Loan requested by the Borrower) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Loan, not
later than 10:30 A.M., New York City time, three Business Days before the date
of the proposed borrowing of such Eurodollar Competitive Loan, and in the case
of a Fixed Rate Loan, not later than 10:30 A.M., New York City time, on the
proposed date of the borrowing of such Fixed Rate Loan; provided that (i) the
failure of the Borrower to give such notice shall be deemed to be a rejection of
each Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the aggregate amount
of the requested Competitive Loans specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $10,000,000 and an integral multiple of $1,000,000
in excess thereof; provided further that if a Competitive Loan must be in an
amount less than $10,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Borrower. A notice given by the
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
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(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section 2.3.
2.4 Swingline Commitment. (a) Subject to the terms and
conditions hereof, (i) each Quoted Rate Swingline Lender may (but shall have no
obligation to) make a portion of the credit otherwise available to the Borrower
under the Total Commitments from time to time during the Commitment Period by
making swing line loans ("Quoted Swingline Loans") on the basis of quoted
interest rates (each, a "Quoted Swingline Rate") furnished by such Quoted Rate
Swingline Lender from time to time in its discretion to the Borrower and
accepted by the Borrower in its discretion and (ii) the Committed Swingline
Lender agrees to make a portion of the credit otherwise available to the
Borrower under the Commitments from time to time during the Commitment Period by
making swing line loans ("Committed Swingline Loans") bearing interest at the
ABR to the Borrower; provided that (i) the aggregate outstanding principal
amount of Committed Swingline Loans at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with such Swingline Lender's other outstanding
Revolving Loans, may exceed the Swingline Commitment then in effect), (ii) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed $100,000,000, and (iii) the Borrower shall not request, and no Swingline
Lender shall make, any Swingline Loan if, after giving effect to the making of
such Swingline Loan, the sum of the Total Outstanding Extensions of Credit would
exceed the Total Commitments. During the Commitment Period, the Borrower may use
the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swingline Loans shall be
denominated in Dollars. Committed Swingline Loans shall be ABR Loans.
(b) The Borrower shall repay all outstanding Swingline Loans
on the earlier of the Termination Date and the date on which the Swingline Loans
shall become due and payable in accordance with Section 7.
2.5 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Committed Swingline Lender
make Committed Swingline Loans it shall give the Committed Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Committed Swingline Lender not later than 2:00
P.M., New York City time, on the proposed Borrowing Date), specifying (i) the
amount to be borrowed and (ii) the requested Borrowing Date (which shall be a
Business Day during the Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $1,000,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
Borrowing Date specified in a notice in respect of Swingline Loans, the
Committed Swingline Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the amount
of the Committed Swingline Loan to be made by the Committed Swingline Lender.
The Administrative Agent shall make the proceeds of such Committed Swingline
Loan available to the Borrower on such Borrowing Date by transferring such
proceeds to an account designated by the Borrower no later than 4:00 P.M., New
York City time on such Borrowing Date in immediately available funds.
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(b) The Borrower shall give the Administrative Agent
telephonic, written or telecopy notice in the form agreed to by the Borrower and
the Administrative Agent (in the case of telephonic notice, such notice shall be
promptly confirmed by telecopy) no later than 12:00 Noon, New York City time, on
the day of a proposed Quoted Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable (subject to receipt by the Borrower of Quoted
Swingline Rates acceptable to it) and shall refer to this Agreement and shall
specify the requested Borrowing Date (which shall be a Business Day), the
Interest Period (which must end no later than the Business Day prior to the
Termination Date) during which it desires any requested Quoted Swingline Rate to
apply, and the amount of such Swingline Loan. The Administrative Agent shall
promptly advise the Quoted Rate Swingline Lenders of any notice received from
the Borrower pursuant to this Section 2.5(b). In the event that the Borrower
accepts a Quoted Swingline Rate in respect of a proposed Quoted Swingline Loan,
it shall notify the Administrative Agent (which shall in turn notify the
relevant Quoted Rate Swingline Lender) of such acceptance no later than 2:30
P.M., New York time, on the relevant Borrowing Date.
(c) The Committed Swingline Lender, at any time and from time
to time in its sole and absolute discretion may (and, in any event, on the 15th
day of each month (or if such day is not a Business Day, the next Succeeding
Business Day) and the last Business Day of each month, the Committed Swingline
Lender shall), on behalf of the Borrower (which hereby irrevocably directs the
Committed Swingline Lender to act on its behalf), on one Business Day's notice
given by the Committed Swingline Lender no later than 12:00 Noon, New York City
time, request each Lender to make, and each Lender hereby agrees to make, a
Dollar Revolving Loan, in an amount equal to such Lender's Revolving Percentage
of the aggregate amount of the Committed Swingline Loans (the "Refunded
Swingline Loans") of the Committed Swingline Lender outstanding on the date of
such notice, to repay the Committed Swingline Lender. Each Lender shall make the
amount of such Dollar Revolving Loan available to the Administrative Agent at
the Funding Office in immediately available funds, not later than 10:00 A.M.,
New York City time, one Business Day after the date of such notice. The proceeds
of such Revolving Loans shall be immediately made available by the
Administrative Agent to the Committed Swingline Lender for application by the
Committed Swingline Lender to the repayment of the Refunded Swingline Loans. The
Borrower irrevocably authorizes the Committed Swingline Lender to charge the
Borrower's accounts with the Administrative Agent (up to the amount available in
each such account) in order to immediately pay the amount of such Refunded
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the Committed Swingline Lender's Refunded Swingline
Loans.
(d) If prior to the time a Dollar Revolving Loan would have
otherwise been made pursuant to Section 2.5(c), one of the events described in
Section 7(f) shall have occurred and be continuing with respect to the Borrower
or if for any other reason, as determined by the Swingline Lender in its sole
discretion, Dollar Revolving Loans may not be made as contemplated by Section
2.5(c), each Lender shall, on the date such Dollar Revolving Loan was to have
been made pursuant to the notice referred to in Section 2.5(c) (the "Refunding
Date"), purchase for cash an undivided participating interest in the then
outstanding Committed Swingline Loans by paying to the Committed Swingline
Lender an amount (the "Swingline Participation Amount") equal to (i) such
Lender's Revolving Percentage times (ii) the sum of the aggregate principal
amount of Committed Swingline Loans made by the Committed Swingline Lender then
outstanding that were to have been repaid with such Dollar Revolving Loans.
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(e) Whenever, at any time after the Committed Swingline Lender
has received from any Lender such Lender's Swingline Participation Amount, the
Committed Swingline Lender receives any payment on account of its Committed
Swingline Loans, the Committed Swingline Lender will distribute to such Lender
its Swingline Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender's pro rata portion of such payment
if such payment is not sufficient to pay the principal of and interest on all
Committed Swingline Loans then due); provided, however, that in the event that
such payment received by the Committed Swingline Lender is required to be
returned, such Lender will return to the Committed Swingline Lender any portion
thereof previously distributed to it by the Committed Swingline Lender.
(f) Each Lender's obligation to make the Dollar Revolving
Loans referred to in Section 2.5(c) and to purchase participating interests
pursuant to Section 2.5(d) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or the Borrower may have
against any Swingline Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 4; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower, any other Loan Party or any Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.6 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 2.8(a), agrees to issue letters of credit (together with
any Designated Letters of Credit, "Letters of Credit") for the account of the
Borrower on any Business Day during the Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the sum of the Total Outstanding Extensions of Credit would exceed the
Total Commitments. Each Letter of Credit shall (i) be denominated in Dollars or
a Foreign Currency, (ii) have a face amount of at least $10,000 or the Foreign
Currency Equivalent thereof (unless otherwise agreed by the relevant Issuing
Lender) and (iii) expire no later than the earlier of (x) the first anniversary
of its date of issuance and (y) the date that is five Business Days prior to the
Termination Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue
any Letter of Credit if such issuance would conflict with, or cause any Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
(c) On the Closing Date, (i) the Borrower shall provide
Schedule 2.6, which Schedule shall list the Designated Letters of Credit, (ii)
such Designated Letters of Credit shall be deemed to be Letters of Credit issued
pursuant to and in compliance with this Section 2.6, (iii) the face amount of
such Designated Letters of Credit shall be included in the calculation of the
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available L/C Commitment and the Outstanding Committed Extensions of Credit,
(iv) the provisions of this Agreement shall apply thereto, and the Borrower and
the Lenders hereunder hereby expressly assume all obligations with respect to
such Letters of Credit that they would have if such Letters of Credit had been
issued pursuant to this Agreement and (v) all liabilities of the Borrower with
respect to such Designated Letters of Credit shall constitute obligations of the
Borrower hereunder.
2.7 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to the relevant Issuing Lender at its address for notices specified
herein an Application therefor, completed to the satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may request. Upon receipt of any Application, such
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall any Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the Borrower. The relevant Issuing Lender shall furnish a
copy of such Letter of Credit to the Borrower promptly following the issuance
thereof. The relevant Issuing Lender shall promptly furnish to the
Administrative Agent notice of the issuance of each Letter of Credit (including
the amount thereof) in accordance with Section 2.13.
2.8 L/C Participations. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions set forth below, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's
Revolving Percentage in each Issuing Lender's obligations and rights under and
in respect of each Letter of Credit and the amount of each draft paid by each
Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with each Issuing Lender that, if a draft is paid under any Letter of
Credit for which any Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, the related Reimbursement
Obligation shall be converted to Dollars in accordance with Section 2.9 and such
L/C Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Revolving Percentage of the amount of such Reimbursement
Obligation, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to any Issuing Lender pursuant to Section 2.8(a) in respect of any unreimbursed
portion of any payment made by any Issuing Lender under any Letter of Credit is
paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the greater of (A)
the daily average Federal Funds Effective Rate and (B) a rate determined by the
Issuing Lender in accordance with banking industry rules on interbank
compensation, in each case, during the period from and including the date such
payment is required to the date on which such
32
payment is immediately available to such Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any
L/C Participant pursuant to Section 2.8(a) is not made available to such Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans. A certificate of such
Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Section 2.8 shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 2.8(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
2.9 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse each Issuing Lender on the Business Day next succeeding the
Business Day on which such Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by such Issuing
Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with
such payment. Each such payment shall be made to such Issuing Lender at its
address for notices referred to herein in the relevant currency and in
immediately available funds, provided that if the Borrower does not reimburse
the Issuing Lender for any draft paid by the Issuing Lender under any Letter of
Credit issued by such Issuing Lender in a Foreign Currency on the date required
pursuant to the first sentence of this Section 2.9, the Issuing Lender shall
convert such Reimbursement Obligation into Dollars at the rate of exchange then
available to the Issuing Lender in the interbank market where its foreign
currency exchange operations in respect of such Foreign Currency are then being
conducted and the Borrower shall thereafter be required to reimburse the Issuing
Lender in Dollars for such Reimbursement Obligation (in the amount so
converted). Subject to the next succeeding sentence, interest shall be payable
on any such amounts from the date on which the relevant draft is paid until
payment in full at the rate set forth in (i) until the Business Day next
succeeding the date of the relevant notice, Section 2.20 (b) and (ii)
thereafter, Section 2.20(e). Interest shall be payable on any such amounts
denominated in a Foreign Currency from the date on which the relevant draft is
paid until payment in full or conversion to Dollars as provided herein at the
rate determined by the Issuing Lender as its cost of funding such payment.
2.10 Obligations Absolute. The Borrower's obligations under
this Agreement with respect to Letters of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had
against any Issuing Lender, any beneficiary of a Letter of Credit or any other
Person. The Borrower also agrees with each Issuing Lender that no Issuing Lender
33
shall be responsible for, and the Borrower's Reimbursement Obligations under
Section 2.9 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Issuing Lender. The Borrower agrees that any action
taken or omitted by any Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of any Issuing
Lender to the Borrower.
2.11 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the relevant Issuing Lender
shall promptly notify the Borrower of the date and amount thereof. The
responsibility of an Issuing Lender to the Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
2.12 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall apply.
2.13 Certain Reporting Requirements. Each Issuing Lender will
report in writing to the Administrative Agent (i) on the fifth Business Day
prior to the end of each fiscal quarter of the Borrower, the aggregate stated
amount of Letters of Credit issued by it and outstanding as of the last Business
Day of the preceding week and (ii) on or prior to each Business Day on which an
Issuing Lender expects to issue or amend any Letter of Credit, the date of such
issuance or amendment and the aggregate stated amount of Letters of Credit to be
issued by it and outstanding after giving effect to such issuance or amendment
(and such Issuing Lender shall advise the Administrative Agent on such Business
Day whether such issuance or amendment occurred and whether the amount thereof
changed).
2.14 Fees and Other Charges, etc. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee
for the period from and including the date hereof to the last day of the
Commitment Period, computed at the Facility Fee Rate on the average daily amount
of the Commitment of such Lender (whether or not utilized) during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the later of the Termination Date and
the date the Commitments have been terminated and the principal of and interest
on each Loan, all fees and all other expenses or amounts payable under this
Agreement shall have been paid in full. For the
34
avoidance of doubt, if any Lender continues to have any Outstanding Committed
Extensions of Credit after its Commitment terminates, then such facility fee
shall continue to accrue on the daily amount of such Lender's Outstanding
Committed Extensions of Credit from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to
have any Outstanding Committed Extensions of Credit.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender on the last day of each March, June, September and
December and on the later of the Termination Date and the date the Commitments
have been terminated and the principal of and interest on each Loan, all fees
and all other expenses or amounts payable under this Agreement shall have been
paid in full, a utilization fee (a "Utilization Fee") at a rate per annum equal
to the Utilization Fee Rate for each Excess Utilization Day during the period
covered by such Interest Payment Date on such Lender's Outstanding Committed
Extensions of Credit then outstanding on such Excess Utilization Day.
(c) The Borrower will pay a fee on all outstanding Letters of
Credit at a per annum rate equal to the Standby Letter of Credit Fee Rate or the
Trade Letter of Credit Fee Rate, as applicable, shared ratably among the Lenders
and payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to each Issuing Lender for its own
account a fronting fee of 0.125% per annum on the undrawn and unexpired amount
of each Letter of Credit by such Issuing Lender, payable quarterly in arrears on
each L/C Fee Payment Date after the Issuance Date.
(d) In addition to the foregoing fees, the Borrower shall pay
or reimburse each Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
(e) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.15 Optional Termination or Reduction of Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction of Commitments shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Loans and Swingline Loans made on the
effective date thereof, the Total Outstanding Extensions of Credit would exceed
the Total Commitments. Any such reduction shall be in an amount equal to
$10,000,000, or an integral multiple of $1,000,000 in excess thereof, and shall
reduce permanently the Commitments then in effect. Any reduction of the Total
Commitments to an amount below $400,000,000 shall result in an automatic
dollar-for-dollar reduction of the Multicurrency Sublimit.
2.16 Optional Prepayments(a) . (a) The Borrower may at any
time and from time to time prepay the Loans (other than Multicurrency Loans), in
whole or in part, without premium or penalty, upon irrevocable notice delivered
to the Administrative Agent not later than 11:00 A.M., New York City time, three
Business Days prior to the date of prepayment, in the case of
35
Eurocurrency Loans denominated in Dollars, and not later than 11:00 A.M., New
York City time, one Business Day prior to the date of prepayment, in the case of
ABR Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurocurrency Loans denominated in Dollars or ABR
Loans; provided, that if a Eurocurrency Loan denominated in Dollars is prepaid
on any day other than the last day of the Interest Period applicable thereto,
the Borrower shall also pay any amounts owing pursuant to Section 2.26;
provided, further, that Competitive Loans may not be prepaid without the
relevant Lenders' prior consent. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (except in the case of Revolving Loans
that are ABR Loans and Swingline Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Dollar Revolving Loans shall be in an
aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in
excess thereof. Partial prepayments of Swingline Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
(b) The Borrower may at any time and from time to time prepay
Multicurrency Loans, in whole or in part, without premium or penalty, upon
irrevocable notice (which notice must be received by the Administrative Agent
prior to 3:00 P.M., London time, three Business Days before the date of
prepayment) specifying the date and amount of prepayment. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Multicurrency
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with any
amounts payable pursuant to Section 2.26 and accrued interest to such date on
the amount prepaid. Partial prepayments of Multicurrency Loans shall be in a
minimum principal amount of (w) L1,000,000 or a whole multiple of L100,000 in
excess thereof, in the case of Multicurrency Loans denominated in Sterling, (x)
E1,000,000 or a whole multiple or E100,000 in excess thereof, in the case of
Multicurrency Loans denominated in Euros, (y) C1,000,000 or a whole multiple or
C100,000 in excess thereof, in the case of Multicurrency Loans denominated in
Canadian Dollars, and (z) Y100,000,000 or a whole multiple or Y10,000,000 in
excess thereof, in the case of Multicurrency Loans denominated in Yen.
2.17 Mandatory Prepayments. If, on any Calculation Date, (i)
the Total Outstanding Extensions of Credit exceed the Total Commitments or (ii)
the Dollar Equivalent of the Multicurrency Loans outstanding on such date
exceeds 105% of the Multicurrency Sublimit on such date, the Borrower shall,
without notice or demand, immediately repay such of the outstanding Loans in an
aggregate principal amount such that, after giving effect thereto, (x) the Total
Outstanding Extensions of Credit do not exceed the Total Commitments and (y) the
Dollar Equivalent of the Multicurrency Loans outstanding on such date is equal
to or less than the Multicurrency Sublimit on such date, together with interest
accrued to the date of such payment or prepayment on the principal so prepaid
and any amounts payable under Section 2.26 in connection therewith. Any
prepayment of Dollar Revolving Loans pursuant to clause (i) of the immediately
preceding sentence shall be applied to prepay any outstanding Committed
Swingline Loans. The Borrower may in lieu of prepaying Multicurrency Loans in
order to comply with this paragraph deposit amounts in the relevant Foreign
Currencies in a Cash Collateral Account, for the benefit of the Multicurrency
Lenders, equal to the aggregate principal amount of Multicurrency Loans required
to be prepaid. To the extent that after giving effect to
36
any prepayment of Loans required by this paragraph, the Total Outstanding
Extensions of Credit at such time exceed the Total Commitments at such time, the
Borrower shall, without notice or demand, immediately deposit in a Cash
Collateral Account, for the benefit of the Lenders, upon terms reasonably
satisfactory to the Administrative Agent an amount equal to the amount of such
remaining excess. The Administrative Agent shall apply any cash deposited in any
Cash Collateral Account (to the extent thereof) to pay any Reimbursement
Obligations which are or become due thereafter and/or to repay Multicurrency
Loans at the end of the Interest Periods therefor, as the case may be, provided
that, (x) the Administrative Agent shall release to the Borrower from time to
time such portion of the amount on deposit in any Cash Collateral Account to the
extent such amount is not required to be so deposited in order for the Borrower
to be in compliance with this Section 2.17 and (y) the Administrative Agent may
so apply such cash at any time after the occurrence and during the continuation
of an Event of Default. "Cash Collateral Account" means an account specifically
established by the Borrower with the Administrative Agent for purposes of this
Section 2.17 and hereby pledged to the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
right of withdrawal for application in accordance with this Section 2.17.
(b) If any prepayment occurs pursuant to this Section 2.17 on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to the Lenders such amounts, if any, as may be
required pursuant to Section 2.26.
2.18 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurocurrency Loans denominated in Dollars to
ABR Loans by giving the Administrative Agent irrevocable notice of such election
not later than 11:00 A.M., New York City time, one Business Day prior to the
date of conversion, provided that any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert its ABR Loans to Eurocurrency
Loans denominated in Dollars by giving the Administrative Agent irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor) not later than 11:00 A.M., New York City time, three
Business Days prior to the date of conversion, provided that no ABR Loan may be
converted into a Eurocurrency Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurocurrency Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurocurrency Loan denominated in Dollars may be
continued as such when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Required Lenders have determined in its or
their sole discretion not to permit such continuations, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso any such Loans denominated in Dollars shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period
and, if the Borrower shall fail to give such notice of continuation of a
Multicurrency Loan, such Multicurrency Loan shall be automatically continued
37
for an Interest Period of one month. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.19 Limitations on Eurocurrency Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurocurrency Loans and all selections of Interest Periods shall
be in such amounts and be made pursuant to such elections so that no more than
15 Eurocurrency Tranches shall be outstanding at any one time.
2.20 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Eurocurrency Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the ABR Applicable Margin.
(c) Quoted Swingline Loans shall bear interest at a rate per
annum equal to the relevant Quoted Swingline Rate.
(d) Fixed Rate Loans shall bear interest at a rate per annum
equal to the fixed rate of interest offered by the Lender making such Fixed Rate
Loan and accepted by the Borrower pursuant to Section 2.3.
(e) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section 2.20 plus 2% or (y) in the case of Reimbursement Obligations,
the rate applicable to ABR Loans plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any facility fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to ABR Loans plus 2%
(unless such overdue amount is denominated in a Foreign Currency, in which case
such overdue amount shall bear interest of a rate per annum equal to the highest
rate then applicable under this Agreement to Multicurrency Loans denominated in
such Foreign Currency plus 2%), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(f) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (e) of this
Section 2.20 shall be payable from time to time on demand.
2.21 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to (i) ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed and (ii) Multicurrency Loans denominated in
Sterling,
38
interest shall be calculated on the basis of a 365-day year for actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of each determination of a Eurocurrency Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the relevant Lenders in the absence
of manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.20(a).
2.22 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate
for such Interest Period,
(b) the Administrative Agent shall have received notice from
the Required Lenders or Required Multicurrency Lenders, as the case may
be, that the Eurocurrency Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to the
relevant Lenders (as conclusively certified by such Lenders) of making
or maintaining their affected Loans during such Interest Period, or
(c) the Administrative Agent determines (which determination
shall be conclusive and binding upon the Borrower) that deposits in the
applicable currency are not generally available, or cannot be obtained
by the relevant Lenders, in the applicable market (any Foreign Currency
affected by the circumstances described in clause (a), (b) or (c) is
referred to as an "Affected Foreign Currency"),
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (y) pursuant to clause (a) or (b) of this Section 2.22 in
respect of Eurocurrency Loans denominated in Dollars, then (i) any Eurocurrency
Loans denominated in Dollars requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (ii) any ABR Loans that were to have
been converted on the first day of such Interest Period to Eurocurrency Loans
denominated in Dollars shall be continued as ABR Loans and (iii) any outstanding
Eurocurrency Loans denominated in Dollars shall be converted, on the last day of
the then-current Interest Period, to ABR Loans and (z) in respect of any
Multicurrency Loans, then (i) any Multicurrency Loans in an Affected Foreign
Currency requested to be made on the first day of such Interest Period shall not
be made and (ii) any outstanding Multicurrency Loans in an Affected Foreign
Currency shall be due and payable on the first day of such Interest Period.
Until such relevant notice has been withdrawn by the Administrative Agent, no
further Eurocurrency Loans denominated in Dollars or
39
Multicurrency Loans in an Affected Foreign Currency shall be made or continued
as such, nor shall the Borrower have the right to convert ABR Loans to
Eurocurrency Loans denominated in Dollars.
2.23 Pro Rata Treatment and Payments. (a) Subject to Section
2.31, (a) each borrowing by the Borrower of Dollar Revolving Loans from the
Lenders hereunder shall be made pro rata according to the respective Borrowing
Percentages of the relevant Lenders, (b) each payment by the Borrower on account
of any facility fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Revolving Percentages of the relevant
Lenders and (c) each borrowing by the Borrower of Multicurrency Loans from the
Multicurrency Lenders hereunder and any reduction of the Multicurrency
Subcommitments of the Multicurrency Lenders shall be made pro rata according to
the respective Multicurrency Percentages of the Multicurrency Lenders
(b) Subject to Section 2.31, (a) each payment (including each
prepayment) by the Borrower on account of principal of and interest on the
Dollar Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Dollar Revolving Loans then held by the
Lenders and (b) each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Multicurrency Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Multicurrency Loans then held by the Multicurrency Lenders.
(c) All payments (including prepayments) to be made by the
Borrower, whether on account of principal, interest, fees or otherwise, shall be
made without setoff or counterclaim and shall be made prior to 12:00 Noon, New
York City time, on the due date thereof to the Administrative Agent, for the
account of the relevant Lenders, at its Funding Office, in Dollars (based on the
Dollar Equivalent thereof in the case of fees payable under Section 2.14(c) with
respect to Letters of Credit denominated in Foreign Currencies) and in
immediately available funds (or, in the case of principal or interest relating
to Multicurrency Loans, prior to 3:00 P.M., London time, on the due date thereof
to the Administrative Agent, for the account of the Multicurrency Lenders, at
its Funding Office, in the relevant Foreign Currency and in immediately
available funds). The Administrative Agent shall distribute such payments to the
relevant Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurocurrency Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(d) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
40
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, (i) in the case of amounts denominated
in Dollars, such amount with interest thereon at a rate equal to the greater of
(X) the Federal Funds Effective Rate and (Y) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately
available to the Administrative Agent or (ii) in the case of amounts denominated
in Foreign Currencies, such amount with interest thereon at a rate determined by
the Administrative Agent to be the cost to it of funding such amount until such
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover (i)
in the case of amounts denominated in Dollars, such amount with interest thereon
at the rate per annum applicable to ABR Loans, on demand, from the Borrower or
(ii) in the case of amounts denominated in Foreign Currencies, such amount with
interest thereon at a rate determined by the Administrative Agent to be the cost
to it of funding such amount, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment due to be made by
the Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the relevant Lenders
their respective pro rata shares of a corresponding amount. If such payment is
not made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each relevant Lender to which any amount which was made available
pursuant to the preceding sentence, (i) in the case of amounts denominated in
Dollars, such amount with interest thereon at the rate per annum equal to the
daily average Federal Funds Effective Rate and (ii) in the case of amounts
denominated in Foreign Currencies, such amount with interest thereon at a rate
per annum determined by the Administrative Agent to be the cost to it of funding
such amount. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.
2.24 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered
by Section 2.25 and changes in the rate of tax on the overall net
income of such Lender);
41
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Loans or issuing or participating in Letters of
Credit, or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital 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 such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction; provided that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts incurred more
than three months prior to the date that such Lender notifies the Borrower of
such Lender's intention to claim compensation therefor; and provided, further
that, if the circumstances giving rise to such claim have a retroactive effect,
then such three-month period shall be extended to include the period of such
retroactive effect.
(c) If any Governmental Authority of the jurisdiction of any
Foreign Currency (or any other jurisdiction in which the funding operations of
any Multicurrency Lender shall be conducted with respect to such Foreign
Currency) shall have in effect any reserve, liquid asset or similar requirement
with respect to any category of deposits or liabilities customarily used to fund
loans in such Foreign Currency, or by reference to which interest rates
applicable to loans in such Foreign Currency are determined, and the result of
such requirement shall be to increase the cost to such Multicurrency Lender of
making or maintaining any Multicurrency Loan in such Foreign Currency, and such
Multicurrency Lender shall deliver to the Borrower a notice requesting
compensation under this paragraph, then the Borrower will pay to such
Multicurrency Lender on each Interest Payment Date with respect to each affected
Multicurrency Loan an amount that will compensate such Multicurrency Lender for
such additional cost; provided, that
42
the Borrower shall not be required to compensate a Multicurrency Lender pursuant
to this paragraph for any amounts incurred more than three months prior to the
date that such Multicurrency Lender notifies the Borrower of such Multicurrency
Lender's intention to claim compensation therefor; and provided further that, if
the circumstances giving rise to such claim have a retroactive effect, then such
three-month period shall be extended to include the period of such retroactive
effect.
(d) A certificate as to any additional amounts payable
pursuant to this Section 2.24 submitted by any Lender to the Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. The obligations of the Borrower pursuant to this Section 2.24 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(e) Notwithstanding any other provision of this Agreement, if,
(i) (A) the adoption of any law, rule or regulation after the date of this
Agreement, (B) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (C) compliance by any Lender 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, shall
make it unlawful for any such Multicurrency Lender to make or maintain any
Multicurrency Loan or to give effect to its obligations as contemplated hereby
with respect to any Multicurrency Loan, or (ii) there shall have occurred any
change in national or international financial, political or economic conditions
(including the imposition of or any change in exchange controls, but excluding
conditions otherwise covered by this Section 2.24) which would make it
impracticable for the Required Multicurrency Lenders to make or maintain
Multicurrency Loans denominated in the relevant currency after the date hereof
to, or for the account of, the Borrower, then, by written notice to the Borrower
and to the Administrative Agent:
(i) such Multicurrency Lender or Multicurrency Lenders may
declare that Multicurrency Loans (in the affected currency or
currencies) will not thereafter (for the duration of such unlawfulness)
be made by such Multicurrency Lender or Multicurrency Lenders hereunder
(or be continued for additional Interest Periods), whereupon any
request for a Multicurrency Loan (in the affected currency or
currencies) or to continue a Multicurrency Loan (in the affected
currency or currencies), as the case may be, for an additional Interest
Period) shall, as to such Multicurrency Lender or Multicurrency Lenders
only, be of no force and effect, unless such declaration shall be
subsequently withdrawn; and
(ii) such Multicurrency Lender may require that all
outstanding Multicurrency Loans (in the affected currency or
currencies), made by it be converted to ABR Loans or Loans denominated
in Dollars, as the case may be (unless repaid by the Borrower), in
which event all such Multicurrency Loans (in the affected currency or
currencies) shall be converted to ABR Loans or Loans denominated in
Dollars, as the case may be, as of the effective date of such notice as
provided in paragraph (f) below and at the Exchange Rate on the date of
such conversion or, at the option of the Borrower, repaid on the last
day of the then current Interest Period with respect thereto or, if
earlier, the date on which the applicable notice becomes effective.
43
In the event any Multicurrency Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal that would otherwise have
been applied to repay the converted Multicurrency Loans of such Multicurrency
Lender shall instead be applied to repay the ABR Loans or Loans denominated in
Dollars, as the case may be, made by such Multicurrency Lender resulting from
such conversion.
(f) For purposes of Section 2.24(e), a notice to the Borrower
by any Multicurrency Lender shall be effective as to each Multicurrency Loan
made by such Multicurrency Lender, if lawful, on the last day of the Interest
Period currently applicable to such Multicurrency Loan; in all other cases such
notice shall be effective on the date of receipt thereof by the Borrower.
2.25 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section 2.25 or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender at the
time such Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such Non-Excluded
Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the
44
Lenders for any incremental taxes, interest or penalties that may become payable
by the Administrative Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", an Exemption Certificate substantially in the
form of Exhibit E and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction 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 or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(f) The agreements in this Section 2.25 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.26 Indemnity. The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurocurrency Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurocurrency Loans after the Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurocurrency Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
45
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurocurrency market. A certificate as to any
amounts payable pursuant to this Section 2.26 submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.27 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.24 or
2.25(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.27 shall
affect or postpone any of the obligations of the Borrower or the rights of any
Lender pursuant to Section 2.24 or 2.25(a).
2.28 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.24 or 2.25(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.27 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.24 or 2.25(a), (iv) the replacement financial
institution shall purchase, at par (unless the Lender being replaced otherwise
agrees in its discretion), all Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement, (v) the Borrower shall be liable
to such replaced Lender under Section 2.26 if any Eurocurrency Loan owing to
such replaced Lender shall be purchased other than on the last day of the
Interest Period relating thereto, (vi) the replacement financial institution, if
not already a Lender, shall be reasonably satisfactory to the Administrative
Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 9.6 (provided that the Borrower shall
be obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to Section 2.24 or
2.25(a), as the case may be, and (ix) any such replacement shall not be deemed
to be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender.
2.29 Judgment Currency. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures in the
46
relevant jurisdiction, the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 2.29 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
2.30 Foreign Currency Exchange Rate(a) . (a) No later than
1:00 P.M., New York City time, on each Calculation Date with respect to a
Foreign Currency, the Administrative Agent shall determine the Exchange Rate as
of such Calculation Date with respect to such Foreign Currency, provided that,
upon receipt of a borrowing request pursuant to Section 2.2(b)(ii), the
Administrative Agent shall determine the Exchange Rate with respect to the
relevant Foreign Currency on the related Calculation Date (it being acknowledged
and agreed that the Administrative Agent shall use such Exchange Rate for the
purposes of determining compliance with Section 2.1 with respect to such
borrowing request). The Exchange Rates so determined shall become effective on
the relevant Calculation Date (a "Reset Date"), shall remain effective until the
next succeeding Reset Date and shall for all purposes of this Agreement (other
than Section 2.9, 2.14(c), 2.24(e), 2.29 and any other provision requiring the
use of a current Exchange Rate) be the Exchange Rates employed in converting any
amounts between Dollars and Foreign Currencies.
(b) No later than 5:00 P.M., New York City time, on each Reset
Date, the Administrative Agent shall determine the aggregate amount of the
Dollar Equivalents of the principal amounts of the relevant Multicurrency Loans
then outstanding (after giving effect to any Multicurrency Loans to be made or
repaid on such date).
(c) The Administrative Agent shall promptly notify the
Borrower of each determination of an Exchange Rate hereunder.
2.31 Certain Borrowings of Dollar Revolving Loans and
Refunding of Multicurrency Loans. (a) If on any Borrowing Date on which the
Borrower has requested the Multicurrency Lenders to make Multicurrency Loans
(the "Requested Multicurrency Loans") (i) the principal amount of the Requested
Multicurrency Loans to be made by any Multicurrency Lender exceeds the Available
Commitment of such Multicurrency Lender (before giving effect to the making and
payment of any Dollar Revolving Loans required to be made pursuant to this
Section 2.31 on such Borrowing Date), (ii) the Dollar Equivalent of the
principal amount of such Requested Multicurrency Loans, when added to the Dollar
Equivalent of the outstanding
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principal amount of all other Multicurrency Loans, does not exceed the
Multicurrency Sublimit and (iii) the Dollar Equivalent of the amount of the
excess described in the foregoing clause (i) is less than or equal to the
Available Commitments of the Lenders (before giving effect to the making and
payment of any Loans pursuant to this Section 2.31 on such Borrowing Date), each
Lender (other than Multicurrency Lenders) shall make a Dollar Revolving Loan to
the Borrower on such Borrowing Date in accordance with the applicable provisions
hereof, and the proceeds of such Dollar Revolving Loans shall be simultaneously
applied to repay outstanding Dollar Revolving Loans of such Multicurrency
Lenders in each case in amounts such that, after giving effect to (1) such
borrowings and repayments and (2) the borrowing from such Multicurrency Lenders
of the Requested Multicurrency Loans, the excess described in the foregoing
clause (i) will be eliminated. To effect such borrowings and repayments, (x) not
later than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds
of such Dollar Revolving Loans denominated in Dollars shall be made available by
each Lender (other than the Multicurrency Lenders) to the Administrative Agent
at the Funding Office in Dollars and in immediately available funds and the
Administrative Agent shall apply the proceeds of such Dollar Revolving Loans
toward repayment of outstanding Dollar Revolving Loans of such Multicurrency
Lenders and (y) concurrently with the repayment of such Dollar Revolving Loans
on such Borrowing Date, (I) such Multicurrency Lenders shall, in accordance with
the applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by the Borrower and (II) the
Borrower shall pay to the Administrative Agent for the account of the
Multicurrency Lenders whose Dollar Revolving Loans to such Borrower are repaid
on such Borrowing Date pursuant to this Section 2.31 all interest accrued on the
amounts repaid to the date of repayment, together with any amounts payable
pursuant to Section 2.26 in connection with such repayment.
(b) If any borrowing of Dollar Revolving Loans is required
pursuant to this Section 2.31, the Borrower shall notify the Administrative
Agent in the manner provided for Dollar Revolving Loans in Section 2.2(a),
except that the minimum borrowing amounts and threshold multiples in excess
thereof applicable to ABR Loans set forth in subsection 2.2(a) shall not be
applicable to the extent that such minimum borrowing amounts exceed the amounts
of Dollar Revolving Loans required to be made pursuant to this Section 2.31.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that:
3.1 Financial Condition. The audited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at June 30, 1999,
June 30, 2000 and June 30, 2001, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from Arthur Andersen LLP, present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at March 31, 2002, and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on such
date,
48
present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the nine-month period then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by the aforementioned firm of accountants and disclosed
therein and in the case of the unaudited consolidated statements, subject to
normal year-end audit adjustments). No Group Member has any material Guarantee
Equivalents, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, except those (a) reflected in the most recent financial
statements referred to in this paragraph, (b) which were incurred after June 30,
2001, in the case of the Borrower and its Subsidiaries in the ordinary course of
business and consistent with past practices, (c) that are obligations (including
transaction costs) in connection with this Agreement, or (d) that, individually
or in the aggregate, do not have a Material Adverse Effect. During the period
from June 30, 2001 to and including the date hereof, there has been no
Disposition by any Group Member of any business or property that is material to
the Borrower and its consolidated Subsidiaries, taken as a whole.
3.2 No Change. Since June 30, 2001, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
3.3 Existence; Compliance with Law. Each Group Member (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, except, in the case of Group Members other
than the Borrower, where the failure to be so organized, validly existing and in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (b) has the power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
except where the failure to have such power, authority and rights could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except for jurisdictions where the failure to be so qualified or
in good standing, individually or in the aggregate, do not have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. Each Loan
Party has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and, in the case of the
Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken
all necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of the
Borrower, to authorize the extensions of credit on the terms and conditions of
this Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents. Each Loan Document has been duly executed and
49
delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of any Group Member and
will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation. No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries would reasonably be
expected to have a Material Adverse Effect.
3.6 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against any Group Member or against
any of their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby, or (b)
that would reasonably be expected to have a Material Adverse Effect.
3.7 No Default. No Group Member is in default under or with
respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Group Member has title
in fee simple to, or a valid leasehold interest in, all its real property, and
good title to, or a valid leasehold interest in, all its other property, in each
case necessary and related to its operations, except for such property where the
failure to maintain such title or interest, individually or in the aggregate,
does not have a Material Adverse Effect, and none of such property is subject to
any Lien except as permitted by Section 6.3.
3.9 Intellectual Property. Each Group Member owns, or is
licensed to use, all Intellectual Property necessary for the conduct of its
business as currently conducted, except where such failure, individually or in
the aggregate, does not have a Material Adverse Effect. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim,
except where such claims, individually or in the aggregate, do not have a
Material Adverse Effect. The use of Intellectual Property by each Group Member
does not infringe on the rights of any Person in any material respect, except
where such infringement, individually or in the aggregate, does not have a
Material Adverse Effect.
3.10 Taxes. Each Group Member has filed or caused to be filed
all Federal, state and other material tax returns that are required to be filed
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and
50
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member) except where the failure to file such
returns and pay such taxes, fees and other charges, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
to the knowledge of the Borrower, no tax Lien has been filed, and no claim is
being asserted, with respect to any such tax, fee or other charge.
3.11 Federal Regulations. No part of the proceeds of any
Loans, and no other extensions of credit hereunder, will be used for "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
or for any purpose that violates the provisions of the Regulations of the Board.
If requested by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
3.12 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, which
in any event, has resulted, or could reasonably be expected to result, in a
material liability. Each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a Single Employer
Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period, which in any event, has resulted, or could reasonably be
expected to result, in a material liability. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA, and, to
the knowledge of the Borrower, neither the Borrower nor any Commonly Controlled
Entity would become subject to any material liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent such that a material liability to the Borrower
or a Commonly Controlled Entity could reasonably be expected to result
therefrom.
3.13 Investment Company Act; Other Regulations. No Loan Party
(a) is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935. No Loan Party is subject to
regulation under any Requirement of Law (other than Regulation X of the Board)
that limits its ability to incur Indebtedness.
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3.14 Use of Proceeds. The proceeds of the Loans and the
Letters of Credit, shall be used for general corporate purposes of the Borrower
and its Subsidiaries.
3.15 Environmental Matters. Except as disclosed on Schedule
3.15 or except as, in the aggregate, do not have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
any Group Member (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations
or under circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the business operated by any Group Member
(the "Business"), nor does the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location that could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of any Group Member in connection with the Properties
or otherwise in connection with the Business, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and
(g) no Group Member has assumed any liability of any other
Person under Environmental Laws.
3.16 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or written statement,
taken as a whole, furnished by or on behalf of any Loan Party to the
Administrative Agent or the Lenders (other than financial projections) for
52
use in connection with the transactions contemplated by this Agreement or the
other Loan Documents, contained as of the date such statement, information,
document or certificate was so furnished (or, in the case of the Confidential
Information Memorandum, as of the date of this Agreement), any untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading, in each case in light of
the circumstances under which such statements were made or information provided.
The projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
3.17 Solvency. Each Loan Party is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
3.18 Insurance. The Borrower and each of its Subsidiaries
maintains with financially sound and reputable insurers (not related to or
affiliated with the Borrower or any of its Subsidiaries) insurance with respect
to its properties and business and against at least such liabilities, casualties
and contingencies and in at least such types and amounts as is customary in the
case of corporations engaged in the same or a similar business or having similar
properties similarly situated.
3.19 Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a)
Schedule 3.19 sets forth the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of any
Subsidiary, except as created by the Loan Documents.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it to the Borrower is subject to the satisfaction, prior to or concurrently with
the making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by the Administrative
Agent, the Borrower and each Person listed on Schedule 1.1.
(b) Financial Statements. The Lenders shall have received the
consolidated financial statements of the Borrower and its consolidated
Subsidiaries described in Section 3.1.
53
(c) Fees and Expenses. The Lenders, the Administrative Agent,
the Advisor and the Arranger shall have received all fees required to
be paid, and all expenses for which invoices have been presented
(including the reasonable fees and expenses of legal counsel), on or
before the Closing Date.
(d) Closing Certificate; Certified Certificate of
Incorporation; Good Standing Certificates. The Administrative Agent
shall have received (i) a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit B, with appropriate
insertions and attachments, including the certificate of incorporation
of each Loan Party (or equivalent documentation) certified by the
relevant authority of the jurisdiction of organization of such Loan
Party, and (ii) a long form good standing certificate for each Loan
Party from its jurisdiction of organization.
(e) Legal Opinions. The Administrative Agent shall have
received the legal opinion of Buchanan Ingersoll Professional
Corporation, counsel to the Borrower and the Subsidiary Guarantors,
substantially in the form of Exhibit D. Such legal opinion shall cover
such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(f) Existing Credit Agreements. All amounts outstanding under
each of the Existing Credit Agreements shall have been paid in full,
all obligations thereunder shall have been terminated (except with
respect to indemnity obligations, if any, which survive the termination
of the commitments and the payment of the loans and other extensions of
credit under the Existing Credit Agreements), all commitments
thereunder shall have been terminated and all liens created thereby
shall have been released.
(g) Guarantee. The Administrative Agent shall have received
the Guarantee, executed and delivered by each Subsidiary Guarantor.
4.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it to the
Borrower on any date (including its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct on and as of such date as
if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 4.2 have been satisfied.
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SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall and shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent
and each Lender:
(a) as soon as available, but in any event within 100 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows and changes in
stockholders' equity of the Borrower and its consolidated Subsidiaries
for such fiscal year for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by PricewaterhouseCoopers LLC or
other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 55
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein). In lieu of furnishing the Administrative Agent and the
Lenders the items referred to in clauses (a) and (b) above, the Borrower may
make such items available on the internet at www.FreeEdgar.com or by similar
electronic means.
5.2 Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (d), to the
relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
no Default or Event of Default has occurred, except as
55
specified in such certificate and (ii) in the case of quarterly or
annual financial statements, a Compliance Certificate containing all
information and calculations necessary for determining compliance by
each Group Member with the provisions of Section 6.1 as of the last day
of the fiscal quarter or fiscal year of the Borrower, as the case may
be (including, without limitation, any reconciliations required in
connection with any changes in generally accepted accounting
principles, subsequent to the Closing Date);
(c) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC; and
(d) promptly, such additional financial and other information
as the Administrative Agent or any Lender may from time to time
reasonably request.
In lieu of furnishing the Administrative Agent and the Lenders
the items referred to in clause (c) above, the Borrower may make such items
available on the internet at www.FreeEdgar.com or by similar electronic means;
provided, that the Borrower shall promptly provide written or electronic notice
to the Administrative Agent and each Lender when statements and reports subject
to clause (c) above are made available via www.FreeEdgar.com or such other
electronic means.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member or where such failure to pay,
discharge or otherwise satisfy would not have a Material Adverse Effect
5.4 Maintenance of Existence; Compliance. (a) (i) Preserve,
renew and keep in full force and effect its organizational existence and (ii)
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except, in each
case, as otherwise permitted by Section 6.4 and except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition in all
material respects, ordinary wear and tear excepted and (b) maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business.
56
5.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made in all
material respects of all dealings and transactions in relation to its business
and activities, and (b) following reasonable prior written notice to the
Borrower, permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time (it being understood that, so long as no Event of Default or
Default has occurred and is continuing, such times shall be during normal
business hours) and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the Group
Members with officers and employees of the Group Members and with their
independent certified public accountants.
5.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member
(i) which, if adversely decided, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, (ii) in
which any material injunctive or similar relief is sought or (iii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Group Member proposes to take with
respect thereto.
5.8 ERISA. (a) Make, or cause its Subsidiaries and Commonly
Controlled Entities to make, contributions to each Plan when due in accordance
with the minimum funding requirements under ERISA and the Code applicable to
such Plan and pay any required PBGC premiums as and when due for such Plan, (b)
make, or cause its Subsidiaries and Commonly
57
Controlled Entities to make contributions required to be made by it, or any of
them, to each Multiemployer Plan, if any, when due in accordance with its, or
any of their, obligations under any collective bargaining agreement related to
such Multiemployer Plan or participation agreements applicable to such
Multiemployer Plan, except those contributions the requirement of which are
reasonably being contested by a Commonly Controlled Entity; provided that
failure to make such contested contributions is not a violation of applicable
Law and does not present a material risk of resulting in liability (contingent
or other) to the Borrower or any of its Subsidiaries and (c) make, or cause its
Subsidiaries to make, any required contributions to any arrangements for
providing retirement and/or death benefits when due, in accordance with the
terms of the arrangement and any minimum funding requirements which are
applicable to the arrangement from time to time, where a failure to make, or
cause to be made, the contributions described in (a), (b) and or (c) could,
alone or in the aggregate, reasonably be expected to result in a material
liability.
5.9 Continuation of or Change in Business. (a) Not engage in
any business if, as a result, the general nature of the business, on a
consolidated basis, which would then be engaged in by the Borrower and its
Subsidiaries would be substantially and significantly changed from the general
nature of the business engaged in by the Borrower and its Subsidiaries on a
consolidated basis on the date hereof, or such business is not reasonably
related to the business of the Borrower and its Subsidiaries on a consolidated
basis on the date hereof; and (b) with respect to the Loan Parties taken as a
whole, continue to operate as an operating company in substantially the manner
at the date hereof, and not transfer to any Person which is not a Loan Party, in
any transaction or set of related transactions, any material portion of the Loan
Parties' operating assets.
5.10 Further Assurances. Cause each Person which is or becomes
a Significant Subsidiary (other than a Foreign Subsidiary) to become a
Subsidiary Guarantor as promptly as practicable after (but in any event within
10 days after the date that financial statements are delivered pursuant to
Section 5.1 which evidence that such Subsidiary is a Significant Subsidiary) the
date such Person first satisfies the criteria in the definition of "Significant
Subsidiary", by causing such Subsidiary to execute and deliver to the
Administrative Agent a supplement to the Guarantee, together with (i) an opinion
of counsel (including in-house counsel) for such Subsidiary covering such
matters relating to such supplement to the Guarantee as the Administrative Agent
may reasonably request, and (ii) all documents which the Administrative Agent
may reasonably request relating to the existence of such Subsidiary, the
corporate authority for and the validity of such supplement to the Guarantee,
and any other matters reasonably determined by the Administrative Agent to be
relevant thereto, all in form and substance reasonably satisfactory to the
Administrative Agent.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
6.1 Financial Condition Covenants.
58
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower to exceed (i) through and including September 30, 2002,
3.60 to 1.00, (ii) thereafter and including until March 31, 2003, 3.50 to 1.00,
and (iii) thereafter, 3.00 to 1.00.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower to be less than 2.20 to 1.00.
(c) Consolidated Net Worth. Permit Consolidated Net Worth at
any time to be less than the sum of (i) $530,000,000 plus (ii) 50% of
Consolidated Net Income for each fiscal quarter of the Borrower (beginning with
the fiscal quarter ending June 30, 2002) for which Consolidated Net Income is
positive.
6.2 Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) subject to Section 6.11, Indebtedness of the Borrower to
any Subsidiary and of any Subsidiary to the Borrower or any other
Subsidiary;
(c) Guarantee Equivalents incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations
(other than Indebtedness) of the Borrower or any Subsidiary;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 6.2(d) and any refinancings, refundings, renewals or
extensions thereof (without increasing, or shortening the maturity of,
the principal amount thereof);
(e) Indebtedness of the Borrower or its Subsidiaries
constituting (i) Capital Lease Obligations, (ii) Indebtedness secured
by purchase money Liens described in Section 6.3(g), or (iii)
Indebtedness described in Section 6.3(f); provided, that the aggregate
principal amount of outstanding Indebtedness described in this Section
6.2(e) shall not exceed $75,000,000 (or the equivalent in any currency)
at any time;
(f) Indebtedness of Widia and its Subsidiaries assumed in
connection with the Widia Acquisition in an aggregate principal amount
not to exceed $25,000,000; provided, that such Indebtedness is not
incurred in connection with, or in contemplation of, the Widia
Acquisition;
(g) other unsecured Indebtedness ("Recapture Indebtedness")
for borrowed money of the Borrower (and not of any Subsidiary) incurred
by the Borrower after the Closing Date; provided, that Recapture
Indebtedness may not be Disqualified Indebtedness, unless (i) at the
time the Borrower incurred such Recapture Indebtedness the Investment
Grade Rating Condition was satisfied, or (ii) such Recapture
Indebtedness is incurred to refinance predecessor Recapture
Indebtedness which was incurred in compliance with this Section 6.2(g),
the principal amount of such successor Recapture
59
Indebtedness does not exceed that of the predecessor Recapture
Indebtedness so refinanced, and by the terms of such successor
Recapture Indebtedness no direct or indirect payment, prepayment,
purchase, redemption, retirement, defeasance, acquisition, or other
payment on account of principal of such successor Recapture
Indebtedness shall be required (whether at stated maturity or upon the
happening of an event) earlier or in greater amount than under the
terms of the predecessor Recapture Indebtedness so refinanced; and
provided, further, that the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, pay, prepay,
purchase, redeem, retire, defease or acquire, or otherwise make any
payment on account of principal of, any Recapture Indebtedness, except
(x) as and when required to do so by the mandatory terms thereof, (y)
at a time when the Investment Grade Rating Condition is satisfied, or
(z) as part of a refinancing of predecessor Recapture Indebtedness by
successor Recapture Indebtedness incurred in compliance with this
Section 6.2(g); and
(h) additional Indebtedness of the Borrower or any of its
Subsidiaries; provided, that the aggregate principal amount (for the
Borrower and all Subsidiaries) of such Indebtedness, together with the
aggregate outstanding principal amount of Attributable Debt in respect
of Qualified Receivables Transactions, shall not exceed $350,000,000 at
any one time outstanding.
6.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except for
the following (collectively, "Permitted Liens"):
(a) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
60
(f) Liens in existence on the date hereof listed on Schedule
6.3(f), securing Indebtedness permitted by Section 6.2(d), provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(g) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to Section 6.2(e) to finance the
acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness and (iii) the amount of Indebtedness secured thereby is
not increased;
(h) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only the assets so leased;
(i) judgment liens fully bonded or stayed pending appeal and
not constituting an Event of Default under Section 7(h); provided, that
such liens are released or discharged within 90 after the entry
thereof;
(j) Liens in favor of the United States government which arise
in the ordinary course of business resulting from progress payments or
partial payments under United States government contracts or
subcontracts thereunder;
(k) Liens on Margin Stock, if and to the extent that the value
of such Margin Stock exceeds 25% of the total assets of the Borrower
and its Subsidiaries subject to this Section 6.3;
(l) Liens on assets transferred to a Receivable Entity or on
assets of a Receivables Entity, in either case incurred in connection
with a Qualified Receivables Transaction; and
(m) Liens not otherwise permitted by this Section 6.3 so long
as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Borrower and all Subsidiaries) $25,000,000
at any one time.
6.4 Fundamental Changes. The Borrower shall not, and shall not
permit any Subsidiary which is a Loan Party to, directly or indirectly, merge
with or into or consolidate with any other Person, or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, except for the
following: (a) the Borrower may merge with another Person so long as the
Borrower is the surviving corporation, and (b) a Subsidiary which is a Loan
Party may merge with the Borrower or another Loan Party, or may merge with
another Person so long as such Subsidiary is the surviving corporation or such
other Person becomes a Subsidiary and a party to the Guarantee; provided, that
with respect to clause (a) and (b) above, (i) no Default or Event of Default
shall have occurred and be continuing or would result therefrom, (ii) the
Borrower shall be in compliance with the covenants set forth in Section 6.1 as
of the last day of the immediately
61
preceding fiscal quarter for which financial statements have been delivered
pursuant to Section 5.1 after giving effect, on a pro forma basis, to such
merger or consolidation as if it had occurred on such last day or the first day
of the relevant period, as appropriate, and (iii) the Borrower shall have
delivered to the Administrative Agent at least ten Business Days prior to any
such merger or consolidation a certificate of a Responsible Officer certifying
the satisfaction of the foregoing conditions and setting forth in reasonable
detail the calculations necessary to determine compliance with clause (ii)
above.
6.5 Transactions with Affiliates. Except as set forth on
Schedule 6.5, enter into any transaction, including any purchase, sale, lease or
exchange of property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary) unless such transaction is (a) otherwise permitted
under this Agreement and (b) upon fair and reasonable terms no less favorable to
the relevant Group Member than it would obtain in a comparable arm's length
transaction with a Person that is not an Affiliate.
6.6 Negative Pledge Clauses. Except as set forth on Schedule
6.6, enter into or suffer to exist or become effective any agreement that
prohibits or limits the ability of any Group Member to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether now owned
or hereafter acquired, to secure this Agreement and the other Loan Documents (or
any refinancing or replacement thereof) (it being understood that any
prohibition or limitation contained in any future senior unsecured indebtedness
which does not permit the granting of any such Lien unless such senior unsecured
indebtedness shall be equally and ratably secured with this Agreement and the
other Loan Documents (or any refinancing or replacement thereof) shall not
violate this Section 6.6); provided, that, subject to Section 6.2, Foreign
Subsidiaries may incur Indebtedness which prohibits the ability of such Foreign
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
their property or revenues, whether now owned or hereafter acquired, to secure
this Agreement and the other Loan Documents so long as the aggregate principal
amount of such Indebtedness does not exceed $50,000,000 at any one time.
6.7 Clauses Restricting Subsidiary Distributions. Enter into
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments
in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b)
make loans or advances to, or other Investments in, the Borrower or any other
Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or
any other Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary, (iii) restrictions contained in agreements governing Indebtedness of
a Foreign Subsidiary permitted under Section 6.2(h) (provided, that (x) such
restriction applies only to such Foreign Subsidiary and its Subsidiaries and (y)
at no time shall the aggregate outstanding principal amount of such Indebtedness
exceed $50,000,000), (iv) restrictions on property subject to a Permitted Lien
in favor of the holder of such Lien, (v) restrictions contained in any
Indebtedness or contractual requirements incurred with respect to a Qualified
Receivables
62
Transaction relating exclusively to a Receivables Entity that, in the good faith
determination of the board of directors or senior management of the Borrower,
are necessary to effect such Qualified Receivables Transaction, and (vi) the
rights of shareholders of Subsidiaries (other than the Borrower and its
Subsidiaries) to receive dividends in respect of the Capital Stock of such
Subsidiaries owned by such shareholders and other rights of such shareholders
arising by operation of law.
6.8 Amendment of Credit Documentation. Enter into, or permit
any of its Subsidiaries to enter into, become or remain subject to any agreement
or instrument to which the Borrower or such Subsidiary is a party or by which
any of them or any of their respective properties (now owned or hereafter
acquired) may be subject or bound that would prohibit or require the consent of
any Person to any amendment, modification or supplement to any of the Loan
Documents, except for the Loan Documents.
6.9 Off-Balance Sheet Financings. Enter into, or permit any of
its Subsidiaries to enter into, any arrangements (other than a Qualified
Receivables Transaction permitted under Section 6.10(d)) to finance any
Indebtedness of any Person (other than the Borrower and its consolidated
Subsidiaries) (a) which was incurred by the Borrower or any of its Subsidiaries
or guaranteed by the Borrower or any of its Subsidiaries at any time or the
proceeds of which are or were transferred to or used by the Borrower or any of
its Subsidiaries and (b) the payments in respect of which are intended to be
financed with the proceeds of payments made to such Person by the Borrower or
any of its consolidated Subsidiaries or any Indebtedness or Capital Stock issued
by the Borrower or any such Subsidiary in an aggregate principal amount in
excess of $50,000,000 at any time outstanding.
6.10 Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) subject to Section 6.11, the sale or issuance of any
Subsidiary's Capital Stock to the Borrower or any other Subsidiary;
(d) sales of accounts receivable and related assets or an
interest therein of the type specified in the definition of "Qualified
Receivables Transaction" made in connection with a Qualified
Receivables Transaction; provided, that, notwithstanding anything
herein to the contrary, in no event shall (i) the aggregate outstanding
principal amount of Attributable Debt in respect of Qualified
Receivables Transactions of the Borrower and its Domestic Subsidiaries
be greater than $150,000,000 in the aggregate at any one time or (ii)
the aggregate outstanding principal amount of Attributable Debt in
respect of Qualified Receivables Transactions of Foreign Subsidiaries
be greater than $75,000,000 in the aggregate at any one time;
(e) as set forth on Schedule 6.10; and
63
(f) the Disposition of other property having a fair market
value not to exceed 15% of Consolidated Tangible Assets in the
aggregate for any fiscal year of the Borrower.
6.11 Investments. Make any advance, loan, extension of credit
(by way of Guarantee Equivalent or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt securities
of, or any assets constituting a business unit of, or make any other investment
in, any Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Equivalents permitted by Section 6.2;
(d) intercompany Investments by the Borrower or any Subsidiary
in the Borrower or any other Subsidiary; provided, that, in the case of
Investments by the Borrower or any Subsidiary Guarantor in any
Non-Guarantor Subsidiary, the Net Non-Guarantor Investments shall not
exceed $225,000,000 after giving effect thereto;
(e) acquisitions of the assets of a division or business unit
of another Person or acquisitions of the Capital Stock of Persons in
which the Borrower owns of record and beneficially, directly or
indirectly, 75% or more of the aggregate value represented by all
classes of such Capital Stock and 75% or more of the aggregate voting
power represented by all shares of such Capital Stock (determined after
giving effect to such Investment) or of a Person which becomes a
Subsidiary Guarantor as a result; provided, that (i) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (ii) the Borrower shall be in compliance with the covenants
set forth in Section 6.1 as of the last day of the immediately
preceding fiscal quarter for which financial statements have been
delivered pursuant to Section 3.1 after giving effect, on a pro forma
basis, to such acquisition as if it had occurred on the first day of
the relevant period, (iii) the Borrower shall have delivered to the
Administrative Agent at least ten Business Days prior to any such
acquisition a certificate of a Responsible Officer certifying the
satisfaction of the foregoing conditions and setting forth in
reasonable detail the calculations necessary to determine compliance
with clause (ii) above and (iv) after giving effect to such
acquisition, the Net Non-Guarantor Investments do not exceed
$225,000,000;
(f) Investments at any one time outstanding by the Borrower or
any of its Subsidiaries in an aggregate amount (valued at cost) not to
exceed $150,000,000 during the term of this Agreement in any Person in
which the Borrower owns of record and beneficially, directly or
indirectly, less than 75% or more of the aggregate value represented by
all classes of such Capital Stock or 75% or more of the aggregate
voting power represented by all shares of such Capital Stock
(determined after giving effect to such Investment) and which Person is
not a Subsidiary Guarantor; provided, that (i) no Default or Event of
Default shall have occurred and be continuing or would result
therefrom, (ii) the Borrower shall be in compliance with the covenants
set forth in
64
Section 6.1 as of the last day of the immediately preceding fiscal
quarter for which financial statements have been delivered pursuant to
Section 5.1 after giving effect, on a pro forma basis, to such
Investment as if it had occurred on the first day of the relevant
period, and (iii) after giving effect to such Investment, the Net
Non-Guarantor Investments do not exceed $225,000,000;
(g) the Widia Acquisition;
(h) Investments by the Borrower or a Subsidiary in a
Receivables Entity or any Investment by a Receivables Entity in any
other Person, in each case, in connection with a Qualified Receivables
Transaction, provided, however, that any Investment in any such Person
is in the form of an equity interest or interests in accounts
receivable and related assets generated by the Borrower or a Subsidiary
and transferred to any Person in connection with a Qualified
Receivables Transaction or any such Person owning such accounts
receivable; and
(i) in addition to Investments otherwise expressly permitted
by this Section, Investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $100,000,000
during the term of this Agreement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five Business Days after any such
interest or other amount becomes due in accordance with the terms
hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
5.4(a) (with respect to the Borrower only), Section 5.7(a) (only with
respect to an Event of Default) or Section 6 of this Agreement; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or the Required Lenders; or
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(e) any Group Member shall (i) default in making any payment
of any principal of any Indebtedness (including any Guarantee
Equivalent, but excluding the Loans) on the scheduled or original due
date with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or beneficiary of such Indebtedness (or a trustee
or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due prior to
its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Equivalent) to become payable; provided, that
a default, event or condition -------- described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event
of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $25,000,000; or
(f) (i) any Group Member (other than an Immaterial Subsidiary)
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member (other than an
Immaterial Subsidiary) shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Group
Member (other than an Immaterial Subsidiary) any case, proceeding or
other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Group
Member (other than an Immaterial Subsidiary) any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets that results in the entry of an order for any such relief that
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) any Group Member
(other than an Immaterial Subsidiary) shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Group Member (other than an Immaterial
Subsidiary) shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due;
provided, that -------- notwithstanding anything to the contrary
contained in this Section 7(f), it shall be an Event of Default if
Immaterial Subsidiaries that collectively have assets with a total book
value or fair market value of more than $20,000,000 are subject to the
events described in clause (i), (ii), (iii), (iv) or (v) above; or
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(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Group Member or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) any Group Member or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) one or more judgments or decrees shall be entered against
any Group Member involving in the aggregate a liability (not paid or
fully covered by insurance as to which the relevant insurance company
has acknowledged coverage) of $25,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) the guarantee of any Subsidiary Guarantor (other than
Subsidiary Guarantors which (a) are designated by the Borrower as a
Significant Subsidiary under clause (c) of the definition of
"Significant Subsidiary" and (b) would not be a Significant Subsidiary
absent such designation) contained in the Guarantee shall cease, for
any reason, to be in full force and effect (except (x) to the extent
that such Subsidiary Guarantor is merged into the Borrower or another
Subsidiary Guarantor or (y) such Subsidiary Guarantor is sold or
otherwise disposed of in a transaction permitted by Section 6.10) or
any Loan Party shall so assert; or
(j) (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) shall become, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 30% of the outstanding
common stock of the Borrower; or (ii) the board of directors of the
Borrower shall cease to consist of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
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presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to all
Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the Borrower
shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit. Amounts held in such cash collateral account
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the other
Loan Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto). Except as expressly provided above in this
Section 7, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
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8.3 Exculpatory Provisions. Neither any Agent, the Advisor,
the Arranger or any Co-Arranger nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents, the Advisor, the
Arranger or the Co-Arrangers under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower or its
Subsidiaries), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but
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shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.
8.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents, the Advisor, the Arranger or the
Co-Arrangers nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by any Agent, the Advisor, the Arranger or any Co-Arranger
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent, the Advisor, the Arranger or any Co-Arranger to any
Lender. Each Lender represents to the Agents, the Advisor, the Arranger and the
Co-Arrangers that it has, independently and without reliance upon any Agent, the
Advisor, the Arranger or any Co-Arranger or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their affiliates
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent, the Advisor, the Arranger or any Co-Arranger or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify each
Agent, the Advisor, the Arranger and each Co-Arranger in its capacity as such
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Revolving Percentages in effect on the date on which indemnification is sought
under this Section 8.7 (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Revolving Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the payment
of the Loans) be imposed on, incurred by or asserted against such Agent, the
Advisor, the Arranger or such Co-Arranger in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent, the
Advisor, the Arranger or such Co-Arranger under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
70
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent's, Advisor's, Arranger's or such Co-Arranger's gross negligence
or willful misconduct. The agreements in this Section 8.7 shall survive the
payment of the Loans and all other amounts payable hereunder.
8.8 Agent in Its Individual Capacity. Each Agent, the Advisor,
the Arranger, each Co-Arranger and their respective affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any
Loan Party as though such Agent, Advisor, Arranger or Co-Arranger were not an
Agent, Advisor, Arranger or Co-Arranger. With respect to its Loans made or
renewed by it and with respect to any Letter of Credit issued or participated in
by it, each Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as though it
were not an Agent, and the terms "Lender" and "Lenders" shall include each Agent
in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 7(a) or Section
7(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
8.10 Co-Syndication Agents . No Co-Syndication Agent shall
have any duties or responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or
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the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan or Reimbursement Obligation, reduce
the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in
interest rates (which waiver shall be effective with the consent of the Required
Lenders) and (y) that any amendment or modification of defined terms used in the
financial covenants in this Agreement shall not constitute a reduction in the
rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce the
voting rights of any Lender under this Section 9.1 without the written consent
of such Lender; (iii) consent to the assignment or transfer by the Borrower of
its rights and obligations under this Agreement and the other Loan Documents or
release all or substantially all of the Subsidiary Guarantors from their
obligations under the Guarantee without the written consent of all the Lenders;
(iv) add additional currencies as Foreign Currencies in which Multicurrency
Loans may be made under this Agreement without the written consent of all the
Multicurrency Lenders; (v) reduce the percentage specified in the definition of
Required Lenders without the written consent of all Lenders; (vi) amend, modify
or waive any provision of Section 8 without the written consent of the
Administrative Agent; (vii) amend, modify or waive any provision of Section 2.4
or 2.5 without the written consent of the Swingline Lenders; (viii) amend,
modify or waive any provision of Sections 2.6 through 2.13 inclusive without the
written consent of the Issuing Lenders; or (ix) amend, modify or waive any
provision of Section 2.23 without the written consent of each Lender adversely
affected thereby. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended
(or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Documents
with the extensions of credit outstanding hereunder and the accrued interest and
fees in respect thereof and (b) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or
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three Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as follows in the case of
the Borrower and the Administrative Agent, and as set forth in an administrative
questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties
hereto:
The Borrower: Kennametal Inc.
State Route 981 South
Latrobe, Pennsylvania 15650
Attention: David W. Greenfield
Vice President, Secretary and General
Counsel
Telecopy: 724-539-3839
Telephone: 724-539-6578
Administrative Agent: JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Attention: Robert P. Kellas
Telecopy: 212-270-1403
Telephone: 212-270-3560
London Funding Office: Chase Manhattan International Limited
125 London Wall
London EC2Y 5AJ
England
Attention: Steve Clarke
Telecopy: 44-207-777-2360/2085
Telephone: 44-207-777-2353
New York Funding Office: JPMorgan Chase Bank
Agent Bank Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Janet Belden
Telecopy: 212-552-5658
Telephone: 212-552-7277
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor
73
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent, the Advisor and the Arranger for all
its reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including
the reasonable fees and disbursements of counsel to the Administrative Agent and
filing and recording fees and expenses, with statements with respect to the
foregoing to be submitted to the Borrower prior to the Closing Date (in the case
of amounts to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender, each Agent, the Advisor,
the Arranger and each Co-Arranger for all its reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents, including
the reasonable fees and disbursements of counsel (including the allocated
expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender, each Agent,
the Advisor, the Arranger and each Co-Arranger harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, that
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, each
Agent, the Advisor, the Arranger and each Co-Arranger and their respective
officers, directors, employees, affiliates, agents and controlling persons
(each, an "Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the Properties and the reasonable
fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against any Loan Party under any Loan Document
(all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
74
Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert,
and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee to the extent of
the Indemnitee's liability as an owner (and not as an operator or arranger under
Environmental Laws). All amounts due under this Section 9.5 shall be payable not
later than 10 days after written demand therefor. Statements payable by the
Borrower pursuant to this Section 9.5 shall be submitted to the Borrower at its
address set forth in Section 9.2 or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative
Agent. The agreements in this Section 9.5 shall survive repayment of the Loans
and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any affiliate of the Issuing Lender that issues any
Letter of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section.
(b)(i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments, Multicurrency Subcommitments and
the Loans at the time owing to it) with the prior written consent (such consent
not to be unreasonably withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an affiliate of a
Lender, an Approved Fund or, if an Event of Default under Section 7(a)
(with respect to payments of principal or Reimbursement Obligations) or
7(f) (with respect to the Borrower) has occurred and is continuing, any
other Person; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to an Assignee
that is a Lender immediately prior to giving effect to such assignment,
except in the case of an assignment of a Commitment to an Assignee that
does not already have a Commitment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitments, the
amount of the Commitments of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than
75
$10,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such consent of the Borrower
shall be required if an Event of Default under Section 7(a) (with
respect to payments of principal or Reimbursement Obligations) or 7(f)
(with respect to the Borrower) has occurred and is continuing and (2)
such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500;
(C) the Assignee, if it shall not be a Lender, shall (i) be
capable of funding its Revolving Credit Percentage of a Eurocurrency
Loan of one, two or three weeks, or one, two, three or six months, and
(ii) deliver to the Administrative Agent an administrative
questionnaire;
(D) in the case of an assignment by a Lender to its CLO, the
assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement and the other
Loan Documents, provided that the Assignment and Assumption between
such Lender and such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment, modification or waiver
that (1) requires the consent of each Lender directly affected thereby
pursuant to the proviso to the second sentence of Section 9.1 and (2)
directly affects such CLO; and
(E) in the case of an assignment by a Multicurrency Lender of
all or a portion of its Commitment, such assignment must include a
ratable assignment of such Multicurrency Lender's Multicurrency
Subcommitment to the extent that the amount of its Commitment being
assigned is greater than the excess, if any, of the amount of such
Commitment over the amount of such Multicurrency Lender's Multicurrency
Subcommitment.
For the purposes of this Section 9.6, the terms "Approved
Fund" and "CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any
Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment
advisor as such Lender or by an affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of credit in
the ordinary course of its business and is administered or managed by a
Lender or an affiliate of such Lender.
76
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.24, 2.25, 2.26 and 9.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive absent manifest error, and the Borrower, the Administrative
Agent, the Issuing Lender and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an Assignee, the Assignee's
completed administrative questionnaire (unless the Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c)(i) Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby
pursuant to the proviso to the second sentence of Section 9.1 and (2) directly
77
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.24, 2.25 and 2.26 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 9.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.24 or 2.25 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. Any Participant that is a Non-U.S.
Lender shall not be entitled to the benefits of Section 2.25 unless such
Participant complies with Section 2.25(d).
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such Lender
as a party hereto.
(e) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may
assign any or all of the Loans it may have funded hereunder to its designating
Lender without the consent of the Borrower or the Administrative Agent and
without regard to the limitations set forth in Section 9.6(b). Each of the
Borrower, each Lender and the Administrative Agent hereby confirms that it will
not institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
9.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender, if any Lender (a "Benefitted Lender") shall, at any time after the Loans
and other amounts payable hereunder shall immediately become due and payable
pursuant to Section 7, receive any payment of all or part of the Obligations
owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other relevant Lender, if any, in
respect of the Obligations owing to such other relevant Lender, such Benefitted
Lender shall purchase for cash from the other relevant Lenders
78
a participating interest in such portion of the Obligations owing to each such
other relevant Lender, or shall provide such other relevant Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the relevant Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall, so long as any Event of Default has occurred
and is continuing, have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
79
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 9.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.14 Confidentiality. Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement that is designated by such Loan
Party as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to
the Administrative Agent, any other Lender or any Lender Affiliate, but in the
case of Lender
80
Affiliates, only in connection with this Agreement and matters related thereto
(and not for any other purpose), (b) subject to an agreement to comply with the
provisions of this Section 9.14, to any actual or prospective Transferee or any
direct or indirect counterparty to any Hedge Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
affiliates, (d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
that has been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document. To the extent permitted by law, in the case of all requests, demands,
responses or requirements referenced in clauses (d), (e) and (f), the
Administrative Agent or the Lender, as the case may be, shall use reasonable
commercial efforts to notify the Borrower with respect to such request, demand,
response or requirement in order to afford the Borrower an opportunity to take
such actions as Borrower deems appropriate to protect such Confidential
Information.
9.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Remainder of page left blank intentionally; Signature page to follow.]
81
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
KENNAMETAL INC.
By: /s/ James E. Morrison
------------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ Bruce Borden
------------------------------------
Name: Bruce Borden
Title: Vice President
82
FLEET NATIONAL BANK, as a Co-Syndication
Agent and as a Lender
By: /s/ Peter J. Cahill
------------------------------------
Name: Peter J. Cahill
Title: Managing Director
PNC BANK NATIONAL ASSOCIATION, as a
Co-Syndication Agent and as a Lender
By: /s/ David B. Gookin
------------------------------------
Name: David B. Gookin
Title: Vice President
BANK ONE, NA, as a Co-Syndication Agent
and as a Lender
By: /s/ Heather D. Tressler
------------------------------------
Name: Heather D. Tressler
Title: Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Co-Syndication Agent and as
a Lender
By: /s/ M.R. Marron
------------------------------------
Name: M.R. Marron
Title: Vice President & Manager
83
BANK HAPOALIM B.M,
---------------------------------------
Name of Lender
By: /s/ Shaun Breilbart
------------------------------------
Name: Shaun Breilbart
Title: Vice President
By: /s/ Conrad Wagner
------------------------------------
Name: Conrad Wagner
Title: First Vice President
THE BANK OF NEW YORK
---------------------------------------
Name of Lender
By: /s/ Walter C. Parelli
------------------------------------
Name: Walter C. Parelli
Title: Vice President
BAYERISCHE HYPU-UND VEREINSBANK
AG, NEW YORK AND GRAND CAYMAN
BRANCHES
---------------------------------------
Name of Lender
By: /s/ Ken Hamilton
------------------------------------
Name: Ken Hamilton
Title: Director
By: /s/ Richard A. Cordouer
------------------------------------
Name: Richard A. Cordouer
Title: Director
84
CITIZENS BANK OF PENNSYLVANIA
---------------------------------------
Name of Lender
By: /s/ Debra L. McAllonis
------------------------------------
Name: Debra L. McAllonis
Title: Vice President
COMERICA BANK
---------------------------------------
Name of Lender
By: /s/ Robert P. Wilson
------------------------------------
Name: Robert P. Wilson
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
---------------------------------------
Name of Lender
By: /s/ Scott R. Chappelka
------------------------------------
Name: Scott R. Chappelka
Title: Vice President
FIFTH THIRD BANK
---------------------------------------
Name of Lender
By: /s/ James M. Janovsky
------------------------------------
Name: James M. Janovsky
Title: Vice President
85
HUA NAN COMMERCIAL BANK, LTD NY AGENCY
---------------------------------------
Name of Lender
By: /s/ Yun-Peng Chang
------------------------------------
Name: Yun-Peng Chang
Title: General Manager and
Senior Vice President
THE INTERNATIONAL COMMERCIAL BANK
OF CHINA, NEW YORK AGENCY
---------------------------------------
Name of Lender
By: /s/ Owen S.Y. Hu
------------------------------------
Name: Owen S.Y. Hu
Title: Senior Vice President and
General Manager
KEYBANK NATIONAL ASSOCIATION
---------------------------------------
Name of Lender
By: /s/ Mary K. Young
------------------------------------
Name: Mary K. Young
Title: Vice President
MIZUHO CORPORATE BANK, LIMITED
---------------------------------------
Name of Lender
By: /s/ Andreas Panteli
------------------------------------
Name: Andreas Panteli
Title: Senior Vice President,
Department Head
86
NATIONAL CITY BANK OF PENNSYLVANIA
---------------------------------------
Name of Lender
By: /s/ Debra W. Riefner
------------------------------------
Name: Debra W. Riefner
Title: Vice President and
Regional Manager
PB CAPITAL CORPORATION
---------------------------------------
Name of Lender
By: /s/ Jeff Frost
------------------------------------
Name: Jeff Frost
Title: Managing Director
By: /s/ A. Almonte
------------------------------------
Name: A. Almonte
Title: Assistant Vice President
87
EXHIBIT 99.1
KENNAMETAL ANNOUNCES COMPLETION OF WIDIA ACQUISITION
LATROBE, Pa., Aug. 30 /PRNewswire-FirstCall/ -- Kennametal Inc. (NYSE: KMT)
today announced that it has completed the previously reported acquisition of the
Widia Group from Milacron Inc. (NYSE: MZ) for approximately 188 million euros in
cash, subject to post- closing adjustments. Widia, with about $240 million in
sales, is a leading manufacturer and marketer of metalworking tools, engineered
products and related services in Europe and India.
"We are delighted to welcome Widia to the Kennametal family of businesses,
and we are energized by the enhanced global reach that the strategic acquisition
of Widia is adding to our metalworking business," said Markos I. Tambakeras,
Chairman, President and Chief Executive Officer of Kennametal Inc. "An
experienced management team is leading a comprehensive integration effort that
will realize significant synergy opportunities, and will be completed within the
12-month time frame to which we originally committed."
This release contains certain "forward-looking" statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. You can identify these forward-looking
statements by the fact they use words such as "should," "anticipate,"
"estimate," "approximate," "expect," "may," "will," "project," "intend," "plan,"
"believe," and others words of similar meaning and expression in connection with
any discussion of future operating or financial performance. One can also
identify forward-looking statements by the fact that they do not relate strictly
to historical or current facts. These statements are likely to relate to, among
other things, our goals, plans and projections regarding our financial position,
results of operations, market position and product development, which are based
on current expectations that involve inherent risks and uncertainties, including
factors that could delay, divert or change any of them in the next several
years. Although it is not possible to predict or identify all factors, they may
include the following: global economic conditions; risks associated with
integrating and divesting businesses and achieving the expected savings and
synergies; demands on management resources; risks associated with international
markets such as currency exchange rates, and social and political environments;
competition; labor relations; commodity prices; demand for and market acceptance
of new and existing products; and risks associated with the implementation of
restructuring plans and environmental remediation matters. We can give no
assurance that any goal or plan set forth in forward-looking statements can be
achieved and readers are cautioned not to place undue reliance on such
statements, which speak only as of the date made. We undertake no obligation to
release publicly any revisions to forward-looking statements as a result of
future events or developments.
Kennametal Inc. aspires to be the premier tooling solutions supplier in the
world with operational excellence throughout the value chain and best-in- class
manufacturing and technology. Kennametal strives to deliver superior shareowner
value through top-tier financial performance. The company provides customers a
broad range of technologically advanced tools, tooling systems and engineering
services aimed at improving customers' manufacturing competitiveness. With
approximately 12,000 employees worldwide, the company's fiscal 2002 annual sales
were approximately $1.6 billion, with a third coming from sales outside the
United States. Kennametal is a five-time winner of the GM "Supplier of the Year"
award and is represented in more than 60 countries. Kennametal operations in
Europe are headquartered in Furth, Germany. Kennametal Asia Pacific operations
are headquartered in Singapore. For more information, visit the company's web
site at http://www.kennametal.com
