UNITED STATES
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): December 23, 2004
THE MIDDLEBY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 1-9973 36-3352497
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
1400 Toastmaster Drive, Elgin, Illinois 60120
(Address of Principal Executive Offices) (Zip Code)
(847) 741-3300
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry Into a Material Agreement.
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On December 23, 2004, The Middleby Corporation (the
"Company" or "Middleby") repurchased 1,808,774 shares of its common stock and
271,000 options (the "Repurchase") from William F. Whitman, Jr., the Chairman
of the Company's board of directors ("WFW, Jr."), members of his family and
trusts controlled by his family (collectively, the "Whitmans") pursuant to the
terms of a Stock Repurchase Agreement, dated December 23, 2004 (the
"Repurchase Agreement"), by and among the Company and the Whitmans for a total
aggregate purchase price of $83,974,578 in cash. The repurchased shares
represented approximately 19.6% of Company's 9,251,474 outstanding shares and
were repurchased at a price of $42 per share. The options were purchased at a
price equal to the difference between $42 and the exercise price of the
option.
WFW, Jr., who will turn 65 in February, has retired from his
post as Chairman of the Board after 26 years. In addition, Laura B. Whitman,
W. Fifield Whitman and Robert R. Henry have resigned as Directors of the
Company.
In addition to the Repurchase, the Repurchase Agreement
requires the Company to file a registration statement under the Securities Act
of 1933, as amended, with respect to the sale of some or all of the Whitmans'
remaining 1,851,719 shares (the "Secondary Shares") of the Company's common
stock in an underwritten public offering. In the event that the Whitmans
decide not to proceed with this underwritten public offering, the Whitmans
have the right, subject to certain conditions, to require the Company to
register the Secondary Shares for sale in the public markets on up to two
additional occasions.
The Whitmans have agreed to certain restrictions on their
ability to sell their Secondary Shares in private transactions and to make
additional purchases of the Company's common stock. They have also agreed to
certain restrictions with respect to their ability to vote the Secondary
Shares after the date hereof.
The Company financed the Repurchase with borrowings under
the Third Amended and Restated Credit Agreement, dated December 23, 2004 (the
"New Credit Facility"), by and among Middleby Marshall Inc. ("MMI"), the
Company, various financial institutions party thereto and Bank of America
("BOA"), as administrative agent, that was entered into in connection with the
transaction. The New Credit Facility provides for $70 million in term loan
borrowings and $90 million of borrowing availability under a revolving credit
facility. As of December 23, 2004 the Company had $123.3 million of total
outstanding debt, after giving effect to the borrowings incurred to fund the
Repurchase, and expects to fund approximately $8 million of additional costs
related to the transaction. The information set forth in Item 2.03 of this
Current Report on Form 8-K is incorporated by reference herein.
The Company also entered into an Employment Agreement, dated
December 23, 2004 (the "Employment Agreement"), by and between the Company,
MMI and Selim A. Bassoul, the Company's President and Chief Executive Officer
("Mr. Bassoul"), which supercedes a previous agreement, dated May 16, 2002 and
subsequently amended (the "Prior Employment Agreement"). The term of the
Employment Agreement will continue until March 1, 2012, unless Mr. Bassoul's
employment is earlier terminated pursuant to the terms of the Employment
Agreement.
Pursuant to the Employment Agreement, Mr. Bassoul will serve
as the President and Chief Executive Officer of the Company, the President and
Chief Executive Officer of MMI and the Chairman of the Board of Directors of
the Company. The Company is obligated to pay Mr. Bassoul an annual base salary
of $770,000 and Mr. Bassoul is eligible to earn an annual incentive bonus
under the Company's management incentive compensation plan.
The Company has agreed to grant Mr. Bassoul an aggregate of
300,000 shares of restricted stock of the Company pursuant to the Company's
1998 Stock Incentive Plan (the "Plan"), which will be granted to him at the
times listed below to the extent there are shares available for grant under
the Plan and consistent with the annual grant limits provided by the Plan. Mr.
Bassoul will be granted (a) 100,000 shares of restricted stock in December of
2004, (b) 100,000 shares of restricted stock in January of 2005 and (c) any
deficiency in the number of shares required to bring the total grant to
300,000 shares of restricted stock, on the earlier of the date following the
next meeting of the shareholders of the Company on which shareholders approve
an amendment to the Plan, increasing the annual grant limit under the Plan or
January of 2006. The restricted stock will vest ratably over a five year
period, commencing on December 31, 2005 and will become fully vested on
December 31, 2009, as long as Mr. Bassoul continues his employment with the
Company. The restricted stock will immediately vest, however, if (a) Mr.
Bassoul terminates his employment because his assigned duties, position or
titles have been materially diminished or changed ("Diminution in Duties") or
(b) the Company terminates Mr. Bassoul's employment other than for "cause" (as
defined in the Employment Agreement) or (c) Mr. Bassoul terminates his
employment within six months of a "change in control" (as defined in the
Employment Agreement) (each, a "Qualifying Termination").
Under the Employment Agreement, if Mr. Bassoul's employment
is terminated pursuant to a Qualifying Termination, he is to receive the
following payments and benefits: (a) a lump sum payment equal to three times
the sum of his annual base salary and the greater of his incentive
compensation under the Company's management incentive plan with respect to the
full calendar year immediately prior to the date of termination and the
average of his incentive compensation under the management incentive plan for
each of the three calendar years immediately prior to the date of termination,
and (b) continued participation in all health and medical plans and programs
maintained by the Company, generally until the later of Mr. Bassoul's death or
the death of his surviving spouse or Mr. Bassoul becomes eligible for health
and medical benefits from a new employer. In the event that payments are made
to Mr. Bassoul in connection with a change in control, Mr. Bassoul will
receive an additional amount equal to any excise tax incurred with respect to
such change in control payments and related income tax incurred sufficient to
restore him to the same after-tax position he would have been in if the excise
tax had not been imposed.
Under the Employment Agreement, Mr. Bassoul is provided with
a supplemental retirement benefit, described below, which will be offset by
any qualified pension plan benefits provided by the Company. Mr. Bassoul will
become vested in a monthly supplemental retirement benefit equal to
one-twelfth of 50% of his base salary in effect immediately prior to his
retirement if he retires from the Company on or after reaching age 55. If Mr.
Bassoul retires from the Company, or is terminated from employment in certain
circumstances described below, after he reaches the age of 55, Mr. Bassoul
will become vested in additional monthly supplemental retirement benefits, up
to a maximum total monthly benefit equal to one-twelfth of 75% of Mr.
Bassoul's base salary if he retires on or after attaining the age of 65 (the
"Deferred Retirement Benefit"). The actual amount of supplemental retirement
benefits earned by Mr. Bassoul (assuming he retires after age 55) is
calculated by multiplying the Deferred Retirement Benefit by a fraction, the
denominator of which is the number of full months between the date on which he
attains age 55 and the date on which he attains age 65 (120 months) and the
numerator of which is the number of full months worked by Mr. Bassoul after
attaining age 55. The monthly supplemental retirement benefit is payable for
the life of Mr. Bassoul, except that, in the event of his death prior to
reaching the age of 75, the benefit will be paid to Mr. Bassoul's designated
beneficiary until the date on which Mr. Bassoul would have reached the age of
75 had he lived. If, prior to reaching the age of 55, Mr. Bassoul's employment
is terminated due to a Qualifying Termination or if he dies or becomes
disabled, Mr. Bassoul will become vested in a pro rata portion of the
supplemental retirement benefit, expressed as a percentage of base salary,
calculated by multiplying 50% by a fraction, the denominator of which is the
number of full months between the date of the Employment Agreement and the
date on which Mr. Bassoul attains the age of 55, and the numerator of which is
the number of full months worked by Mr. Bassoul after the date of the
Employment Agreement prior to his termination.
Copies of the Repurchase Agreement, the New Credit Facility
and the Employment Agreement are attached hereto as Exhibits 10.1, 10.2 and
10.3, respectively. The descriptions of the Repurchase Agreement, the New
Credit Facility and the Employment Agreement in this Current Report on Form
8-K are qualified in their entirety by reference to the complete copies of the
agreements attached hereto as exhibits.
Item 1.02 Termination of a Material Definitive Agreement.
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In connection with the Repurchase Agreement and except as
otherwise set forth in the Repurchase Agreement, that certain employment
agreement, dated January 1, 1995, by and among the Company, MMI and WFW, Jr.,
as amended, has been terminated in its entirety.
In connection with Mr. Bassoul's Employment Agreement, the
Prior Employment Agreement with Mr. Bassoul has been terminated in its
entirety.
Item 2.03 Creation of a Direct Financial Obligation or an
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Obligation under an Off-Balance Sheet Arrangement of a
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Registrant.
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The information set forth in Item 1.01 of this Current
Report on Form 8-K with respect to the New Credit Facility is incorporated by
reference herein.
As discussed in Item 1.01 above, the Company entered into
the New Credit Facility. The New Credit Facility provides for, among other
things, a new $70 million term loan facility and a $90 million revolving
credit facility, which will include a $10 million sublimit for the issuance of
standby letters of credit and a $10 million sublimit for swing line loans. The
revolving credit facility will terminate and all amounts outstanding
thereunder will be due and payable in December 2009. The term loan facility
matures in December 2009 and is subject to quarterly amortization of principal
as follows: $2.5 million in year 1, $3.125 million in year 2, $3.75 million in
years 3 and 4, and $4.375 million in year 5. The New Credit Facility provides
that at MMI's option, any loan (other than a swing line loan) will bear
interest at a rate equal to the applicable margin, determined based upon the
ratio of funded debt to EBITDA, plus either LIBOR or the base rate (defined as
the higher of (x) the BOA prime rate and (y) the Federal funds rate plus
..50%).
In addition to the amortization schedule of the term loan
facility, the New Credit Facility provides for mandatory prepayments on the
term loan facility as follows:
o 100% of all net cash proceeds (i) from sales of property and other
assets of MMI and its subsidiaries (excluding sales of inventory in
the ordinary course of business and certain other exceptions
including reinvestment provisions) and (ii) from the issuance or
incurrence after the Closing Date of additional debt of MMI or any of
its subsidiaries otherwise permitted under the loan documentation,
with certain exceptions; and
o 50% of all net cash proceeds from the issuance of additional equity
interests in MMI or any of its subsidiaries (such amount, the "Equity
Prepayment Amount"), with certain exceptions (provided that MMI may,
upon notice to the administrative agent concurrently with receipt by
MMI or any subsidiary of net cash proceeds described in this clause,
deposit the Equity Prepayment Amount into an account maintained with
the administrative agent to be applied (x) by MMI to consummate one
or more permitted acquisitions or (y) if not so applied within 180
days (or such shorter period that MMI may specify), to prepay the
term loan facility as provided therein). Prepayments of the term loan
facility shall be applied ratably to the remaining principal
installments thereof.
The New Credit Facility provides that the Company is
required to comply on a quarterly basis with the following financial
covenants:
o under the leverage ratio covenant, as of the last day of each fiscal
quarter, the ratio of total funded debt of the Company and its
consolidated subsidiaries to consolidated EBITDA of the Company and
its consolidated subsidiaries must not exceed 3.5 to 1.0; and
o under the fixed charge coverage ratio covenant, as of the last day of
each fiscal quarter, for the 12-month period then ended, the ratio of
consolidated EBITDA less capital expenditures, cash dividends and
cash income tax payments of the Company and its consolidated
subsidiaries to cash interest expense and scheduled funded debt
payments of the Company and its consolidated subsidiaries must be
equal to or greater than 1.25 to 1.0.
The terms of the New Credit Facility also, among other
things, limit the paying of dividends and the incurrence of other debt. The
New Credit Facility also requires the Company to represent and warrant that no
material adverse change in the business, assets, operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries
taken as a whole has occurred since January 3, 2004.
Item 5.02 Departure of Directors or Principal Officers; Election of
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Directors; Appointment of Principal Officers.
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As described in Item 1.01 of this Current Report on Form
8-K, WFW, Jr., in connection with his retirement from the Company and from his
position as Chairman of the board, Laura B. Whitman, W. Fifield Whitman, III
and Robert R. Henry have resigned as directors of the Company, effective as of
December 23, 2004.
Also as described in Item 1.01 of this Current Report on
Form 8-K, Mr. Bassoul has been appointed to serve as Chairman of the Company's
board of directors and continues to serve as President and Chief Executive
Officer. Mr. Bassoul has served as a director of the Company since 2001. Mr.
Bassoul served as President and Chief Executive Officer of the Company and its
principal subsidiary, MMI since January 1, 2001, as Chief Operating Officer of
the Company and MMI from 2000 to 2001, as Group President of Middleby Cooking
Systems Group from 1999 to 2000, and as President of Southbend, a Middleby
company, from 1996 to 1999.
The information set forth in Item 1.01 of this Current
Report on Form 8-K with respect to the Employment Agreement is incorporated by
reference herein.
ITEM 9.01. Financial Statements and Exhibits.
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(c) Exhibits.
Exhibit No. Description
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Exhibit 10.1* Stock Repurchase Agreement, dated December 23, 2004, by and
among The Middleby Corporation, William F. Whitman, Jr.,
Barbara K. Whitman, W. Fifield Whitman III, Laura B.
Whitman, the Barbara K. Whitman Irrevocable Trust, the
William F. Whitman, Jr. Irrevocable Trust, the Trust dated
December 21, 2003 F/B/O Barbara K. Whitman, the Trust dated
December 21, 2003 F/B/O Laura B. Whitman, the Trust dated
December 21, 2003 F/B/O William Fifield Whitman III, the
William F. Whitman, Jr. and Barbara K. Whitman Charitable
Remainder Trust and the W. F. Whitman Family Foundation
Exhibit 10.2* Third Amended and Restated Credit Agreement, dated December
23, 2004, among Middleby Marshall Inc., The Middleby
Corporation, various financial institutions party thereto,
LaSalle Bank National Association, Wells Fargo Bank, N.A.,
Bank of America, N.A. and Banc of America Securities LLC
Exhibit 10.3 Employment Agreement, dated December 23, 2004, by and
between The Middleby Corporation, Middleby Marshall Inc. and
Selim A. Bassoul
* Schedules and exhibits to these exhibits have been omitted, but will be
furnished to the Securities and Exchange Commission upon request.
SIGNATURES
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.
THE MIDDLEBY CORPORATION
Dated: December 27, 2004 By: /s/ Timothy J. FitzGerald
--------------------------
Timothy J. FitzGerald
Vice President and Chief
Financial Officer
Exhibit No. Description
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Exhibit 10.1* Stock Repurchase Agreement, dated December 23, 2004, by and
among The Middleby Corporation, William F. Whitman, Jr.,
Barbara K. Whitman, W. Fifield Whitman III, Laura B.
Whitman, the Barbara K. Whitman Irrevocable Trust, the
William F. Whitman, Jr. Irrevocable Trust, the Trust dated
December 21, 2003 F/B/O Barbara K. Whitman, the Trust dated
December 21, 2003 F/B/O Laura B. Whitman, the Trust dated
December 21, 2003 F/B/O William Fifield Whitman III, the
William F. Whitman, Jr. and Barbara K. Whitman Charitable
Remainder Trust and the W. F. Whitman Family Foundation
Exhibit 10.2* Third Amended and Restated Credit Agreement, dated December
23, 2004, among Middleby Marshall Inc., The Middleby
Corporation, various financial institutions party thereto,
LaSalle Bank National Association, Wells Fargo Bank, N.A.,
Bank of America, N.A. and Banc of America Securities LLC
Exhibit 10.3 Employment Agreement, dated December 23, 2004, by and
between The Middleby Corporation, Middleby Marshall Inc. and
Selim A. Bassoul
* Schedules and exhibits to these exhibits have been omitted, but will be
furnished to the Securities and Exchange Commission upon request.
Exhibit 10.1
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STOCK REPURCHASE AGREEMENT
by and among
THE MIDDLEBY CORPORATION,
WILLIAM F. WHITMAN, JR.,
BARBARA K. WHITMAN,
W. FIFIELD WHITMAN III,
LAURA B. WHITMAN,
BARBARA K. WHITMAN IRREVOCABLE TRUST,
WILLIAM F. WHITMAN, JR. IRREVOCABLE TRUST,
TRUST DATED DECEMBER 21, 2003 F/B/O BARBARA K. WHITMAN,
TRUST DATED DECEMBER 21, 2003 F/B/O LAURA B. WHITMAN,
TRUST DATED DECEMBER 21, 2003 F/B/O W. FIFIELD WHITMAN III,
WILLIAM F. WHITMAN, JR. AND BARBARA K. WHITMAN CHARITABLE REMAINDER TRUST,
and
W.F. WHITMAN FAMILY FOUNDATION
December 23, 2004
TABLE OF CONTENTS
Page
ARTICLE I REPURCHASE AND SALE OF SHARES ............................... 2
Section 1.1 Sale and Transfer ....................................... 2
Section 1.2 Purchase Price .......................................... 2
ARTICLE II CLOSING ..................................................... 2
Section 2.1 Closing ................................................. 2
Section 2.2 Deliveries by the Holders ............................... 2
Section 2.3 Deliveries by the Company ............................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE HOLDERS ............... 3
Section 3.1 Existence; Authority .................................... 3
Section 3.2 Enforceability .......................................... 3
Section 3.3 Ownership ............................................... 3
Section 3.4 Good Title Conveyed ..................................... 3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY ............... 4
Section 4.1 Existence; Authority .................................... 4
Section 4.2 Enforceability .......................................... 4
ARTICLE V SECONDARY REGISTRATION STATEMENT ............................ 4
Section 5.1 Secondary Registration .................................. 4
Section 5.2 Return of Prospectuses .................................. 6
Section 5.3 Registration Expenses ................................... 6
Section 5.4 Indemnification ......................................... 6
Section 5.5 Underwritten Registration ............................... 8
Section 5.6 Reporting Sales ......................................... 8
Section 5.7 Demand Registration ..................................... 8
Section 5.8 Lockup Periods .......................................... 9
Section 5.9 Reimbursement by the Holders ............................ 9
ARTICLE VI ADDITIONAL AGREEMENTS ....................................... 9
Section 6.1 Restriction on Sale ..................................... 9
Section 6.2 Restriction on Repurchase ............................... 9
Section 6.3 Employment Agreement .................................... 10
Section 6.4 Proxy Contests .......................................... 10
Section 6.5 Transition Services ..................................... 11
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ARTICLE VII AGREEMENT TO VOTE ........................................... 11
Section 7.1 Election of Directors.................................... 11
Section 7.2 Management Compensation; Bylaws.......................... 12
Section 7.3 Other Matters............................................ 12
Section 7.4 Voting Power............................................. 13
Section 7.5 Adjustment Upon Changes in Capitalization................ 13
ARTICLE VIII RELEASE OF CLAIMS ........................................... 13
Section 8.1 Release of Claims ....................................... 13
ARTICLE IX INDEMNIFICATION ............................................. 15
Section 9.1 Survival of Representations and Warranties............... 15
Section 9.2 Indemnification by the Holders........................... 15
Section 9.4 Indemnification Claims................................... 15
Section 9.5 Remedies Cumulative; Waiver.............................. 16
ARTICLE X GENERAL PROVISIONS........................................... 16
Section 10.1 Expenses................................................. 16
Section 10.2 Notices.................................................. 16
Section 10.3 Public Announcements..................................... 17
Section 10.4 Waiver................................................... 17
Section 10.6 Binding Effect; Assignments.............................. 17
Section 10.7 Severability............................................. 17
Section 10.8 Headings................................................. 18
Section 10.9 Construction; Complete Agreement ........................ 18
Section 10.10 Exhibits ................................................ 18
Section 10.11 Governing Law ........................................... 18
Section 10.12 Jurisdiction ............................................ 18
Section 10.13 Counterparts ............................................ 18
Section 10.14 Non-Disparagement ....................................... 19
Section 10.15 Further Assurances ...................................... 19
ii
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "Agreement"), dated as of
December 23, 2004, is entered into by and among The Middleby Corporation, a
Delaware corporation (the "Company"), William F. Whitman, Jr. ("WFW, Jr."),
Barbara K. Whitman ("BKW"), W. Fifield Whitman III ("WFW III"), Laura B.
Whitman ("LBW"), the Barbara K. Whitman Irrevocable Trust, the William F.
Whitman, Jr. Irrevocable Trust, the Trust dated December 21, 2003 F/B/O Barbara
K. Whitman, the Trust dated December 21, 2003 F/B/O Laura B. Whitman, the Trust
dated December 21, 2003 F/B/O William Fifield Whitman III, the William F.
Whitman, Jr. and Barbara K. Whitman Charitable Remainder Trust and the W. F.
Whitman Family Foundation (collectively, the "Holders" and each individually, a
"Holder," and the Holders that are organized as trusts or foundations are
collectively referred to herein as the "Trusts," and each individually, a
"Trust").
WHEREAS, the Holders collectively own 3,660,492.548 shares of the
issued and outstanding common stock, par value $0.01 per share, of the Company
(the "Shares") and collectively hold options to purchase an aggregate of
271,000 shares of common stock of the Company (the "Options");
WHEREAS, the Holders desire to sell, and the Company desires to
purchase, a certain number of the Shares and certain of the Options owned by
such Holders on the terms and conditions set forth in this Agreement;
WHEREAS, the Holders desire to sell a certain number of their Shares
to the public in an offering registered under the Securities Act of 1933, as
amended (the "Securities Act"), and the Company desires to assist such Holders
with such registered offering;
WHEREAS, a Special Committee (the "Special Committee") of the Board of
Directors of the Company (the "Board"), comprised of all of the independent
directors on the Board, has authorized and approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Special Committee has received an opinion, dated as of
the date hereof, from Lehman Brothers Inc. ("Lehman"), the financial advisor to
the Special Committee, that the consideration being paid in connection with the
transactions contemplated by this Agreement is fair from a financial point of
view to the Company.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Holders agree as follows:
ARTICLE I
REPURCHASE AND SALE OF SHARES
Section 1.1 Sale and Transfer. Subject to the terms and conditions
of this Agreement, the Holders shall each sell, convey, assign, transfer and
deliver to the Company, and the Company agrees to repurchase from the Holders,
the number of Shares and Options set forth opposite such Holder's name on
Exhibit A attached hereto and identified as being sold hereunder, free and
clear of all Liens (as defined herein). Upon the repurchase of the Options by
the Company as set forth herein, all agreements or other documents which
evidence any Holder's ownership of the Options shall be terminated and
cancelled.
Section 1.2 Purchase Price. Subject to the terms and conditions of
this Agreement, in consideration of the aforesaid sale, conveyance, assignment,
transfer and delivery to the Company of the Shares and Options, the Company
shall pay to each of the Holders the amount of cash set forth opposite such
Holder's name under the heading "Purchase Price" on Exhibit A attached hereto.
The aggregate cash consideration paid to the Holders shall be referred to
herein as the "Purchase Price."
ARTICLE II
CLOSING
Section 2.1 Closing. The consummation of the repurchase and sale of
the Shares and the Options (the "Closing") are taking place on the date hereof
at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 333 West Wacker
Drive, Chicago, Illinois, and the date of the Closing is referred to herein as
the "Closing Date."
Section 2.2 Deliveries by the Holders. At the Closing, each of the
Holders shall deliver to the Company:
(a) (i) a certificate or certificates representing the
aggregate number of Shares set forth opposite the Holder's name on Exhibit A
attached hereto and identified as being sold hereunder and accompanied by a
stock power or stock powers (in the form attached hereto as Exhibit B), as the
case may be, duly executed in blank by such Holder or (ii) with respect to any
uncertificated Shares held "in street name," a notice in the form of Exhibit C
attached hereto from the Holder of such Shares to the record holder of such
Shares (the "Broker") directing that the Broker transfer such Shares to the
Company, and acknowledgement by the Broker thereby, in each case as sufficient
to vest in the Company good and marketable title to such Shares free and clear
of all Liens;
(b) such other documents, instruments, certificates and
receipts as are reasonably requested by the Company in order to validly convey
title to the Shares and the Options set forth opposite the Holder's name on
Exhibit A attached hereto and identified as being sold hereunder to the Company;
and
2
(c) the resignations of each of WFW, Jr., WFW III and LBW
from all positions, including directorships, held with the Company and its
subsidiaries, effective as of the Closing, in substantially the form attached
hereto as Exhibit D, it being understood that WFW, Jr. is resigning as a result
of his retirement from the Company.
Section 2.3 Deliveries by the Company. At the Closing, the Company
shall deliver to each of the Holders, by wire transfer of immediately available
funds to an account that each Holder has designated in writing, the purchase
price for the Shares and Options set forth opposite such Holder's name on
Exhibit A attached hereto, less any withholding of tax as may be required under
applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
Each of the Holders, jointly and severally, makes the following
representations and warranties to the Company:
Section 3.1 Existence; Authority. Each Trust is a trust duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization or formation and has all requisite power and
authority to execute, deliver and perform the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. Each of WFW Jr., BKW, WFW III and LBW have the legal capacity
and the power and authority to execute, deliver and perform the terms and
provisions of this Agreement and to consummate the transactions contemplated
hereby.
Section 3.2 Enforceability. This Agreement has been duly executed
and delivered by each of the Holders, and, assuming due and valid authorization,
execution and delivery hereof by the Company, constitutes a legal, valid and
binding agreement of each of the Holders, enforceable against the Holders in
accordance with its terms.
Section 3.3 Ownership. Each Holder is the sole record and beneficial
owner of the Shares and/or Options set forth opposite such Holder's name on
Exhibit A attached hereto, free and clear of all mortgages, pledges,
encumbrances, liens, security interests, charges, agreements or claims of any
kind (collectively, "Liens"). Such Holder has the full power and authority to
transfer full legal ownership of the Shares and/or the Options. Except as set
forth on Exhibit A attached hereto, none of the Holders own, directly or
indirectly, any Shares or Options.
Section 3.4 Good Title Conveyed. The stock certificates, stock
powers, endorsements, assignments and other instruments executed and delivered
by the Holders at the Closing are valid and binding obligations of the Holders,
enforceable in accordance with their respective terms, and effectively vest in
the Company good title to all Shares and Options sold, conveyed, assigned,
transferred and delivered to the Company hereunder, free and clear of all Liens.
3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties to each
of the Holders:
Section 4.1 Existence; Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to
execute, deliver and perform the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
Section 4.2 Enforceability. This Agreement has been duly executed
and delivered by the Company, and, assuming due and valid authorization,
execution and delivery hereof by each of the Holders, constitutes a legal, valid
and binding agreement of the Company, enforceable against it in accordance with
its terms.
ARTICLE V
SECONDARY REGISTRATION STATEMENT
Section 5.1 Secondary Registration. Unless otherwise requested by
the Holders upon reasonable written notice to the Company, as soon as is
practicable following the Closing Date, the Company shall use its reasonable
best efforts to effect the registration under the Securities Act for sale as
soon as practicable in an underwritten public offering of the Shares set forth
on Exhibit A attached hereto designated for sale pursuant to the secondary
registration (the "Secondary Shares"). In furtherance thereof, the Company shall
take such action as shall be necessary to effect such registration including,
without limitation, the following:
(a) prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to such
Secondary Shares on any form for which the Company then qualifies, and which
form shall be available for the sale of the Secondary Shares in accordance with
the intended methods of distribution thereof, and use all commercially
reasonable efforts to cause the registration statement to become effective and
remain effective until the earlier of (i) the date when all Secondary Shares
covered by the registration statement have been sold, or (ii) 180 days from the
effective date of the registration statement;
(b) prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in connection
therewith as may be necessary to keep the registration statement effective for
the period referred to in Section 5.1(a) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
registration statement during such period in accordance with the intended
methods of disposition of the Secondary Shares;
4
(c) furnish to each Holder and each underwriter such number
of copies of the registration statement, each amendment and supplement thereto,
the prospectus included in the registration statement (including each
preliminary prospectus) and such other documents as such Holder or underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Secondary Shares;
(d) use commercially reasonable efforts to register or
qualify such Secondary Shares under such other securities or blue sky laws of
such jurisdictions as any Holder or underwriter reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such Holder or underwriter to consummate the disposition in such
jurisdictions of the Secondary Shares owned by such Holder; provided, however,
that the Company shall not be required to qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this paragraph (d), subject itself to taxation in any such jurisdiction or file
a general consent to service of process in any such jurisdiction;
(e) notify each Holder and underwriter, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such Holder, the Company shall prepare a supplement or
amendment to the prospectus so that, as thereafter delivered to the purchasers
of such Secondary Shares, such prospectus shall not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(f) promptly notify the Holders and the managing underwriter
of the following events: (i) the filing of the prospectus or any prospectus
supplement and the registration statement and any amendment or post-effective
amendment thereto and, with respect to the registration statement or any
post-effective amendment thereto, the declaration of the effectiveness of such
document; (ii) any written comments by the Commission or any requests by the
Commission for amendments or supplements to the registration statement or the
prospectus or for additional information; (iii) the issuance or threat of
issuance by the Commission of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose;
and (iv) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Secondary Shares for sale in any
jurisdiction or the initiation or threat of initiation of any proceeding for
such purpose;
(g) enter into such customary agreements (including, without
limitation, underwriting agreements in customary form) and take all such other
actions as the Holders reasonably request in order to expedite or facilitate the
disposition of such Secondary Shares; and
(h) make every reasonable effort to prevent the entry of any
order suspending the effectiveness of the registration statement and, in the
event of the issuance of any such stop order, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
5
any security included in such registration statement for sale in any
jurisdiction, the Company shall use commercially reasonable efforts promptly to
obtain the withdrawal of such order.
Section 5.2 Return of Prospectuses. Each Holder agrees that upon
receipt of any notice from the Company of the happening of any event as a result
of which the registration statement covering such Secondary Shares, as then in
effect, contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or any fact necessary to make the
statements therein not misleading, such Holder shall forthwith discontinue such
Holder's disposition of Secondary Shares pursuant to the applicable registration
statement and prospectus relating thereto until such Holder's receipt of the
copies of the supplemented or amended prospectus and, if so directed by the
Company, deliver to the Company all copies, other than permanent file copies,
then in such Holder's possession of the prospectus current at the time of
receipt of such notice relating to such Secondary Shares.
Section 5.3 Registration Expenses.
(a) Company Expenses. All expenses incident to the Company's
performance of or compliance with this Article V, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants and other persons retained by the Company (all such
expenses being herein called "Registration Expenses"), shall be borne solely by
the Company.
(b) Holders Expenses. All expenses of the Holders incurred
in connection with this Article V (other than as may be payable pursuant to
Section 5.3(a) hereof by the Company), including, without limitation,
underwriters discounts and commissions and fees and disbursements of counsel for
the Holders and other persons retained by the Holders shall be borne by the
Holders.
Section 5.4 Indemnification. The provisions of this Section 5.4
shall apply solely with respect to this Article V.
(a) In General. The Company agrees to indemnify, to the
fullest extent permitted by law, each Holder, his/her/its affiliates and their
respective officers, directors, employees and agents, as the case may be, and
each person who controls such Holders (within the meaning of the Securities
Act), against all losses, claims, damages, liabilities and expenses caused by
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use
therein as provided in Section 5.4(b) below.
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(b) Information from the Holders. In connection with the
registration statement pursuant to this Article V, each Holder shall furnish to
the Company in writing information regarding such Holder, the Secondary Shares
and the intended distribution thereof for use in connection with such
registration statement or prospectus and as shall be reasonably required in
connection with any registration, qualification or compliance required in
connection with this Article V and, to the fullest extent permitted by law,
shall indemnify the Company, its directors and officers and each person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto made by any such Holder or any omission or alleged omission
of a material fact required to be stated therein by such Holder or necessary to
make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit
furnished in writing by the Holder specifically for inclusion in the
registration statement and not corrected in a subsequent writing prior to the
sale of the Secondary Shares; provided, that the obligation to indemnify shall
be individual to each Holder and shall be limited to the net amount of proceeds
received by the Holder from the sale of Secondary Shares pursuant to the
registration statement.
(c) Notice of Claim. Any person entitled to indemnification
hereunder shall (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) unless in the
indemnified party's reasonable judgment a conflict of interest between the
indemnified and the indemnifying parties may exist with respect to such claim,
permit the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without the consent of the indemnifying party (but
such consent shall not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by the indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party, a conflict of interest may exist
between the indemnified party and any other of such indemnified parties with
respect to such claim.
(d) Survival of Indemnification. The indemnification
provided for under this Section 5.4 shall remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling person of such indemnified party and shall
survive the transfer of securities and the termination of this Agreement.
(e) Contribution. Each Holder and the Company agrees that
if, for any reason, the indemnification provisions contemplated by Section 5.4
are unavailable to or are insufficient to hold harmless any indemnified party in
respect of all expenses, claims, losses, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of all such expenses, claims, losses, damages or liabilities (or actions in
7
respect thereof) in such proportion as is appropriate to reflect the relative
fault of, and benefits derived from an offering of Secondary Shares by, the
indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 5.4(e) were determined
(i) by pro rata allocation; or (ii) by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
5.4(e). The amount paid or payable by an indemnified party as a result of the
expenses, claims, losses, damages or liabilities (or actions in respect thereof)
referred to above shall be deemed to include (subject to any limitations set
forth thereon) any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action,
proceeding or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the foregoing, the obligation for
contribution hereunder shall be individual to each Holder and shall be limited
to the net amount of proceeds received by such Holder from such sale of
Secondary Shares pursuant to the registration statement.
Section 5.5 Underwritten Registration. Each Holder agrees to
(a) accept the terms of the underwriting agreement as agreed upon by the
Holders, the Company and the underwriters thereunder and (b) complete and
execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangement.
Section 5.6 Reporting Sales. Each Holder shall report to the Company
sales made pursuant to the registration of such Secondary Shares.
Section 5.7 Demand Registration. In the event that the Holders
determine not to proceed with the secondary underwritten public offering
pursuant to Section 5.1, at any time after 180 days following the termination of
the registration statement filed pursuant to Section 5.1, the Holders may make a
written request for registration of the Secondary Shares under the Securities
Act for sale in an offering (a "Demand Registration"). Upon a request for a
Demand Registration, the Company shall use commercially reasonable efforts to
effect such Demand Registration in accordance with the terms of this Article V;
provided, that the Company shall have the right, upon written notice to the
Holders, to postpone for up to 90 days any registration requested pursuant to
this Section 5.7 if, in the good faith opinion of the Board, such registration
would have a material adverse effect on the Company or materially interfere with
any material acquisition, financial transaction, corporate reorganization or
other similar corporate transaction then being pursued by the Company. The
Company may not exercise its right to delay registration under this Section 5.7
more than once in any twelve month period. The Company shall have no obligation
to register Secondary Shares under this Section 5.7 on more than two occasions.
8
Section 5.8 Lockup Periods. The Company hereby agrees to use its
reasonable best efforts to obtain the agreement of its directors and executive
officers not to effect any public sale or distribution of the Company's common
stock for a customary period of time if requested by the underwriters managing
the registered public offerings contemplated by this Article V; provided,
however, that this provision shall only apply if the Holders agree to enter into
similar arrangements.
Section 5.9 Reimbursement by the Holders. In the event that the
Holders sell any Secondary Shares in an underwritten public offering as
contemplated by this Article V within one year following the Closing Date at a
price per share offered to the public (the "Underwritten Price") that is less
than $42.00 per share (the "Share Purchase Price"), each of the Holders shall
pay to the Company, by wire transfer of immediately available funds, an amount
equal to the product of (i) the number of Shares repurchased by the Company from
such Holder as set forth on Exhibit A attached hereto pursuant to the terms of
this Agreement multiplied by (ii) the difference between the Share Purchase
Price and the Underwritten Price.
Section 5.10 Non-Transferability. The rights of the Holders under
this Article V may not be transferred in whole or in part to any transferee
without the prior written consent of the Company.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Restriction on Sale. Notwithstanding anything to the
contrary contained in this Agreement, the Holders hereby agree and acknowledge
that without the prior written consent of the Company, the Holders (acting
individually or as a group) may not knowingly sell Secondary Shares in a
transaction or a series of transactions to any (i) major competitor of the
Company as agreed upon by the parties hereto, or (ii) person to the extent that
such transaction involves a sale of 400,000 or more shares of the Company's
common stock; provided, however, that nothing contained in this Section 6.1
shall limit any Holder's ability to sell Secondary Shares (a) in any public
tender offer or other sale of the Company or shares therein not solicited by the
Holders in which all stockholders of the Company are eligible to participate or
(b) without limiting the Holders' rights under clause (a), to any person
eligible to file a Schedule 13G under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), so long as any such sales pursuant to this clause
(b), either individually or in the aggregate, do not constitute a "Change in
Control" as such term is defined in that certain employment agreement, dated as
of December 23, 2004, by and between the Company, Middleby Marshall, Inc. and
Selim A. Bassoul.
Section 6.2 Restriction on Repurchase. During the Restricted Period
(as defined below), each of the Holders hereby agrees not to, without the prior
written consent of the Company, acquire any shares of the Company's common
9
stock; provided, however, that if at any time prior to the expiration of the
Restricted Period such Holder's ownership of the Company's common stock
decreases below 150,000 shares (the "Share Threshold"), then such Holder may,
without the prior written consent of the Company, increase such Holder's share
ownership in the Company up to the Share Threshold; provided, further, that the
indirect ownership of shares of the Company's common stock through an investment
in a "registered investment company" (as such term is defined under the
Investment Company Act of 1940) that holds shares of the Company's common stock
shall not be taken into account for purposes of determining a Holder's share
ownership pursuant to this Section 6.2 or whether the Share Threshold has been
exceeded. For the period beginning upon the expiration of the Restricted Period
and ending on the date that is 10 years after the Closing Date, each of the
Holders hereby agrees to provide written notice to the Company each time such
Holder directly acquires shares of the Company's common stock, which purchase
would have the effect of increasing such Holder's share ownership in the Company
above the Share Threshold. "Restricted Period" shall mean the period beginning
on the Closing Date and continuing through the earlier of the date (a) that is
five (5) years after the Closing Date and (b) SAB ceases to be an employee of
the Company for any reason.
Section 6.3 Employment Agreement. Upon Closing, WFW, Jr. shall
retire and his employment with the Company and Middleby Marshall Inc., a
Delaware corporation, shall terminate pursuant to Section 6(g) of the Amended
and Restated Employment Agreement of William F. Whitman, Jr., dated January 1,
1995, as amended (the "Employment Agreement"), and WFW, Jr. shall be entitled to
(a) those payments, and bound by those obligations, set forth in Section 6(g) of
the Employment Agreement, including receipt of the benefits described in Section
7 of the Employment Agreement, it being agreed and understood that the Company
shall, within thirty (30) days following the Closing Date, either, at the
Company's sole discretion (i) purchase the annuity as described in Section 7(c)
of the Employment Agreement, which annuity is to be contributed to The Middleby
Corporation Grantor Trust or (ii) pay to WFW, Jr. one lump sum in an amount
equivalent to the present value of the benefits described in Section 7 of the
Employment Agreement, which amount is to be agreed upon by the Company and WFW,
Jr. and (b) the payment of all compensation (including, without limitation,
salary, bonus and expense reimbursement consistent with past practice) for the
fiscal year 2004 pursuant to the terms of the Company's Management Incentive
Compensation Plan or Employment Agreement, calculated as if WFW, Jr. were
employed through the later to occur of (i) December 31, 2004, and (ii) the
expiration of the Company's fiscal year 2004. WFW, Jr. agrees to assist the
Company in obtaining health insurance coverage in order to fulfill its
obligations hereunder to provide the benefits described in Section 7(b) of the
Employment Agreement, including, without limitation, submitting to required
medical examinations for WFW, Jr. and his dependents, and providing other
information or documentation reasonably requested by the Company for this
purpose. Other than as expressly set forth herein, upon Closing, the Employment
Agreement and the respective rights of the parties thereto under the Employment
Agreement shall be terminated.
Section 6.4 Proxy Contests. Each Holder shall not, without the prior
written consent of the Company:
10
(a) make, or in any way participate in, any "solicitation"
of "proxies" (as such terms are defined or used in Regulation 14A under the
Exchange Act) with respect to any securities of the Company (including by the
execution of actions by written consent), become a "participant" in any
"election contest" (as such terms are defined or used in Regulation 14A under
the Exchange Act) with respect to the Company or seek to advise, encourage or
influence any person or entity with respect to the voting of any securities of
the Company;
(b) initiate or propose or otherwise solicit or participate
in the solicitation of stockholders for the approval of, one or more stockholder
proposals (including, without limitation, any proposal in respect of the
nomination or election of directors) relating to the Company (whether pursuant
to Rule 14a-8 under the Exchange Act or otherwise) or knowingly induce any other
individual or entity to initiate any stockholder proposal (including, without
limitation, any proposal in respect of the nomination or election of directors)
relating to the Company;
(c) initiate or encourage the calling of a special meeting
of stockholders of the Company; or
(d) knowingly instigate or encourage any third party to take
any of the actions enumerated in this Section 6.4.
Section 6.5 Transition Services. WFW Jr. and the Company agree that,
following the Closing, WFW, Jr. shall provide immediate transition services and
such other services as are commensurate with WFW, Jr.'s professional skills and
experience to the Company as are mutually agreed by WFW, Jr. and the Company for
a period no greater than thirty (30) days following the Closing Date. In
exchange for the commitment of WFW, Jr. hereunder, the Company shall pay to WFW,
Jr. the gross amount of $111,300 on the Closing, which amount shall be subject
to applicable tax withholding under federal, state and local laws.
ARTICLE VII
AGREEMENT TO VOTE
Section 7.1 Election of Directors. During the Voting Term (as
defined below), at every meeting of the stockholders of the Company called with
respect to the following, and at every postponement or adjournment thereof, and
on every action or approval by written consent of the stockholders of the
Company with respect to the following, each Holder agrees to vote all of the
Secondary Shares then owned by such Holder (including any Secondary Shares over
which he/she/it exercises voting control) to elect Selim A. Bassoul ("SAB") to
the Board. "Voting Term" shall mean the period beginning on the Closing Date and
continuing through the earlier of the date (a) that is five (5) years after the
Closing Date, (b) on which the Holders cease to own at least 450,000 shares, in
the aggregate, of the Company's common stock, and (c) SAB ceases to be an
employee of the Company for any reason. Each Holder agrees to vote all of the
Secondary Shares then owned by such Holder (including any Secondary Shares over
11
which he/she/it exercises voting control) to approve and adopt the election of
each of the five (5) directors designated by SAB, and approved by the nominating
committee of the Board, to the Board at any annual meeting of stockholders and
at any postponement or adjournment thereof; provided, however, that each Holder
shall only be obligated to vote his/her/its Secondary Shares in such manner the
first time any designee stands for election to the Board, and voting of
Secondary Shares by each Holder with respect to each designee after the first
time such designee stands for election shall be in accordance with Section 7.3
herein.
Section 7.2 Management Compensation; Bylaws. At the annual meeting
of stockholders held in 2005, and at any postponement or adjournment thereof,
each Holder agrees to vote all of the Secondary Shares then owned by such Holder
(including any Secondary Shares over which he/she/it exercises voting control)
to approve and adopt (i) the establishment of any stock option or purchase plan
or other equity compensation arrangement, or an amendments to any existing plan
or arrangement, that are recommended by the Board for approval by the Company's
stockholders; and (ii) any amendments to the Company's Restated Certificate of
Incorporation (the "Charter") and Amended and Restated Bylaws (the "Bylaws")
that are recommended by the Board for approval by the Company's stockholders
which would have the effect of: (a) permitting the Board to amend the Bylaws
without stockholder approval and (b) implementing stockholder advance notice
provisions, procedural requirements for stockholder meetings and limitations on
the ability of stockholders to call special stockholder meetings (including
minimum share ownership requirements) and to act by written consent.
Section 7.3 Other Matters. With respect to matters not otherwise
covered by Sections 7.1 and 7.2 above, during the Voting Term, if (a) the
Holders sell any Secondary Shares in an underwritten public offering as
contemplated by Article V, then at every meeting of the stockholders of the
Company, and at every postponement or adjournment thereof, and on every action
or approval by written consent of the stockholders of the Company, each Holder
agrees to vote all of the Secondary Shares not sold in such offering then owned
by such Holder (including any Secondary Shares over which he/she/it exercises
voting control) in the manner as recommended by the Board (including, without
limitation, with respect to the election of directors) and (b) the Holders do
not sell any Secondary Shares in an underwritten public offering as contemplated
by Article V, then at every meeting of the stockholders of the Company, and at
every postponement or adjournment thereof, and on every action or approval by
written consent of the stockholders of the Company, each Holder agrees to vote
all of the Secondary Shares then owned by such Holder (including any Secondary
Shares over which it exercises voting control) in the same proportion (excluding
abstentions) as the votes cast by the other stockholders of the Company (other
than the Holders) on the matters proposed; provided, however, that
notwithstanding the foregoing, the Holders shall be permitted to vote any of the
Secondary Shares then owned by each Holder (including any Shares over which
he/she/it exercises voting control) as he/she/it deems appropriate with respect
to proposals relating to the following matters: (i) the sale, lease or exchange
of all or substantially all of the Company's assets or a majority of shares of
the Company's outstanding capital stock, (ii) the restructuring,
recapitalization or similar transaction with respect to the Company, including a
12
merger, exchange offer or liquidation of the Company's assets, (iii) the
proposed bankruptcy, dissolution or winding up of the operations of the Company,
and (iv) the amendment of the Charter and/or Bylaws (except as otherwise set
forth in Section 7.2 above).
Section 7.4 Voting Power. Each Holder represents and warrants that
(a) he/she/it has the present power and right to vote all of the Secondary
Shares set forth opposite his/her/its name on Exhibit A attached hereto and (b)
except as provided herein, he/she/it has not (x) granted any proxy,
power-of-attorney or other authorization or interest with respect to any of the
Secondary Shares, (y) deposited any of the Secondary Shares into a voting trust
or (z) entered into any voting agreement or other arrangement with respect to
the voting of any of the Secondary Shares.
Section 7.5 Adjustment Upon Changes in Capitalization. In the event
of any change in the Company's common stock by reason of stock dividends,
split-ups, recapitalizations, combinations, exchanges of shares or the like, the
number of Secondary Shares shall be adjusted appropriately.
ARTICLE VIII
RELEASE OF CLAIMS
Section 8.1 Release of Claims.
(a) Each Holder on such Holder's behalf and on behalf of
each of such Holder's affiliates, associates, personal representatives,
representatives, executors, heirs, administrators, successors, assigns, spouses,
partners, beneficiaries, attorneys, advisors, and agents (the "Holder Releasing
Parties"), for good and sufficient consideration, the receipt of which is
acknowledged, releases absolutely and forever discharges the Company and each of
its predecessors, successors, assigns, parents, subsidiaries, divisions, and
affiliated companies, and each of their respective former, current, and future
officers, directors, owners, managers, employees, partners, associates,
representatives, stockholders, attorneys, insurers, advisors, and agents, and
each and all of them (the "Company Released Parties"), from and against all
liabilities, claims, liens, causes of action, charges, complaints, grievances,
obligations, costs, losses, damages, injuries, attorneys' fees, and other legal
responsibilities (collectively referred to as "Claims"), of any form whatsoever,
whether known or unknown, unforeseen, unanticipated, unsuspected or latent,
which such Holder or such Holder's successors in interest now own or hold, or
have at any time heretofore owned or held, or may at any time own or hold (i) by
reason of any matter or thing arising from any cause whatsoever prior to the
date of execution of this Agreement and (ii) with respect to the retention of
such professionals by the Company as the Company deems necessary and
appropriate, and without limiting the generality of the foregoing, from all
claims, demands and causes of action based upon, relating to, or arising out of,
to the extent applicable: (a) such Holder's employment relationship with the
Company and/or any of its affiliates and subsidiaries and the termination of
that relationship, including, without limitation, under any employment, change
of control or severance agreements; (b) such Holder's relationship with the
13
Company and/or its affiliates and subsidiaries as a member of any boards of
directors; (c) any other type of relationship (business or otherwise) between
such Holder and the Company and/or its affiliates and subsidiaries; and (d) such
Holder's relationship as a stockholder, optionholder or holder of any interest
whatsoever in any of the Company Released Parties; provided, however, that the
foregoing release shall not apply to (i) claims by any Holder Releasing Party
for fraud or intentional misconduct or (ii) with respect to WFW, Jr., WFW III
and LBW, claims arising out of any rights of indemnification, as in effect prior
to the Closing Date, in favor of WFW, Jr. with respect to his activities as an
officer, director or employee of the Company prior to the Closing Date, as
provided in the Company's Restated Certificate of Incorporation or Amended and
Restated Bylaws; provided, further, that nothing herein shall be deemed to
release any of such Holder's right to enforce this Agreement.
(b) The Company, on its own behalf and on behalf of each of
its predecessors, successors, assigns, parents, subsidiaries, divisions, and
affiliated companies, and each of their respective former, current, and future
officers, directors, owners, managers, employees, partners, associates,
representatives, stockholders, attorneys, advisors, and agents and each and all
of them (the "Company Releasing Parties"), for good and sufficient
consideration, the receipt of which is acknowledged, release absolutely and
forever discharge each of the Holders and each of their respective affiliates,
associates, personal representatives, representatives, executors, heirs,
administrators, successors, assigns, spouses, partners, beneficiaries,
attorneys, advisors, and agents (the "Holder Released Parties"), from and
against all Claims, of any form whatsoever, whether known or unknown,
unforeseen, unanticipated, unsuspected or latent, which the Company or the
Company's successors in interest now own or hold, or have at any time heretofore
owned or held, or may at any time own or hold by reason of any matter or thing
arising from any cause whatsoever prior to the date of execution of this
Agreement, and without limiting the generality of the foregoing, from all
claims, demands and causes of action based upon, relating to, or arising out of,
to the extent applicable: (a) such Holder's employment relationship with the
Company and/or any of its affiliates and subsidiaries and the termination of
that relationship; (b) such Holder's relationship with the Company and/or its
affiliates and subsidiaries as a member of any boards of directors; and (c) any
other type of relationship (business or otherwise) between such Holder and the
Company and/or its affiliates and subsidiaries; provided, however, that the
foregoing release shall not apply to claims by any Company Releasing Party for
fraud or intentional misconduct; provided, further, that nothing herein shall be
deemed to release any of the Company's rights to enforce this Agreement.
(c) Each of the Company Releasing Parties and the Holder
Releasing Parties warrant that they have not assigned any alleged claim that is
the subject of this release to any other person or entity, and they are not
aware of any claim or potential claim other than those being released.
14
ARTICLE IX
INDEMNIFICATION
Section 9.1 Survival of Representations and Warranties. Each of the
representations and warranties in this Agreement or pursuant hereto shall
survive the Closing Date. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the right to
fully rely on the representations, warranties, covenants and agreements of the
other parties contained in this Agreement or in any other documents or papers
delivered in connection herewith. Each representation, warranty, covenant and
agreement of the parties contained in this Agreement is independent of each
other representation, warranty, covenant and agreement.
Section 9.2 Indemnification by the Holders. Each of the Holders,
jointly and severally, agrees to indemnify and hold the Company and its
stockholders, directors, officers, employees, attorneys, agents and affiliates
(collectively, the "Company Indemnified Parties") harmless from and against the
aggregate of all expenses, losses, costs, deficiencies, liabilities and damages
(including, without limitation, related counsel fees and expenses) incurred or
suffered by the Company arising out of, relating to, or resulting from (i) any
breach of a representation or warranty made by such Holder in or pursuant to
this Agreement, (ii) any breach of the covenants or agreements made by such
Holder in or pursuant to this Agreement, or (iii) any inaccuracy in any
certificate, instrument or other document delivered by such Holder as required
by this Agreement (collectively, "Company Indemnifiable Damages").
Section 9.3 Indemnification by the Company. The Company agrees to
indemnify and hold each Holder and each Holder's respective trustees, officers,
employees, attorneys, agents and affiliates (collectively, the "Holder
Indemnified Parties") harmless from and against, the aggregate of all expenses,
losses, costs, deficiencies, liabilities and damages (including, without
limitation, related counsel fees and expenses) incurred or suffered by the
Holders arising out of, relating to, or resulting from (i) any breach of a
representation or warranty made by the Company in or pursuant to this Agreement,
(ii) any breach of the covenants or agreements made by the Company in or
pursuant to this Agreement, or (iii) any inaccuracy in any certificate,
instrument or other document delivered by the Company as required by this
Agreement (collectively, "Holder Indemnifiable Damages" and together with
Company Indemnifiable Damages, "Indemnifiable Damages"). The Company
acknowledges and agrees that each of WFW, Jr., WFW III and LBW shall be entitled
to indemnification as former directors, and in the case of WFW, Jr., as an
officer, to the extent set forth in the Charter and Bylaws and as provided in
the Company's director's and officer's liability insurance policy.
Section 9.4 Indemnification Claims.
(a) Any claim for Indemnifiable Damages or any other damages
hereunder shall be made by written notice, which notice shall set forth (i) the
amount of Indemnifiable Damages or other loss, damage, cost or expense which is
claimed to have been sustained by reason thereof, and (ii) the basis of such
claim; and
(b) Payment for any claim made under subsection (a) shall be
effected on the later to occur of the expiration of ten (10) days from the date
of such notice or, if such claim is contested in writing within such ten (10)
day period, the date the dispute is resolved.
15
Section 9.5 Remedies Cumulative; Waiver. The remedies provided
herein shall be cumulative and shall not preclude any party from asserting any
other right, or seeking any other remedies against the other party, and shall
survive the Closing.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Expenses. Except as otherwise provided in this
Agreement, each party to this Agreement will bear its respective fees and
expenses incurred in connection with the preparation, negotiation, execution and
performance of this Agreement and the contemplated transactions, including all
fees and expense of its representatives.
Section 10.2 Notices. All notices permitted or required under this
Agreement shall be in writing and shall be either (a) delivered by personal
service; (b) delivered by a recognized overnight courier service; (c) telecopied
and confirmed electronically, followed by a written copy mailed by registered or
certified mail, postage prepaid, return receipt requested; or (d) sent by
certified or registered mail, postage prepaid, return receipt requested, to the
parties hereto at their addresses set forth below or at such other addresses
which may be designated in writing by the parties:
(a) If to the Company:
The Middleby Corporation
1400 Toastmaster Drive
Elgin, Illinois 60120
Attn: Selim A. Bassoul, Chief Executive Officer
Facsimile No.: (847) 741-9561
With a copy to (which shall not constitute notice to
the Company):
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY
Attn: Blaine (Fin) V. Fogg, Esq.
Facsimile No.: (212) 735-2000
(b) If to the Holders:
c/o William F. Whitman, Jr.
8050 Southeast S.E. Little Harbour Drive, H-7
Hobe Sound, Florida 33455
16
With a copy to (which shall not constitute notice to
the Holders):
Danziger & Danziger
405 Park Avenue, Suite 502
New York, New York 10022
Attn: Thomas C. Danziger, Esq.
Facsimile No.: (212) 754-7000
Notices shall be deemed received (a) when delivered personally, (b) one
business day after being sent by telecopy or a recognized overnight courier, (c)
three business days after being sent by certified or registered mail, or (d)
when receipt is confirmed if delivered by telecopy.
Section 10.3 Public Announcements. The Company and the Holders will
consult with each other before issuing, and provide each other with the
opportunity to review and comment upon, any press release or other public
statements with respect to the transactions contemplated by this Agreement, and
neither the Company nor any of the Holders shall issue any such press release or
make any such public statement without the prior approval of the other parties,
in each case except as may be required by law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
Section 10.4 Waiver. Neither any failure nor any delay by any party
in exercising any right, power or privilege under this Agreement or any of the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege.
Section 10.5 Entire Agreement and Modification. This Agreement
supersedes all prior agreements, whether written or oral, between the parties
with respect to its subject matter and constitutes (along with the Exhibits and
other documents delivered pursuant to this Agreement) a complete and exclusive
statement of the terms of the agreement between the parties with respect to its
subject matter. This Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the parties.
Section 10.6 Binding Effect; Assignments. The rights and obligations
of this Agreement shall bind and inure to the benefit of the parties and their
respective successors. Nothing expressed or implied herein shall be construed to
give any other person any legal or equitable rights hereunder. Except as
expressly provided herein, the rights and obligations of this Agreement may not
be assigned or delegated by either party without the prior written consent of
the other party.
Section 10.7 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
17
Section 10.8 Headings. The headings of Articles and Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation.
Section 10.9 Construction; Complete Agreement. Each party has been
represented by counsel selected by such party in connection with the negotiation
and drafting of this Agreement, and this Agreement has been jointly drafted by
such counsel, so no principle of resolving ambiguities against the drafter shall
apply in construing any of the terms hereof. Whenever, the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation."
Section 10.10 Exhibits. The Exhibits attached hereto are an integral
part of this Agreement. All Exhibits attached to this Agreement are incorporated
herein by this reference and all references herein to this "Agreement" shall
mean this Stock Repurchase Agreement, together with all such Exhibits, and all
ancillary agreements and exhibits and schedules thereto delivered at Closing.
Section 10.11 Governing Law. This Agreement and any dispute arising
in connection therewith will be governed by and construed under the law of the
State of Delaware without regard to conflicts-of-laws principles that would
require the application of any other law.
Section 10.12 Jurisdiction.
(a) The parties agree that any suit, action or proceeding
arising out of, or with respect to, this Agreement or any judgment entered by
any court in respect thereof shall be brought in the courts of the State of
Delaware or in the U.S. District Courts located in the State of Delaware and the
Company and the Holder hereby irrevocably accept the exclusive personal
jurisdiction of those courts for the purpose of any suit, action or proceeding.
(b) In addition, the Company and the Holder each hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it or he may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any judgment entered
by any court in respect thereof brought in the State of Delaware or the U.S.
District Courts located in the State of Delaware, and hereby further irrevocably
waives any claim that any suit, action or proceedings brought in any such court
has been brought in an inconvenient forum.
Section 10.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall constitute effective execution
and delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all purposes.
18
Section 10.14 Non-Disparagement. Each of the parties hereto agrees
that under no circumstances will it disparage the other parties to this
Agreement, nor make statements, whether public or private, oral or written, that
would be reasonably likely to injure the other parties' reputations in any
respect. For purposes of this Section 10.14, the obligations of the Company
shall include, without limitation, its officers, directors and employees
individually. Nothing in this section shall preclude any party from responding
truthfully to inquiries made in connection with any legal or governmental
proceeding pursuant to subpoena or from making such other statements as may be
required by applicable law.
Section 10.15 Further Assurances. Each of the parties hereto shall do
and perform or cause to be done and performed all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as any other party hereto may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
THE MIDDLEBY CORPORATION, a
Delaware corporation
By: /s/ Timothy J. FitzGerald
---------------------------------
Name: Timothy J. FitzGerald
Title: Chief Financial Officer
/s/ Wm F. Whitman Jr.
-------------------------------------
WILLIAM F. WHITMAN, JR., individually
/s/ W. Fifield Whitman
-------------------------------------
W. FIFIELD WHITMAN III, individually
/s/ Laura B. Whitman
-------------------------------------
LAURA B. WHITMAN, individually
/s/ Barbara K. Whitman
-------------------------------------
BARBARA K. WHITMAN, individually
BARBARA K. WHITMAN IRREVOCABLE TRUST
By: /s/ Thomas C. Danziger
---------------------------------
Name: Thomas C. Danziger
Title: Trustee
WILLIAM F. WHITMAN, JR.
IRREVOCABLE TRUST
By: /s/ Thomas C. Danziger
---------------------------------
Name: Thomas C. Danziger
Title: Trustee
20
TRUST DATED DECEMBER 21, 2003
F/B/O BARBARA K. WHITMAN
By: /s/ Barbara K. Whitman
---------------------------------
Name: Barbara K. Whitman
Title: Trustee
TRUST DATED DECEMBER 21, 2003
F/B/O LAURA B. WHITMAN
By: /s/ Barbara K. Whitman
---------------------------------
Name: Barbara K. Whitman
Title: Trustee
TRUST DATED DECEMBER 21, 2003
F/B/O W. FIFIELD WHITMAN III
By: /s/ Barbara K. Whitman
---------------------------------
Name: Barbara K. Whitman
Title: Trustee
WILLIAM F. WHITMAN, JR. AND
BARBARA K. WHITMAN CHARITABLE
REMAINDER TRUST
By: /s/ Wm F. Whitman Jr.
---------------------------------
Name: William F. Whitman Jr.
Title: President
W.F. WHITMAN FAMILY FOUNDATION
By: /s/ Wm F. Whitman Jr.
---------------------------------
Name: William F. Whitman Jr.
Title: President
21
Exhibit 10.2
------------
Published CUSIP No. ____________
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 23, 2004
among
MIDDLEBY MARSHALL INC.,
THE MIDDLEBY CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS,
LASALLE BANK NATIONAL ASSOCIATION,
as Syndication Agent,
WELLS FARGO BANK, N.A.,
as Documentation Agent,
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Lender and Swing Line Lender
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Book Manager
CONTENTS
Clause Page
SECTION 1 DEFINITIONS................................................................................1
1.1 Definitions....................................................................................1
1.2 Other Interpretive Provisions.................................................................17
1.3 Allocation of Loans and Percentages at the Effective Time.....................................17
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING AND CONVERSION PROCEDURES;
LETTER OF CREDIT PROCEDURES; SWING LINE LOANS.............................................18
2.1 Commitments...................................................................................18
2.1.1 Revolving Loans...............................................................................18
2.1.2 L/C Commitment................................................................................19
2.1.3 Term Loans....................................................................................19
2.2 Loan Procedures...............................................................................19
2.2.1 Various Types of Loans........................................................................19
2.2.2 Borrowing Procedures..........................................................................19
2.2.3 Conversion and Continuation Procedures........................................................20
2.3 Letter of Credit Procedures...................................................................21
2.3.1 L/C Applications..............................................................................21
2.3.2 Participations in Letters of Credit...........................................................21
2.3.3 Reimbursement Obligations.....................................................................21
2.3.4 Limitation on Obligations of Issuing Lenders..................................................22
2.3.5 Funding by Revolving Lenders to Issuing Lenders...............................................22
2.3.6 Applicability of ISP and UCP..................................................................23
2.4 Swing Line Loans..............................................................................23
2.4.1 Swing Line Loans..............................................................................23
2.4.2 Swing Line Loan Procedures....................................................................23
2.4.3 Refunding of, or Funding of Participations in, Swing Line Loans...............................23
2.4.4 Repayment of Participations...................................................................24
2.4.5 Participation Obligations Unconditional.......................................................24
2.5 Commitments Several...........................................................................25
2.6 Certain Conditions............................................................................25
SECTION 3 NOTES EVIDENCING LOANS....................................................................25
3.1 Notes.........................................................................................25
3.2 Recordkeeping.................................................................................25
SECTION 4 INTEREST..................................................................................25
4.1 Interest Rates................................................................................25
4.2 Interest Payment Dates........................................................................25
4.3 Setting and Notice of Eurodollar Rates........................................................26
4.4 Computation of Interest.......................................................................26
SECTION 5 FEES......................................................................................26
5.1 Commitment Fee................................................................................26
5.2 Letter of Credit Fees.........................................................................26
5.3 Up-Front Fees.................................................................................27
5.4 Administrative Agent's and Lead Arranger's Fees...............................................27
SECTION 6 REPAYMENT OF LOANS; REDUCTION AND TERMINATION OF THE
REVOLVING COMMITMENTS; PREPAYMENTS........................................................27
6.1 Repayment of Loans............................................................................27
6.2 Changes in the Revolving Commitment Amount....................................................27
6.2.1 Voluntary Reductions and Termination of the Revolving Commitment Amount.......................27
6.2.2 Increase in the Revolving Commitment Amount...................................................27
6.3 Prepayments...................................................................................28
6.3.1 Voluntary Prepayments.........................................................................28
6.3.2 Mandatory Prepayments of Term Loans...........................................................29
6.3.3 Application of Prepayments....................................................................29
6.3.4 Eurodollar Prepayment Account.................................................................29
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES...........................................30
7.1 Making of Payments............................................................................30
7.2 Application of Certain Payments...............................................................30
7.3 Due Date Extension............................................................................30
7.4 Setoff........................................................................................30
7.5 Proration of Payments.........................................................................31
7.6 Taxes.........................................................................................31
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS..................................33
8.1 Increased Costs...............................................................................33
8.2 Basis for Determining Interest Rate Inadequate or Unfair......................................34
8.3 Changes in Law Rendering Eurodollar Loans Unlawful............................................35
8.4 Funding Losses................................................................................35
8.5 Right of Lenders to Fund through Other Offices................................................35
8.6 Discretion of Lenders as to Manner of Funding.................................................36
8.7 Mitigation of Circumstances; Replacement of Affected Lender...................................36
8.8 Conclusiveness of Statements; Survival of Provisions..........................................36
SECTION 9 REPRESENTATIONS AND WARRANTIES............................................................36
9.1 Organization, etc.............................................................................37
9.2 Authorization; No Conflict....................................................................37
9.3 Validity and Binding Nature...................................................................37
9.4 Financial Condition...........................................................................37
9.5 No Material Adverse Change....................................................................38
9.6 Litigation and Contingent Liabilities.........................................................38
9.7 Ownership of Properties; Liens................................................................38
9.8 Subsidiaries..................................................................................38
9.9 Pension Plans.................................................................................38
9.10 Investment Company Act........................................................................39
9.11 Public Utility Holding Company Act............................................................39
9.12 Regulation U..................................................................................39
9.13 Taxes.........................................................................................39
9.14 Solvency, etc.................................................................................39
9.15 Environmental Matters.........................................................................39
9.16 Information...................................................................................40
9.17 No Default....................................................................................40
9.18 No Burdensome Restrictions....................................................................40
SECTION 10 COVENANTS.................................................................................40
10.1 Reports, Certificates and Other Information...................................................40
10.1.1 Audit Report..................................................................................40
10.1.2 Quarterly Reports.............................................................................41
10.1.3 Compliance Certificates.......................................................................41
10.1.4 Reports to SEC and to Shareholders............................................................41
10.1.5 Notice of Default, Litigation, ERISA and Environmental Matters................................41
10.1.6 Subsidiaries..................................................................................42
10.1.7 Management Reports............................................................................42
10.1.8 Projections...................................................................................42
10.1.9 Other Information.............................................................................42
10.2 Books, Records and Inspections................................................................42
10.3 Insurance.....................................................................................43
10.4 Compliance with Laws, Material Contracts; Payment of Taxes and Liabilities....................43
10.5 Maintenance of Existence, etc.................................................................43
10.6 Financial Covenants...........................................................................43
10.6.1 Fixed Charge Coverage Ratio...................................................................43
10.6.2 Leverage Ratio................................................................................44
10.7 Limitations on Debt...........................................................................44
10.8 Liens.........................................................................................45
10.9 Restricted Payments...........................................................................46
10.10 Mergers, Consolidations, Sales................................................................47
10.11 Use of Proceeds...............................................................................47
10.12 Further Assurances............................................................................47
10.13 Transactions with Affiliates..................................................................48
10.14 Employee Benefit Plans........................................................................48
10.15 Environmental Laws............................................................................48
10.16 Unconditional Purchase Obligations............................................................48
10.17 Inconsistent Agreements.......................................................................48
10.18 Business Activities...........................................................................49
10.19 Advances and Other Investments................................................................49
10.20 Foreign Subsidiaries..........................................................................50
10.21 Amendments to Certain Documents...............................................................50
10.22 Real Estate Documents.........................................................................50
10.23 Key Management................................................................................51
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.................................................51
11.1 Effectiveness.................................................................................51
11.1.1 Notes.........................................................................................51
11.1.2 Resolutions...................................................................................51
11.1.3 Other Consents, etc...........................................................................51
11.1.4 Incumbency and Signature Certificates.........................................................51
11.1.5 Confirmation..................................................................................51
11.1.6 Opinion of Counsel for the Loan Parties.......................................................51
11.1.7 Officer's Certificate.........................................................................51
11.1.8 Compliance Certificate........................................................................52
11.1.9 Form U-1......................................................................................52
11.1.10 Other.........................................................................................52
11.2 Conditions to All Credit Extensions...........................................................52
11.2.1 Compliance with Representations and Warranties, No Default, etc...............................52
11.2.2 Confirmatory Certificate......................................................................52
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT........................................................52
12.1 Events of Default.............................................................................52
12.1.1 Non-Payment of the Loans, etc.................................................................52
12.1.2 Non-Payment of Other Debt.....................................................................53
12.1.3 Bankruptcy, Insolvency, etc...................................................................53
12.1.4 Non-Compliance with Provisions of This Agreement..............................................53
12.1.5 Representations and Warranties................................................................53
12.1.6 Pension Plans.................................................................................53
12.1.7 Judgments.....................................................................................54
12.1.8 Invalidity of Subsidiary Guaranty, etc........................................................54
12.1.9 Invalidity of Collateral Documents, etc.......................................................54
12.1.10 Change in Control.............................................................................54
12.2 Effect of Event of Default....................................................................54
SECTION 13 PARENT GUARANTY...........................................................................55
13.1 The Guaranty..................................................................................55
13.2 Guaranty Unconditional........................................................................55
13.3 Discharge Only Upon Payment In Full; Reinstatement In Certain Circumstances...................56
13.4 Waiver by the Parent..........................................................................56
13.5 Delay of Subrogation..........................................................................56
13.6 Stay of Acceleration..........................................................................56
SECTION 14 THE ADMINISTRATIVE AGENT..................................................................56
14.1 Appointment and Authorization.................................................................56
14.2 Delegation of Duties..........................................................................57
14.3 Liability of Administrative Agent.............................................................57
14.4 Reliance by Administrative Agent..............................................................58
14.5 Notice of Default.............................................................................58
14.6 Credit Decision...............................................................................58
14.7 Indemnification...............................................................................59
14.8 Administrative Agent in Individual Capacity...................................................59
14.9 Successor Administrative Agent................................................................60
14.10 Withholding Tax...............................................................................60
14.11 Collateral Matters............................................................................62
14.12 Other Agents..................................................................................62
SECTION 15 GENERAL...................................................................................62
15.1 Waiver; Amendments............................................................................62
15.2 Confirmations.................................................................................63
15.3 Notices.......................................................................................63
15.4 Computations..................................................................................63
15.5 Regulation U..................................................................................64
15.6 Costs, Expenses and Taxes.....................................................................64
15.7 Subsidiary References.........................................................................64
15.8 Captions......................................................................................64
15.9 Assignments; Participations...................................................................64
15.9.1 Assignments...................................................................................64
15.9.2 Participations................................................................................66
15.10 Governing Law.................................................................................67
15.11 Counterparts..................................................................................67
15.12 Successors and Assigns........................................................................67
15.13 Indemnification by the Company................................................................67
15.14 Forum Selection and Consent to Jurisdiction...................................................68
15.15 Waiver of Jury Trial..........................................................................68
15.16 USA PATRIOT ACT NOTICE........................................................................69
SCHEDULES
SCHEDULE 1.1 Pricing Schedule
SCHEDULE 2.1 Lenders and Initial Commitments and Percentages
SCHEDULE 6.1 Amortization of Term Loans
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.7 Ownership of Properties; Liens
SCHEDULE 9.8 Subsidiaries
SCHEDULE 9.15 Environmental Matters
SCHEDULE 10.7(h) Existing Debt
SCHEDULE 10.8 Existing Liens
SCHEDULE 10.19 Existing Investments
SCHEDULE 15.3 Addresses for Notices
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Copy of Subsidiary Guaranty
EXHIBIT D Copy of Security Agreement
EXHIBIT E Copy of U.S. Pledge Agreement
EXHIBIT F Form of Assignment Agreement
EXHIBIT G Form of Confirmation
EXHIBIT H Form of Increase Request
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of December
23, 2004 (this "Agreement") is entered into among MIDDLEBY MARSHALL INC., a
Delaware corporation (the "Company"), THE MIDDLEBY CORPORATION, a Delaware
corporation (the "Parent"), each financial institution that from time to time
becomes a party hereto as a lender (each a "Lender") and BANK OF AMERICA, N.A.
(in its individual capacity, "Bank of America"), as administrative agent for
the Lenders.
WHEREAS, the Company, the Parent, various financial institutions and
Bank of America, as administrative agent, have entered into a second amended
and restated credit agreement dated as of May 19, 2004 (the "Existing Credit
Agreement");
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Credit Agreement pursuant to this Agreement; and
WHEREAS, the parties hereto intend that this Agreement and the
documents executed in connection herewith not effect a novation of the
obligations of the Company and the Parent under the Existing Credit Agreement,
but merely a restatement of and, where applicable, an amendment to the terms
governing such obligations;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
1.1 Definitions. When used herein the following terms shall have the
following meanings:
Acquisition means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of
any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary).
Administrative Agent means Bank of America in its capacity as
administrative agent for the Lenders hereunder and any successor thereto in
such capacity.
Affected Lender means any Lender (a) that is a Defaulting Lender
and/or (b) that has given notice to the Company (which has not been rescinded)
of (i) any obligation by the Company to pay any amount pursuant to Section 7.6
or 8.1 or (ii) the occurrence of any circumstance of the nature described in
Section 8.2 or 8.3.
Affiliate of any Person means (i) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and (ii) any officer or director of such Person.
Agent-Related Persons means Bank of America or any successor agent
arising under Section 14.9, together with their respective Affiliates
(including, in the case of Bank of America, Banc of America Securities LLC),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
Agreement - see the Preamble.
Approved Fund means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
Asset Sale means the sale, lease, assignment or other transfer for
value by the Company or any Subsidiary of the Company to any Person (other
than the Company or any Subsidiary) of any asset or right of the Company or
such Subsidiary (including any sale or other transfer of stock of any
Subsidiary of the Company, whether by merger, consolidation or otherwise),
excluding (a) the sale or lease of inventory in the ordinary course of
business, (b) license agreements entered into by the Company or any
Subsidiary, as licensor, in the ordinary course of business for the use of any
intellectual property or other intangible asset of the Company or such
Subsidiary, (c) sales or assignments of receivables in the ordinary course of
business consistent with past practice, (d) the sale, assignment or other
transfer of machinery or equipment no longer used or useful in the conduct of
the business of the Company or any of its Subsidiaries, (e) the lease or
sublease of real property interests in the ordinary course of business, (f)
any sale, lease, assignment or transfer (or series of related sales, leases,
assignments or transfers) for net cash proceeds of less than $100,000, (g) any
condemnation event (so long as the proceeds thereof are used, or are committed
to be used, within 180 days following receipt thereof to acquire replacement
assets) and (h) other sales, leases, assignments or transfers of assets for
net cash proceeds not exceeding $5,000,000 in any Fiscal Year.
Assignee - see Section 15.9.1.
Assignment Agreement - see Section 15.9.1.
Bank of America - see the Preamble.
Base Rate means at any time the greater of (a) the Federal Funds Rate
plus 0.5% and (b) the Prime Rate.
Base Rate Loan means a Revolving Loan, or a portion of a Term Loan,
which bears interest at or by reference to the Base Rate.
Base Rate Margin - see Schedule 1.1.
Blodgett Acquisition Agreement means the Stock Purchase Agreement
dated as of August 30, 2001 between the Company (as assignee of the Parent)
and Maytag Corporation, including all schedules, annexes and exhibits thereto,
as amended on or prior to the Effective Time.
Business Day means any day (other than a Saturday or Sunday) on which
Bank of America is open for commercial banking business in Chicago, Charlotte,
Dallas and New York and, in the case of a Business Day which relates to a
Eurodollar Loan, on which dealings are carried on in the London interbank
eurodollar market.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated
balance sheet of the Parent, but excluding expenditures made in connection
with (a) the replacement, substitution or restoration of assets to the extent
financed (i) from insurance proceeds (or other similar recoveries) paid on
account of the loss of or damage to the assets being replaced or restored or
(ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced or (b) any Permitted Acquisition.
Capital Lease means, with respect to any Person, any lease of (or
other agreement conveying the right to use) any real or personal property by
such Person that, in conformity with GAAP, is or should be accounted for as a
capital lease on the balance sheet of such Person.
Cash Equivalent Investment means, at any time, (a) any evidence of
Debt, maturing not more than one year after such time, issued or guaranteed by
the United States Government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by a Lender or its holding company) rated
at least A-l by Standard & Poor's Ratings Group or P-l by Moody's Investors
Service, Inc. (or carrying an equivalent rating by an
internationally-recognized rating agency), (c) any certificate of deposit (or
time deposits represented by such certificates of deposit) or bankers
acceptance, maturing not more than one year after such time, or overnight
Federal Funds transactions or money market deposit accounts that are issued or
sold by, or maintained with, a Lender, (d) any repurchase agreement entered
into with any Lender which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses (a) through
(c) and (ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such Lender
thereunder, (e) investments in short-term asset management accounts offered by
any Lender for the purpose of investing in loans to any corporation (other
than the Parent or an Affiliate of the Parent), state or municipality, in each
case organized under the laws of any state of the United States or of the
District of Columbia, (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 (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.
Change in Control means an event or series of events by which: (a)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan
of the Parent or any Subsidiary, or any Person acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of outstanding shares of voting
stock of the Parent in excess of 25%; and (b) individuals who at the Effective
Time were directors of the Parent (the "Incumbent Board") shall cease for any
reason to constitute a majority of the board of directors of the Parent;
provided that any individual becoming a director subsequent to the Effective
Time whose election, or nomination for election by the Parent's shareholders,
was approved by the requisite vote of the then Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened solicitation of proxies
or consents for the election or removal of one or more directors by any
"person" or "group" other than a solicitation for the election of one or more
directors by or on behalf of the board of directors.
Code means the Internal Revenue Code of 1986.
Collateral Access Agreement means an agreement, in form and substance
reasonably acceptable to the Administrative Agent, between the Administrative
Agent and a third party relating to inventory of the Company or any Subsidiary
Guarantor located on the property of such third party.
Collateral Documents means the U.S. Pledge Agreement, the Security
Agreement, each Mortgage and any other agreement pursuant to which any Loan
Party grants collateral to the Administrative Agent for the benefit of the
Lenders.
Commitment means a Revolving Commitment or a Term Commitment, as the
context may require.
Commitment Fee Rate - see Schedule 1.1.
Company - see the Preamble.
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
Confirmation means a confirmation agreement substantially in the form
of Exhibit G.
Consolidated Net Income means, with respect to the Parent and its
Subsidiaries for any period, the net income (or loss) of the Parent and its
Subsidiaries for such period, excluding (a) any extraordinary gains during
such period and (b) any foreign exchange translation gains or losses that
might appear on or be reflected in the consolidated statement of earnings of
the Parent and its Subsidiaries on a consolidated basis for such period.
Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, are treated as a single employer under Section 414 of the Code or
Section 4001 of ERISA.
Credit Extension means the making of any Loan or the issuance of any
Letter of Credit.
Debt of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all obligations of such Person
as lessee under Capital Leases which have been or should be recorded as
liabilities on a balance sheet of such Person in accordance with GAAP, (c) all
obligations of such Person to pay the deferred purchase price of property or
services (excluding trade accounts payable in the ordinary course of
business), (d) all indebtedness secured by a Lien on the property of such
Person, whether or not such indebtedness shall have been assumed by such
Person (it being understood that if such Person has not assumed or otherwise
become personally liable for any such indebtedness, the amount of the Debt of
such Person in connection therewith shall be limited to the lesser of the face
amount of such indebtedness or the fair market value of all property of such
Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether
or not drawn) and banker's acceptances issued for the account of such Person
(including the Letters of Credit), (f) all Hedging Obligations of such Person,
(g) all Suretyship Liabilities of such Person in respect of obligations of the
types referred to in clauses (a) through (f) and (h) all Debt of any
partnership in which such Person is a general partner.
Defaulting Lender means any Lender that (a) has failed to fund any
portion of the Loans, participations in Letters of Credit or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent, any Issuing Lender or the Swing Line
Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
Dollar and the sign "$" mean lawful money of the United States of
America.
EBITDA means, for any period, Consolidated Net Income for such period
plus to the extent deducted in determining such Consolidated Net Income,
Interest Expense, non-cash foreign exchange gains and losses, non-cash equity
compensation and non-cash losses with respect to Hedging Obligations, income
tax expense, depreciation and amortization for such period.
Effective Time - see Section 11.1.
Eligible Assignee means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under
the laws of any other country which is a member of the Organization for
Economic Cooperation and Development or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary or (iii) a Person of which a
Lender is a Subsidiary; (d) solely with respect to assignments or transfers of
the Term Loans and/or the Term Commitments, an Approved Fund; and (e) any
other Person approved by the Parent and the Administrative Agent.
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law,
or for release of hazardous substances or injury to the environment.
Environmental Laws means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed and enforceable duties, licenses,
authorizations and permits of, and agreements with, any governmental
authority, in each case relating to environmental matters.
ERISA means the Employee Retirement Income Security Act of 1974.
Eurocurrency Reserve Percentage means, with respect to any Eurodollar
Loan for any Interest Period, a percentage (expressed as a decimal) equal to
the daily average during such Interest Period of the percentage in effect on
each day of such Interest Period, as prescribed by the FRB, for determining
the aggregate maximum reserve requirements applicable to "Eurocurrency
Liabilities" pursuant to Regulation D of the FRB or any other then applicable
regulation of the FRB which prescribes reserve requirements applicable to
"Eurocurrency Liabilities" as presently defined in such Regulation D.
Eurodollar Loan means a Revolving Loan, or a portion of a Term Loan,
which bears interest at a rate determined by reference to the Eurodollar Rate
(Reserve Adjusted).
Eurodollar Margin - see Schedule 1.1.
Eurodollar Office means with respect to any Lender the office or
offices of such Lender which shall be making or maintaining the Eurodollar
Loans of such Lender hereunder or, in the case of Bank of America, such other
office or offices through which it obtains quotes for purposes of determining
the Eurodollar Rate. A Eurodollar Office of any Lender may be, at the option
of such Lender, either a domestic or foreign office.
Eurodollar Rate means, for any Interest Period with respect to a
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Loan
being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank eurodollar market at
their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
Eurodollar Rate (Reserve Adjusted) means, with respect to any
Eurodollar Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Eurodollar Rate = Eurodollar Rate
---------------
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
Event of Default means any of the events described in Section 12.1.
Exemption Representation - see Section 7.6(c).
Existing Credit Agreement - see the recitals.
Existing Lender - see Section 1.3(b).
Existing Letters of Credit means the letters of credit outstanding
under the Existing Credit Agreement immediately prior to the amendment and
restatement thereof pursuant hereto.
Existing Loans - see Section 1.3(b).
Federal Funds Rate means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor publication, "H.15(519)") on the preceding Business Day
opposite the caption "Federal Funds (Effective)"; or, if for any relevant day
such rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected by the
Administrative Agent.
Fiscal Quarter means each 13-week period during a Fiscal Year,
beginning with the first day of such Fiscal Year.
Fiscal Year means the fiscal year of the Company and its
Subsidiaries, which period shall be the 12-month period ending on the Saturday
closest to December 31 of each year. References to a Fiscal Year with a number
corresponding to any calendar year (e.g., "Fiscal Year 2005") refer to the
Fiscal Year ending on the Saturday closest to December 31 of such calendar
year.
Fixed Charge Coverage Ratio means, as of the last day of any
Computation Period, the ratio of (a) the result of (i) Pro Forma EBITDA for
such Computation Period less (ii) Capital Expenditures for such Computation
Period less (iii) cash income tax expense for such Computation Period less
(iv) dividends paid in cash by the Parent during such Computation Period to
(b) the sum of (i) Interest Expense to the extent payable in cash for such
Computation Period plus (ii) the actual aggregate amount of all scheduled
principal payments on Debt (other than Debt permitted by Section 10.7(j)) made
by the Parent and its Subsidiaries during such Computation Period; provided
that:
(x) in calculating Capital Expenditures, capital
expenditures of any Person (or division or similar business unit)
acquired by the Parent or any of its Subsidiaries during such period
shall be included on a pro forma basis for such period and the
capital expenditures of any Person (or division or similar business
unit) disposed of by the Parent or any of its Subsidiaries during
such period shall be excluded on a pro forma basis for such period;
and
(y) in calculating Interest Expense, any Debt incurred or
assumed in connection with any Acquisition shall be assumed to have
been incurred or assumed on the first day of such period and any Debt
assumed by any Person (other than the Parent or any of its
Subsidiaries) in connection with the disposition of any Person (or
division or similar business unit) disposed of by the Parent or any
of its Subsidiaries during such period shall be assumed to have been
repaid on the first day of such period.
Foreign Subsidiary means each Subsidiary of the Parent which is
organized under the laws of any jurisdiction other than, and which is
conducting the majority of its business outside of, the United States or any
political subdivision thereof.
FRB means the Board of Governors of the Federal Reserve System or any
successor thereto.
Fund means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
Funded Debt means all Debt of the Parent and its Subsidiaries,
excluding (i) contingent obligations in respect of undrawn letters of credit
and Suretyship Liabilities (except, in each case, to the extent constituting
Suretyship Liabilities in respect of Debt of a Person other than the Company
or any Subsidiary), (ii) Hedging Obligations, (iii) Debt of the Company to
Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries
and (iv) Debt of Parent to the Company.
GAAP means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of
the date of determination.
Group - see Section 2.2.1.
Guaranteed Obligations means (a) all obligations of the Company to
the Administrative Agent or any Lender, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, which arise under this Agreement
or any other Loan Document (including with respect to the obligations
described in Section 2.3.3) and (b) all Hedging Obligations of the Company to
any Lender or any affiliate of a Lender.
Hedging Agreements means any interest rate, currency or commodity
swap agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect such Person against fluctuations in interest
rates, currency exchange rates or commodity prices.
Hedging Obligations means, with respect to any Person, all
liabilities of such Person under Hedging Agreements.
Immaterial Law means any provision of any Environmental Law the
violation of which will not (a) violate any judgment, decree or order which is
binding upon the Parent or any Subsidiary, (b) result in or threaten any
injury to public health or the environment or any material damage to the
property of any Person or (c) result in any liability or expense (other than
any de minimis liability or expense) for the Parent or any Subsidiary;
provided that no provision of any Environmental Law shall be an Immaterial Law
if the Administrative Agent has notified the Parent or the Company that the
Required Lenders have determined in good faith that such provision is
material.
Indemnified Liabilities means, with respect to any Person entitled to
indemnification hereunder, any and all actions, causes of action, suits,
losses, liabilities, damages and expenses (excluding taxes and related costs
but including reasonable attorneys' fees and charges and, without duplication,
the reasonable allocated costs, and all reasonable disbursements, of internal
counsel) incurred by such Person as a result of (a) any Acquisition, merger or
similar transaction financed or proposed to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan, (b) the execution,
delivery, performance or enforcement of this Agreement or any other Loan
Document (without duplication of costs and expenses specifically referred to
in Section 15.6 and related taxes and other amounts), (c) any investigation,
litigation or proceeding (including any proceeding under any bankruptcy or
insolvency law and any appellate proceeding) related to this Agreement, the
Commitments, the Loans or the use of the proceeds thereof, the Letters of
Credit or any transaction or event related to any of the foregoing, whether or
not such Person is a party thereto, (d) the use, handling, release, emission,
discharge, transportation, storage, treatment or disposal of any hazardous
substance at any property owned, operated or leased by any Loan Party, (e) any
violation of any Environmental Laws resulting from, or related to, conditions
at any property owned, operated or leased by any Loan Party or the operations
conducted thereon, (f) the investigation, cleanup or remediation of offsite
locations at which any Loan Party or any of its predecessors in interest is
alleged to have, directly or indirectly, disposed of hazardous substances or
(g) any Environmental Claim asserted against any Loan Party or related to any
property owned, operated or leased by any Loan Party, except (in each case) to
the extent that any of the foregoing resulted from such indemnified Person's
gross negligence or willful misconduct.
Interest Expense means, for any Computation Period, the consolidated
interest expense of the Parent and its Subsidiaries for such Computation
Period (including all imputed interest on Capital Leases).
Interest Period means, as to any Eurodollar Loan, the period
commencing on the date such Loan is borrowed or continued as, or converted
into, a Eurodollar Loan and ending on the date one, two, three, six or, if
available to all Lenders, twelve months thereafter, as selected by the Company
pursuant to Section 2.2.2 or 2.2.3; provided that:
(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
following 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 preceding Business Day;
(ii) any Interest Period for a Eurodollar Loan that begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the
last Business Day of the calendar month at the end of such Interest
Period;
(iii) the Company may not select any Interest Period for any
Revolving Loan which would extend beyond the scheduled Revolving
Termination Date; and
(iv) the Company may not select any Interest Period for a
Term Loan if, after giving effect to such selection, the aggregate
principal amount of all Term Loans having Interest Periods ending
after any date on which an installment of the Term Loans is scheduled
to be repaid would exceed the aggregate principal amount of the Term
Loans scheduled to be outstanding after giving effect to such
repayment.
Investment means, relative to any Person, (a) any loan or advance
made by such Person to any other Person (excluding prepaid expenses in the
ordinary course of business, accounts receivable arising in the ordinary
course of business and commission, travel, relocation or similar loans or
advances made to directors, officers and employees of the Parent or any of its
Subsidiaries), (b) any Suretyship Liability of such Person, (c) any ownership
or similar interest held by such Person in any other Person and (d) deposits
and the like relating to prospective Acquisitions.
ISP means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking
Law & Practice (or such later version thereof as may be in effect at the time
of issuance).
Issuing Lender means Bank of America in its capacity as an issuer of
Letters of Credit hereunder and any other Revolving Lender which, with the
written consent of the Company and the Administrative Agent (such consents not
to be unreasonably withheld), is the issuer of one or more Letters of Credit.
L/C Application means, with respect to any request for the issuance
of a Letter of Credit, a letter of credit application in the form being used
by the applicable Issuing Lender at the time of such request for the type of
letter of credit requested; provided that to the extent any such letter of
credit application is inconsistent with any provision of this Agreement, the
applicable provision of this Agreement shall control.
LC Fee Rate - see Schedule 1.1.
Lead Arranger means Banc of America Securities LLC in its capacity as
arranger of the facilities hereunder.
Lender - see the Preamble. References to the "Lenders" and to the
"Revolving Lenders" shall include the Issuing Lenders and the Swing Line
Lender; for purposes of clarification only, to the extent that Bank of America
(or any other Issuing Lender or successor Swing Line Lender) may have rights
or obligations in addition to those of the other Lenders or the other
Revolving Lenders, as applicable, due to its status as an Issuing Lender or as
Swing Line Lender, its status as such will be specifically referenced.
Lender Party - see Section 15.13.
Letter of Credit - see Section 2.1.2.
Leverage Ratio means, as of the last day of any Fiscal Quarter, the
ratio of (i) Funded Debt as of such day to (ii) Pro Forma EBITDA for the
Computation Period ending on such day.
Lien means, with respect to any Person, any interest granted by such
Person in any real or personal property, asset or other right owned or being
purchased or acquired by such Person which secures payment or performance of
any obligation and shall include any mortgage, lien, encumbrance, charge or
other security interest of any kind, whether arising by contract, as a matter
of law, by judicial process or otherwise.
Loan means a Revolving Loan, a Swing Line Loan or a Term Loan.
Loan Documents means this Agreement, the Notes, the Subsidiary
Guaranty, the Confirmation, the L/C Applications and the Collateral Documents.
Loan Parties means the Parent, the Company and each Subsidiary
Guarantor, and "Loan Party" means any of them.
Margin Stock means any "margin stock" as defined in Regulation U of
the FRB.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, operations, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries taken
as a whole, or (b) a material adverse effect upon any substantial portion of
the collateral under the Collateral Documents or upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document
(other than as a result of a Person ceasing to be a Loan Party as a result of
a transaction permitted hereunder).
Mortgage means a mortgage, deed of trust, leasehold mortgage or
similar instrument granting the Administrative Agent a Lien on real property
owned or leased by the Company or any Subsidiary Guarantor.
Multiemployer Pension Plan means a multiemployer plan, as such term
is defined in Section 4001(a)(3) of ERISA, and to which the Company or any
member of the Controlled Group may have any liability.
Net Cash Proceeds means:
(a) with respect to any Asset Sale, the aggregate cash proceeds
(including cash proceeds received by way of deferred payment of principal
pursuant to a note, installment receivable or otherwise, but only as and when
received) received by the Company or any Subsidiary pursuant to such Asset
Sale, net of (i) the direct costs relating to such Asset Sale (including
brokerage fees, sales and other commissions, legal, accounting and investment
banking fees and expenses, survey costs, title insurance premiums and other
customary fees and expenses incurred in connection therewith), (ii) taxes paid
or reasonably estimated by the Company or such Subsidiary to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of principal of any Debt (and related prepayment
premiums, penalties or make-whole amounts) secured by a Lien on the asset
subject to such Asset Sale (other than Debt hereunder), (iv) appropriate
amounts to be provided by the Company or any Subsidiary, as the case may be,
as a reserve, in accordance with GAAP, against any liabilities associated with
the assets sold or disposed of in such Asset Sale and retained by the Company
or such Subsidiary, as the case may be, after such Asset Sale, including
pension and other post-employment benefit liabilities and liabilities related
to environmental matters and liabilities under any indemnification obligation
associated with the assets sold or disposed of in such Asset Sale (provided
that, if and to the extent that such reserves are no longer required to be
maintained in accordance with GAAP, such amounts shall constitute Net Cash
Proceeds, to the extent such amounts would have otherwise constituted Net Cash
Proceeds under this clause (a)), (v) amounts that the Company specifies to the
Administrative Agent prior to or concurrently with the receipt thereof are to
be used (and actually are used) within 180 days following such Asset Sale to
purchase replacement assets (or assets performing similar functions) or as
full or partial consideration for Permitted Acquisitions and (vi) in the case
of any proceeds arising out of the sublease of any property, amounts required
to be paid in respect of the lease of such property); and
(b) with respect to any issuance of equity securities or Debt, the
aggregate cash proceeds received by the Company or any Subsidiary pursuant to
such issuance, net of the direct costs relating to such issuance (including
sales and underwriter's discounts and commissions and legal, accounting and
investment banking fees and expenses).
Note - see Section 3.1.
Parent - see the Preamble.
Parent Guaranty means the guaranty of the Parent set forth in Section
13.
Participant - see Section 15.9.2.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Pension Plan), and to which the Company or any member of the
Controlled Group may have any liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to
be a contributing sponsor under Section 4069 of ERISA.
Percentage means a Revolving Percentage or a Term Percentage, as the
context may require.
Permitted Acquisition means any Acquisition by the Company or any
wholly-owned Subsidiary where (a) the assets acquired are for use in, or the
Person acquired is engaged in, business activities permitted under Section
10.18; (b) immediately before or after giving effect to such Acquisition, no
Event of Default or Unmatured Event of Default shall have occurred and be
continuing; (c) if the aggregate consideration paid by the Company and its
Subsidiaries (including any Debt assumed or issued in connection therewith,
the amount thereof to be calculated in accordance with GAAP, but excluding (i)
any common stock of the Parent or (ii) any cash received substantially
concurrently with such Acquisition from the issuance of any common stock of
the Parent) in connection with such Acquisition (or any series of related
Acquisitions) exceeds $5,000,000, the Company shall have delivered to the
Administrative Agent pro forma financial statements giving effect to such
Acquisition, which financial statements shall (x) detail any related
acquisition adjustments and add-backs to be used to calculate Pro Forma EBITDA
and (y) otherwise be reasonably satisfactory to the Administrative Agent; (d)
immediately after giving effect to such Acquisition, the sum of (i) the
aggregate amount of cash and Cash Equivalent Investments of the Company and
its Subsidiaries plus (ii) the result of the Revolving Commitment Amount minus
the Revolving Outstandings shall be greater than $10,000,000; and (e) the
board of directors (or similar governing body) of the Person to be acquired
shall have approved such Acquisition.
Person means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or unit, or
other entity, whether acting in an individual, fiduciary or other capacity.
Prime Rate means, for any day, the rate of interest in effect for
such day as publicly announced from time to time by Bank of America in
Charlotte, North Carolina, as its "prime rate". (The "prime rate" is a rate
set by Bank of America based upon various factors, including Bank of America's
costs and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.) Any change in the "prime rate" announced
by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
Pro Forma EBITDA means, for any period, the sum of (a) EBITDA for
such period plus, without duplication, (b) to the extent deducted in
calculating Consolidated Net Income for such period, (i) all charges in
connection with the refinancing or repayment of Debt under the Existing Credit
Agreement, including the write-off of deferred financing costs, (ii) the first
$18,500,000 of non-recurring cash charges relating to the Stock Repurchase
and/or the resignation or departure of any of William Whitman, Jr. or any
Related Person as an officer, director or employee of the Parent or any
Subsidiary and (iii) non-cash charges relating to the Stock Repurchase;
provided that in calculating Pro Forma EBITDA:
(i) the consolidated net income of any Person (or business
unit) acquired by the Company or any Subsidiary during such period
(plus, to the extent deducted in determining such consolidated net
income, interest expense, income tax expense, depreciation and
amortization of such Person) shall be included on a pro forma basis
for such period (assuming the consummation of each such Acquisition
and the incurrence or assumption of any Debt in connection therewith
occurred on the first day of such period) based upon (x) to the
extent available, (I) the audited consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries (or such business
unit) as at the end of the fiscal year of such Person (or business
unit) preceding such Acquisition and the related audited consolidated
statements of income, stockholders' equity and cash flows for such
fiscal year and (II) any subsequent unaudited financial statements
for such Person (or business unit) for the period prior to such
Acquisition so long as such statements were prepared on a basis
consistent with the audited financial statements referred to above or
(y) to the extent the items listed in clause (x) are not available,
such historical financial statements and other information as is
disclosed to, and reasonably approved by, the Required Lenders; and
(ii) the consolidated net income of any Person (or division
or similar business unit) disposed of by the Parent, the Company or
any Subsidiary during such period (plus, to the extent deducted in
determining such consolidated net income, interest expense, income
tax expense, depreciation and amortization of such Person (or
division or business unit)) shall be excluded on a pro forma basis
for such period (assuming the consummation of such disposition
occurred on the first day of such period).
Related Person means (a) any living ancestor of William Whitman, Jr.,
(b) any descendant of William Whitman, Sr., (c) any spouse or former spouse of
any of the foregoing and (d) any trustee for a trust on behalf of the
foregoing.
Required Lenders means Lenders having an aggregate Total Percentage
of more than 50%; provided that the Commitments of, and the portion of the
Revolving Outstandings and the outstanding principal amount of Term Loans held
or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders.
Responsible Financial Officer means, as to any Person, the chief
financial officer, the treasurer or the controller of such Person.
Responsible Officer means, as to any Person, the chief executive
officer, president, any vice president, or any Responsible Financial Officer
of such Person.
Revolving Commitment means, as to any Lender, such Lender's
commitment to make Revolving Loans, and to issue or participate in Letters of
Credit and to participate in Swing Line Loans, under this Agreement. The
amount of the Revolving Commitment of each Lender as of the date of the
execution and delivery of this Agreement is set forth across from such
Lender's name on Schedule 2.1.
Revolving Commitment Amount means $90,000,000, as such amount may be
changed from time to time pursuant to the terms hereof.
Revolving Lender means any Lender which has a Revolving Commitment
or, after the termination of the Revolving Commitments, is the holder of any
Revolving Loan or any participation in a Swing Line Loan or a Letter of
Credit.
Revolving Loan - see Section 2.1.1.
Revolving Outstandings means, at any time, the aggregate outstanding
principal amount of all Revolving Loans and Swing Line Loans plus the
aggregate Stated Amount of all Letters of Credit.
Revolving Percentage means, as to any Lender at any time, the
percentage which (a) the Revolving Commitment of such Lender (or, after
termination of the Revolving Commitments, the outstanding principal amount of
such Lender's Revolving Loans plus the amount of such Lender's participations
in the principal amount of all Swing Line Loans and the Stated Amount of all
Letters of Credit) at such time is of (b) the Revolving Commitment Amount (or,
after termination of the Revolving Commitments, the Revolving Outstandings) at
such time. The initial Revolving Percentage of each Lender is set forth across
from such Lender's name on Schedule 2.1.
Revolving Termination Date means the earlier to occur of (a) December
23, 2009 and (b) such other date on which the Revolving Commitments terminate
pursuant to Section 6 or 12.
SEC means the Securities and Exchange Commission, or any governmental
agency succeeding to any of its principal functions.
Security Agreement means a security agreement among the Parent, the
Company, the Subsidiary Guarantors and the Administrative Agent substantially
in the form of Exhibit D.
Stated Amount means, with respect to any Letter of Credit at any date
of determination, the maximum aggregate amount available for drawing
thereunder at any time during the remaining term of such Letter of Credit
under any and all circumstances, plus the aggregate amount of all unreimbursed
payments and disbursements under such Letter of Credit.
Stock Repurchase means (i) the repurchase by the Parent of not less
than 50% of the common stock (and related stock options) of the Parent that is
owned by William Whitman, Jr. and Related Persons for an aggregate purchase
price not to exceed $90,000,000 and (ii) the other transactions contemplated
by the Stock Repurchase Agreement.
Stock Repurchase Agreement means the Stock Repurchase Agreement dated
as of December 23, 2004 by and among the Parent, William F. Whitman, Jr.,
Barbara K. Whitman, W. Fifield Whitman III, Laura B. Whitman, the Barbara K.
Whitman Irrevocable Trust, the William F. Whitman, Jr. Irrevocable Trust, the
Trust dated December 21, 2003 F/B/O Barbara K. Whitman, the Trust dated
December 21, 2003 F/B/O Laura B. Whitman, the Trust dated December 21, 2003
F/B/O William Fifield Whitman III, the William F. Whitman, Jr. and Barbara K.
Whitman Charitable Remainder Trust and the W. F. Whitman Family Foundation.
Subordinated Debt means Debt of the Company or the Parent which has
maturities and other terms, and which is subordinated to the obligations of
the Company and its Subsidiaries and the Parent, to the extent applicable,
hereunder and under the other Loan Documents in a manner, approved in writing
by the Required Lenders.
Subsidiary means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which such Person
and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares or other ownership interests as have more than 50% of the
ordinary voting power for the election of directors or other managers of such
entity. Unless the context otherwise requires, each reference to Subsidiaries
herein shall be a reference to Subsidiaries of the Parent.
Subsidiary Guarantor means, on any day, each Subsidiary that has
executed a counterpart of the Subsidiary Guaranty on or prior to that day (or
is required to execute a counterpart of the Subsidiary Guaranty on that date)
and that has not been released therefrom in accordance with the terms hereof.
Subsidiary Guaranty means a guaranty issued by various Subsidiaries
of the Company substantially in the form of Exhibit C.
Suretyship Liability means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to or otherwise to
invest in a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Person (other than
(a) customary indemnification obligations arising in the ordinary course of
business under leases and other contracts and (b) by endorsements of
instruments for deposit or collection in the ordinary course of business), or
guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation in respect of any
Suretyship Liability shall (subject to any limitation set forth therein) be
deemed to be the lesser of (i) the principal amount of the debt, obligation or
other liability supported thereby and (ii) the maximum amount for which such
Person may be liable pursuant to the terms of the instrument embodying such
Suretyship Liability, unless such primary obligation and the maximum amount
for which such Person may be liable are not stated or determinable, in which
case the amount of such Suretyship Liability shall be such Person's maximum
reasonably anticipated liability in respect thereof as determined by such
Person in good faith.
Swing Line Lender means Bank of America in its capacity as swing line
lender hereunder, together with any replacement swing line lender arising
under Section 14.9.
Swing Line Loan - see Section 2.4.1.
Term Commitment means, as to any Lender, such Lender's obligation to
make a Term Loan pursuant to Section 2.1.3.
Term Lender means any Lender which has a Term Commitment or, after
the making of the Term Loans, is the holder of any Term Loan.
Term Loan - see Section 2.1.3.
Term Percentage means, as to any Term Lender at any time, the
percentage which (a) the Term Commitment of such Lender (or, after the making
of the Term Loans, the outstanding principal amount of such Lender's Term
Loan) at such time is of (b) the aggregate amount of Term Commitments (or,
after the making of the Term Loans, the aggregate outstanding principal amount
of all Term Loans) at such time. The initial Term Percentage of each Lender is
set forth across from such Lender's name on Schedule 2.1.
Total Percentage means, as to any Lender at any time, the percentage
which (a) the Revolving Commitment of such Lender (or, after the termination
of the Revolving Commitments, the sum of the unpaid principal amount of the
Revolving Loans of such Lender plus the participations of such Lender in the
Stated Amount of all Letters of Credit and the outstanding principal amount of
all Swing Line Loans) at such time plus the unpaid principal amount of the
Term Loans of such Lender at such time is of (b) the sum of the Revolving
Commitment Amount (or, after the termination of the Revolving Commitments, the
Revolving Outstandings) at such time plus the unpaid principal amount of all
Term Loans (or, prior to the Effective Time, the aggregate amount of the Term
Commitments) at such time; provided that if and so long as any Lender is a
Defaulting Lender, such Lender's Total Percentage shall be deemed for purposes
of this definition to be reduced to the extent of the defaulted amount and the
Total Percentage of the applicable Issuing Lender or the Swing Line Lender, as
applicable, shall be deemed for purposes of this definition to be increased to
such extent.
Type of Loan or borrowing - see Section 2.2.1. The types of Loans or
borrowings under this Agreement are as follows: Base Rate Loans or borrowings
and Eurodollar Loans or borrowings.
Unmatured Event of Default means any event that, if it continues
uncured, will, with lapse of time or the giving of notice or both, constitute
an Event of Default.
U.S. Pledge Agreement means a pledge agreement among the Company,
various domestic Subsidiaries and the Administrative Agent substantially in
the form of Exhibit E.
1.2 Other Interpretive Provisions. (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) The term "including" is not limiting and means "including without
limitation."
(d) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means
"to and including."
(e) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement), other contractual instruments and
organizational documents shall be deemed to include all subsequent amendments
and other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as including
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such statute or regulation.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company, the Lenders and the other parties thereto and are the
products of all parties. Accordingly, they shall not be construed against the
Administrative Agent or the Lenders merely because of the Administrative
Agent's or Lenders' involvement in their preparation.
1.3 Allocation of Loans and Percentages at the Effective Time.
(a) The Company and each Lender agree that, effective at the
Effective Time, (i) this Agreement shall amend and restate in its entirety the
Existing Credit Agreement and (ii) the outstanding Loans thereunder (and the
participations in Letters of Credit and Swing Line Loans thereunder), shall be
allocated among the Lenders in accordance with their respective Revolving
Percentages.
(b) To facilitate the allocation described in clause (a), at the
Effective Time, (i) all "Revolving Loans" under the Existing Credit Agreement
("Existing Loans") shall be deemed to be Revolving Loans, (ii) each Lender
which is a party to the Existing Credit Agreement (an "Existing Lender") shall
transfer to the Administrative Agent an amount equal to the excess, if any, of
such Lender's pro rata share (according to its Revolving Percentage) of the
outstanding Revolving Loans hereunder (including any Revolving Loans made at
the Effective Time) over the amount of all of such Lender's Existing Loans,
(iii) each Lender which is not a party to the Existing Credit Agreement shall
transfer to the Administrative Agent an amount equal to such Lender's pro rata
share (according to its Revolving Percentage) of the outstanding Revolving
Loans hereunder (including any Revolving Loans made at the Effective Time),
(iv) the Administrative Agent shall apply the funds received from the Lenders
pursuant to clauses (ii) and (iii), first, on behalf of the Lenders (pro rata
according to the amount of the applicable Existing Loans each is required to
purchase to achieve the allocation described in clause (a)), to purchase from
each Existing Lender which has Existing Loans in excess of such Lender's pro
rata share (according to its Revolving Percentage) of the outstanding
Revolving Loans hereunder (including any Revolving Loans made at the Effective
Time), a portion of such Existing Loans equal to such excess, second, to pay
to each Existing Lender all interest, fees and other amounts (including
amounts payable pursuant to Section 8.4 of the Existing Credit Agreement,
assuming for such purpose that the Existing Loans were prepaid rather than
allocated at the Effective Time) owed to such Existing Lender under the
Existing Credit Agreement (whether or not otherwise then due) and, third, as
the Company shall direct, and (v) all Revolving Loans shall commence new
Interest Periods in accordance with elections made by the Company at least
three Business Days prior to the date of the Effective Time pursuant to the
procedures applicable to conversions and continuations set forth in Section
2.2.3 (all as if the Existing Loans were continued or converted at the
Effective Time). To the extent the Company fails to make a timely election
pursuant to clause (v) of the preceding sentence with respect to any Revolving
Loans, such Loans shall be Base Rate Loans.
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING AND CONVERSION
PROCEDURES; LETTER OF CREDIT PROCEDURES; SWING LINE LOANS.
2.1 Commitments. On and subject to the terms and conditions of this
Agreement, each of the Lenders, severally and for itself alone, agrees to make
(and, in the case of the Revolving Lenders, participate in) Credit Extensions
to the Company as follows:
2.1.1 Revolving Loans. Each Revolving Lender will make loans on a
revolving basis to the Company ("Revolving Loans") from time to time before
the Revolving Termination Date in such Revolving Lender's Revolving Percentage
of such aggregate amounts as the Company may from time to time request from
all Revolving Lenders (it being understood that effective at the Effective
Time (and after giving effect to the transactions contemplated by Section
1.3), each Revolving Lender shall have outstanding Revolving Loans in an
amount equal to its Revolving Percentage of the aggregate amount of all
outstanding Revolving Loans); provided that the Revolving Outstandings shall
not at any time exceed the Revolving Commitment Amount. Amounts borrowed under
this Section may be repaid and thereafter reborrowed until the Revolving
Termination Date.
2.1.2 L/C Commitment. (a) The Issuing Lenders will issue standby and
commercial letters of credit, in each case containing such terms and
conditions as are permitted by this Agreement and are reasonably satisfactory
to the applicable Issuing Lender and the Company (collectively with the
Existing Letters of Credit, each a "Letter of Credit"), at the request of and
for the account of the Company (or jointly for the account of the Company and
(i) the Parent or (ii) any Subsidiary of the Company) from time to time before
the date which is 30 days prior to the scheduled Revolving Termination Date,
and (b) as more fully set forth in Section 2.3, each Revolving Lender agrees
to purchase a participation in each such Letter of Credit; provided that (x)
the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $10,000,000 and (y) the Revolving Outstandings shall not at any time
exceed the Revolving Commitment Amount.
2.1.3 Term Loans. Each Term Lender will make a single term loan (each
a "Term Loan") at the Effective Time in such Lender's Term Percentage of
$70,000,000.
2.2 Loan Procedures.
2.2.1 Various Types of Loans. Each Revolving Loan shall be, and each
Term Loan may be divided into tranches which are, either a Base Rate Loan or a
Eurodollar Loan (each a "type" of Loan), as the Company shall specify in the
related notice of borrowing or conversion pursuant to Section 2.2.2 or 2.2.3.
Eurodollar Loans having the same Interest Period are sometimes called a
"Group" or collectively "Groups". Base Rate Loans and Eurodollar Loans may be
outstanding at the same time; provided that (i) not more than 10 different
Groups of Eurodollar Loans shall be outstanding at any one time and (ii) the
aggregate principal amount of each Group of Eurodollar Loans shall at all
times be at least $1,000,000 and an integral multiple of $500,000. All
borrowings, conversions and repayments of Loans shall be effected so that each
Revolving Lender will have a pro rata share (according to its Revolving
Percentage) of all types and Groups of Revolving Loans and each Term Lender
will have a pro rata share (according to its Term Percentage) of all types and
Groups of tranches of the Term Loans.
2.2.2 Borrowing Procedures. The Company shall give written notice or
telephonic notice (followed promptly by written confirmation thereof) to the
Administrative Agent of each proposed borrowing of Revolving Loans, and of the
proposed borrowing of the Term Loans, not later than (a) in the case of a Base
Rate borrowing, 10:00 A.M., Chicago time, on the proposed date of such
borrowing, and (b) in the case of a Eurodollar Rate borrowing, 10:00 A.M.,
Chicago time, at least three Business Days prior to the proposed date of such
borrowing. Each such notice shall be effective upon receipt by the
Administrative Agent, shall be irrevocable, and shall specify the date, amount
and type of borrowing and, in the case of a Eurodollar Rate borrowing, the
initial Interest Period therefor. Promptly upon receipt of such notice, the
Administrative Agent shall advise each applicable Lender thereof. Not later
than 1:00 p.m., Chicago time, on the date of a proposed borrowing, each
applicable Lender shall provide the Administrative Agent at the office
specified by the Administrative Agent with immediately available funds
covering such Lender's applicable Percentage of such borrowing and, so long as
the Administrative Agent has not received written notice that the conditions
precedent set forth in Section 11 with respect to such borrowing have not been
satisfied, the Administrative Agent shall pay over the requested amount to the
Company on the requested borrowing date. Each borrowing shall be on a Business
Day. Each borrowing of Revolving Loans shall be in an aggregate amount of at
least $500,000 and an integral multiple of $100,000.
2.2.3 Conversion and Continuation Procedures. (a) Subject to the
provisions of Section 2.2.1, the Company may, upon irrevocable written notice
to the Administrative Agent in accordance with clause (b) below:
(i) elect, as of any Business Day, to convert any
outstanding Revolving Loan, or any tranche of a Term Loan, into a
Loan of the other type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Group of Eurodollar Loans having an Interest
Period expiring on such day (or any part thereof in an aggregate
amount not less than $1,000,000 or a higher integral multiple of
$500,000) for a new Interest Period.
(b) The Company shall give written or telephonic (followed promptly
by written confirmation thereof) notice to the Administrative Agent of each
proposed conversion or continuation not later than (i) in the case of
conversion into Base Rate Loans, 10:00 a.m., Chicago time, on the proposed
date of such conversion; and (ii) in the case of a conversion into or
continuation of Eurodollar Loans, 10:00 a.m., Chicago time, at least three
Business Days prior to the proposed date of such conversion or continuation,
specifying in each case:
(1) the proposed date of conversion or continuation;
(2) the aggregate amount of Revolving Loans and/or
tranches of Term Loans to be converted or
continued;
(3) the type of Revolving Loans and/or tranches of Term
Loans resulting from the proposed conversion or
continuation; and
(4) in the case of conversion into, or continuation of,
Eurodollar Loans, the duration of the requested
Interest Period therefor.
(c) If upon expiration of any Interest Period applicable to any
Eurodollar Loan, the Company has failed to select timely a new Interest Period
to be applicable to such Eurodollar Loan, the Company shall be deemed to have
elected to convert such Eurodollar Loan into a Base Rate Loan effective on the
last day of such Interest Period.
(d) The Administrative Agent will promptly notify each applicable
Lender of its receipt of a notice of conversion or continuation pursuant to
this Section 2.2.3 or, if no timely notice is provided by the Company, of the
details of any automatic conversion.
(e) Unless the Required Lenders otherwise consent, the Company may
not elect to have a Loan converted into or continued as a Eurodollar Loan
during the existence of any Event of Default or Unmatured Event of Default.
2.3 Letter of Credit Procedures.
2.3.1 L/C Applications. The Company shall give notice to the
Administrative Agent and the applicable Issuing Lender of the proposed
issuance of each Letter of Credit on a Business Day which is at least three
Business Days (or such lesser number of days as the Administrative Agent and
such Issuing Lender shall agree in any particular instance) prior to the
proposed date of issuance of such Letter of Credit. Each such notice shall be
accompanied by an L/C Application, duly executed by the Company (together with
any other Person for the account of which the related Letter of Credit is to
be issued) and in all respects reasonably satisfactory to the Administrative
Agent and the applicable Issuing Lender, together with such other
documentation as the Administrative Agent or such Issuing Lender may
reasonably request in support thereof, it being understood that each L/C
Application shall specify, among other things, the date on which the proposed
Letter of Credit is to be issued, the expiration date of such Letter of Credit
(which shall not be later than seven days prior to the scheduled Revolving
Termination Date) and whether such Letter of Credit is to be transferable in
whole or in part. So long as (a) the applicable Issuing Lender has not
received written notice that the conditions precedent set forth in Section 11
with respect to the issuance of such Letter of Credit have not been satisfied
and (b) no default of any Lender's obligations to fund under Section 2.3.5
exists and no Lender is at such time a Defaulting Lender (unless in any such
case the applicable Issuing Lender has entered into reasonably satisfactory
arrangements with the Company or such Defaulting Lender to eliminate such
Issuing Lender's risk with respect to such Defaulting Lender), such Issuing
Lender shall issue such Letter of Credit on the requested issuance date. Each
Issuing Lender shall promptly advise the Administrative Agent of the issuance
of each Letter of Credit by such Issuing Lender and of any amendment thereto,
extension thereof or event or circumstance changing the amount available for
drawing thereunder.
2.3.2 Participations in Letters of Credit. Concurrently with the
issuance of each Letter of Credit, the applicable Issuing Lender shall be
deemed to have sold and transferred to each other Revolving Lender, and each
other Revolving Lender shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuing Lender, without recourse or warranty,
an undivided interest and participation, to the extent of such other Revolving
Lender's Revolving Percentage, in such Letter of Credit and the Company's
reimbursement obligations with respect thereto. For the purposes of this
Agreement, the unparticipated portion of each Letter of Credit shall be deemed
to be the applicable Issuing Lender's "participation" therein. Each Issuing
Lender hereby agrees, upon request of the Administrative Agent or any
Revolving Lender, to deliver to the Administrative Agent or such Revolving
Lender a list of all outstanding Letters of Credit issued by such Issuing
Lender, together with such information related thereto as the Administrative
Agent or such Lender may reasonably request.
2.3.3 Reimbursement Obligations. The Company hereby unconditionally
and irrevocably agrees to reimburse the applicable Issuing Lender for each
payment or disbursement made by such Issuing Lender under any Letter of Credit
honoring any demand for payment made by the beneficiary thereunder, in each
case on the date that such payment or disbursement is made. Any amount not
reimbursed on the date of such payment or disbursement shall bear interest
from the date of such payment or disbursement to the date that such Issuing
Lender is reimbursed by the Company therefor, payable on demand, at a rate per
annum equal to the Base Rate from time to time in effect plus the Base Rate
Margin from time to time in effect plus, beginning on the third Business Day
after receipt of notice from the Issuing Lender of such payment or
disbursement, 2%. The applicable Issuing Lender shall notify the Company and
the Administrative Agent whenever any demand for payment is made under any
Letter of Credit by the beneficiary thereunder; provided that the failure of
such Issuing Lender to so notify the Company shall not affect the rights of
such Issuing Lender or the Lenders in any manner whatsoever.
2.3.4 Limitation on Obligations of Issuing Lenders. In determining
whether to pay under any Letter of Credit, no Issuing Lender shall have any
obligation to the Company or any Lender other than to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered and appear to comply on their face with the requirements of
such Letter of Credit. Any action taken or omitted to be taken by an Issuing
Lender under or in connection with any Letter of Credit, if taken or omitted
in the absence of gross negligence and willful misconduct, shall not impose
upon such Issuing Lender any liability to the Company or any Lender and shall
not reduce or impair the Company's reimbursement obligations set forth in
Section 2.3.3 or the obligations of the Revolving Lenders pursuant to Section
2.3.5.
2.3.5 Funding by Revolving Lenders to Issuing Lenders. If an Issuing
Lender makes any payment or disbursement under any Letter of Credit and the
Company has not reimbursed such Issuing Lender in full for such payment or
disbursement by 11:00 A.M., Chicago time, on the date of such payment or
disbursement, or if any reimbursement received by such Issuing Lender from the
Company is or must be returned or rescinded upon or during any bankruptcy or
reorganization of the Company or otherwise, each other Revolving Lender shall
be obligated to pay to the Administrative Agent for the account of such
Issuing Lender, in full or partial payment of the purchase price of its
participation in such Letter of Credit, its pro rata share (according to its
Revolving Percentage) of such payment or disbursement (but no such payment
shall diminish the obligations of the Company under Section 2.3.3), and upon
notice from the applicable Issuing Lender, the Administrative Agent shall
promptly notify each other Revolving Lender thereof. Each other Revolving
Lender irrevocably and unconditionally agrees to so pay to the Administrative
Agent in immediately available funds for the applicable Issuing Lender's
account the amount of such other Revolving Lender's Revolving Percentage of
such payment or disbursement. If and to the extent any Revolving Lender shall
not have made such amount available to the Administrative Agent by 2:00 P.M.,
Chicago time, on the Business Day on which such Revolving Lender receives
notice from the Administrative Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the next following
Business Day), such Revolving Lender agrees to pay interest on such amount to
the Administrative Agent for the applicable Issuing Lender's account forthwith
on demand for each day from the date such amount was to have been delivered to
the Administrative Agent to the date such amount is paid, at a rate per annum
equal to (a) for the first three days after demand, the Federal Funds Rate
from time to time in effect and (b) thereafter, the Base Rate from time to
time in effect. Any Revolving Lender's failure to make available to the
Administrative Agent its Revolving Percentage of any such payment or
disbursement shall not relieve any other Revolving Lender of its obligation
hereunder to make available to the Administrative Agent such other Revolving
Lender's Revolving Percentage of such payment, but no Revolving Lender shall
be responsible for the failure of any other Revolving Lender to make available
to the Administrative Agent such other Revolving Lender's Revolving Percentage
of any such payment or disbursement.
2.3.6 Applicability of ISP and UCP. Unless otherwise expressly agreed
by the applicable Issuing Lender and the Company when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (a) the rules of the ISP shall apply to each standby Letter of Credit
and (b) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the
time of issuance shall apply to each commercial Letter of Credit.
2.4 Swing Line Loans.
2.4.1 Swing Line Loans. Subject to the terms and conditions of this
Agreement, the Swing Line Lender may from time to time, in its discretion,
make loans to the Company (collectively the "Swing Line Loans" and
individually each a "Swing Line Loan") in accordance with this Section 2.4 in
an aggregate amount not at any time exceeding $10,000,000; provided that the
Revolving Outstandings shall not at any time exceed the Revolving Commitment
Amount. Amounts borrowed under this Section 2.4 may be borrowed, repaid and
(subject to the agreement of the Swing Line Lender) reborrowed until the
Revolving Termination Date.
2.4.2 Swing Line Loan Procedures. The Company shall give written or
telephonic notice to the Administrative Agent (which shall promptly inform the
Swing Line Lender) of each proposed Swing Line Loan not later than 12:00 noon,
Chicago time, on the proposed date of such Swing Line Loan. Each such notice
shall be effective upon receipt by the Administrative Agent and shall specify
the date (which shall be a Business Day) and amount (which shall be an
integral multiple of $100,000) of such Swing Line Loan. So long as the Swing
Line Lender has not received written notice that the conditions precedent set
forth in Section 11 with respect to the making of such Swing Line Loan have
not been satisfied, the Swing Line Lender may make the requested Swing Line
Loan. If the Swing Line Lender agrees to make the requested Swing Line Loan,
the Swing Line Lender shall pay over the requested amount to the Company on
the requested borrowing date. Concurrently with the making of any Swing Line
Loan, the Swing Line Lender shall be deemed to have sold and transferred, and
each other Revolving Lender shall be deemed to have purchased and received
from the Swing Line Lender, an undivided interest and participation to the
extent of such other Revolving Lender's Revolving Percentage in such Swing
Line Loan (but such participation shall remain unfunded until required to be
funded pursuant to Section 2.4.3).
2.4.3 Refunding of, or Funding of Participations in, Swing Line
Loans. The Swing Line Lender may at any time, in its sole discretion, on
behalf of the Company (which hereby irrevocably authorizes the Swing Line
Lender to act on its behalf) deliver a notice to the Administrative Agent
(with a copy to the Company) requesting that each Revolving Lender (including
the Swing Line Lender in its individual capacity) make a Revolving Loan (which
shall be a Base Rate Loan) in such Revolving Lender's Revolving Percentage of
the aggregate amount of Swing Line Loans outstanding on such date for the
purpose of repaying all Swing Line Loans (and, upon receipt of the proceeds of
such Revolving Loans, the Administrative Agent shall apply such proceeds to
repay Swing Line Loans); provided that if the conditions precedent to a
borrowing of Revolving Loans are not then satisfied or for any other reason
the Revolving Lenders may not then make Revolving Loans, then instead of
making Revolving Loans each Revolving Lender (other than the Swing Line
Lender) shall become immediately obligated to fund its participation in all
outstanding Swing Line Loans and shall pay to the Administrative Agent for the
account of the Swing Line Lender an amount equal to such Revolving Lender's
Revolving Percentage of such Swing Line Loans. If and to the extent any
Revolving Lender shall not have made such amount available to the
Administrative Agent by 2:00 P.M., Chicago time, on the Business Day on which
such Revolving Lender receives notice from the Administrative Agent of its
obligation to fund its participation in Swing Line Loans (it being understood
that any such notice received after 12:00 noon, Chicago time, on any Business
Day shall be deemed to have been received on the next following Business Day),
such Revolving Lender agrees to pay interest on such amount to the
Administrative Agent for the Swing Line Lender's account forthwith on demand
for each day from the date such amount was to have been delivered to the
Administrative Agent to the date such amount is paid, at a rate per annum
equal to (a) for the first three days after demand, the Federal Funds Rate
from time to time in effect and (b) thereafter, the Base Rate from time to
time in effect. Any Revolving Lender's failure to make available to the
Administrative Agent its Revolving Percentage of the amount of all outstanding
Swing Line Loans shall not relieve any other Revolving Lender of its
obligation hereunder to make available to the Administrative Agent such other
Revolving Lender's Revolving Percentage of such amount, but no Revolving
Lender shall be responsible for the failure of any other Revolving Lender to
make available to the Administrative Agent such other Revolving Lender's
Revolving Percentage of any such amount.
2.4.4 Repayment of Participations. Upon (and only upon) receipt by
the Administrative Agent for the account of the Swing Line Lender of
immediately available funds from or on behalf of the Company (a) in
reimbursement of any Swing Line Loan with respect to which a Revolving Lender
has paid the Administrative Agent for the account of the Swing Line Lender the
amount of such Revolving Lender's participation therein or (b) in payment of
any interest on a Swing Line Loan, the Administrative Agent will pay to such
Revolving Lender its pro rata share (according to its Revolving Percentage)
thereof (and the Swing Line Lender shall receive the amount otherwise payable
to any Revolving Lender which did not so pay the Administrative Agent the
amount of such Revolving Lender's participation in such Swing Line Loan).
2.4.5 Participation Obligations Unconditional. (a) Each Revolving
Lender's obligation to make available to the Administrative Agent for the
account of the Swing Line Lender the amount of its participation interest in
all Swing Line Loans as provided in Section 2.4.3 shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the Swing Line Lender or any other Person, (ii) the
occurrence or continuance of an Event of Default or Unmatured Event of
Default, (iii) any adverse change in the condition (financial or otherwise) of
the Company or any Subsidiary thereof, (iv) any termination of the Revolving
Commitments or (v) any other circumstance, happening or event whatsoever.
(b) Notwithstanding the provisions of clause (a) above, no Revolving
Lender shall be required to purchase a participation interest in any Swing
Line Loan if, prior to the making by the Swing Line Lender of such Swing Line
Loan, the Swing Line Lender received written notice specifying that one or
more of the conditions precedent to the making of such Swing Line Loan were
not satisfied and, in fact, such conditions precedent were not satisfied at
the time of the making of such Swing Line Loan.
2.5 Commitments Several. The failure of any Lender to make a
requested Loan on any date shall not relieve any other Lender of its
obligation (if any) to make a Loan on such date, but no Lender shall be
responsible for the failure of any other Lender to make any Loan to be made by
such other Lender.
2.6 Certain Conditions. Notwithstanding any other provision of this
Agreement, no Lender shall have an obligation to make any Credit Extension if
an Event of Default or Unmatured Event of Default exists or would result
therefrom.
SECTION 3 NOTES EVIDENCING LOANS.
3.1 Notes. The Loans of each Lender shall be evidenced by a
promissory note substantially in the form set forth in Exhibit A, with
appropriate insertions (each a "Note").
3.2 Recordkeeping. Each Lender shall record in its records, or at its
option on the schedule attached to its Note, the date and amount of each Loan
made by such Lender, each repayment or conversion thereof and, in the case of
each Eurodollar Loan, the dates on which each Interest Period for such Loan
shall begin and end. The aggregate unpaid principal amount so recorded shall
be rebuttable presumptive evidence of the principal amount owing and unpaid on
such Note. The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise affect the
obligations of the Company hereunder or under any Note to repay the principal
amount of the Loans evidenced by such Note together with all interest accruing
thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest on the
unpaid principal amount of each Loan for the period commencing on the date
such Loan is advanced until such Loan is paid in full as follows:
(a) in the case of Revolving Loans and Term Loans, (i) at all times
such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the
Base Rate from time to time in effect plus the Base Rate Margin from time to
time in effect; and (ii) at all times such Loan is a Eurodollar Loan, at a
rate per annum equal to the sum of the Eurodollar Rate (Reserve Adjusted)
applicable to each Interest Period for such Loan plus the Eurodollar Margin
from time to time in effect; and
(b) in the case of Swing Line Loans, at a rate per annum equal to the
Base Rate from time to time in effect plus the Base Rate Margin from time to
time in effect;
provided that, at the written request of the Required Lenders, at any
time an Event of Default exists the interest rate applicable to each Loan
shall be increased by 2%.
4.2 Interest Payment Dates. Accrued interest on each Base Rate Loan
and Swing Line Loan shall be payable in arrears on the last Business Day of
each calendar quarter and at maturity. Accrued interest on each Eurodollar
Loan shall be payable on the last day of each Interest Period relating to such
Loan (and, in the case of a Eurodollar Loan with an Interest Period of more
than three months), on each three-month anniversary of the first day of such
Interest Period) and at maturity. After maturity, accrued interest on all
Loans shall be payable on demand.
4.3 Setting and Notice of Eurodollar Rates. The applicable Eurodollar
Rate for each Interest Period shall be determined by the Administrative Agent,
and notice thereof shall be given by the Administrative Agent promptly to the
Company and each applicable Lender. Each determination of the applicable
Eurodollar Rate by the Administrative Agent shall be conclusive and binding
upon the parties hereto, in the absence of demonstrable error. The
Administrative Agent shall, upon written request of the Company or any
applicable Lender, deliver to the Company or such Lender a statement showing
in reasonable detail the computations used by the Administrative Agent in
determining any applicable Eurodollar Rate hereunder.
4.4 Computation of Interest. All determinations of interest for Base
Rate Loans and Swing Line Loans when the Base Rate is determined by the Prime
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. All other computations of interest
shall be computed for the actual number of days elapsed on the basis of a year
of 360 days. The applicable interest rate for each Base Rate Loan shall change
simultaneously with each change in the Base Rate.
SECTION 5 FEES.
5.1 Commitment Fee. The Company agrees to pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee, for the
period from the date on which the Effective Time occurs to the Revolving
Termination Date, at a rate per annum equal to the Commitment Fee Rate in
effect from time to time of the daily average of such Revolving Lender's
Revolving Percentage of the unused amount of the Revolving Commitment Amount.
For purposes of calculating usage under this Section, the Revolving Commitment
Amount shall be deemed used to the extent of the sum of the aggregate
outstanding principal amount of all Revolving Loans and the Stated Amount of
Letters of Credit at such time. Such commitment fee shall be payable in
arrears on the last Business Day of each calendar quarter and on the Revolving
Termination Date for any period then ending for which such commitment fee
shall not have theretofore been paid. The commitment fee shall be computed for
the actual number of days elapsed on the basis of a year of 360 days.
5.2 Letter of Credit Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of the Revolving Lenders pro rata
according to their respective Revolving Percentages a letter of credit fee for
each Letter of Credit in an amount equal to the LC Fee Rate per annum in
effect from time to time of the undrawn amount of such Letter of Credit
(computed for the actual number of days elapsed on the basis of a year of 360
days); provided that, at the written request of the Required Lenders, at any
time an Event of Default exists the rate applicable to each Letter of Credit
shall be increased by 2%. Such letter of credit fee shall be payable in
arrears on the last Business Day of each calendar quarter and on the Revolving
Termination Date (and, if any Letter of Credit remains outstanding on the
Revolving Termination Date, thereafter on demand) for the period from the date
of the issuance of each Letter of Credit to the date such payment is due or,
if earlier, the date on which such Letter of Credit expired or was terminated.
(b) The Company agrees to pay each Issuing Lender a fronting fee for
each Letter of Credit issued by such Issuing Lender in the amount separately
agreed to between the Company and such Issuing Lender.
(c) In addition, with respect to each Letter of Credit, the Company
agrees to pay to the applicable Issuing Lender, for its own account, such fees
and expenses as such Issuing Lender customarily requires in connection with
the issuance, negotiation, processing and/or administration of letters of
credit in similar situations.
5.3 Up-Front Fees. The Company agrees to pay to the Lead Arranger for
the account of the Lenders such up-front fees as have been previously agreed
to by the Company, the Administrative Agent, the Lead Arranger and the
Lenders. 5.4 Administrative Agent's and Lead Arranger's Fees. The Company
agrees to pay to the Administrative Agent and the Lead Arranger such fees as
are mutually agreed to from time to time by the Company, the Administrative
Agent and the Lead Arranger.
SECTION 6 REPAYMENT OF LOANS; REDUCTION AND TERMINATION OF THE
REVOLVING COMMITMENTS; PREPAYMENTS.
6.1 Repayment of Loans.
(a) The Term Loans shall be repaid in installments on the dates, and
in the amounts, set forth on Schedule 6.1. Each such installment shall be
applied to repay the Term Loans of the Term Lenders according to their
respective Term Percentages.
(b) All Revolving Loans shall be repaid in full on the Revolving
Termination Date.
(c) All Swing Line Loans shall be repaid in full promptly following
demand by the Swing Line Lender (and, in any event, on the Revolving
Termination Date).
6.2 Changes in the Revolving Commitment Amount.
6.2.1 Voluntary Reductions and Termination of the Revolving
Commitment Amount. The Company may from time to time on at least three
Business Days' prior written notice received by the Administrative Agent
(which shall promptly advise each Revolving Lender thereof) permanently reduce
(subject to any subsequent permitted increase in the Revolving Commitment
Amount pursuant to Section 6.2.2) the Revolving Commitment Amount to an amount
not less than the Revolving Outstandings. Any such reduction shall be in an
amount not less than $3,000,000 or a higher integral multiple of $1,000,000.
The Company may at any time on like notice terminate the Revolving Commitments
upon payment in full of all Revolving Loans and Swing Line Loans and all other
obligations of the Company hereunder in respect of such Loans and cash
collateralization in full, pursuant to documentation in form and substance
reasonably satisfactory to the Issuing Lenders, of all obligations arising
with respect to the Letters of Credit. All reductions of the Revolving
Commitment Amount shall reduce the Revolving Commitments pro rata among the
Revolving Lenders according to their respective Revolving Percentages.
6.2.2 Increase in the Revolving Commitment Amount.
(a) Notwithstanding any other provision of this Agreement (including
Section 15.1), the Company may, from time to time, by means of a letter
delivered to the Administrative Agent substantially in the form of Exhibit H,
request that the Revolving Commitment Amount be increased; provided that (i)
the aggregate amount of all such increases during the term of this Agreement
shall not exceed $50,000,000 and (ii) any such increase in the Revolving
Commitment Amount shall be in an integral multiple of $5,000,000.
(b) Any increase in the Revolving Commitment Amount may be effected
by (i) increasing the Revolving Commitment of one or more Revolving Lenders
which have agreed to such increase and/or (ii) subject to clause (d), adding
one or more commercial banks or other Persons as a party hereto (each an
"Additional Lender") with a Revolving Commitment in an amount agreed to by any
such Additional Lender.
(c) Any increase in the Revolving Commitment Amount pursuant to this
Section 6.2.2 shall be effective three Business Days (or such other period
agreed to by the Administrative Agent, the Company and, as applicable, each
Revolving Lender that has agreed to increase its Revolving Commitment and each
Additional Lender) after the date on which the Administrative Agent has
received and acknowledged receipt of the applicable increase letter in the
form of Annex 1 (in the case of an increase in the Revolving Commitment of an
existing Revolving Lender) or Annex 2 (in the case of the addition of an
Additional Lender) to Exhibit H.
(d) No Additional Lender shall be added as a party hereto without the
written consent of the Administrative Agent and, if such Additional Lender
will have a Revolving Commitment, the Issuing Lenders and the Swing Line
Lender (which consents shall not be unreasonably withheld), and no increase in
the Revolving Commitment Amount may be effected if an Event of Default or an
Unmatured Event of Default exists.
(e) The Administrative Agent shall promptly notify the Company and
the Lenders of any increase in the amount of the Revolving Commitment Amount
pursuant to this Section 6.2.2 and of the Revolving Commitment and Revolving
Percentage of each Lender after giving effect thereto. The parties hereto
agree that, notwithstanding any other provision of this Agreement (including
Section 15.1), the Administrative Agent, the Company, each Additional Lender
and each increasing Lender, as applicable, may make arrangements to stage the
timing of any such increase, or to cause an Additional Lender or an increasing
Lender to temporarily hold risk participations in the outstanding Revolving
Loans of the other Lenders (rather than fund its Revolving Percentage of all
outstanding Revolving Loans concurrently with the applicable increase), in
each case with a view toward minimizing breakage costs and transfers of funds
in connection with any increase in the Revolving Commitment Amount. The
Company acknowledges that if, as a result of a non-pro-rata increase in the
Revolving Commitment Amount, any Revolving Loans are prepaid or converted (in
whole or in part) on a day other than the last day of an Interest Period
therefor, then such prepayment or conversion shall be subject to the
provisions of Section 8.4.
6.3 Prepayments.
6.3.1 Voluntary Prepayments. The Company may from time to time prepay
Loans in whole or in part, without premium or penalty; provided that the
Company shall give the Administrative Agent (which shall promptly advise each
applicable Lender) notice thereof not later than 10:00 A.M. (or, in the case
of prepayment of Swing Line Loans, 12:00 noon), Chicago time, on the date of
such prepayment (which shall be a Business Day), specifying the Loans to be
prepaid and the date and amount of prepayment. Each partial prepayment of
Revolving Loans shall be in a principal amount of $100,000 or a higher
integral multiple thereof. Each partial prepayment of Term Loans shall be in a
principal amount of $500,000 or a higher integral multiple of $100,000. Any
prepayment of a Eurodollar Loan on a day other than the last day of an
Interest Period therefor shall include interest on the principal amount being
repaid and shall be subject to Section 8.4.
6.3.2 Mandatory Prepayments of Term Loans.
(a) Within three Business Days following the receipt by the Company
or any Subsidiary of the Company of any Net Cash Proceeds from any Asset Sale,
the Company shall make a prepayment of the Term Loans in an amount (rounded
down, if necessary, to an integral multiple of $100,000) equal to 100% of such
Net Cash Proceeds.
(b) Within three Business Days following the receipt by the Company
or any Subsidiary of the Company of any Net Cash Proceeds from the issuance of
Subordinated Debt, the Company shall make a prepayment of the Term Loans in an
amount (rounded down, if necessary, to an integral multiple of $100,000) equal
to 100% of such Net Cash Proceeds.
(c) Within three Business Days following the receipt by the Company
or any Subsidiary of the Company of any Net Cash Proceeds from the issuance of
any equity securities of the Company or any Subsidiary of the Company (other
than (i) securities issued to the Parent, the Company or a Subsidiary, (ii)
securities issued to officers, directors and employees of the Parent or any
Subsidiary pursuant to any stock option, benefit or compensation plan and
(iii) securities issued as full or partial consideration for a Permitted
Acquisition), the Company shall make a prepayment of the Term Loans in an
amount (rounded down, if necessary, to an integral multiple of $100,000) equal
to 50% of such Net Cash Proceeds (the "Equity Prepayment Amount"); provided
that the Company may, upon notice to the Administrative Agent concurrently
with receipt by the Company or any Subsidiary of the Company of Net Cash
Proceeds described in this clause (c), deposit the Equity Prepayment Amount
into an interest-bearing account (with such accrued interest to be for the
account of the Company or such Subsidiary) maintained with the Administrative
Agent to be applied (x) by the Company or any Subsidiary to consummate one or
more Permitted Acquisitions or (y) if not so applied within 180 days (or such
shorter period that the Company may specify), to prepay the Term Loans as
provided herein.
6.3.3 Application of Prepayments. Each prepayment of Term Loans shall
be applied ratably to the Term Loans, in each case pro rata to the remaining
installments thereof. All prepayments of Revolving Loans shall be applied pro
rata to the Revolving Loans of the Revolving Lenders in accordance with their
Revolving Percentages; and all prepayments of Term Loans shall be applied pro
rata to the Term Loans of the Term Lenders in accordance with their Term
Percentages.
6.3.4 Eurodollar Prepayment Account. If the Company is required to
make a mandatory prepayment of Term Loans that are Eurodollar Loans pursuant
to Section 6.3.2, then the Company shall have the right, so long as no Event
of Default or Unmatured Event of Default exists and notwithstanding any
provision of Section 6.3.2 or 6.3.3 to the contrary, to instead deposit an
amount equal to the amount of such mandatory prepayment into a cash collateral
account maintained by and under the sole dominion and control of the
Administrative Agent, pursuant to documentation reasonably satisfactory to the
Administrative Agent. All amounts so deposited shall be held by the
Administrative Agent as collateral for the prepayment of such Eurodollar Loans
and shall be applied to the prepayment of the applicable Eurodollar Loans at
the end of the then-current Interest Periods applicable thereto. At the
request of the Company, amounts so deposited shall be invested by the
Administrative Agent in Cash Equivalent Investments maturing on or prior to
the date or dates on which such amounts are estimated to be applied to prepay
such Eurodollar Loans; provided that (a) any interest or investment income
thereon shall be for the account of the Company and (b) the Company will
promptly upon demand deposit with the Administrative Agent the amount of any
loss on any such Cash Equivalent Investment to the extent required to permit
the full amount of such prepayments to be made.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal of or interest on
the Loans, and of all commitment fees and Letter of Credit fees, shall be made
by the Company to the Administrative Agent in immediately available funds at
the office specified by the Administrative Agent not later than noon, Chicago
time, on the date due; and funds received after that hour shall be deemed to
have been received by the Administrative Agent on the next following Business
Day. The Administrative Agent shall promptly remit to each applicable Lender
its share of all such payments received in collected funds by the
Administrative Agent for the account of such Lender. All payments under
Section 8.1 shall be made by the Company directly to the Lender entitled
thereto.
7.2 Application of Certain Payments. Subject to the requirements of
Section 6.3, each payment of principal shall be applied to such Loans as the
Company shall direct by notice to be received by the Administrative Agent on
or before the date of such payment or, in the absence of such notice, as the
Administrative Agent shall determine in its discretion. Concurrently with each
remittance to any Lender of its share of any such payment, the Administrative
Agent shall advise such Lender as to the application of such payment.
7.3 Due Date Extension. If any payment of principal or interest with
respect to any of the Loans, or of commitment fees or Letter of Credit fees,
falls due on a day which is not a Business Day, then such due date shall be
extended to the immediately following Business Day (unless, in the case of a
Eurodollar Loan, such immediately following Business Day is the first Business
Day of a calendar month, in which case such date shall be the immediately
preceding Business Day) and, in the case of principal, additional interest
shall accrue and be payable for the period of any such extension.
7.4 Setoff. The Company agrees that the Administrative Agent and each
Lender have all rights of set-off and bankers' lien provided by applicable
law, and in addition thereto, the Company agrees that at any time any Event of
Default exists, the Administrative Agent and each Lender may apply to the
payment of any obligations of the Company hereunder, whether or not then due,
any and all balances, credits, deposits, accounts or moneys of the Company
then or thereafter with the Administrative Agent or such Lender.
7.5 Proration of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise, but excluding any payment pursuant to Section 8.7 or 15.9 or any
payment to the Swing Line Lender in respect of a Swing Line Loan) on account
of principal of or interest on any of its Loans (or on account of its
participation in any other Credit Extension) in excess of its pro rata share
(in accordance with the terms of this Agreement) of payments and other
recoveries obtained by all Lenders on account of principal of and interest on
their respective Loans (or such participations) then held by them, such Lender
shall purchase from the other Lenders such participation in the Loans (or
sub-participations in the other Credit Extensions) held by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided that if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery.
7.6 Taxes. (a) Provided that a Lender, Participant or Assignee has
complied in all material respects with its obligations pursuant to Section
7.6(c) and (d) and Section 14.10, all payments by the Company of principal of,
and interest on, the Loans and all other amounts payable hereunder to such
Lender, Participant or Assignee shall be made free and clear of and without
deduction for any present or future income, excise, stamp or other taxes,
fees, duties, withholdings or other charges with respect thereto of any nature
whatsoever imposed by any taxing authority (other than franchise taxes, branch
profits taxes and other taxes imposed on or measured by net income, net
profits or receipts)(all non-excluded items being called "Taxes"). If any
withholding or deduction from any payment to be made by the Company hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Company will:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent a
certified copy of an official receipt or other documentation
reasonably satisfactory to the Administrative Agent evidencing such
payment to such authority; and
(iii) (except to the extent such withholding or deduction
would not be required if such Lender's, Participant's or Assignee's
Exemption Representation were true and such Lender, Participant or
Assignee or the Administrative Agent had properly completed and
delivered the necessary forms to the Company as required by Sections
7.6(d) and 14.10(a) through (c) to establish that it was not subject
to any deduction or withholding) pay to the Administrative Agent for
the account of such Lender, Participant or Assignee such additional
amount or amounts as is necessary to ensure that the net amount
actually received by such Lender, Participant or Assignee will equal
the full amount such Lender, Participant or Assignee would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent
or any Lender, Participant or Assignee with respect to any payment received by
the Administrative Agent or such Lender, Participant or Assignee hereunder,
the Administrative Agent or such Lender, Participant or Assignee may pay such
Taxes and the Company will (except to the extent such Taxes are payable by a
Lender, Participant or Assignee and would not have been payable if such
Lender's, Participant's or Assignee's Exemption Representation were true and
such Lender, Participant or Assignee or the Administrative Agent had properly
completed and delivered the necessary forms to the Company as required by
Sections 7.6(d) and 14.10(a) through (c) to establish that it was not subject
to any deduction or withholding) promptly pay such additional amounts
(including any penalty, interest and expense) as is necessary in order that
the net amount received by such Person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted.
(b) If the Company fails to pay any Taxes payable hereunder when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the respective Lender, Participant or Assignee the
required receipts or other required documentary evidence, the Company shall
indemnify such Lender, Participant or Assignee for any incremental Taxes,
interest or penalties that may become payable by such Lender, Participant or
Assignee as a result of any such failure; provided that the Company will not
pay any Taxes (nor any interest or penalty relating thereto) that would not
have been payable if such Lender's, Participant's or Assignee's Exemption
Representation were true and such Lender, Participant or Assignee had properly
completed and delivered the necessary forms to the Company as required by
Sections 7.6(d) and 14.10(a) through (c) to establish that it was not subject
to any deduction or withholding. For purposes of this Section 7.6, a
distribution hereunder by the Administrative Agent or any Lender, Participant
or Assignee to or for the account of any Lender, Participant or Assignee shall
be deemed a payment by the Company.
(c) Each Lender, Participant and Assignee represents and warrants
(such Lender's, Participant's or Assignee's "Exemption Representation") to the
Company and the Administrative Agent that, as of the date of this Agreement
(or (i) in the case of an Assignee, the date it becomes a party hereto or (ii)
in the case of a Participant, the date it purchases a participation
hereunder), it is entitled to receive payments hereunder without any deduction
or withholding in respect of any Taxes pursuant to any applicable law, rule or
regulation.
(d) In addition to satisfying the requirements of Section 14.10(a)
through (c), upon the request from time to time of the Company or the
Administrative Agent, each Lender, Participant and Assignee that is organized
under the laws of a jurisdiction other than the United States of America shall
execute and deliver to the Company and the Administrative Agent two or more
(as the Company or the Administrative Agent may reasonably request) United
States Internal Revenue Service Forms W-9, W-8BEN or W-8ECI or such other
forms or documents, appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender, Participant or Assignee
is exempt from withholding or deduction of Taxes.
(e) The Administrative Agent and each Lender, Participant or
Assignee, as applicable, shall promptly and diligently pursue any available
refund that, in the reasonable and good faith determination of the
Administrative Agent or such Lender, Participant or Assignee, as applicable,
is attributable to any tax with respect to which the Company has made a
payment pursuant to this Agreement, and shall promptly remit immediately
available funds to the Company in an amount equal to any such refund
(including any interest received thereon).
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any Eurodollar Office
of such Lender) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency
(A) shall subject any Lender (or any Eurodollar Office of such
Lender) to any additional tax, duty or other charge with respect to
its Eurodollar Loans, its Note or its obligation to make Eurodollar
Loans, or shall change the basis of taxation of payments to any
Lender of the principal of or interest on its Eurodollar Loans or any
other amounts due under this Agreement in respect of its Eurodollar
Loans or its obligation to make Eurodollar Loans (except for changes
in the rate of any franchise tax, branch profits tax or other tax
imposed on or measured by the net income, net profits or receipts of
such Lender or its Eurodollar Office imposed by the jurisdiction in
which such Lender's principal executive office or Eurodollar Office
is located, in which such Lender is organized or in which such Lender
is doing business); or
(B) shall impose, modify or deem applicable any reserve (including
any reserve imposed by the FRB, but excluding any reserve included in
the determination of interest rates pursuant to Section 4), special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by any Lender (or any
Eurodollar Office of such Lender); or
(C) shall impose on any Lender (or its Eurodollar Office) any other
condition affecting its Eurodollar Loans, its Note or its obligation
to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D of the FRB, to impose a cost on) such Lender (or any
Eurodollar Office of such Lender) of making or maintaining any Eurodollar
Loan, or to reduce the amount of any sum received or receivable by such Lender
(or its Eurodollar Office) under this Agreement or under its Note with respect
thereto, then within 10 Business Days after written demand to the Company by
such Lender (which demand shall be accompanied by a written statement setting
forth the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Administrative
Agent), the Company shall pay directly to such Lender such additional amount
as will compensate such Lender for such increased cost or such reduction.
(b) If any Lender shall reasonably determine that (i) the adoption or
phase-in of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, (ii) any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or (iii) compliance
by any Lender or any Person controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, in each case having
effect after the date hereof, has or would have the effect of reducing the
rate of return on such Lender's or such controlling Person's capital as a
consequence of such Lender's obligations hereunder or under any Letter of
Credit to a level below that which such Lender or such controlling Person
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such controlling Person's policies with respect
to capital adequacy) by an amount deemed by such Lender or such controlling
Person to be material, then from time to time, within 10 Business Days after
written demand to the Company by such Lender (which demand shall be
accompanied by a written statement setting forth the basis for such demand and
a calculation of the amount thereof in reasonable detail, a copy of which
shall be furnished to the Administrative Agent), the Company shall pay to such
Lender such additional amount or amounts as will compensate such Lender or
such controlling Person for such reduction.
(c) Notwithstanding the foregoing provisions of this Section 8.1, if
any Lender fails to notify the Company of any event or circumstance which will
entitle such Lender to compensation pursuant to this Section 8.1 within 180
days after such Lender obtains knowledge of such event or circumstance, then
such Lender shall not be entitled to compensation from the Company for any
amount arising prior to the date which is 180 days before the date on which
such Lender notifies the Company of such event or circumstance.
8.2 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to the Administrative Agent in the interbank eurodollar market for
such Interest Period, or the Administrative Agent otherwise reasonably
determines (which determination, if made in good faith, shall be binding and
conclusive on the Company) that by reason of circumstances affecting the
interbank eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable Eurodollar Rate; or
(b) Lenders having an aggregate Revolving Percentage or Term
Percentage, as applicable, of 50% or more advise the Administrative Agent that
the Eurodollar Rate (Reserve Adjusted) as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding such Eurodollar Loans for such Interest Period (taking
into account any amount to which such Lenders may be entitled under Section
8.1);
then the Administrative Agent shall promptly notify the other parties thereof
and, so long as such circumstances shall continue, (i) no Lender shall be
under any obligation to make or convert into Eurodollar Loans, (ii) on the
last day of the current Interest Period for each Eurodollar Loan, such Loan
shall, unless then repaid in full, automatically convert to a Base Rate Loan
and (iii) the Company may revoke any pending request for a borrowing of,
conversion to or continuation of Eurodollar Loans and, if the Company fails to
so revoke any such request, such request shall be deemed to be a request for a
borrowing of Base Rate Loans.
8.3 Changes in Law Rendering Eurodollar Loans Unlawful. If, after the
date hereof, any change in (including the adoption of any new) applicable laws
or regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith judgment of any
Lender cause a substantial question as to whether it is) unlawful for any
Lender to make, maintain or fund Eurodollar Loans, then such Lender shall
promptly notify each of the other parties hereto and, so long as such
circumstances shall continue, (a) such Lender shall have no obligation to make
or convert into Eurodollar Loans (but shall make Base Rate Loans concurrently
with the making of or conversion into Eurodollar Loans by the applicable
Lenders which are not so affected, in each case in an amount equal to such
Lender's pro rata share of all Eurodollar Loans which would be made or
converted into at such time in the absence of such circumstances), (b) on the
last day of the current Interest Period for each Eurodollar Loan of such
Lender (or, in any event, on such earlier date as may be required by the
relevant law, regulation or interpretation), such Eurodollar Loan shall,
unless then repaid in full, automatically convert to a Base Rate Loan and (c)
the Company may revoke any pending request for a borrowing of, conversion to
or continuation of Eurodollar Loans and, if the Company fails to so revoke any
such request, such request shall be deemed to be a request for a borrowing of
Base Rate Loans. Each Base Rate Loan made by a Lender which, but for the
circumstances described in the foregoing sentence, would be a Eurodollar Loan
(an "Affected Loan") shall remain outstanding as a Base Rate Loan for the same
period as the Group of Eurodollar Loans of which such Affected Loan would be a
part absent such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon written
demand by any Lender (which demand shall be accompanied by a written statement
setting forth in reasonable detail the basis for the amount being claimed, a
copy of which shall be furnished to the Administrative Agent), the Company
will indemnify such Lender against any net loss or expense which such Lender
may sustain or incur (including any net loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain any Eurodollar Loan), as reasonably determined by
such Lender, as a result of (a) any payment, prepayment or conversion of any
Eurodollar Loan of such Lender on a date other than the last day of an
Interest Period for such Loan (including any conversion pursuant to Section
8.3) or (b) any failure of the Company to borrow or continue, or to convert
any Loan into, a Eurodollar Loan on a date specified therefor in a notice of
borrowing, continuation or conversion pursuant to this Agreement (including as
a result of any revocation of a request for a borrowing of, conversion to or
continuation of Eurodollar Loans pursuant to Section 8.2 or 8.3, regardless of
whether the Company borrows Base Rate Loans in lieu of the requested
Eurodollar Loans). For purposes of this Section 8.4, all notices to the
Administrative Agent pursuant to this Agreement shall be deemed to be
irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each Lender may,
if it so elects, fulfill its commitment as to any Eurodollar Loan by causing a
foreign branch or affiliate of such Lender to make such Loan; provided that in
such event, for purposes of this Agreement, such Loan shall be deemed to have
been made by such Lender and the obligation of the Company to repay such Loan
shall nevertheless be to such Lender and shall be deemed held by it, to the
extent of such Loan, for the account of such branch or affiliate.
8.6 Discretion of Lenders as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain its funding of all or any part of its Loans in any manner
it sees fit, it being understood, however, that for purposes of this Agreement
all determinations hereunder shall be made as if such Lender had actually
funded and maintained each Eurodollar Loan during each Interest Period for
such Loan through the purchase of deposits having a maturity corresponding to
such Interest Period and bearing an interest rate equal to the Eurodollar Rate
for such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Affected Lender. (a)
Each Lender shall promptly notify the Company and the Administrative Agent of
any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Lender's good
faith judgment, otherwise disadvantageous to such Lender) to mitigate or
avoid, (i) any obligation by the Company to pay any amount pursuant to Section
7.6 or 8.1 or (ii) the occurrence of any circumstance of the nature described
in Section 8.2 or 8.3 (and, if any Lender has given notice of any such event
described in clause (i) or (ii) above and thereafter such event ceases to
exist, such Lender shall promptly so notify the Company and the Administrative
Agent). Without limiting the foregoing, each Lender will designate a different
funding office if such designation will avoid (or reduce the cost to the
Company of) any event described in clause (i) or (ii) of the preceding
sentence and such designation will not, in such Lender's good faith judgment,
be otherwise disadvantageous to such Lender. Notwithstanding any provision of
Section 7.6 or 8.1, no Lender shall be entitled to request any payment
pursuant to either such Section unless such Lender is generally demanding
payment under comparable provisions of its agreements with similarly-situated
borrowers of similar credit quality.
(b) At any time any Lender is an Affected Lender or would be an
Affected Lender but for not having given notice to the Company, the Company
may replace such Affected Lender as a party to this Agreement with one or more
other bank(s) or financial institution(s) reasonably satisfactory to the
Administrative Agent (and upon notice from the Company such Affected Lender
shall assign pursuant to an Assignment Agreement, and without recourse or
warranty, its Commitment, its Loans, its Note, its participation (if any) in
Swing Line Loans and Letters of Credit, and all of its other rights and
obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the outstanding
principal amount of the Loans so assigned, all accrued and unpaid interest
thereon, its ratable share of all accrued and unpaid commitment fees and
Letter of Credit fees, any amounts payable under Section 8.4 as a result of
such Lender receiving payment of any Eurodollar Loan prior to the end of an
Interest Period therefor and all other obligations owed to such Affected
Lender hereunder).
8.8 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 8.1, 8.2, 8.3
or 8.4 shall be conclusive absent demonstrable error. Lenders may use
reasonable averaging and attribution methods in determining compensation under
Sections 8.1 and 8.4, and the provisions of such Sections shall survive
repayment of the Loans, cancellation of the Notes, cancellation or expiration
of the Letters of Credit and any termination of this Agreement.
SECTION 9 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make Loans and issue or participate in
Letters of Credit hereunder, the Parent and the Company represent and warrant
to the Administrative Agent and the Lenders that:
9.1 Organization, etc. The Parent is a corporation duly organized,
validly existing and, if applicable, in good standing under the laws of the
State of Delaware; each Subsidiary is duly organized, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization; and each of the Parent and each Subsidiary is duly qualified to
do business in each jurisdiction where the nature of its business makes such
qualification necessary (except in those instances in which the failure to be
qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect) and has full power and authority to own its property
and conduct its business as presently conducted by it.
9.2 Authorization; No Conflict. The execution and delivery by each of
the Parent and the Company of this Agreement and each other Loan Document to
which it is a party, the borrowings hereunder, the execution and delivery by
each other Loan Party of each Loan Document to which it is a party and the
performance by each Loan Party of its obligations under each Loan Document to
which it is a party are within the organizational powers of such Loan Party,
have been duly authorized by all necessary organizational action on the part
of such Loan Party (including any necessary shareholder, partner or member
action), have received all necessary governmental approval (if any shall be
required), and do not and will not (a) violate any provision of any law,
statute, rule or regulation or any order, writ, injunction, decree or judgment
of any court or other government agency which is binding on any Loan Party,
(b) contravene or conflict with, or result in a breach of, any provision of
the certificate of incorporation, partnership agreement, by-laws or other
organizational documents of such Loan Party or of any loan or credit
agreement, indenture, or other material instrument or document which is
binding on such Loan Party or any other Subsidiary or any property of any of
the foregoing or (c) result in, or require, the creation or imposition of any
Lien on any property of any Loan Party or any other Subsidiary (other than
Liens arising under the Loan Documents).
9.3 Validity and Binding Nature. Each Loan Document to which any Loan
Party is a party has been duly executed and delivered by such Loan Party and
is the legal, valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its terms, subject to bankruptcy,
insolvency and similar laws affecting the enforceability of creditors' rights
generally and to general principles of equity.
9.4 Financial Condition. (a) The audited consolidated financial
statements of the Parent and its Subsidiaries as at January 3, 2004, copies of
which have been delivered to each Lender, were prepared in accordance with
GAAP and present fairly the consolidated financial condition of the Parent and
its Subsidiaries as at such date and the results of their operations for the
period then ended and (b) the unaudited consolidated financial statements of
the Parent and its Subsidiaries as at October 2, 2004, copies of which have
been delivered to each Lender, were prepared in accordance with GAAP (subject,
in the case of such unaudited statements, to the absence of footnotes and to
normal year-end adjustments) and present fairly the consolidated financial
condition of the Parent and its Subsidiaries as at such date and the results
of their operations for the period then ended.
9.5 No Material Adverse Change. Since January 3, 2004, there has been
no material adverse change in the business, assets, operations, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries taken
as a whole.
9.6 Litigation and Contingent Liabilities. No litigation (including
derivative actions), arbitration proceeding, labor controversy or governmental
investigation or proceeding is pending or, to the Company's knowledge,
threatened against the Parent or any Subsidiary which might reasonably be
expected to have a Material Adverse Effect, except as set forth in Schedule
9.6. Other than any liability incident to such litigation or proceedings,
neither the Parent nor any Subsidiary has any material contingent liabilities
as of the date hereof not listed in such Schedule 9.6.
9.7 Ownership of Properties; Liens. Except as set forth in Schedule
9.7, each of the Parent and each Subsidiary owns good and, in the case of real
property, marketable title to all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever, in each case
necessary for the conduct of its business (including patents, trademarks,
trade names, service marks and copyrights), free and clear of all Liens,
charges and material claims (including material infringement claims which are
pending or, to the knowledge of the Parent or any Subsidiary, threatened with
respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to Section 10.8.
9.8 Subsidiaries. As of the date hereof, the Parent has no
Subsidiaries except those listed in Schedule 9.8; and the Parent has no direct
Subsidiary other than the Company.
9.9 Pension Plans. (a) During the twelve-consecutive-month period
prior to the date of the execution and delivery of this Agreement or the
making of any Credit Extension hereunder, (i) no steps have been taken to
terminate any Pension Plan, other than any such termination pursuant to
Section 4041(b) of ERISA, and (ii) no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a lien under Section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which could reasonably be expected to have a
Material Adverse Effect.
(b) All contributions (if any) have been made to any Multiemployer
Pension Plan that are required to be made by the Parent or any other member of
the Controlled Group under the terms of the plan or of any collective
bargaining agreement or by applicable law; neither the Parent nor any member
of the Controlled Group has withdrawn or partially withdrawn from any
Multiemployer Pension Plan, incurred any withdrawal liability with respect to
any such plan, received notice of any claim or demand for withdrawal liability
or partial withdrawal liability from any such plan, and no condition has
occurred which, if continued, could reasonably be expected to result in a
withdrawal or partial withdrawal from any such plan; and neither the Parent
nor any member of the Controlled Group has received any notice that any
Multiemployer Pension Plan is in reorganization, that increased contributions
may be required to avoid a reduction in plan benefits or the imposition of any
excise tax, that any such plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan is or may be
terminated, or that any such plan is or may become insolvent.
9.10 Investment Company Act. Neither the Parent nor any Subsidiary is
or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
9.11 Public Utility Holding Company Act. Neither the Parent nor any
Subsidiary is (a) required to register as a "holding company" or (b) is a
"subsidiary company" of a "registered holding company" or an "affiliate" of a
"registered holding company", in each case within the meaning of the Public
Utility Holding Company Act of 1935.
9.12 Regulation U. The Company is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
9.13 Taxes. Each of the Parent and each Subsidiary has filed all
United States federal tax returns and other material tax returns required by
law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such tax returns, taxes, fees or other
charges (i) that are not delinquent and (ii) which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
9.14 Solvency, etc. (a) At the Effective Time (and after giving
effect to any right of contribution and subrogation), (i) the present fair
saleable value of each Loan Party's assets will exceed the amount that will be
required to pay the probable liability of its debts and other liabilities,
contingent or otherwise, as such debts and other liabilities become absolute
and matured, and (ii) each Loan Party will be "solvent," will be able to pay
its debts as they mature, will own property with "fair saleable value" greater
than the amount required to pay its debts as they become absolute and matured
and will not have "unreasonably small capital" with which to carry on its
business as then constituted (all quoted terms used in the foregoing clause
(ii) having the respective meanings given thereto in applicable federal and
state laws governing determinations of the insolvency of debtors).
(b) Immediately prior to and after giving effect to the making of
each Credit Extension hereunder and the use of proceeds thereof, (i) the
present fair saleable value of the assets of the Loan Parties, on a
consolidated basis, will exceed the amount that will be required to pay the
probable liability of the consolidated debts and other liabilities, contingent
or otherwise, of the Loan Parties, as such debts and other liabilities become
absolute and matured, and (ii) the Loan Parties, on a consolidated basis, will
be "solvent," will be able to pay their consolidated debts as they mature,
will own consolidated property with "fair saleable value" greater than the
amount required to pay their consolidated debts as they become absolute and
matured and will not have "unreasonably small capital" on a consolidated basis
with which to carry on their business as then constituted (all quoted terms
used in the foregoing clause (ii) having the respective meanings given thereto
in applicable federal and state laws governing determinations of the
insolvency of debtors).
9.15 Environmental Matters. The Parent and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and Environmental Claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Parent has
reasonably concluded that, except as specifically disclosed in Schedule 9.15,
such Environmental Laws and Environmental Claims would not, individually or in
the aggregate, have a Material Adverse Effect.
9.16 Information. All information heretofore or contemporaneously
herewith furnished in writing by the Parent or any Subsidiary to any Lender
for purposes of or in connection with this Agreement and the transactions
contemplated hereby is, and all written information hereafter furnished by or
on behalf of the Parent or any Subsidiary to any Lender pursuant hereto or in
connection herewith will be, true and accurate in every material respect on
the date as of which such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any material fact
necessary to make such information not misleading in light of the
circumstances under which made as of the dates thereof (it being recognized by
the Administrative Agent and the Lenders that (a) any projections and
forecasts provided by the Parent or any Subsidiary are based on good faith
estimates and assumptions believed by the Parent or such Subsidiary to be
reasonable as of the date of the applicable projections or assumptions and
that actual results during the period or periods covered by any such
projections and forecasts will likely differ from projected or forecasted
results and (b) any information provided by the Parent or any Subsidiary with
respect to any Person or assets acquired or to be acquired by the Parent or
any Subsidiary shall, for all periods prior to the date of such Acquisition,
be limited to the knowledge of the Parent or the acquiring Subsidiary after
reasonable inquiry).
9.17 No Default. No Loan Party is in default under any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could reasonably be expected to have a Material
Adverse Effect. No Event of Default or Unmatured Event of Default exists.
9.18 No Burdensome Restrictions. No Loan Party is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or
regulation which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all obligations of the Company hereunder and under the other Loan
Documents are paid in full and all Letters of Credit have been terminated, the
Parent agrees that, unless at any time the Required Lenders shall otherwise
expressly consent in writing, it will:
10.1 Reports, Certificates and Other Information. Furnish to the
Administrative Agent (which will promptly forward copies thereof to each
Lender):
10.1.1 Audit Report. Promptly when available and in any event within
90 days after the close of each Fiscal Year: (a) a copy of the annual audit
report of the Parent and its Subsidiaries for such Fiscal Year, including
therein consolidated balance sheets of the Parent and its Subsidiaries as of
the end of such Fiscal Year and consolidated statements of earnings and cash
flow of the Parent and its Subsidiaries for such Fiscal Year reported on
without a "going concern" exception, or a qualification arising out of the
scope of the audit, by Deloitte & Touche LLP or other independent auditors of
recognized standing selected by the Parent and reasonably acceptable to the
Required Lenders; and (b) consolidating balance sheets of the Parent and its
Subsidiaries as of the end of such Fiscal Year and consolidating statements of
earnings and cash flow for the Parent and its Subsidiaries for such Fiscal
Year, certified by a Responsible Financial Officer of the Parent.
10.1.2 Quarterly Reports. Promptly when available and in any event
within 45 days after the end of each Fiscal Quarter (except the last Fiscal
Quarter) of each Fiscal Year, consolidated and consolidating balance sheets of
the Parent and its Subsidiaries as of the end of such Fiscal Quarter, together
with consolidated and consolidating statements of earnings and cash flow for
such Fiscal Quarter and for the period beginning with the first day of such
Fiscal Year and ending on the last day of such Fiscal Quarter, certified by a
Responsible Financial Officer of the Parent.
10.1.3 Compliance Certificates. Contemporaneously with the furnishing
of a copy of each annual audit report pursuant to Section 10.1.1 and of each
set of quarterly statements pursuant to Section 10.1.2, (a) a duly completed
compliance certificate in the form of Exhibit B, with appropriate insertions,
dated the date of such annual report or such quarterly statements and signed
by a Responsible Financial Officer of the Parent, containing a computation of
each of the financial ratios and restrictions set forth in Section 10.6 and to
the effect that such officer has not become aware of any Event of Default or
Unmatured Event of Default that has occurred and is continuing or, if there is
any such event, describing it and the steps, if any, being taken to cure it;
and (b) an updated organizational chart listing all Subsidiaries and the
jurisdictions of their respective organization.
10.1.4 Reports to SEC and to Shareholders. Promptly upon the filing
or sending thereof, copies of all regular, periodic or special reports of the
Parent or any Subsidiary filed with the SEC (excluding exhibits thereto,
provided that the Company shall promptly deliver any such exhibit to the
Administrative Agent or any Lender upon request therefor); copies of all
registration statements of the Parent or any Subsidiary filed with the SEC;
and copies of all proxy statements or other communications made to
shareholders generally concerning material developments in the business of the
Parent or any Subsidiary.
10.1.5 Notice of Default, Litigation, ERISA and Environmental
Matters. Promptly upon any Responsible Officer becoming aware of any of the
following, written notice describing the same and the steps being taken by the
Parent or the Subsidiary affected thereby with respect thereto:
(a) the occurrence of an Event of Default or an Unmatured Event of
Default;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Parent to the Lenders which has
been instituted or, to the knowledge of the Parent or the Company, is
threatened against the Parent or any Subsidiary or to which any of the
properties of any thereof is subject which (i) has a reasonable likelihood of
being adversely determined and (ii) if so determined, would reasonably be
expected to have a Material Adverse Effect;
(c) the institution of any steps by any member of the Controlled
Group or any other Person to terminate any Pension Plan, or the failure of any
member of the Controlled Group to make a required contribution to any Pension
Plan (if such failure is sufficient to give rise to a lien under Section
302(f) of ERISA) or to any Multiemployer Pension Plan, or the taking of any
action with respect to a Pension Plan which could reasonably be expected to
result in the requirement that the Parent furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could result in the
incurrence by any member of the Controlled Group of any material liability,
fine or penalty (including any claim or demand for withdrawal liability or
partial withdrawal from any Multiemployer Pension Plan), or any notice that
any Multiemployer Pension Plan is in reorganization, that increased
contributions may be required to avoid a reduction in plan benefits or the
imposition of an excise tax, that any such plan is or has been funded at a
rate less than that required under Section 412 of the Code, that any such plan
is or may be terminated, or that any such plan is or may become insolvent;
(d) any cancellation (without replacement) or material change in any
material insurance maintained by the Parent or any Subsidiary;
(e) any event (including any violation of any Environmental Law or
the assertion of any Environmental Claim) which might reasonably be expected
to have a Material Adverse Effect; or
(f) any setoff, claim (including any Environmental Claim),
withholding or other defense to which any material portion of the collateral
granted under any Collateral Document, or the Administrative Agent's or the
Lenders' rights with respect to any material portion of such collateral, are
subject.
10.1.6 Subsidiaries. Promptly upon any change in the list of its
Subsidiaries from that set forth on Schedule 9.8 (or in the most recent notice
pursuant to this Section), notification of such change.
10.1.7 Management Reports. Promptly upon the request of the
Administrative Agent or any Lender, copies of all detailed financial and
management reports submitted to the Parent by independent auditors in
connection with each annual or interim audit made by such auditors of the
books of the Parent.
10.1.8 Projections. As soon as practicable and in any event within 30
days after the commencement of each Fiscal Year, financial projections for the
Parent and its Subsidiaries for such Fiscal Year prepared in a manner
consistent with those projections delivered by the Parent to the
Administrative Agent prior to the Effective Time.
10.1.9 Other Information. From time to time such other information
concerning the Parent and its Subsidiaries as the Administrative Agent or any
Lender may reasonably request.
10.2 Books, Records and Inspections. Keep, and cause each Subsidiary
to keep, its books and records in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; permit, and cause each Subsidiary to permit, at any reasonable time
during normal business hours and with reasonable prior notice (or at any time
without notice if an Event of Default exists), any Lender or the
Administrative Agent or any representative thereof to inspect any or all of
its offices, properties and operations, to discuss its financial matters with
its officers and its independent auditors (and the Parent hereby authorizes
such independent auditors to discuss such financial matters with any Lender or
the Administrative Agent or any representative thereof whether or not any
representative of the Parent or any Subsidiary is present), and to examine
(and, at the expense of the Parent or the applicable Subsidiary, photocopy
extracts from) any of its books or other corporate records; and permit, and
cause each Subsidiary to permit, the Administrative Agent to perform periodic
field examinations of the Parent and its Subsidiaries at such times as the
Administrative Agent or the Required Lenders (in each case in consultation
with the Company) may elect; provided that the Loan Parties shall not be
obligated to pay for more than one field examination in any Fiscal Year
(excluding any field examination conducted at a time when any Event of Default
exists).
10.3 Insurance. Maintain, and cause each Subsidiary to maintain, with
responsible insurance companies, such insurance as may be required by any law
or governmental regulation or court decree or order applicable to it and such
other insurance, to such extent and against such hazards and liabilities, as
is customarily maintained by companies similarly situated; and, upon request
of the Administrative Agent or any Lender, furnish to the Administrative Agent
or such Lender a certificate setting forth in reasonable detail the nature and
extent of all insurance maintained by the Parent and its Subsidiaries.
10.4 Compliance with Laws, Material Contracts; Payment of Taxes and
Liabilities. (a) Comply, and cause each Subsidiary to comply, in all material
respects with all material applicable laws, rules, regulations, decrees,
orders, judgments, licenses, material contracts and permits, noncompliance
with which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and (b) pay, and cause each Subsidiary
to pay, prior to delinquency, all United States federal taxes and all other
material taxes and governmental charges against it or any of its property, as
well as claims of any kind which, if unpaid, might become a Lien on any of its
property, other than Liens permitted by Section 10.8; provided that the
foregoing shall not require the Parent or any Subsidiary to pay any such tax
or charge so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves
with respect thereto in accordance with GAAP.
10.5 Maintenance of Existence, etc. Maintain and preserve, and
(subject to Section 10.10) cause each Subsidiary to maintain and preserve, (a)
its existence and, if applicable, good standing in the jurisdiction of its
formation; provided that any Subsidiary (other than the Company) may liquidate
or dissolve if the Company determines in good faith that such liquidation or
dissolution is in the best interests of the Company and is not materially
disadvantageous to the Lenders), and (b) its qualification and good standing
as a foreign company in each jurisdiction where the nature of its business
makes such qualification necessary (except in those instances in which the
failure to be qualified or in good standing does not have a Material Adverse
Effect).
10.6 Financial Covenants.
10.6.1 Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio as of the last day of any Computation Period to be less than
1.25 to 1.0.
10.6.2 Leverage Ratio. Not permit the Leverage Ratio as of the last
day of any Fiscal Quarter to exceed 3.50 to 1.0.
10.7 Limitations on Debt. Not, and not permit any Subsidiary to,
create, incur, assume or suffer to exist any Debt, except:
(a) obligations under this Agreement and the other Loan Documents;
(b) unsecured seller Debt which represents all or part of the
purchase price payable in connection with a transaction permitted by Section
10.10(c); provided that the aggregate outstanding principal amount of all such
Debt shall not at any time exceed $5,000,000; and provided, further, that the
amount of such Debt permitted hereunder may, at the request of the Company, be
increased by up to $5,000,000 so long as such additional Debt has terms that
are reasonably acceptable to the Administrative Agent;
(c) Debt secured by Liens permitted by Section 10.8(d); provided that
the aggregate amount of all such Debt at any time outstanding shall not exceed
$2,000,000;
(d) Debt of Subsidiaries owed to the Parent or any other Subsidiary;
(e) Hedging Obligations of the Company or any Subsidiary incurred in
the ordinary course of business for bona fide hedging purposes and not for
speculation;
(f) unsecured Debt of the Company to Subsidiaries;
(g) Subordinated Debt;
(h) Debt existing on the date hereof and listed on Schedule 10.7(h),
and refinancings, amendments, restatements, supplements, refundings, renewals
or extensions of any such Debt so long as the principal amount of such Debt
(as so refinanced or otherwise modified) is not increased and the terms
applicable to such Debt (as so refinanced or otherwise modified) are no less
favorable to the Company or the applicable Subsidiary than the terms in effect
immediately prior to such refinancing or other modification (except that
interest and fees payable with respect to such Debt (as so refinanced or
modified) may be at the then-prevailing market rates);
(i) Debt from the Parent owing to the Company solely to the extent
that the proceeds of such Debt are used by the Parent (x) to pay its taxes and
reasonable accounting, legal and corporate overhead expenses, in each case as
they become due or (y) to consummate the Stock Repurchase;
(j) other Debt in an aggregate principal amount not to exceed
$5,000,000 at any time;
(k) subject to the limitations set forth in Section 10.8(k), Debt
arising under Capital Leases; and
(l) Suretyship Liabilities permitted by Section 10.19.
10.8 Liens. Not, and not permit any Subsidiary to, create or permit
to exist any Lien on any of its real or personal properties, assets or rights
of whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens for taxes or other governmental charges not at the time
delinquent or being contested in good faith by appropriate proceedings and, in
each case, for which it maintains adequate reserves;
(b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, landlords, mechanics, repairmen and
materialmen and other similar Liens imposed by law, (ii) deposits to secure
trade contracts entered into in the ordinary course of business and (iii)
Liens incurred in connection with worker's compensation, unemployment
compensation and other types of social security (excluding Liens arising under
ERISA) or in connection with leases, surety bonds, bids, performance bonds and
similar obligations) for sums not overdue for a period of more than 30 days or
being contested in good faith by appropriate proceedings and not involving any
deposits (other than deposits in the ordinary course of business that are
customary with respect to the type of obligations secured and deposits
permitted by Section 10.19(f), but excluding bonds of the types described in
subsection (e) below) or advances or borrowed money or the deferred purchase
price of property or services, and, in each case, for which it maintains
adequate reserves;
(c) Liens identified in Schedule 10.8 and Liens securing
refinancings, refundings, renewals, replacements or extensions of the Debt
originally secured by such Liens; provided that the amount of Debt secured
thereby is not increased;
(d) subject to the limitations set forth in Section 10.7(c), (i)
Liens existing on property at the time of the acquisition thereof by the
Company or any Subsidiary (and not created in contemplation of such
acquisition) and (ii) Liens that constitute purchase money security interests
on any property securing debt incurred for the purpose of financing all or any
part of the cost of acquiring, constructing or improving such property,
provided that any such Lien attaches to such property within 60 days of the
acquisition thereof and such Lien attaches solely to the property so acquired,
and any refinancing, amendment, restatement, supplement, renewal or extension
of any such Lien (or the debt secured thereby) so long as the principal amount
of the obligations secured by such Lien is not increased and such Lien does
not extend to any other property of the Company or any Subsidiary;
(e) attachments, appeal bonds, judgments and other similar Liens, for
sums not exceeding $1,000,000 in the aggregate arising in connection with
court proceedings, provided the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(f) leases, subleases, encroachments, subdivisions, easements, rights
of way, restrictions, minor defects or irregularities in title and other
similar Liens not interfering in any material respect with the ordinary
conduct of the business of the Company or any Subsidiary;
(g) Liens in favor of the Administrative Agent arising under the Loan
Documents;
(h) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution;
(i) licenses of patents, trademarks, or other intellectual property
rights granted in the ordinary course of business;
(j) any interest or title of a lessor, licensor or sublessor under
any lease or license entered into the ordinary course of its business and
covering only the assets so leased or licensed;
(k) Liens arising under Capital Leases, Liens securing Subordinated
Debt and other Liens not otherwise permitted by this Section 10.8 so long as
the aggregate outstanding principal amount of the obligations secured by the
foregoing does not exceed $5,000,000 at any time outstanding; and
(l) Liens deemed to exist in connection with Investments in
repurchase agreements permitted by Section 10.19.
10.9 Restricted Payments. Not, and not permit any Subsidiary to, (a)
declare or pay any dividends on any of its capital stock (other than stock
dividends), (b) purchase or redeem any such stock or any warrants, options or
other similar rights in respect of such stock, (c) make any other distribution
to any shareholder with respect to such shareholder's equity interest, (d) pay
any principal or interest on, or purchase, redeem or defease, any Subordinated
Debt, or (e) set aside funds for any of the foregoing; provided that (i) any
Subsidiary may declare and pay dividends to the Company or to any other
Subsidiary, (ii) the Company or the Parent, as the case may be, may make
regularly scheduled payments on any Subordinated Debt if the holder of such
Subordinated Debt is permitted to receive such payments at such time under the
applicable agreement or instrument governing such Subordinated Debt and any
applicable subordination agreement and/or intercreditor agreement, (iii) the
Company or any Subsidiary may declare and pay dividends to the Parent to the
extent necessary to enable the Parent to pay its taxes, accounting, legal and
corporate overhead expenses as they become due, (iv) the Company and any of
its Subsidiaries may purchase, redeem, retire or otherwise acquire shares of
its capital stock or warrants or options from officers, directors or employees
of the Company and any of its Subsidiaries upon the death, disability or
termination of employment of such individual in an aggregate amount not to
exceed $100,000 in any Fiscal Year; (v) so long as no Event of Default or
Unmatured Event of Default exists or will result therefrom, the Company and
any of its Subsidiaries may declare and pay dividends to the Parent to the
extent necessary to enable the Parent to make regularly scheduled payments on
any Subordinated Debt if the holder of such Subordinated Debt is permitted to
receive such payments at such time under any applicable subordination
agreement and/or intercreditor agreement; (vi) so long as no Event of Default
or Unmatured Event of Default exists or will result therefrom, the Parent may
on any date (a "Declaration Date") declare cash dividends to its shareholders;
provided that the amount of cash dividends declared on any Declaration Date
shall not exceed an amount equal to the result of (x) 15% of EBITDA for the
first Computation Period ending on or after such Declaration Date minus (y)
the amount of cash dividends previously declared by the Parent during such
Computation Period; (vii) the Parent may pay cash dividends declared in
accordance with the foregoing clause (vi) and the Company may pay dividends to
the Parent to the extent necessary to enable the Parent to pay such dividends;
(ix) the Company may pay dividends to the Parent to enable the Parent to
consummate the Stock Repurchase; and (x) the Parent may consummate the Stock
Repurchase.
10.10 Mergers, Consolidations, Sales. Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, or purchase or
otherwise acquire all or substantially all of the assets or any stock of any
class of, or any partnership or joint venture interest in, any other Person,
or (except for the sale or lease of inventory in the ordinary course of
business) sell, transfer, convey or lease all or any substantial part of its
assets, or sell or assign with or without recourse any receivables, except for
(a) any such merger or consolidation, sale, transfer, conveyance, lease or
assignment of or by any wholly-owned Subsidiary into the Company or into, with
or to any other wholly-owned Subsidiary; (b) any such purchase or other
acquisition (and the corresponding sale or other transfer) by the Company or
any wholly-owned Subsidiary of the assets or stock of any wholly-owned
Subsidiary; (c) any Permitted Acquisition; (d) sales or assignments of
receivables in the ordinary course of business consistent with past practice;
(e) sales and dispositions of assets (including the stock of Subsidiaries) so
long as the net book value of all assets sold or otherwise disposed of in any
Fiscal Year (excluding sales and assignments described in clause (a), (b) or
(d) above) does not exceed $10,000,000; and (f) Investments permitted by
Section 10.19(n).
10.11 Use of Proceeds. Use the proceeds of the Loans solely to
finance the working capital of the Company and its Subsidiaries, to refinance
Debt under the Existing Credit Agreement, to pay expenses and fees in
connection with the refinancing of existing Debt, for capital expenditures, to
pay dividends or make loans to the Parent to enable the Parent to consummate
the Stock Repurchase, to make Permitted Acquisitions and for other general
corporate purposes; and not use or permit any proceeds of any Loan to be used,
either directly or indirectly, (a) for the purpose, whether immediate,
incidental or ultimate, of "purchasing or carrying" any Margin Stock (other
than in connection with the Stock Repurchase) or (b) in violation of any
applicable law, rule or regulation.
10.12 Further Assurances. Take, and cause each Subsidiary to take,
such actions as are necessary, or as the Administrative Agent (or the Required
Lenders acting through the Administrative Agent) may reasonably request, from
time to time (including the execution and delivery of guaranties, security
agreements, pledge agreements, financing statements, mortgages, deeds of
trust, Collateral Access Agreements and other documents, the filing or
recording of any of the foregoing, the delivery of stock certificates, notes
and other collateral with respect to which perfection is customarily obtained
by possession, and the delivery of opinions of counsel with respect to any of
such documents) to ensure that (i) the obligations of the Company hereunder
and under the other Loan Documents and any Hedging Obligations of the Company
owing to any Lender or any Affiliate of any Lender are secured by
first-priority Liens (subject only to Liens permitted by the Loan Documents)
on substantially all of the assets of the Company and guaranteed by all of the
Subsidiaries (including, promptly upon the acquisition or creation thereof,
any Subsidiary acquired or created after the date hereof) by execution of a
counterpart of the Subsidiary Guaranty; provided that no Foreign Subsidiary
shall have an obligation to execute a counterpart of the Subsidiary Guaranty;
and (ii) the obligations of the Parent under the Parent Guaranty and of each
Subsidiary Guarantor under the Subsidiary Guaranty and any Hedging Obligations
of the Parent or such Subsidiary Guarantor owing to any Lender or any
Affiliate of any Lender are secured by first-priority Liens (subject only to
Liens permitted by the Loan Documents) on substantially all of the assets of
the Parent or such Subsidiary Guarantor. Notwithstanding the foregoing or any
other provision of any Loan Document, (a) without limiting clause (c) below,
neither the Parent, the Company nor any other domestic Subsidiary shall be
required to pledge more than 65% of the stock of any Foreign Subsidiary; (b)
no Foreign Subsidiary shall be required to pledge any of its assets, including
the stock of any other Foreign Subsidiary; and (c) unless requested by the
Administrative Agent or the Required Lenders, neither the Company nor any
domestic Subsidiary shall be required to pledge any stock of Middleby Japan
Corporation, G.S. Blodgett International, Limited, Fab Asia, Middleby Korea
Corporation, Middleby China Corporation, Middleby Espana, S.L. or any other
Foreign Subsidiary created or acquired after the date hereof.
10.13 Transactions with Affiliates. Not, and not permit any
Subsidiary to, enter into, or cause, suffer or permit to exist any
transaction, arrangement or contract with any of its other Affiliates (other
than the Parent and its Subsidiaries) which is on terms which are less
favorable than are obtainable from any Person which is not one of its
Affiliates; provided that (i) the Parent may reimburse reasonable expenses and
pay reasonable compensation to its officers and directors consistent with past
practice and (ii) nothing herein shall prohibit or restrict the Stock
Repurchase.
10.14 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.
10.15 Environmental Laws. Conduct, and cause each Subsidiary to
conduct, its operations and keep and maintain its property in material
compliance with all Environmental Laws (other than Immaterial Laws).
10.16 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any material contract for the
purchase of materials, supplies or other property or services, if such
contract requires that payment be made by it regardless of whether or not
delivery is ever made of such materials, supplies or other property or
services; provided that the foregoing shall not prohibit the Parent or any
Subsidiary from entering into options for the purchase of particular assets or
businesses.
10.17 Inconsistent Agreements. Not, and not permit any Subsidiary to,
enter into any loan or credit agreement, indenture or other material
instrument or document containing any provision which (a) would be violated or
breached by any borrowing, or the obtaining of any Letter of Credit, by the
Company hereunder or by the performance by the Parent, the Company or any
other Subsidiary of any of its obligations hereunder or under any other Loan
Document or (b) would prohibit the Parent, the Company or any other domestic
Subsidiary from granting to the Administrative Agent, for the benefit of the
Lenders, a Lien on any of its assets (other than (i) any prohibition with
respect to an asset subject to a Lien or purchase money security interest
securing Debt permitted by Section 10.7(c) or 10.7(k) or a Lien permitted by
Section 10.8(c)), (ii) customary non-assignment provisions in leases not
prohibited by the terms of this Agreement), (iii) any prohibition applicable
solely to the property or assets of any Foreign Subsidiary and (iv) any
prohibition pursuant to customary agreements providing for the licensing of
intellectual property by third parties to the Parent or any Subsidiary in the
ordinary course of business that restricts the sublicensing, pledge, transfer
or assignment of the licensee's rights thereunder.
10.18 Business Activities. (a) Not engage in any business activity
other than (i) the ownership of the capital stock of the Company and (ii)
activities incidental thereto (including the Stock Repurchase) and (b) not
permit any Subsidiary to engage in any line of business other than those
engaged in by the Company and its Subsidiaries at the Effective Time and
businesses reasonably related thereto.
10.19 Advances and Other Investments. Not, and not permit any
Subsidiary to, make, incur, assume or suffer to exist any Investment in any
other Person, except (without duplication) the following:
(a) equity Investments existing at the Effective Time in Subsidiaries
identified in Schedule 9.8;
(b) equity Investments in Subsidiaries (or entities which are to
become Subsidiaries) in connection with transactions permitted by Section
10.10(a), (b) or (c);
(c) in the ordinary course of business, contributions by the Parent
to the capital of the Company, by the Company to any of its Subsidiaries or by
any such Subsidiary to the capital of any of its Subsidiaries;
(d) in the ordinary course of business, Investments by the Parent in
the Company, by the Company in any of its Subsidiaries or by any Subsidiary in
the Company or any other Subsidiary of the Company, by way of intercompany
loans, advances or guaranties;
(e) Suretyship Liabilities permitted by Section 10.7;
(f) good faith deposits and the like made in connection with
prospective Acquisitions permitted by Section 10.10;
(g) Cash Equivalent Investments;
(h) bank deposits in the ordinary course of business and consistent
with past practice; provided that the aggregate amount of all such deposits
(excluding (x) amounts in payroll accounts, disbursement accounts or for
accounts payable, in each case to the extent that checks have been issued to
third parties, (y) amounts maintained (in the ordinary course of business
consistent with past practice) in accounts of any Person which is acquired by
the Parent or a Subsidiary in accordance with the terms hereof during the 45
days following the date of such Acquisition) which are maintained by the
Parent and its domestic Subsidiaries with any bank that is not a Lender shall
not at any time exceed $500,000 in the aggregate and (z) for a period of 90
days after the Effective Time, accounts currently located in Canada;
(i) Investments received in connection with the creation and
collection of receivables in the ordinary course of business;
(j) Investments set forth on Schedule 10.19;
(k) Permitted Acquisitions;
(l) Investments in mutual funds not otherwise permitted by clauses
(a) through (k) above in an aggregate amount not to exceed $2,000,000 at any
time outstanding;
(m) Loans to the Parent permitted by Section 10.7(i); and
(n) other Investments in an aggregate amount (valued at cost) not
exceeding $1,000,000 at any time outstanding;
provided that no Investment otherwise permitted by clause (b), (e) or (f)
shall be permitted to be made if, immediately before or after giving effect
thereto, any Event of Default or Unmatured Event of Default shall have
occurred and be continuing.
10.20 Foreign Subsidiaries. Not at any time permit more than 25% of
its consolidated assets to be owned by, or more than 45% of its consolidated
revenues for any Fiscal Quarter to be earned by, Foreign Subsidiaries.
10.21 Amendments to Certain Documents. Not, and not permit any
Subsidiary to, make or agree to any amendment to or modification of, or waive
any of its rights under, any of the terms of (a) the Blodgett Acquisition
Agreement or the Stock Repurchase Agreement if such amendment, modification or
waiver would adversely affect the interests of the Lenders or (b) any
agreement or instrument governing any Subordinated Debt which would (i) have
the effect of (x) providing for earlier payment in respect of principal or
redemptions or otherwise (except with respect to any prepayment of
Subordinated Debt permitted hereunder), (y) requiring collateral or guarantees
to secure any Subordinated Debt or (z) increasing the interest rate payable
with respect thereto or (ii) otherwise adversely affect the interest of the
Lenders in any material respect.
10.22 Real Estate Documents.
(a) In the case of each parcel of real property acquired in fee by
the Company or any domestic Subsidiary after the date hereof, concurrently
with the acquisition of such real property (i) an ALTA Loan Title Insurance
Policy issued by an insurer acceptable to the Administrative Agent (and, for
purposes hereof, the Administrative Agent acknowledges that Chicago Title
Insurance Company and Stewart Title Company are acceptable insurers) or a
title insurance binder thereof marked by an authorized representative of such
title company, insuring the Administrative Agent's Lien on such real property
and containing such endorsements as the Administrative Agent may reasonably
require (it being understood that the amount of coverage, exceptions to
coverage and status of title set forth in such policy shall be reasonably
acceptable to the Administrative Agent), (ii) copies of all documents of
record concerning such real property as shown on the commitment for the ALTA
Loan Title Insurance Policy referred to in clause (i) and (iii) a flood
insurance policy concerning such real property, reasonably satisfactory to the
Administrative Agent, if required by the Flood Disaster Protection Act of
1973.
(b) In the case of each parcel of real property leased (as lessee) by
the Company or any domestic Subsidiary after the Effective Time, use
commercially reasonable efforts to deliver, or to cause to be delivered to the
Administrative Agent concurrently with the effectiveness of such lease, (i) a
Collateral Access Agreement from the owner and each mortgagee of such property
waiving any landlord's or mortgagee's Lien in respect of personal property of
any Loan Party kept at the premises subject to such lease (unless the delivery
of such Collateral Access Agreement is waived by the Administrative Agent);
and (ii) if requested by the Administrative Agent, a leasehold Mortgage for
such property and the documents listed in clause (a) above with respect to
such property.
10.23 Key Management. No later than 180 days after Selim Bassoul (or
any successor approved by the Required Lenders as set forth below) ceases to
be the chief executive officer of the Company, retain a new chief executive
officer reasonably satisfactory to the Required Lenders.
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
11.1 Effectiveness. This Agreement shall become effective at the time
(the "Effective Time") at which the Administrative Agent shall have received
(a) all amounts which are then due and payable pursuant to Section 5 and (to
the extent billed) Section 15.6; (b) evidence satisfactory to the
Administrative Agent that all filings required by the Administrative Agent to
perfect the Administrative Agent's Lien on the collateral under the Collateral
Documents have been duly made and are in full force and effect; and (c) all of
the following, each duly executed and dated a date satisfactory to the
Administrative Agent, each in form and substance reasonably satisfactory to
the Administrative Agent, and each (except for the Notes, of which only the
originals shall be signed) in sufficient number of signed counterparts to
provide one for each Lender:
11.1.1 Notes. The Notes.
11.1.2 Resolutions. Certified copies of resolutions of the Board of
Directors (or equivalent governing body) of each of the Parent and the Company
authorizing or ratifying the execution, delivery and performance by such
Person of each Loan Document to which it is a party.
11.1.3 Other Consents, etc. Certified copies of all documents
evidencing any necessary corporate action, consents and governmental approvals
(if any) required for the execution, delivery and performance by each of the
Parent and the Company of the documents referred to in this Section 11.
11.1.4 Incumbency and Signature Certificates. A certificate of the
Secretary or an Assistant Secretary of each of the Parent and the Company as
of the Effective Time certifying the names of the officer or officers of such
entity authorized to sign the Loan Documents to which such entity is a party,
together with a sample of the true signature of each such officer (it being
understood that the Administrative Agent and each Lender may conclusively rely
on each such certificate until formally advised by a like certificate of any
changes therein).
11.1.5 Confirmation. The Confirmation executed by each Loan Party.
11.1.6 Opinion of Counsel for the Loan Parties. The opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Loan Parties.
11.1.7 Officer's Certificate. A certificate from the Chief Financial
Officer of the Company and the Parent, in form and substance reasonably
satisfactory to the Administrative Agent, confirming that, substantially
concurrently with the receipt by the Company of the proceeds of the initial
Credit Extensions, (a) the Company will pay a dividend or make a loan to the
Parent in an amount sufficient to permit the Parent to consummate the Stock
Repurchase and (y) the Parent will consummate the Stock Repurchase, and (b) a
copy of the approval of the Board of Directors of the Parent (or a special
committee thereof) for the Stock Repurchase (including approval of the terms
thereof).
11.1.8 Compliance Certificate. A compliance certificate substantially
in the form of Exhibit B showing pro forma compliance with the financial
covenants set forth in Section 10.6 as of January 1, 2005.
11.1.9 Form U-1. An appropriately completed Federal Reserve Form U-1
for each Lender.
11.1.10 Other. Such other documents as the Administrative Agent or
any Lender may reasonably request.
11.2 Conditions to All Credit Extensions. The obligation (a) of each
Lender to make any Loan and (b) of each Issuing Lender to issue any Letter of
Credit is subject to the condition that the Effective Time shall have occurred
and to the following further conditions precedent:
11.2.1 Compliance with Representations and Warranties, No Default,
etc. Both before and after giving effect to each Credit Extension, the
following statements shall be true and correct:
(a) the representations and warranties of each Loan Party set forth
in this Agreement and the other Loan Documents shall be true and correct in
all material respects with the same effect as if then made (except to the
extent stated to relate to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date); and
(b) no Event of Default or Unmatured Event of Default shall have then
occurred and be continuing.
11.2.2 Confirmatory Certificate. If requested by the Administrative
Agent or any Lender (acting through the Administrative Agent), the
Administrative Agent shall have received (in sufficient counterparts to
provide one to each Lender) a certificate dated the date of such requested
Credit Extension and signed by a duly authorized representative of the Company
as to the matters set out in Section 11.2.1 (it being understood that each
request by the Company for a Credit Extension shall be deemed to constitute a
representation and warranty by the Company that the conditions precedent set
forth in Section 11.2.1 will be satisfied at the time of the making of such
Credit Extension), together with such other documents as the Administrative
Agent or any Lender (acting through the Administrative Agent) may reasonably
request in support thereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall constitute an
Event of Default under this Agreement:
12.1.1 Non-Payment of the Loans, etc. Default in the payment when due
of the principal of any Loan; default, and continuance thereof for three
Business Days after notice from the applicable Issuing Lender, in the payment
when due of any reimbursement obligation with respect to any Letter of Credit;
or default, and continuance thereof for five days, in the payment when due of
any interest, fee or other amount payable by the Company hereunder or under
any other Loan Document.
12.1.2 Non-Payment of Other Debt. Any default shall occur under the
terms applicable to any Debt of the Parent or any Subsidiary in an aggregate
principal amount (in any case for all such Debt so affected) exceeding
$1,000,000 and such default shall (a) consist of the failure to pay such Debt
when due (subject to the expiration of any applicable grace period), whether
by acceleration or otherwise, or (b) accelerate the maturity of such Debt or
permit the holder or holders thereof (subject to the expiration of any
applicable grace period), or any trustee or agent for such holder or holders,
to cause such Debt to become due and payable prior to its expressed maturity.
12.1.3 Bankruptcy, Insolvency, etc. The Parent or any Subsidiary
becomes insolvent or generally fails to pay, or admits in writing its
inability to pay, debts as they become due; or the Parent or any Subsidiary
applies for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for the Parent or such Subsidiary or any
substantial part of the property thereof, or makes a general assignment for
the benefit of creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed for the
Parent or any Subsidiary or for any substantial part of the property thereof
and is not discharged within 60 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding (except the voluntary
dissolution, not under any bankruptcy or insolvency law, of a Subsidiary), is
commenced in respect of the Parent or any Subsidiary, and if such case or
proceeding is not commenced by the Parent or such Subsidiary, it is consented
to or acquiesced in by the Parent or such Subsidiary, or remains for 60 days
undismissed; or the Parent or any Subsidiary takes any corporate action to
authorize, or in furtherance of, any of the foregoing.
12.1.4 Non-Compliance with Provisions of This Agreement. (a) Failure
by the Parent to comply with or to perform any covenant set forth in Sections
10.2, 10.5(a) (with respect to the Parent or the Company), 10.6 through 10.13,
10.17, 10.18, 10.19 or 10.21; or (b) failure by the Parent to comply with or
to perform any other provision of this Agreement (and not constituting an
Event of Default under any of the other provisions of this Section 12) and
continuance of such failure for 30 days (less, in the case of Section
10.1.5(a), the number of days elapsed from the second Business Day after a
Responsible Officer obtains knowledge of such failure to the date on which the
Company provides the notice required by such Section) after notice thereof to
the Company from the Administrative Agent or any Lender.
12.1.5 Representations and Warranties. Any representation or warranty
made by any Loan Party herein or in any other Loan Document, or in any
statement or certificate at any time given by such Loan Party in writing in
connection herewith or therewith, is false or misleading in any material
respect on or as of the date made or deemed made.
12.1.6 Pension Plans. (i) Institution of any steps by any Loan Party
or any other Person to terminate a Pension Plan if as a result of such
termination such Loan Party could be required to make a contribution to such
Pension Plan, or could incur a liability or obligation to such Pension Plan,
in excess of $1,000,000; (ii) a contribution failure occurs with respect to
any Pension Plan sufficient to give rise to a Lien under section 302(f) of
ERISA; or (iii) there shall occur any withdrawal or partial withdrawal from a
Multiemployer Pension Plan and the withdrawal liability (without unaccrued
interest) to Multiemployer Pension Plans as a result of such withdrawal
(including any outstanding withdrawal liability that the Parent and the
Controlled Group has incurred on the date of such withdrawal) exceeds
$1,000,000.
12.1.7 Judgments. Final judgments which exceed an aggregate (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) of $1,000,000 shall be rendered against the
Parent or any Subsidiary and shall not have been paid, discharged or vacated
or had execution thereof stayed pending appeal within 30 days after entry or
filing of such judgments.
12.1.8 Invalidity of Subsidiary Guaranty, etc. The Subsidiary
Guaranty or the Parent Guaranty shall cease to be in full force and effect
with respect to any Subsidiary Guarantor or the Parent, respectively (unless,
in the case of a Subsidiary Guarantor, such Subsidiary Guarantor ceases to be
a Subsidiary pursuant to a transaction permitted hereby); any Subsidiary
Guarantor or the Parent shall fail (subject to any applicable grace period) to
comply with or to perform any applicable provision of the Subsidiary Guaranty
or the Parent Guaranty, respectively; or any Subsidiary Guarantor or the
Parent (or any Person by, through or on behalf of such Subsidiary Guarantor or
the Parent) shall contest in any manner the validity, binding nature or
enforceability of the Subsidiary Guaranty or the Parent Guaranty,
respectively, with respect to such Subsidiary Guarantor or the Parent,
respectively.
12.1.9 Invalidity of Collateral Documents, etc. (a) Any Collateral
Document shall cease to be in full force and effect with respect to any Loan
Party (unless such Loan Party ceases to be a Subsidiary pursuant to a
transaction permitted by Section 10.10); (b) any Loan Party shall fail to
comply with or to perform any applicable provision of any Collateral Document
to which such entity is a party and such failure (i) affects a material
portion of the collateral granted under such Collateral Document or (ii)
continues for 10 days after a Responsible Officer obtains knowledge thereof;
or (c) any Loan Party (or any Person by, through or on behalf of such Loan
Party) shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document.
12.1.10 Change in Control. A Change in Control shall occur.
12.2 Effect of Event of Default. If any Event of Default described in
Section 12.1.3 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Loans and all other
obligations hereunder shall become immediately due and payable and the Company
shall become immediately obligated to deliver to the Administrative Agent cash
collateral in an amount equal to the outstanding face amount of all Letters of
Credit, all without presentment, demand, protest or notice of any kind; and,
if any other Event of Default shall occur and be continuing, the
Administrative Agent (upon written request of the Required Lenders) shall
declare the Commitments (if they have not theretofore terminated) to be
terminated and/or declare all Loans and all other obligations hereunder to be
due and payable and/or demand that the Company immediately deliver to the
Administrative Agent cash collateral in amount equal to the outstanding face
amount of all Letters of Credit, whereupon the Commitments (if they have not
theretofore terminated) shall immediately terminate and/or all Loans and all
other obligations hereunder shall become immediately due and payable and/or
the Company shall immediately become obligated to deliver to the
Administrative Agent cash collateral in an amount equal to the face amount of
all Letters of Credit, all without presentment, demand, protest or notice of
any kind. The Administrative Agent shall promptly advise the Company of any
such declaration, but failure to do so shall not impair the effect of such
declaration. Any cash collateral delivered hereunder shall be held by the
Administrative Agent (without liability for interest thereon) and applied to
obligations arising in connection with any drawing under a Letter of Credit.
After the expiration or termination of all Letters of Credit, such cash
collateral shall be applied by the Administrative Agent to any remaining
obligations hereunder and any excess shall be delivered to the Company or as a
court of competent jurisdiction may elect.
SECTION 13 PARENT GUARANTY
13.1 The Guaranty. The Parent hereby irrevocably and unconditionally
guarantees as a primary obligor the full and punctual payment when due
(whether at stated maturity, upon acceleration or otherwise) of all Guaranteed
Obligations, including all principal of the Loans, all reimbursement
obligations in respect of Letters of Credit, all interest on the foregoing and
all fees payable hereunder (including all interest and fees accruing after the
commencement of a bankruptcy, insolvency or similar proceeding with respect to
the Company, regardless of whether such interest or fees constitute an allowed
claim in such proceeding) and all other amounts payable hereunder or any other
Loan Document.
13.2 Guaranty Unconditional. The obligations of the Parent under this
Section 13 shall be irrevocable, unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Company or any Subsidiary Guarantor under
this Agreement, any other Loan Document or any applicable Hedging Agreement,
by operation of law or otherwise (other than payment in full of the Guaranteed
Obligations);
(b) any modification or amendment of or supplement to this Agreement,
any other Loan Document or any applicable Hedging Agreement;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Company under this
Agreement, any other Loan Document or any applicable Hedging Agreement;
(d) any change in the existence, structure or ownership of the
Company, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Company or its assets or any resulting release or
discharge of any obligation of the Company contained in this Agreement, any
other Loan Document or any applicable Hedging Agreement (other than payment in
full of the Guaranteed Obligations);
(e) the existence of any claim, set-off or other right which the
Parent may have at any time against the Company, the Administrative Agent, any
Lender or any other Person, whether in connection with this Agreement, any
other Loan Document, any applicable Hedging Agreement or any unrelated
transaction;
(f) any invalidity or unenforceability relating to or against the
Company for any reason of this Agreement, any other Loan Document or any
applicable Hedging Agreement, or any provision of applicable law or regulation
purporting to prohibit the payment by the Company of the principal of or
interest on any Loan, any amounts payable with respect to any Letter of
Credit, any other amount payable by it under this Agreement, any other Loan
Document or any applicable Hedging Agreement; or
(g) any other act or omission to act or delay of any kind by the
Company, the Administrative Agent, any Lender or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to the Parent's
obligations hereunder.
13.3 Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Parent's obligations hereunder shall remain in full force
and effect until the Commitments and all Letters of Credit shall have
terminated and all Guaranteed Obligations shall have been paid in full in cash
(other than in respect of contingent indemnification obligations with respect
to which the Administrative Agent and the Lenders have not asserted a claim
against any Loan Party). If at any time any payment of principal of or
interest on any Loan, any amount payable with respect to any Letter of Credit,
any other amount payable by the Company under this Agreement, any other Loan
Document or any applicable Hedging Agreement is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, the Parent's obligations hereunder with respect to such
payment shall be reinstated at such time as though such payment had been due
but not made at such time.
13.4 Waiver by the Parent. The Parent irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein,
as well as any requirement that at any time any action be taken by any Person
against the Company or any other Person.
13.5 Delay of Subrogation. Notwithstanding any payment made by or on
behalf of the Parent under this Section 13, the Parent shall not exercise any
right of subrogation to any right of the Administrative Agent or any Lender
until such time as the Administrative Agent and the Lenders shall have
received payment in cash of the full amount of all Guaranteed Obligations, the
expiration or termination of all Letters of Credit and the termination of the
Commitments.
13.6 Stay of Acceleration. In the event that acceleration of the time
for payment of any amount payable by the Company under this Agreement, any
other Loan Document or any applicable Hedging Agreement is stayed upon
insolvency, bankruptcy or reorganization of the Company, all such amounts
otherwise subject to acceleration under the terms of this Agreement shall
nonetheless be payable by the Parent under this Section 13 forthwith on demand
by the Administrative Agent made at the written request of the Required
Lenders.
SECTION 14 THE ADMINISTRATIVE AGENT.
14.1 Appointment and Authorization. (a) Each Lender hereby
irrevocably (subject to Section 14.9) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities except
those expressly set forth herein, nor shall the Administrative Agent have or
be deemed to have 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. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) Each Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith. Each Issuing Lender shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Section 14 with respect to
any acts taken or omissions suffered by such Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters
of Credit as fully as if the term "Administrative Agent", as used in this
Section 14, included such Issuing Lender with respect to such acts or
omissions and (ii) as additionally provided in this Agreement with respect to
the Issuing Lenders.
(c) The Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 14 with
respect to any acts taken or omissions suffered by the Swing Line Lender in
connection with Swing Line Loans made or proposed to be made by it as fully as
if the term "Administrative Agent", as used in this Section 14, included the
Swing Line Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Swing Line Lender.
14.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees 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 agent
or attorney-in-fact that it selects in the absence of gross negligence or
willful misconduct.
14.3 Liability of Administrative Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby (except for such Agent-Related
Person's own gross negligence or willful misconduct), or (ii) be responsible
in any manner to any of the Lenders or their participants for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure
of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Lender or participant 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 the Company or any of the Company's
Subsidiaries or Affiliates.
14.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement 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 Company or any Subsidiary), independent accountants and other
experts selected by 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 as it deems appropriate and, if it so
requests, confirmation from the Lenders of their obligation to indemnify the
Administrative Agent against any and all liability and expense which 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 or any other Loan Document in
accordance with a request or consent of the Required Lenders or all of the
Lenders, if required hereunder, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders and
participants. Where this Agreement expressly permits or prohibits an action
unless the Required Lenders (or, if required hereunder, all Lenders) otherwise
determine, the Administrative Agent shall, and in all other instances, the
Administrative Agent may, but shall not be required to, initiate a
solicitation for the consent or a vote of the Lenders.
14.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default (except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders) unless the Administrative Agent shall have
received written notice from a Lender or the Company referring to this
Agreement, describing such Event of Default or Unmatured Event of Default and
stating that such notice is a "notice of default". The Administrative Agent
will notify the Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Event of Default or
Unmatured Event of Default as may be requested by the Required Lenders in
accordance with Section 12; provided that unless and until the Administrative
Agent has received any such request, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Event of Default or Unmatured Event of Default as it
shall deem advisable or in the best interest of the Lenders.
14.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Administrative Agent hereafter taken, including any consent to
and acceptance of any assignment or review of the affairs of the Company and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Company
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person 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 investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents expressly herein
required to be furnished to the Lenders by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
prospects, operations, property, financial or other condition or
creditworthiness of the Company or its Affiliates which may come into the
possession of any of the Agent-Related Persons.
14.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata
based on each Lender's Total Percentage, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities; provided that no
Lender shall be liable for any payment to any Agent-Related Person of any
portion of the Indemnified Liabilities to the extent resulting from such
Agent-Related Person's gross negligence or willful misconduct; and provided,
further, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for the purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand
for its ratable share (according to its Total Percentage) of any costs or
out-of-pocket expenses (including reasonable fees of attorneys for the
Administrative Agent) incurred by the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that any Loan Party is obligated to, but
fails, to reimburse the Administrative Agent therefor (but without limiting
such Loan Party's obligation to so reimburse the Administrative Agent, it
being understood that the Administrative Agent shall promptly return to each
Lender any amount paid by such Lender pursuant hereto which is subsequently
reimbursed by any Loan Party). The undertaking in this Section shall survive
termination of the Commitments, repayment of the Loans, cancellation of the
Notes, any foreclosure under, or any modification, release or discharge of,
any or all of the Collateral Documents, any termination of this Agreement and
the resignation or replacement of the Administrative Agent.
14.8 Administrative Agent in Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with the Company and its Subsidiaries and Affiliates as though Bank of America
were not the Administrative Agent, the Issuing Lender or the Swing Line Lender
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Subsidiary) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information
to them. With respect to their Loans, Bank of America and its Affiliates shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though Bank of America were not the Administrative
Agent and an Issuing Lender and the Swing Line Lender, and the terms "Lender",
"Revolving Lender" and "Term Lender" include Bank of America and its
Affiliates, to the extent applicable, in their individual capacities.
14.9 Successor Administrative Agent. The Administrative Agent may,
and at the request of the Required Lenders shall, resign as Administrative
Agent upon 30 days' notice to the Lenders. If the Administrative Agent resigns
under this Agreement, the Required Lenders shall, with (so long as no Event of
Default exists) the consent of the Company (which shall not be unreasonably
withheld or delayed), appoint from among the Lenders a successor
administrative agent for the Lenders. If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Company, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor administrative agent, and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 14 and
Sections 15.6 and 15.13 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. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 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 perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor
administrative agent as provided for above. Notwithstanding the foregoing,
however, Bank of America may not be removed as the Administrative Agent at the
request of the Required Lenders unless Bank of America shall also
simultaneously be replaced as an "Issuing Lender" and the "Swing Line Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
14.10 Withholding Tax.
(a) The Administrative Agent and any Lender, Participant or Assignee
that is a "foreign corporation, partnership or trust" within the meaning of
the Code agrees to deliver to the Company and the Administrative Agent, on or
prior to the date this Agreement was executed (or if any Assignee or
Participant was not a Lender or Participant hereunder immediately prior to
such assignment or participation, on or prior to the effective date of the
assignment or participation pursuant to which such Assignee or Participant
became a Lender or Participant hereunder or if the Administrative Agent is a
successor to the original Administrative Agent, on or prior to the date such
Person accepts the appointment as Administrative Agent), two properly
completed and executed original copies of Internal Revenue Service Forms W-9
and two properly completed and executed copies of either (x) (i) Internal
Revenue Service Form W-8BEN, establishing a complete exemption from
withholding tax under an applicable United States income tax treaty or (y)
Internal Revenue Service Form W-8ECI establishing that payments under this
Agreement are exempt from United States withholding tax because such payments
are connected with a United States trade or business of the Administrative
Agent or such Lender, Participant or Assignee. The Administrative Agent and
each Lender, Participant or Assignee shall also provide such other such other
forms, certificates, documents and other evidence as may be required under the
Code or other laws of the United States.
Each Lender, Participant or Assignee or the Administrative Agent, as
the case may be, agrees to promptly notify the Company and the Administrative
Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction. In addition, each Lender, Participant or
Assignee or the Administrative Agent, as the case may be, shall deliver to the
Company and the Administrative Agent two further copies of such Form W-8BEN or
W-8ECI or successor applicable forms or other manner of certification on or
before the date that any such prior form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by such Person to the Company and the Administrative
Agent.
(b) If any Lender claims exemption from, or reduction of, withholding
tax by providing IRS Form W-8ECI and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the obligations of the
Company to such Lender, such Lender agrees to notify the Administrative Agent
of the percentage amount in which it is no longer the beneficial owner of such
obligations of the Company hereunder. To the extent of such percentage amount,
the Administrative Agent will treat such Lender's IRS Form W-8ECI as no longer
valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form W-8BEN with the Administrative Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
obligations of the Company to such Lender hereunder, such Lender agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender, Assignee or Participant is entitled to a reduction
in the applicable withholding tax, the Company or the Administrative Agent may
withhold from any interest payment to such Lender, Assignee or Participant an
amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by clause (a) of
this Section are not delivered to the Company or the Administrative Agent,
then the Company or the Administrative Agent may withhold from any interest
payment to such Lender, Assignee or Participant not providing such forms or
other documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other governmental authority of the United
States or any other jurisdiction asserts a claim that the Company or the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender, Assignee or Participant (because the appropriate
form was not delivered or was not properly executed, or because such Lender,
Assignee or Participant failed to promptly notify the Company or the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender, Assignee or Participant shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Company or the
Administrative Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Company or the Administrative Agent, together with all costs and expenses
(including reasonable fees of attorneys for the Company and the Administrative
Agent (including the reasonable allocable costs of internal legal services and
all reasonable disbursements of internal counsel)). The obligation of the
Lenders, Assignees or Participants under this subsection shall survive the
repayment of the Loans, cancellation of the Notes, any termination of this
Agreement and the resignation or replacement of the Administrative Agent and
shall apply to any assignee or successor of the Company.
14.11 Collateral Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, (a) to release any
Lien on any property granted to or held by the Administrative Agent under any
Collateral Document (i) upon termination of the Commitments and payment in
full of all Loans and all other obligations of the Company hereunder and the
expiration or termination of all Letters of Credit; (ii) which is sold or to
be sold or disposed of as part of or in connection with any disposition
permitted hereunder or (iii) subject to Section 15.1, if approved, authorized
or ratified in writing by the Required Lenders; (b) to subordinate any Lien on
any property granted to or held by the Administrative Agent under any
Collateral Document to the holder of any Lien on such property which is
permitted by Section 10.8(c), (d) or (l) hereof; or (c) to release any
Subsidiary from its obligations under the Subsidiary Guaranty if such entity
ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to
release any Subsidiary from its obligations under the Subsidiary Guaranty,
pursuant to this Section 14.11.
14.12 Other Agents. No Lender identified on the facing page of this
Agreement or otherwise herein, or in any amendment hereof or other document
related hereto, as being the Syndication Agent or the Documentation Agent
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement in such capacity. Each Lender acknowledges that it has
not relied, and will not rely, on any Person so identified in deciding to
enter into this Agreement or in taking or refraining from taking any action
hereunder or pursuant hereto.
SECTION 15 GENERAL.
15.1 Waiver; Amendments. No delay on the part of the Administrative
Agent or any Lender in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by any
of them of any right, power or remedy preclude other or further exercise
thereof, or the exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement or the Notes shall in any event be effective unless the same shall
be in writing and signed and delivered by Lenders having an aggregate Total
Percentage of not less than the aggregate Total Percentage expressly
designated herein with respect thereto or, in the absence of such designation
as to any provision of this Agreement or the Notes, by the Required Lenders
and, in the case of an amendment or other modification, the Company, and then
any such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall increase the Revolving
Percentage or the Term Percentage of any Lender, or increase or extend the
Commitment of any Lender, without the consent of such Lender. No amendment,
modification, waiver or consent shall (i) extend the scheduled maturity date
of any principal of any Loan or extend the date for payment of any interest on
any Loan or any fees payable hereunder, (ii) reduce the principal amount of
any Loan, the rate of interest thereon or any fees payable hereunder, (iii)
release (x) the Parent from its obligations under the Parent Guaranty, (y) any
Subsidiary from its obligations under the Subsidiary Guaranty (other than with
respect to a Subsidiary Guarantor which ceases to be a Subsidiary as a result
of a transaction permitted hereunder) or (z) all or substantially all of the
collateral granted under the Collateral Documents or (iv) reduce the aggregate
Total Percentage required to effect an amendment, modification, waiver or
consent without, in each case, the consent of each Lender affected thereby. No
provision of Section 14 or other provision of this Agreement affecting the
Administrative Agent in its capacity as such shall be amended, modified or
waived without the consent of the Administrative Agent. No provision of this
Agreement relating to the rights or duties of an Issuing Lender in its
capacity as such shall be amended, modified or waived without the consent of
such Issuing Lender. No provision of this Agreement affecting the Swing Line
Lender in its capacity as such shall be amended, modified or waived without
the written consent of the Swing Line Lender. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
15.2 Confirmations. The Company and each Lender agree from time to
time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Administrative
Agent) the aggregate unpaid principal amount of the Loans then outstanding to
such Lender.
15.3 Notices. Except as otherwise provided in Sections 2.2 and 2.4,
all notices hereunder shall be in writing (including facsimile transmission)
and shall be sent to the applicable party at its address shown on Schedule
15.3 or at such other address as such party may, by written notice received by
the other parties, have designated as its address for such purpose. Notices
sent by facsimile transmission shall be deemed to have been given when sent
and receipt of such facsimile is confirmed; notices sent by mail shall be
deemed to have been given three Business Days after the date when sent by
registered or certified mail, postage prepaid; and notices sent by hand
delivery or overnight courier service shall be deemed to have been given when
received. For purposes of Sections 2.2 and 2.4, the Administrative Agent and
the Swing Line Lender shall be entitled to rely on telephonic instructions
from any person that the Administrative Agent or the Swing Line Lender in good
faith believes is a Responsible Officer of the Company, and the Company shall
hold the Administrative Agent, the Swing Line Lender and each other Lender
harmless from any loss, cost or expense resulting from any such reliance.
15.4 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP, consistently applied; provided that if the Company
notifies the Administrative Agent that the Company wishes to amend any
covenant in Section 10 to eliminate or to take into account the effect of any
change in GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Company that the Required Lenders wish to amend Section 10
for such purpose), then the Company's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Lenders.
15.5 Regulation U. Each Lender represents that it in good faith is
not relying, either directly or indirectly, upon any Margin Stock as
collateral security for the extension or maintenance by it of any credit
provided for in this Agreement.
15.6 Costs, Expenses and Taxes. The Company agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Administrative Agent
and the Lead Arranger (including the reasonable fees and charges of counsel
for the Administrative Agent and the Lead Arranger and of local counsel, if
any, who may be retained by said counsel) in connection with the preparation,
execution, delivery and administration of this Agreement, the other Loan
Documents and all other documents provided for herein or delivered or to be
delivered hereunder or in connection herewith (including any amendments,
supplements or waivers to any Loan Documents), and all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' fees, court
costs and other legal expenses and reasonable allocated costs of internal
counsel) incurred by the Administrative Agent and each Lender during the
existence of an Event of Default in connection with the enforcement of this
Agreement, the other Loan Documents or any amendments, supplements or waivers
thereto. In addition, the Company agrees to pay, and to save the
Administrative Agent, the Lead Arranger and the Lenders harmless from all
liability for, (a) any stamp or other similar taxes (excluding franchise
taxes, branch profits taxes and other taxes imposed on or measured by net
income, net profits or receipts) which may be payable in connection with the
execution and delivery of this Agreement, the Credit Extensions hereunder, the
issuance of the Notes or the execution and delivery of any other Loan Document
or any other document provided for herein or delivered or to be delivered
hereunder or in connection herewith, except as otherwise provided in Section
7.6 or 8.1, and (b) any fees of the Company's auditors in connection with any
reasonable exercise by the Administrative Agent and the Lenders of their
rights pursuant to Section 10.2. All obligations provided for in this Section
15.6 shall survive repayment of the Loans, cancellation of the Notes and any
termination of this Agreement.
15.7 Subsidiary References. The provisions of this Agreement relating
to Subsidiaries shall apply only during such times as the Company has one or
more Subsidiaries.
15.8 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
15.9 Assignments; Participations.
15.9.1 Assignments. Any Lender may, with the prior written consent of
the Administrative Agent and, so long as no Unmatured Event of Default or
Event of Default has occurred and is continuing, the Company (which consents
shall not be unreasonably delayed or withheld), at any time assign and
delegate to one or more Eligible Assignees (any Person to whom such an
assignment and delegation is to be made being herein called an "Assignee"),
all or any fraction of such Lender's Loans and Commitment in a minimum
aggregate amount (in the case of an assignment to an Assignee other than a
Lender hereunder) equal to the lesser of (i) the amount of the assigning
Lender's remaining Loans and, without duplication, Commitments and (ii) (x) in
the case of the assignment of such Lender's Revolving Loans and/or Revolving
Commitment, $5,000,000 and (y) in the case of an assignment of such Lender's
Term Loan and/or Term Commitment, $1,000,000 (or such lesser amount as the
Company and the Administrative Agent may agree in their discretion); provided
that (a) no assignment and delegation may be made to any Person if, at the
time of such assignment and delegation, the Company would be obligated to pay
any greater amount under Section 7.6 or Section 8 to the Assignee than the
Company is then obligated to pay to the assigning Lender under such Sections
(and if any assignment is made in violation of the foregoing, the Company will
not be required to pay the incremental amounts), (b) any assignment of all or
a portion of a Lender's Revolving Commitment to a Person other than a
Revolving Lender shall be subject to the prior written consent of the Issuing
Lenders and the Swing Line Lender (which consents shall not be unreasonably
withheld or delayed), (c) no consent of the Company or the Administrative
Agent shall be required in connection with (i) the assignment of all or a
portion of any Term Loan to an Approved Fund or (ii) any assignment from a
Lender to an Affiliate of such Lender or to another Lender; (d) no consent of
the Administrative Agent shall be required in connection with the assignment
of all or a portion of a Lender's Revolving Loans and Revolving Commitment to
another Revolving Lender and (e) the Company and the Administrative Agent
shall be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee until
the date when all of the following conditions shall have been met:
(w) the Assignee shall have complied with the requirements
set forth in Section 14.10, if applicable,
(x) five Business Days (or such lesser period of time as the
Administrative Agent and the assigning Lender shall agree) shall have
passed after written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee, shall have been given to the Company
and the Administrative Agent by such assigning Lender and the
Assignee,
(y) the assigning Lender and the Assignee shall have
executed and delivered to the Company and the Administrative Agent an
assignment agreement substantially in the form of Exhibit F (an
"Assignment Agreement"), together with any documents required to be
delivered thereunder, which Assignment Agreement shall have been
accepted by the Administrative Agent and, if required, the Company,
and
(z) unless the Assignee is an Affiliate of the assigning
Lender, the assigning Lender or the Assignee shall have paid the
Administrative Agent a processing fee of $2,500.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned
and delegated to such Assignee pursuant to such Assignment Agreement, shall
have the rights and obligations of a Lender hereunder, and (y) the assigning
Lender, to the extent that rights and obligations hereunder have been assigned
and delegated by it pursuant to such Assignment Agreement, shall be released
from its obligations hereunder (and, in the case of an assignment of all of
its Commitments and Loans, shall cease to be a Lender (but shall continue to
have all rights and obligations under provisions hereof which by their terms
survive the termination hereof)). Within five Business Days after the
effectiveness of any assignment and delegation to a Person that is not
currently a Lender hereunder, the Company shall execute and deliver to the
Administrative Agent (for delivery to the Assignee) a new Note dated the
effective date of such assignment. Any attempted assignment and delegation not
made in accordance with this Section 15.9.1 shall be null and void.
The Administrative Agent, acting solely for this purpose as an agent
of the Company, shall maintain at the Administrative Agent's office specified
for payments pursuant to Section 7.1 a copy of each Assignment Agreement
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
reimbursement obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent 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. The Register shall be available for
inspection by the Company and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
Notwithstanding the foregoing provisions of this Section 15.9.1 or
any other provision of this Agreement, (i) any Lender may at any time assign
all or any portion of its Loans and its Note to a Federal Reserve Bank and
(ii) any Lender that is an Approved Fund may assign all or any portion of any
Term Loan to a trustee for the benefit of such Lender's investors in
connection with the financial leveraging of such Approved Fund; provided that
no such assignment shall (x) release any Lender from any of its obligations
hereunder or (y) substitute any such Federal Reserve Bank or trustee for such
Lender as a party hereto; and provided, further, that no such Federal Reserve
Bank or trustee shall be entitled to exercise any right (or shall have any
obligation) of a Lender under the Loan Documents unless it becomes a Lender in
compliance with the other provisions of this Section 15.9.1.
15.9.2 Participations. Any Lender may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Lender, the Note held by such Lender, the Commitment of such Lender, the
direct or participation interest of such Lender in any Letter of Credit or
Swing Line Loan or any other interest of such Lender hereunder (any Person
purchasing any such participating interest being herein called a
"Participant"); provided that any Lender selling any such participating
interest shall give notice thereof to the Company. In the event of a sale by a
Lender of a participating interest to a Participant, (x) such Lender shall
remain the holder of its Note and shall remain responsible for all of its
obligations as a Lender hereunder for all purposes of this Agreement, (y) the
Company and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations hereunder and (z) all amounts payable by the Company shall be
determined as if such Lender had not sold such participation and shall be paid
directly to such Lender. No Participant shall have any direct or indirect
voting rights hereunder except with respect to any of the events described in
the fourth sentence of Section 15.1. Each Lender agrees to incorporate the
requirements of the preceding sentence into each participation agreement which
such Lender enters into with any Participant. The Company agrees that if
amounts outstanding under this Agreement and the Notes are due and payable (as
a result of acceleration or otherwise), each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement, any Note and with respect to any Letter of Credit
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement or such Note; provided that
such right of setoff shall be subject to the obligation of each Participant to
share with the Lenders, and the Lenders agree to share with each Participant,
as provided in Section 7.5. The Company also agrees that each Participant
shall be entitled to the benefits of Section 7.6 and Section 8 as if it were a
Lender (provided that no Participant shall receive any greater amount pursuant
to Section 7.6 or Section 8 than would have been paid to the participating
Lender if no participation had been sold).
15.10 Governing Law. THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW (EXCEPT 735 ILLINOIS COMPILED STATUTE ss.105/5-5). Whenever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. All obligations of the Company and
rights of the Administrative Agent and the Lenders expressed herein or in any
other Loan Document shall be in addition to and not in limitation of those
provided by applicable law.
15.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
15.12 Successors and Assigns. This Agreement shall be binding upon
the Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent.
15.13 Indemnification by the Company.
(a) In consideration of the execution and delivery of this Agreement
by the Administrative Agent and the Lenders and the agreement to extend the
Commitments provided hereunder, the Company hereby agrees to indemnify,
exonerate and hold the Administrative Agent, the Lead Arranger, each Lender
and each of the officers, directors, employees, attorneys, Affiliates and
agents of the Administrative Agent and each Lender (each a "Lender Party")
free and harmless from and against any and all Indemnified Liabilities, except
to the extent that such Indemnified Liabilities arise on account of any such
Lender Party's gross negligence or willful misconduct. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, the
Company hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
(b) All obligations provided for in this Section 15.13 shall survive
repayment of the Loans, cancellation of the Notes, any foreclosure under, or
any modification, release or discharge of any or all of the Collateral
Documents, the sale, transfer or conveyance of all or part of the past and
present properties and facilities or any circumstances which might otherwise
constitute a legal or equitable discharge, in whole or in part, of the Company
under this Agreement and any termination of this Agreement.
15.14 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID TO SUCH ADDRESS AS DETERMINED PURSUANT TO SECTION 15.3, BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE COMPANY AND THE
PARENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15.15 Waiver of Jury Trial. EACH OF THE COMPANY, THE PARENT, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH
LOAN PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND
EACH SUCH OTHER LOAN DOCUMENTS.
15.16 USA PATRIOT ACT NOTICE. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Parent
and the Company that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"),
it is required to obtain, verify and record information that identifies the
Parent and the Company, which information includes the name and address of the
Parent and the Company and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Parent and the
Company in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
MIDDLEBY MARSHALL INC.
By /s/ Timothy J. FitzGerald
---------------------------
Title Chief Financial Officer
THE MIDDLEBY CORPORATION
By /s/ Timothy J. FitzGerald
----------------------------
Title Chief Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By /s/ David A. Johanson
----------------------------
Title Vice President
BANK OF AMERICA, N.A., as an
Issuing Lender, as Swing Line
Lender and as a Lender
By /s/ Craig W. McGuire
----------------------------
Title Senior Vice President
LASALLE BANK NATIONAL
ASSOCIATION, as Syndication
Agent and as a Lender
By /s/ Peg Loughlin
----------------------------
Title SVP
WELLS FARGO BANK, N.A., as
Documentation Agent and as a
Lender
By /s/ Edmund H. Lester
----------------------------
Title SVP
THE NORTHERN TRUST COMPANY
By /s/ [illegible]
----------------------------
Title Officer
FIFTH THIRD BANK (CHICAGO)
By /s/ Clif Gill
----------------------------
Title Vice President
OAK BROOK BANK
By /s/ Henry Wessel
----------------------------
Title VP
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By /s/ [illegible]
----------------------------
Title Executive Director
By /s/ [illegible]
----------------------------
Title Executive Director
SCHEDULE 1.1
PRICING SCHEDULE
The Commitment Fee Rate, Eurodollar Margin, LC Fee Rate and Base Rate
Margin, respectively, shall be determined in accordance with the table below
and the other provisions of this Schedule 1.1.
------------------------------ --------------------- ------------------------- -----------------------
Commitment Eurodollar Margin/ Base Rate
Fee Rate LC Fee Rate Margin
------------------------------ --------------------- ------------------------- -----------------------
Level I 40 bps 200 bps 50 bps
------------------------------ --------------------- ------------------------- -----------------------
Level II 35 bps 175 bps 25 bps
------------------------------ --------------------- ------------------------- -----------------------
Level III 30 bps 150 bps 0 bps
------------------------------ --------------------- ------------------------- -----------------------
Level IV 25 bps 125 bps 0 bps
------------------------------ --------------------- ------------------------- -----------------------
Level V 20 bps 100 bps 0 bps
------------------------------ --------------------- ------------------------- -----------------------
Level I applies when the Leverage Ratio is greater than or equal to
3.25 to 1.
Level II applies when the Leverage Ratio is greater than or equal to
2.75 to 1 but less than 3.25 to 1.
Level III applies when the Leverage Ratio is greater than or equal to
2.25 to 1 but less than 2.75 to 1.
Level IV applies when the Leverage Ratio is greater than or equal to
1.50 to 1 but less than 2.25 to 1.
Level V applies when the Leverage Ratio is less than 1.50 to 1.
Initially, the applicable Level shall not be determined in accordance
with the Leverage Ratio but shall be Level III. Beginning with the Fiscal
Quarter ending June 25, 2005, the applicable Level shall be adjusted, to the
extent applicable, 45 days (or, in the case of the last Fiscal Quarter of any
Fiscal Year, 90 days) after the end of each Fiscal Quarter based on the
Leverage Ratio as of the last day of such Fiscal Quarter; provided that if the
Company fails to deliver the financial statements required by Section 10.1.1
or 10.1.2, as applicable, and the related certificate required by Section
10.1.3 by the 45th day (or, if applicable, the 90th day) after any Fiscal
Quarter, Level I shall apply until such financial statements are delivered.
SCHEDULE 2.1
LENDERS AND INITIAL COMMITMENTS AND PERCENTAGES
- --------------------------------------------------------------------------------------------------------------------
Revolving Revolving Term Term Total
Lender Commitment Percentage Commitment Percentage Percentage
- --------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $19,125,000 21.250000000% $14,875,000 21.250000000% 21.250000000%
- --------------------------------------------------------------------------------------------------------------------
LaSalle Bank National Association $18,000,000 20.000000000% $14,000,000 20.000000000% 20.000000000%
- --------------------------------------------------------------------------------------------------------------------
Wells Fargo Bank, N.A. $16,875,000 18.750000000% $13,125,000 18.750000000% 18.750000000%
- --------------------------------------------------------------------------------------------------------------------
Rabobank Nederland $12,093,750 13.437500000% $9,406,250 13.437500000% 13.437500000%
- --------------------------------------------------------------------------------------------------------------------
Fifth Third Bank (Chicago) $12,093,750 13.437500000% $9,406,250 13.437500000% 13.437500000%
- --------------------------------------------------------------------------------------------------------------------
The Northern Trust Company $7,875,000 8.750000000% $6,125,000 8.750000000% 8.750000000%
- --------------------------------------------------------------------------------------------------------------------
Oak Brook Bank $3,937,500 4.375000000% $3,062,500 4.375000000% 4.375000000%
- --------------------------------------------------------------------------------------------------------------------
TOTALS $90,000,000 100.000000000% $70,000,000 100.000000000% 100.000000000%
- --------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.1
AMORTIZATION OF TERM LOANS
- -------------------------------------------------------------------------------
DATE PRINCIPAL PAYMENT
- -------------------------------------------------------------------------------
March 20, 2005 $2,500,000
- -------------------------------------------------------------------------------
June 20, 2005 $2,500,000
- -------------------------------------------------------------------------------
September 20, 2005 $2,500,000
- -------------------------------------------------------------------------------
December 20, 2005 $2,500,000
- -------------------------------------------------------------------------------
March 20, 2006 $3,125,000
- -------------------------------------------------------------------------------
June 20, 2006 $3,125,000
- -------------------------------------------------------------------------------
September 20, 2006 $3,125,000
- -------------------------------------------------------------------------------
December 20, 2006 $3,125,000
- -------------------------------------------------------------------------------
March 20, 2007 $3,750,000
- -------------------------------------------------------------------------------
June 20, 2007 $3,750,000
- -------------------------------------------------------------------------------
September 20, 2007 $3,750,000
- -------------------------------------------------------------------------------
December 20, 2007 $3,750,000
- -------------------------------------------------------------------------------
March 20, 2008 $3,750,000
- -------------------------------------------------------------------------------
June 20, 2008 $3,750,000
- -------------------------------------------------------------------------------
September 20, 2008 $3,750,000
- -------------------------------------------------------------------------------
December 20, 2008 $3,750,000
- -------------------------------------------------------------------------------
March 20, 2009 $4,375,000
- -------------------------------------------------------------------------------
June 20, 2009 $4,375,000
- -------------------------------------------------------------------------------
September 20, 2009 $4,375,000
- -------------------------------------------------------------------------------
December 23, 2009 $4,375,000
- -------------------------------------------------------------------------------
SCHEDULE 9.6
LITIGATION AND CONTINGENT LIABILITIES
SCHEDULE 9.7
OWNERSHIP OF PROPERTIES; LIENS
SCHEDULE 9.8
SUBSIDIARIES
Middleby Marshall Inc.
Blodgett Holdings, Inc.
Middleby Japan Corporation
G.S. Blodgett Corporation
Pitco Frialator, Inc.
MagiKitch'n Inc.
Cloverleaf Properties, Inc.
Frialator International Limited (UK)
G.S. Blodgett International, Limited
Middleby Philippines Corp.
Fab Asia
Middleby Worldwide, Inc.
Middleby Taiwan Corporation
Middleby Korea Corporation
Middleby China Corporation
Middleby Worldwide, S.A. de C.V.
Middleby Espana, S.L.
SCHEDULE 9.15
ENVIRONMENTAL MATTERS
SCHEDULE 10.7(h)
EXISTING DEBT
SCHEDULE 10.8
EXISTING LIENS
SCHEDULE 10.19
EXISTING INVESTMENTS
SCHEDULE 15.3
ADDRESSES FOR NOTICES
MIDDLEBY MARSHALL, INC.
- -----------------------
1400 Toastmaster Drive
Elgin, IL 60120
Attention: Chief Financial Officer
Telephone: (847) 741-3300
Facsimile: (847) 741-1689
BANK OF AMERICA, N.A., as Administrative Agent
- ----------------------------------------------
For notices of borrowing, payments and other administrative matters:
901 Main St
Dallas, TX 75202
Attention: Denise Wolfenberger
Telephone: 214-209-3175
Facsimile: 214-290-8373
with a copy to:
231 S. LaSalle Street
Mail Code: IL1-231-08-30
Chicago, Illinois 60697
Attention: Jeffery T. White, Assistant Vice President
Telephone: 312-828-3699
Facsimile: 877-207-0485
BANK OF AMERICA, N.A., as Issuing Lender, as Swing Line Lender, and as a Lender
- -------------------------------------------------------------------------------
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: Craig W. McGuire
Telephone: 312-828-1320
Facsimile: 312-828-1974
WELLS FARGO BANK, N.A.
- ----------------------
For notices of borrowing, payments and other administrative matters:
1700 Lincoln Street
Denver, CO 80203
Attention: Elizabeth Yowell
Telephone: 303-863-5114
Facsimile: 303-863-2729
For all other notices:
230 West Monroe
Suite 2900
Chicago, IL 60606
Attention: Edmund H. Lester
Telephone: 312-762-9020
Facsimile: 312-795-9388
LASALLE BANK NATIONAL ASSOCIATION
- ---------------------------------
For notices of borrowing, payments and other administrative matters:
135 S. LaSalle Street, Suite 1125
Chicago, IL 60603
Attention: Sheila Brown
Telephone: 312-904-5319
Facsimile: 312-904-6150
For all other notices:
Attention: Peg Laughlin
Telephone: 312-904-6742
Facsimile: 312-904-6150
THE NORTHERN TRUST COMPANY
- --------------------------
For notices of borrowing, payments and other administrative matters:
50 S. LaSalle St.
Chicago, IL 60675
Attention: Oscar Parrish
Telephone: 312-444-5504
Facsimile: 312-444-3502
For all other notices:
Attention: Eileen Sachanda
Telephone: 312-444-4273
Facsimile: 312-444-7028
FIFTH THIRD BANK (CHICAGO)
- --------------------------
For notices of borrowing, payments and other administrative matters:
233 S. Wacker Drive
Chicago, IL 60606
Attention: Cecilia Leephailbul
Telephone: 312-876-4387
Facsimile: 312-876-4793
For all other notices:
Attention: Andrew Bennett
Telephone: 312-756-5563
Facsimile: 312-756-5570
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
- ---------------------------------------------------------------------------
For notices of borrowing, payments and other administrative matters:
10 Exchange Place
Jersey City, NJ 07302
Attention: Anil Autur
Telephone: 201-499-5415
Facsimile: 201-499-5326
For all other notices:
123 North Wacker Drive
Suite 2100
Chicago, IL 60606
Attention: Ivan Rodriguez
Telephone: 312-408-8210
Facsimile: 312-408-8208
OAK BROOK BANK
- --------------
For notices of borrowing, payments and other administrative matters:
1400 6th Street
Oak Brook, IL 60523
Attention: Liz Pierson
Telephone: 630-571-1050, ext. 475
Facsimile: 630-571-1698
For all other notices:
Attention: Henry Wessel
Telephone: 630-571-1050, ext. 224
Facsimile: 630-571-0256
Exhibit 10.3
------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated as of December 23,
2004 is entered into by and between The Middleby Corporation, a Delaware
corporation (the "Company"), Middleby Marshall Inc., a Delaware corporation
("MMI"), (collectively the "Employer"), and Selim A. Bassoul ("Employee").
R E C I T A L:
The Employer is a party to an employment agreement with Employee
dated May 16, 2002, as amended July 3, 2003, December 15, 2003, and May 27,
2004 (the "Prior Agreement").
The Employer desires to continue and extend the term of employment of
Employee as President and Chief Executive Officer of the Company and as
President and Chief Executive Officer of MMI and to have Employee serve as the
Chairman of the Board of Directors of the Company, and Employee desires to
serve the Employer in such capacities, all on the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, Employee's employment by the Employer, the compensation to be
paid Employee while employed by the Employer, and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the
parties agree as follows:
1. Employment. The Employer agrees to employ Employee and Employee
agrees to be employed by the Employer subject to the terms and
provisions of the Agreement.
2. Term. The employment of Employee by Employer as provided in Section 1
will be for a period commencing on the date of this Agreement (the
"Effective Date") and ending on March 1, 2012, unless sooner
terminated as hereinafter provided.
3. Duties. Employee shall serve as President and Chief Executive Officer
of the Company and as President and Chief Executive Officer of MMI,
or in such other executive capacities as the Board of Directors of
the Company or MMI, as applicable, may designate and shall have such
powers and duties as may be from time to time prescribed by the Board
of Directors of the Company or MMI, as applicable. Throughout the
term of this Agreement, the Employer shall take all action necessary
so that Employee shall serve as the Chairman of the Board of
Directors of the Company. Employee shall devote substantially all of
his time and effort as reasonably may be required for him to perform
the duties and responsibilities to be performed by him under the
terms of this Agreement.
4. Compensation.
(a) Base Salary. The Employer shall pay to Employee a base
salary at a rate per annum of $770,000, payable in
accordance with the normal payroll practices of Employer.
(b) Incentive Compensation. Employee shall be eligible to
participate in the Management Incentive Plan previously
adopted by the Employer, subject to all terms and conditions
thereof. Under such plan, if the Employer attains certain
pre-established performance goals (attainment of such goals
to be determined after taking into account any incentive
compensation to be paid to Employee and any other
participating employees under the Plan), Employee shall be
entitled to receive (i) 100% of his Base Salary as in effect
at the beginning of the fiscal year to which the award
relates, and (ii) for each year, an additional $35,000 for
each $120,000 by which the Employer's actual EBITDA exceeds
the goal. The performance goals, which are based on the
Employer's EBITDA, are set forth on Exhibit A hereto. The
maximum bonus payable to Employee under the Management
Incentive Plan shall be $3,500,000 and the Employer will
modify the Management Incentive Plan accordingly, subject to
the approval of the shareholders of the Company.
Notwithstanding the foregoing, the Employee's participation
in the Management Incentive Plan with respect to fiscal year
2004 shall be governed by the terms of the Prior Agreement.
(c) Expense Reimbursement. Employer shall reimburse Employee for
those reasonable legal and consulting expenses incurred by
him for personal financial, tax and estate planning
purposes.
(d) Restricted Stock Grant. The Company shall cause Employee to
be granted an aggregate of 300,000 shares of restricted
stock of the Company pursuant to the 1998 Stock Incentive
Plan (the "Restricted Stock"), to be allocated as provided
below, provided that such shares are available for grant
under the 1998 Stock Incentive Plan. The Company shall cause
Employee to be granted (i) 100,000 shares of the Restricted
Stock in December of 2004 (or as many of such shares as are
available to grant under the 1998 Stock Incentive Plan at
such time), (ii) 100,000 shares of the Restricted stock in
January of 2005 and (iii) any deficiency in the number of
shares required to bring the total grant to 300,000 shares
of the Restricted Stock (or as many of such shares as are
available to grant under the 1998 Stock Incentive Plan) on
the earlier to occur of (1) the date following the next
meeting of the shareholders of the Company after the
Effective Date at which the shareholders approve an
amendment to the 1998 Stock Incentive Plan increasing the
annual grant limit under such plan or (2) January of 2006,
with any deficiency to be made up as soon as possible
pursuant to the terms of the 1998 Stock Incentive Plan. The
Employer shall take all action necessary to ensure that the
grant of Restricted Stock contemplated by clause (iii) above
is permitted under the 1998 Stock Incentive Plan on the date
immediately following the date of the next meeting of the
shareholders of the Company after the Effective Date,
subject to the approval of such shareholders. The Restricted
Stock shall be subject to such terms and conditions as are
set forth in this Agreement and the other terms and
conditions of the 1998 Stock Incentive Plan. Until it shall
become vested in accordance with the provisions of this
Agreement, the Restricted Stock shall be forfeitable and
non-transferable. The Restricted Stock shall vest as
follows: 60,000 shares of the Restricted Stock that are not
yet vested shall vest on December 31, 2005; 60,000 shares of
the Restricted Stock that are not yet vested shall vest on
December 31, 2006; 60,000 shares of the Restricted Stock
that are not yet vested shall vest on December 31, 2007;
60,000 shares of the Restricted Stock that are not yet
vested shall vest on December 31, 2008; 60,000 shares of the
Restricted Stock that are not yet vested shall vest on
December 31, 2009, in each case subject to the continued
employment of Employee on such date. Notwithstanding
anything contained to the contrary herein, if Employee's
employment is terminated by Employer for reasons other than
"Cause" (as defined in Section 5 below) or Employee
terminates his employment under this Agreement under the
circumstances described in Section 5(g) or Employee
terminates his employment under this Agreement within the
six-month period immediately following a "Change in Control"
(as defined below), by providing written notice of such
termination to the Employer, all Restricted Stock previously
granted to Employee shall immediately vest. Notwithstanding
anything contained to the contrary herein, in the event that
any portion of the Restricted Stock has not been granted to
Employee at the time that Employee's employment is
terminated by Employer for reasons other than Cause or
Employee terminates his employment under this Agreement
under the circumstances described in Section 5(g) or
Employee terminates his employment under this Agreement
within the six-month period immediately following a Change
in Control, Employee shall retain the right hereunder to
receive an economically equivalent arrangement, such
arrangement to be reasonably agreed upon between Employer
and Employee. Employee shall be entitled to vote all shares
granted to him pursuant to this Restricted Stock Grant,
irrespective of whether they are vested or not.
Notwithstanding anything contained to the contrary herein,
any options granted to Employee pursuant to any agreement
between the Employer and Employee shall immediately vest if
Employee terminates his employment under this Agreement
within the six-month period immediately following a "Change
in Control" (as defined below), by providing written notice
of such termination to the Employer.
(e) Automobile. Employer shall lease Employee an automobile of
his choice and Employer shall pay all applicable taxes,
insurance, fees and expenses associated therewith. Employee
shall be entitled to a new leased automobile every two (2)
years.
5. Termination.
(a) Employee's employment hereunder may be terminated by
Employer or by Employee at any time, or by the death of
Employee. Such termination shall automatically terminate all
of the Employer's obligations not theretofore accrued under
this Agreement other than as specifically set forth in this
Agreement or in any employee benefit plan, program or
arrangement in which Employee participates. If the Employer
terminates Employee's employment under this Agreement (as
hereafter amended or extended) without "Cause," as defined
below, or if employment is terminated due to Employee's
death or disability, incentive compensation under the
Management Incentive Plan for any year shall be deemed to
have accrued as of the date of termination if and to the
extent that incentive compensation under the Management
Incentive Plan would have been payable to Employee if he had
been employed on the last day of such fiscal year and shall
be (i) pro rated based on the number of days that Employee
was employed during the fiscal year and (ii) payable in the
following fiscal year, on the earlier of April 1 or at the
same time as incentive compensation under the Management
Incentive Plan for such year is paid to those employees who
are still employed by the Employer.
(b) Notwithstanding anything to the contrary contained in this
Agreement, in the event that (i) the Employer terminates
Employee's employment under this Agreement (as hereafter
amended or extended) without "Cause," as defined below, (for
this purpose, not including termination due to Employee's
death or disability) or (ii) Employee terminates his
employment under this Agreement within the six-month period
immediately following a "Change in Control" (as defined
below), by providing written notice of such termination to
the Employer, Employee shall be entitled to an amount equal
to three (3) times the sum of (A) Employee's annual base
salary for the full calendar year immediately prior to the
date of the termination and (B) the greater of (x) the
amount of Employee's incentive compensation under the
Management Incentive Plan with respect to the full calendar
year immediately prior to the date of the termination and
(y) the average of Employee's incentive compensation under
the Management Incentive Plan for each of the three calendar
years immediately prior to the date of the termination,
payable in one lump sum within thirty (30) days of the date
of termination.
(c) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Employee's employment with
Employer terminates for any reason other than a termination
for Cause, then, in any such event Employee shall be
entitled to continued participation by Employee and any
dependents who were participating immediately prior to
Employee's termination of employment, in all health and
medical plans and programs which the Employer maintains,
from time to time, for its senior executives and their
families, under the same terms and conditions, including
payment of any required employee contributions therefor, as
may generally apply (including any limitation or termination
of coverage of non-spouse dependents after a stated age),
until the later of the death of Employee or Employee's
surviving spouse to whom he was married at the time of
termination of employment, provided that such participation
in the Employer plans and programs is permitted under the
provisions of such Employer plans and programs, and
provided, further, that at such time as Employee, or any
covered dependent of Employee, becomes eligible for health
or medical benefits under Title XVIII of the Social Security
Act (Medicare) or any governmental program in replacement
thereof, such health or medical benefits shall automatically
become the primary coverage for such person(s) and the
coverage provided hereunder shall be secondary to such other
coverage, to the maximum extent permitted under applicable
law. If, while eligible for benefits under this Subsection
5(c), Employee becomes employed by any person and becomes
eligible for health and medical benefits under such
employer's health plan, the Employer shall be relieved,
during the period of such employment and to the extent of
the benefits for which Employee and his dependents are
eligible under such employer's plan, of the obligation to
provide the health and medical benefits described in this
Subsection 5(c). In the event that participation in any such
Employer plan or program is barred or otherwise not
permitted, the Employer shall provide substantially similar
health and medical benefits to Employee and any eligible
dependents, in which case the Employer may self-fund such
benefits or may purchase individual policies or plans to
provide such benefits, in its sole discretion.
(d) For purposes of this Section 5, the term "Cause" shall mean
gross negligence, willful misconduct, breach of fiduciary
duty involving personal profit, substance abuse, or
commission of a felony.
(e) For purposes of this Agreement, the term "Change in Control"
shall mean an increase, on or after the date of this
Agreement, in ownership to twenty percent (20%) or more of
the outstanding voting securities of the Company held by any
person or group of persons who are acting together for the
purpose of acquiring, holding, voting or disposing of such
voting securities; provided, however, that an increase in
ownership to twenty (20%) or more of the outstanding voting
securities of the Company held by Employee or group of
persons which includes Employee who are acting together for
the purpose of acquiring, holding, voting or disposing of
such voting securities shall not constitute a Change in
Control.
Example 1: On April 16, 2004 individual A owns 2.42% of the
total outstanding voting securities of Company. Thereafter,
individual A commences a series of open market and private
purchases, and on January 10, 2005 for the first time his
holdings exceed 20% of the outstanding voting securities of
the Company. A Change of Control occurs on January 10, 2005.
Example 2: On a date subsequent to this Agreement individual
B, who owned no voting securities of Company prior to the
date of this Agreement, commences a series of open market
and private purchases, and on January 11, 2005 for the first
time his holdings exceed 20% of the outstanding voting
securities of the Company. A Change of Control occurs on
January 11, 2005.
(f) Parachute Payments
(i) To the extent that any amount payable to Employee
(hereunder or otherwise) alone or together with
other compensation constitutes a "parachute
payment" within the meaning of section 280G(b)(2)
of the Internal Revenue Code of 1986, as amended,
(the "Code") that would result in some or all of
the compensation owed being characterized as
"excess parachute payments" (as defined by section
280G(b)(1) of the Code), and would, therefore, be
subject to an excise tax under section 4999 of the
Code (the "Excise Tax"), the Employer shall pay to
Employee, at the time specified below, that
additional amount (the "Gross-Up Payment")
necessary to reimburse Employee for the amount of
any (i) Excise Tax, (ii) federal, state and local
income and employment taxes (including additional
Excise Tax) payable with respect to the Gross-Up
Payment, and (iii) interest, penalties or additions
to tax payable by Employee with respect to the
Excise Tax or the Gross-Up Payment. For purposes of
determining the amount of the Gross-Up Payment,
Employee shall be deemed to pay federal income
taxes at the highest marginal rates of taxation
applicable to individuals as are in effect in the
calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the
highest marginal rates of taxation applicable to
individuals as are in effect in the state and
locality of Employee's residence, and/or any other
state or locality that may be applicable, in the
calendar year in which the Gross-Up Payment is to
be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of
such state and local taxes, taking into account any
limitations applicable to individuals subject to
federal income tax at the highest marginal rates.
(ii) The Gross-Up Payments provided for in Section
5(f)(i) above shall be made upon the earlier of (i)
the payment to Employee of compensation in the
nature of a parachute payment or (ii) the
imposition upon Employee or payment by Employee of
any Excise Tax.
(iii) If it is established pursuant to a final
determination of a court or an Internal Revenue
Service proceeding that the Excise Tax is less than
the amount taken into account under Section 5(f)(i)
above, Employee shall repay to the Employer within
thirty (30) days of Employee's receipt of notice of
such final determination the portion of the
Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state
and local income and employment taxes imposed on
the Gross-Up Payment being repaid by Employee, if
such repayment results in a reduction in Excise Tax
or a federal, state and local income tax
deduction). If it is established pursuant to a
final determination of a court or an Internal
Revenue Service proceeding that the Excise Tax
exceeds the amount taken into account under Section
5(f)(i) above (including by reason of any payment
the existence or amount of which cannot be
determined at the time of the Gross-Up Payment),
the Employer shall make any additional Gross-Up
Payment in respect of such excess within thirty
(30) days of the Employer's receipt of notice of
such final determination.
(iv) Notwithstanding anything contained herein or in the
Management Incentive Plan to the contrary, the
amount of any payments made pursuant to this
Section 5(f) shall be excluded from the calculation
of EBITDA under the Management Incentive Plan for
purposes of determining bonuses thereunder.
(g) If the duties assigned by Employer to Employee are
materially diminished, or become inconsistent with those
assigned to a Chairman of the Board, Chief Executive Officer
and President of a similarly situated company, or if
Employee's title is changed and such change in duties or
title is not cured by the Employer within ten (10) days
following receipt by the Board of written notice from the
Employee, such change in duties or title shall be deemed a
termination by Employer of Employee's employment without
Cause, pursuant to the terms of this Agreement, and Employee
shall be entitled to resign his employment hereunder and to
thereafter receive all rights, benefits and payments set
forth in Sections 5(a), (b) and (c) as well as the
accelerated vesting of the Restricted Stock set forth in
Section 4(d).
6. Retirement. Employee shall be eligible to participate in the
tax-qualified retirement plans maintained from time to time by
Employer for the benefit of its employees, including executives and
key management employees (the "Qualified Plans"). In addition,
subject to the provisions hereof, Employer shall provide Employee
with a supplemental retirement benefit as described below. Exhibit B
hereto illustrates the monthly supplemental retirement benefit that
would become payable to Employee in accordance with the provisions of
Sections 6(a), (b) and (c) below based on the retirement of Employee
on or after the attainment of age 55.
(a) Retirement Benefits. Upon Employee's retirement on or after
the date on which he attains the age of 55 (the "Early
Retirement Date"), but in no event prior thereto, Employee
shall be fully vested in a monthly retirement benefit equal
to one-twelfth of 50% of Employee's then current base
salary, payable for the remainder of his life. Such benefit
shall hereinafter be referred to as the "Age 55 Retirement
Benefit". Upon Employee's retirement on or after the date on
which he attains the age of 60 (the "Normal Retirement
Date"), Employee shall be fully vested in a monthly
retirement benefit equal to one-twelfth of 62.5% of
Employee's then current base salary, in lieu of the Age 55
Retirement Benefit, payable for the remainder of his life.
Such benefit shall hereinafter be referred to as the "Age 60
Retirement Benefit". Upon Employee's retirement on or after
the date on which he attains the age of 65 (the "Deferred
Retirement Date"), Employee shall be fully vested in a
monthly retirement benefit equal to one-twelfth of 75% of
Employee's then current base salary, in lieu of the Age 60
Retirement Benefit, payable for the remainder of his life.
Such benefit shall hereinafter be referred to as the "Age 65
Retirement Benefit".
(b) Retirement After the Early Retirement Date But Prior to the
Normal Retirement Date. Notwithstanding the foregoing, in
the event that Employee retires from employment after the
Early Retirement Date but prior to the Normal Retirement
Date, in addition to the Age 55 Retirement Benefit, Employee
shall become vested in an additional amount equal to the
difference between the Age 55 Retirement Benefit and the Age
60 Retirement Benefit multiplied by a fraction, the
denominator of which is the number of full months between
the date on which Employee would attain the age of 55 and
the date on which Employee would attain the age of 60, and
the numerator of which is the number of full months worked
by Employee on and after the date Employee attains age 55
through the date of termination.
(c) Retirement After the Normal Retirement Date But Prior to the
Deferred Retirement Date. Notwithstanding the foregoing, in
the event that Employee retires from employment after the
Normal Retirement Date but prior to the Deferred Retirement
Date, in addition to the Age 60 Retirement Benefit, Employee
shall become vested in an additional amount equal to the
difference between the Age 60 Retirement Benefit and the Age
65 Retirement Benefit multiplied by a fraction, the
denominator of which is the number of full months between
the date on which Employee would attain the age of 60 and
the date on which Employee would attain the age of 65, and
the numerator of which is the number of full months worked
by Employee on and after the date Employee attains age 60
through the date of termination.
(d) Time of Payment of Retirement Benefit; Offset for Certain
Qualified Plan Benefits. The amount of the supplemental
retirement benefit payable under this Section 6 shall be
offset by the amount of any accrued benefits or vested
account balance Employee may have under the Qualified Plans,
other than any portion thereof attributable to Employee's
elective deferrals (e.g., 401(k) contributions by Employee).
Upon Employee's retirement on or after the Early Retirement
Date, subject to the provisions of Section 6(g), Employer
shall commence payment of the monthly supplemental
retirement benefit, as applicable, as of the end of the
month in which such retirement occurs, and shall make each
monthly payment at the end of each month thereafter.
Notwithstanding the foregoing, in no event shall benefits be
payable hereunder while Employee is an active participant in
the Qualified Plans.
(e) Effect of Certain Terminations. Exhibit C hereto illustrates
the monthly supplemental retirement benefit that would
become payable to Employee in accordance with the provisions
of this Section 6(e) in the event that Employee's employment
with Employer terminates under any of the following
circumstances: (1) by reason of his death or disability; (2)
Employee's employment is terminated by Employer without
Cause; (3) Employee terminates employment under the
circumstances described in Section 5(g) hereof; or (4)
Employee terminates his employment under this Agreement
within the six-month period immediately following a Change
in Control by providing written notice of such termination
to Employer (any such event shall hereinafter be referred to
as a "Qualifying Termination").
(i) If, prior to the Early Retirement Date, Employee's
employment with Employer terminates due to a
Qualifying Termination, Employee shall become
vested in a pro rata portion of the Age 55
Retirement Benefit, calculated by multiplying the
Age 55 Retirement Benefit by a fraction, the
denominator of which is the number of full months
from the Effective Date until the date on which
Employee would attain the age of 55 and the
numerator of which is the number of full months
worked on and after the Effective Date through the
date of termination. Except as provided by
subparagraph (vi) below, the payment of such pro
rata portion of the Age 55 Retirement Benefit shall
commence as of the end of the month in which
Employee's Early Retirement Date occurs (or would
have occurred, in the case of Employee's death).
(ii) If, after the Early Retirement Date but prior to
the Normal Retirement Date, Employee's employment
with Employer terminates due to a Qualifying
Termination, Employee shall become vested in an
additional amount equal to the difference between
the Age 55 Retirement Benefit and the Age 60
Retirement Benefit multiplied by a fraction, the
denominator of which is the number of full months
between the date on which Employee would attain the
age of 55 and the date on which Employee would
attain the age of 60, and the numerator of which is
the number of full months worked by Employee on and
after the date Employee attains age 55 through the
date of termination. Except as provided by
subparagraph (vi) below and subject to Section
6(g), the payment of the supplemental retirement
benefit calculated pursuant to this Section
6(e)(ii) shall commence as of the end of the month
following the month in which the Qualifying
Termination occurs.
(iii) If, after the Normal Retirement Date but prior to
the Deferred Retirement Date, Employee's employment
with Employer terminates due to a Qualifying
Termination, Employee shall become vested in an
additional amount equal to the difference between
the Age 60 Retirement Benefit and the Age 65
Retirement Benefit multiplied by a fraction, the
denominator of which is the number of full months
between the date on which Employee would attain the
age of 60 and the date on which Employee would
attain the age of 65, and the numerator of which is
the number of full months worked by Employee on and
after the date Employee attains age 60 through the
date of termination. Except as provided by
subparagraph (vi) below and subject to Section
6(g), the payment of the supplemental retirement
benefit calculated pursuant to this Section
6(e)(iii) shall commence as of the end of the month
following the month in which the Qualifying
Termination occurs.
(iv) If, after the Deferred Retirement Date, Employee's
employment with Employer terminates due to a
Qualifying Termination, Employee shall become
vested in the Age 65 Retirement Benefit and no
additional supplemental retirement benefits shall
accrue hereunder. Except as provided by
subparagraph (vi) below and subject to Section
6(g), the payment of the Age 65 Retirement Benefit
shall commence as of the end of the month following
the month in which the Qualifying Termination
occurs.
(v) If at any time Employee's employment hereunder is
terminated for Cause, Employee shall not be
entitled to any supplemental retirement benefit
under this Section 6, and any vested amount of the
Age 55 Retirement Benefit, the Age 60 Retirement
Benefit and the Age 65 Retirement Benefit, as the
case may be, shall be forfeited by Employee.
(vi) In the event of Employee's death, either prior to
or after the commencement of payments pursuant to
this Section 6 (but prior to Employee attaining the
age of 75 years), the applicable supplemental
retirement benefits shall be paid (or shall
continue to be paid, if already in pay status) to
such beneficiary as Employee shall designate in
writing (or in the absence of such designation, to
his estate). Employee's designated beneficiary
shall be permitted to elect in writing to receive
either (1) a lump sum cash payment equal to the
present value of Employee's supplemental retirement
benefit determined under subparagraphs (a), (b) or
(c) or (e)(i), (ii), (iii) or (iv) above, as
applicable, as reasonably determined by the
Employer, payable on the first day of the month
following Employee's death, or (2) the monthly
supplemental retirement benefit determined under
subparagraphs (a), (b) or (c) or (e)(i), (ii),
(iii) or (iv) above, as applicable, (or the
continuation of the monthly supplemental retirement
benefit, as the case may be) commencing on the
first day of the month following Employee's death,
but in no event earlier than the end of the month
in which Employee's Early Retirement Date would
have occurred if Employee had lived, and continuing
until the date on which Employee would have
attained the age of 75.
(f) Title to and beneficial ownership of any assets, whether
cash or investments which Employer may set aside or earmark
to meet its obligations hereunder, shall at all times remain
with Employer and neither Employee nor any beneficiary shall
under any circumstances acquire any property interest in any
specific assets of Employer. Nothing contained in this
Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between Employer and
Employee or any other person. To the extent that Employee is
entitled to receive payments from Employer hereunder, such
right shall be no greater than that of an unsecured general
creditor of Employer.
(g) This Section 6 is intended to comply with the provisions of
Section 409A of the Code and shall be construed in
accordance therewith. Notwithstanding anything to the
contrary contained herein, if Employee is a Specified
Employee (as defined in Section 409A of the Code) at the
time he would otherwise be entitled to receive any payment
hereunder, no distributions shall be made hereunder until
the earliest date permitted by Section 409A(a)(2) of the
Code.
7. Payment. Payment of all compensation and benefits to Employee
hereunder shall be made in accordance with the relevant policies of
the Employer in effect from time to time and shall be subject to all
applicable employment and withholding taxes.
8. Successors. This Agreement shall be binding upon, and inure to the
benefit of and be enforceable by, Employer and its successors and
assigns. This Agreement shall inure to the benefit of Employee's
heirs, legatees, legal representatives and assigns, but neither this
Agreement nor any right or interest hereunder shall be assignable by
Employee without Employer's prior written consent.
9. Notices. All notices, requests, demands and other communications made
or given in connection with this Agreement shall be in writing and
shall be deemed to have been duly given (a) if delivered, at the time
delivered or (b) if mailed, at the time mailed at any general or
branch United States Post Office enclosed in a certified post-paid
envelope addressed to the address of the respective parties as
follows:
To the Company: 1400 Toastmaster Drive
Elgin, Illinois 60120
Attention: Chief Financial Officer
To MMI: 1400 Toastmaster Drive
Elgin, Illinois 60120
Attention: Chief Financial Officer
With a copy to (which shall not constitute notice to
Employer):
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
Attn: Blaine (Fin) V. Fogg, Esq.
To Employee: Selim A. Bassoul
6 Hubbell Court
Barrington, Illinois 60010
With a copy to (which shall not constitute notice
to Employee):
Jason M. Cain, Esq.
Barnes & Thornburg LLP
1 N. Wacker Drive, Suite 4400
Chicago, Illinois 60606
or to such other address as the party to whom notice is to be given
may have previously furnished to the other party in writing in the
manner set forth above, provided that notices of changes of address
shall only be effective upon receipt.
10. Modifications and Waivers. This Agreement may be modified or amended
only by a written instrument executed by Employer and Employee. No
term or condition of this Agreement shall be deemed to have been
waived nor shall there be any estoppel to enforce any provision of
this Agreement except by written instrument of the party charged with
such waiver or estoppel.
11. Entire Agreement. This Agreement supersedes all prior agreements
between the parties hereto relating to the subject matter hereof,
including but not limited to the Prior Agreement and constitutes the
entire agreement of the parties hereto relating to the subject matter
hereof. However, nothing in this Agreement is intended or shall be
interpreted to reduce the rate or eliminate any portion of Employee's
compensation or benefits in effect immediately prior to the date
hereof.
12. Law Governing. The validity, interpretation, construction,
performance and enforcement of this Agreement shall be governed by
the laws of the State of Illinois without regard to principles of
conflicts of laws.
13. Invalidity. The invalidity or unenforceability of any term or terms
of this agreement shall not invalidate, make unenforceable or
otherwise affect any other term of this Agreement which shall remain
in full force and effect.
14. Headings. The headings contained herein are for reference only and
shall not affect the meaning or interpretation of this Agreement.
15. Joint and Several. The liability hereunder of the Company and MMI
shall be joint and several.
16. Other Agreements. Employer agrees to modify any and all agreements,
plans and contracts as may be necessary to effectuate the terms of
this Agreement; provided, however, that to the extent shareholder
approval is required by applicable law or regulation to effectuate
any such modification, such modification shall be subject to
shareholder approval.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year set forth above.
EMPLOYEE THE MIDDLEBY CORPORATION
/s/ Selim A. Bassoul By /s/ Robert L. Yohe
- ------------------------ -----------------------------
Selim A. Bassoul Chairman of the Compensation
Committee
MIDDLEBY MARSHALL INC.
By /s/ Robert L. Yohe
-----------------------------
Chairman of the Compensation
Committee
EXHIBIT A
EBITDA Goals
The following are the EBITDA goals to be used for purpose of determining
incentive compensation under the Management Incentive Plan as set forth in the
Agreement to which this Exhibit is attached:
- -------------- ------------- ------------ ------------- ------------- ------------ ------------- ------------
Year 2005 2006 2007 2008 2009 2010 2011
- -------------- ------------- ------------ ------------- ------------- ------------ ------------- ------------
EBITDA Goal* 48,985,685 54,863,967 61,447,643 68,821,360 77,079,923 86,329,515 96,689,057
- -------------- ------------- ------------ ------------- ------------- ------------ ------------- ------------
*Notes Regarding EBITDA Goals
Calculation of EBITDA. EBITDA shall be determined in the discretion of the
Committee administering the MICP in accordance with Generally Accepted
Accounting Principles. However, EBITDA shall exclude foreign exchange
gains/losses and non-cash equity compensation and shall take into account any
and all bonuses and incentive compensation payable to Company employees,
including incentive compensation payable to employees participating under the
MICP for the applicable year. The Committee administering the MICP shall have
the authority to make appropriate adjustments to EBITDA goals to reflect the
impact of extraordinary items not reflected in such goals. For purposes of the
MICP, extraordinary items shall include (1) any profit or loss attributable to
acquisitions or dispositions of stock or assets, (2) any changes in accounting
standards or treatments that may be required or permitted by the Financial
Accounting Standards Board or adopted by the Company or its subsidiaries after
the goal is established, (3) all items of gain, loss or expense for the year
related to restructuring charges for the Company or its subsidiaries, (4) all
items of gain, loss or expense for the year determined to be extraordinary or
unusual in nature or infrequent in occurrence or related to the disposal of a
segment of a business (including but not limited to any costs allocated to the
Company by any entity that acquires the Company), (5) all items of gain, loss
or expense for the year related to discontinued operations that do not qualify
as a segment of a business as defined in APB Opinion No. 30 (or successor
literature), (6) the impact of capital expenditures, (7) the impact of share
repurchases and other changes in the number of outstanding shares, (8) fees
and expenses associated with a business transaction such as investment banking
fees and/or legal, accounting or tax planning fees, and (9) such other items
as may be pre-scribed by Section 162(m) of the Code and the treasury
regulations thereunder as may be in effect from time to time, and any
amendments, revisions or successor provisions and any changes thereto.
If actual EBITDA for any particular full year exceeds the goal for that year
to the extent that it also exceeds the goal for the next following year, the
EBITDA goal for such next following year shall be automatically increased to
equal the actual EBITDA for such prior year. EBITDA goals for subsequent years
do not automatically change. For example, if the actual EBITDA for 2005 is
$60,000,000, then the EBITDA Goal for 2006 will automatically increase to
$60,000,000; however, the EBITDA goals for 2007 through 2011 shall not
automatically adjust at that time.
EXHIBIT B
Illustration of Supplemental Retirement Benefit By Month
Based on Retirement on or After Age 55
- -------------------------------------------------------------------------------------------------------------
Payout Per Month Aggregate Annual
Age on as Percentage Payout as Percentage
Retirement Date (1) February 3 (2) of Base Salary (3) of Base Salary
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
February 3, 2012 55 4.167% 50.000%
- -------------------------------------------------------------------------------------------------------------
February-12 4.167% 50.000%
- -------------------------------------------------------------------------------------------------------------
March-12 4.184% 50.212%
- -------------------------------------------------------------------------------------------------------------
April-12 4.202% 50.424%
- -------------------------------------------------------------------------------------------------------------
May-12 4.220% 50.636%
- -------------------------------------------------------------------------------------------------------------
June-12 4.237% 50.847%
- -------------------------------------------------------------------------------------------------------------
July-12 4.255% 51.059%
- -------------------------------------------------------------------------------------------------------------
August-12 4.273% 51.271%
- -------------------------------------------------------------------------------------------------------------
September-12 4.290% 51.483%
- -------------------------------------------------------------------------------------------------------------
October-12 4.308% 51.695%
- -------------------------------------------------------------------------------------------------------------
November-12 4.326% 51.907%
- -------------------------------------------------------------------------------------------------------------
December-12 4.343% 52.119%
- -------------------------------------------------------------------------------------------------------------
January-13 4.361% 52.331%
- -------------------------------------------------------------------------------------------------------------
February-13 56 4.379% 52.542%
- -------------------------------------------------------------------------------------------------------------
March-13 4.396% 52.754%
- -------------------------------------------------------------------------------------------------------------
April-13 4.414% 52.966%
- -------------------------------------------------------------------------------------------------------------
May-13 4.431% 53.178%
- -------------------------------------------------------------------------------------------------------------
June-13 4.449% 53.390%
- -------------------------------------------------------------------------------------------------------------
July-13 4.467% 53.602%
- -------------------------------------------------------------------------------------------------------------
August-13 4.484% 53.814%
- -------------------------------------------------------------------------------------------------------------
September-13 4.502% 54.025%
- -------------------------------------------------------------------------------------------------------------
October-13 4.520% 54.237%
- -------------------------------------------------------------------------------------------------------------
November-13 4.537% 54.449%
- -------------------------------------------------------------------------------------------------------------
December-13 4.555% 54.661%
- -------------------------------------------------------------------------------------------------------------
January-14 4.573% 54.873%
- -------------------------------------------------------------------------------------------------------------
February-14 57 4.590% 55.085%
- -------------------------------------------------------------------------------------------------------------
March-14 4.608% 55.297%
- -------------------------------------------------------------------------------------------------------------
April-14 4.626% 55.508%
- -------------------------------------------------------------------------------------------------------------
May-14 4.643% 55.720%
- -------------------------------------------------------------------------------------------------------------
June-14 4.661% 55.932%
- -------------------------------------------------------------------------------------------------------------
July-14 4.679% 56.144%
- -------------------------------------------------------------------------------------------------------------
August-14 4.696% 56.356%
- -------------------------------------------------------------------------------------------------------------
September-14 4.714% 56.568%
- -------------------------------------------------------------------------------------------------------------
October-14 4.732% 56.780%
- -------------------------------------------------------------------------------------------------------------
November-14 4.749% 56.992%
- -------------------------------------------------------------------------------------------------------------
December-14 4.767% 57.203%
- -------------------------------------------------------------------------------------------------------------
January-15 4.785% 57.415%
- -------------------------------------------------------------------------------------------------------------
February-15 58 4.802% 57.627%
- -------------------------------------------------------------------------------------------------------------
March-15 4.820% 57.839%
- -------------------------------------------------------------------------------------------------------------
April-15 4.838% 58.051%
- -------------------------------------------------------------------------------------------------------------
May-15 4.855% 58.263%
- -------------------------------------------------------------------------------------------------------------
June-15 4.873% 58.475%
- -------------------------------------------------------------------------------------------------------------
July-15 4.891% 58.686%
- -------------------------------------------------------------------------------------------------------------
August-15 4.908% 58.898%
- -------------------------------------------------------------------------------------------------------------
September-15 4.926% 59.110%
- -------------------------------------------------------------------------------------------------------------
October-15 4.944% 59.322%
- -------------------------------------------------------------------------------------------------------------
November-15 4.961% 59.534%
- -------------------------------------------------------------------------------------------------------------
December-15 4.979% 59.746%
- -------------------------------------------------------------------------------------------------------------
January-16 4.996% 59.958%
- -------------------------------------------------------------------------------------------------------------
February-16 59 5.014% 60.169%
- -------------------------------------------------------------------------------------------------------------
March-16 5.032% 60.381%
- -------------------------------------------------------------------------------------------------------------
April-16 5.049% 60.593%
- -------------------------------------------------------------------------------------------------------------
May-16 5.067% 60.805%
- -------------------------------------------------------------------------------------------------------------
June-16 5.085% 61.017%
- -------------------------------------------------------------------------------------------------------------
July-16 5.102% 61.229%
- -------------------------------------------------------------------------------------------------------------
August-16 5.120% 61.441%
- -------------------------------------------------------------------------------------------------------------
September-16 5.138% 61.653%
- -------------------------------------------------------------------------------------------------------------
October-16 5.155% 61.864%
- -------------------------------------------------------------------------------------------------------------
November-16 5.173% 62.076%
- -------------------------------------------------------------------------------------------------------------
December-16 5.191% 62.288%
- -------------------------------------------------------------------------------------------------------------
January-17 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
February 3, 2017 60 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
February-17 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
March-17 5.226% 62.712%
- -------------------------------------------------------------------------------------------------------------
April-17 5.244% 62.924%
- -------------------------------------------------------------------------------------------------------------
May-17 5.261% 63.136%
- -------------------------------------------------------------------------------------------------------------
June-17 5.279% 63.347%
- -------------------------------------------------------------------------------------------------------------
July-17 5.297% 63.559%
- -------------------------------------------------------------------------------------------------------------
August-17 5.314% 63.771%
- -------------------------------------------------------------------------------------------------------------
September-17 5.332% 63.983%
- -------------------------------------------------------------------------------------------------------------
October-17 5.350% 64.195%
- -------------------------------------------------------------------------------------------------------------
November-17 5.367% 64.407%
- -------------------------------------------------------------------------------------------------------------
December-17 5.385% 64.619%
- -------------------------------------------------------------------------------------------------------------
January-18 5.403% 64.831%
- -------------------------------------------------------------------------------------------------------------
February-18 61 5.420% 65.042%
- -------------------------------------------------------------------------------------------------------------
March-18 5.438% 65.254%
- -------------------------------------------------------------------------------------------------------------
April-18 5.456% 65.466%
- -------------------------------------------------------------------------------------------------------------
May-18 5.473% 65.678%
- -------------------------------------------------------------------------------------------------------------
June-18 5.491% 65.890%
- -------------------------------------------------------------------------------------------------------------
July-18 5.508% 66.102%
- -------------------------------------------------------------------------------------------------------------
August-18 5.526% 66.314%
- -------------------------------------------------------------------------------------------------------------
September-18 5.544% 66.525%
- -------------------------------------------------------------------------------------------------------------
October-18 5.561% 66.737%
- -------------------------------------------------------------------------------------------------------------
November-18 5.579% 66.949%
- -------------------------------------------------------------------------------------------------------------
December-18 5.597% 67.161%
- -------------------------------------------------------------------------------------------------------------
January-19 5.614% 67.373%
- -------------------------------------------------------------------------------------------------------------
February-19 62 5.632% 67.585%
- -------------------------------------------------------------------------------------------------------------
March-19 5.650% 67.797%
- -------------------------------------------------------------------------------------------------------------
April-19 5.667% 68.008%
- -------------------------------------------------------------------------------------------------------------
May-19 5.685% 68.220%
- -------------------------------------------------------------------------------------------------------------
June-19 5.703% 68.432%
- -------------------------------------------------------------------------------------------------------------
July-19 5.720% 68.644%
- -------------------------------------------------------------------------------------------------------------
August-19 5.738% 68.856%
- -------------------------------------------------------------------------------------------------------------
September-19 5.756% 69.068%
- -------------------------------------------------------------------------------------------------------------
October-19 5.773% 69.280%
- -------------------------------------------------------------------------------------------------------------
November-19 5.791% 69.492%
- -------------------------------------------------------------------------------------------------------------
December-19 5.809% 69.703%
- -------------------------------------------------------------------------------------------------------------
January-20 5.826% 69.915%
- -------------------------------------------------------------------------------------------------------------
February-20 63 5.844% 70.127%
- -------------------------------------------------------------------------------------------------------------
March-20 5.862% 70.339%
- -------------------------------------------------------------------------------------------------------------
April-20 5.879% 70.551%
- -------------------------------------------------------------------------------------------------------------
May-20 5.897% 70.763%
- -------------------------------------------------------------------------------------------------------------
June-20 5.915% 70.975%
- -------------------------------------------------------------------------------------------------------------
July-20 5.932% 71.186%
- -------------------------------------------------------------------------------------------------------------
August-20 5.950% 71.398%
- -------------------------------------------------------------------------------------------------------------
September-20 5.968% 71.610%
- -------------------------------------------------------------------------------------------------------------
October-20 5.985% 71.822%
- -------------------------------------------------------------------------------------------------------------
November-20 6.003% 72.034%
- -------------------------------------------------------------------------------------------------------------
December-20 6.020% 72.246%
- -------------------------------------------------------------------------------------------------------------
January-21 6.038% 72.458%
- -------------------------------------------------------------------------------------------------------------
February-21 64 6.056% 72.669%
- -------------------------------------------------------------------------------------------------------------
March-21 6.073% 72.881%
- -------------------------------------------------------------------------------------------------------------
April-21 6.091% 73.093%
- -------------------------------------------------------------------------------------------------------------
May-21 6.109% 73.305%
- -------------------------------------------------------------------------------------------------------------
June-21 6.126% 73.517%
- -------------------------------------------------------------------------------------------------------------
July-21 6.144% 73.729%
- -------------------------------------------------------------------------------------------------------------
August-21 6.162% 73.941%
- -------------------------------------------------------------------------------------------------------------
September-21 6.179% 74.153%
- -------------------------------------------------------------------------------------------------------------
October-21 6.197% 74.364%
- -------------------------------------------------------------------------------------------------------------
November-21 6.215% 74.576%
- -------------------------------------------------------------------------------------------------------------
December-21 6.232% 74.788%
- -------------------------------------------------------------------------------------------------------------
January-22 6.250% 75.000%
- -------------------------------------------------------------------------------------------------------------
February 3, 2021 65 6.250% 75.000%
- -------------------------------------------------------------------------------------------------------------
(1) Assumes retirement on the last day of the month.
(2) Assumes 2/3/1957 date of birth.
(3) Assumes Agreement is entered into on or before 1/1/05.
EXHIBIT C
Illustration of Pro Rata Supplemental Retirement Benefit By Month
Based on Qualifying Termination
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
Qualifying Payout Per Month as Aggregate Annual Payout
Termination Age on Percentage of as Percentage of
Date(1) February 3 (2) Base Salary (3) Base Salary
- -------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
January-05 0.049% 0.588%
- -------------------------------------------------------------------------------------------------------------
February-05 48 0.098% 1.176%
- -------------------------------------------------------------------------------------------------------------
March-05 0.147% 1.765%
- -------------------------------------------------------------------------------------------------------------
April-05 0.196% 2.353%
- -------------------------------------------------------------------------------------------------------------
May-05 0.245% 2.941%
- -------------------------------------------------------------------------------------------------------------
June-05 0.294% 3.529%
- -------------------------------------------------------------------------------------------------------------
July-05 0.343% 4.118%
- -------------------------------------------------------------------------------------------------------------
August-05 0.392% 4.706%
- -------------------------------------------------------------------------------------------------------------
September-05 0.441% 5.294%
- -------------------------------------------------------------------------------------------------------------
October-05 0.490% 5.882%
- -------------------------------------------------------------------------------------------------------------
November-05 0.539% 6.471%
- -------------------------------------------------------------------------------------------------------------
December-05 0.588% 7.059%
- -------------------------------------------------------------------------------------------------------------
January-06 0.637% 7.647%
- -------------------------------------------------------------------------------------------------------------
February-06 49 0.686% 8.235%
- -------------------------------------------------------------------------------------------------------------
March-06 0.735% 8.824%
- -------------------------------------------------------------------------------------------------------------
April-06 0.784% 9.412%
- -------------------------------------------------------------------------------------------------------------
May-06 0.833% 10.000%
- -------------------------------------------------------------------------------------------------------------
June-06 0.882% 10.588%
- -------------------------------------------------------------------------------------------------------------
July-06 0.931% 11.176%
- -------------------------------------------------------------------------------------------------------------
August-06 0.980% 11.765%
- -------------------------------------------------------------------------------------------------------------
September-06 1.029% 12.353%
- -------------------------------------------------------------------------------------------------------------
October-06 1.078% 12.941%
- -------------------------------------------------------------------------------------------------------------
November-06 1.127% 13.529%
- -------------------------------------------------------------------------------------------------------------
December-06 1.176% 14.118%
- -------------------------------------------------------------------------------------------------------------
January-07 1.225% 14.706%
- -------------------------------------------------------------------------------------------------------------
February-07 50 1.275% 15.294%
- -------------------------------------------------------------------------------------------------------------
March-07 1.324% 15.882%
- -------------------------------------------------------------------------------------------------------------
April-07 1.373% 16.471%
- -------------------------------------------------------------------------------------------------------------
May-07 1.422% 17.059%
- -------------------------------------------------------------------------------------------------------------
June-07 1.471% 17.647%
- -------------------------------------------------------------------------------------------------------------
July-07 1.520% 18.235%
- -------------------------------------------------------------------------------------------------------------
August-07 1.569% 18.824%
- -------------------------------------------------------------------------------------------------------------
September-07 1.618% 19.412%
- -------------------------------------------------------------------------------------------------------------
October-07 1.667% 20.000%
- -------------------------------------------------------------------------------------------------------------
November-07 1.716% 20.588%
- -------------------------------------------------------------------------------------------------------------
December-07 1.765% 21.176%
- -------------------------------------------------------------------------------------------------------------
January-08 1.814% 21.765%
- -------------------------------------------------------------------------------------------------------------
February-08 51 1.863% 22.353%
- -------------------------------------------------------------------------------------------------------------
March-08 1.912% 22.941%
- -------------------------------------------------------------------------------------------------------------
April-08 1.961% 23.529%
- -------------------------------------------------------------------------------------------------------------
May-08 2.010% 24.118%
- -------------------------------------------------------------------------------------------------------------
June-08 2.059% 24.706%
- -------------------------------------------------------------------------------------------------------------
July-08 2.108% 25.294%
- -------------------------------------------------------------------------------------------------------------
August-08 2.157% 25.882%
- -------------------------------------------------------------------------------------------------------------
September-08 2.206% 26.471%
- -------------------------------------------------------------------------------------------------------------
October-08 2.255% 27.059%
- -------------------------------------------------------------------------------------------------------------
November-08 2.304% 27.647%
- -------------------------------------------------------------------------------------------------------------
December-08 2.353% 28.235%
- -------------------------------------------------------------------------------------------------------------
January-09 2.402% 28.824%
- -------------------------------------------------------------------------------------------------------------
February-09 52 2.451% 29.412%
- -------------------------------------------------------------------------------------------------------------
March-09 2.500% 30.000%
- -------------------------------------------------------------------------------------------------------------
April-09 2.549% 30.588%
- -------------------------------------------------------------------------------------------------------------
May-09 2.598% 31.176%
- -------------------------------------------------------------------------------------------------------------
June-09 2.647% 31.765%
- -------------------------------------------------------------------------------------------------------------
July-09 2.696% 32.353%
- -------------------------------------------------------------------------------------------------------------
August-09 2.745% 32.941%
- -------------------------------------------------------------------------------------------------------------
September-09 2.794% 33.529%
- -------------------------------------------------------------------------------------------------------------
October-09 2.843% 34.118%
- -------------------------------------------------------------------------------------------------------------
November-09 2.892% 34.706%
- -------------------------------------------------------------------------------------------------------------
December-09 2.941% 35.294%
- -------------------------------------------------------------------------------------------------------------
January-10 2.990% 35.882%
- -------------------------------------------------------------------------------------------------------------
February-10 53 3.039% 36.471%
- -------------------------------------------------------------------------------------------------------------
March-10 3.088% 37.059%
- -------------------------------------------------------------------------------------------------------------
April-10 3.137% 37.647%
- -------------------------------------------------------------------------------------------------------------
May-10 3.186% 38.235%
- -------------------------------------------------------------------------------------------------------------
June-10 3.235% 38.824%
- -------------------------------------------------------------------------------------------------------------
July-10 3.284% 39.412%
- -------------------------------------------------------------------------------------------------------------
August-10 3.333% 40.000%
- -------------------------------------------------------------------------------------------------------------
September-10 3.382% 40.588%
- -------------------------------------------------------------------------------------------------------------
October-10 3.431% 41.176%
- -------------------------------------------------------------------------------------------------------------
November-10 3.480% 41.765%
- -------------------------------------------------------------------------------------------------------------
December-10 3.529% 42.353%
- -------------------------------------------------------------------------------------------------------------
January-11 3.578% 42.941%
- -------------------------------------------------------------------------------------------------------------
February-11 54 3.627% 43.529%
- -------------------------------------------------------------------------------------------------------------
March-11 3.676% 44.118%
- -------------------------------------------------------------------------------------------------------------
April-11 3.725% 44.706%
- -------------------------------------------------------------------------------------------------------------
May-11 3.775% 45.294%
- -------------------------------------------------------------------------------------------------------------
June-11 3.824% 45.882%
- -------------------------------------------------------------------------------------------------------------
July-11 3.873% 46.471%
- -------------------------------------------------------------------------------------------------------------
August-11 3.922% 47.059%
- -------------------------------------------------------------------------------------------------------------
September-11 3.971% 47.647%
- -------------------------------------------------------------------------------------------------------------
October-11 4.020% 48.235%
- -------------------------------------------------------------------------------------------------------------
November-11 4.069% 48.824%
- -------------------------------------------------------------------------------------------------------------
December-11 4.118% 49.412%
- -------------------------------------------------------------------------------------------------------------
January-12 4.167% 50.000%
- -------------------------------------------------------------------------------------------------------------
February 3, 2012 55 4.167% 50.000%
- -------------------------------------------------------------------------------------------------------------
February-12 4.167% 50.000%
- -------------------------------------------------------------------------------------------------------------
March-12 4.184% 50.212%
- -------------------------------------------------------------------------------------------------------------
April-12 4.202% 50.424%
- -------------------------------------------------------------------------------------------------------------
May-12 4.220% 50.636%
- -------------------------------------------------------------------------------------------------------------
June-12 4.237% 50.847%
- -------------------------------------------------------------------------------------------------------------
July-12 4.255% 51.059%
- -------------------------------------------------------------------------------------------------------------
August-12 4.273% 51.271%
- -------------------------------------------------------------------------------------------------------------
September-12 4.290% 51.483%
- -------------------------------------------------------------------------------------------------------------
October-12 4.308% 51.695%
- -------------------------------------------------------------------------------------------------------------
November-12 4.326% 51.907%
- -------------------------------------------------------------------------------------------------------------
December-12 4.343% 52.119%
- -------------------------------------------------------------------------------------------------------------
January-13 4.361% 52.331%
- -------------------------------------------------------------------------------------------------------------
February-13 56 4.379% 52.542%
- -------------------------------------------------------------------------------------------------------------
March-13 4.396% 52.754%
- -------------------------------------------------------------------------------------------------------------
April-13 4.414% 52.966%
- -------------------------------------------------------------------------------------------------------------
May-13 4.431% 53.178%
- -------------------------------------------------------------------------------------------------------------
June-13 4.449% 53.390%
- -------------------------------------------------------------------------------------------------------------
July-13 4.467% 53.602%
- -------------------------------------------------------------------------------------------------------------
August-13 4.484% 53.814%
- -------------------------------------------------------------------------------------------------------------
September-13 4.502% 54.025%
- -------------------------------------------------------------------------------------------------------------
October-13 4.520% 54.237%
- -------------------------------------------------------------------------------------------------------------
November-13 4.537% 54.449%
- -------------------------------------------------------------------------------------------------------------
December-13 4.555% 54.661%
- -------------------------------------------------------------------------------------------------------------
January-14 4.573% 54.873%
- -------------------------------------------------------------------------------------------------------------
February-14 57 4.590% 55.085%
- -------------------------------------------------------------------------------------------------------------
March-14 4.608% 55.297%
- -------------------------------------------------------------------------------------------------------------
April-14 4.626% 55.508%
- -------------------------------------------------------------------------------------------------------------
May-14 4.643% 55.720%
- -------------------------------------------------------------------------------------------------------------
June-14 4.661% 55.932%
- -------------------------------------------------------------------------------------------------------------
July-14 4.679% 56.144%
- -------------------------------------------------------------------------------------------------------------
August-14 4.696% 56.356%
- -------------------------------------------------------------------------------------------------------------
September-14 4.714% 56.568%
- -------------------------------------------------------------------------------------------------------------
October-14 4.732% 56.780%
- -------------------------------------------------------------------------------------------------------------
November-14 4.749% 56.992%
- -------------------------------------------------------------------------------------------------------------
December-14 4.767% 57.203%
- -------------------------------------------------------------------------------------------------------------
January-15 4.785% 57.415%
- -------------------------------------------------------------------------------------------------------------
February-15 58 4.802% 57.627%
- -------------------------------------------------------------------------------------------------------------
March-15 4.820% 57.839%
- -------------------------------------------------------------------------------------------------------------
April-15 4.838% 58.051%
- -------------------------------------------------------------------------------------------------------------
May-15 4.855% 58.263%
- -------------------------------------------------------------------------------------------------------------
June-15 4.873% 58.475%
- -------------------------------------------------------------------------------------------------------------
July-15 4.891% 58.686%
- -------------------------------------------------------------------------------------------------------------
August-15 4.908% 58.898%
- -------------------------------------------------------------------------------------------------------------
September-15 4.926% 59.110%
- -------------------------------------------------------------------------------------------------------------
October-15 4.944% 59.322%
- -------------------------------------------------------------------------------------------------------------
November-15 4.961% 59.534%
- -------------------------------------------------------------------------------------------------------------
December-15 4.979% 59.746%
- -------------------------------------------------------------------------------------------------------------
January-16 4.996% 59.958%
- -------------------------------------------------------------------------------------------------------------
February-16 59 5.014% 60.169%
- -------------------------------------------------------------------------------------------------------------
March-16 5.032% 60.381%
- -------------------------------------------------------------------------------------------------------------
April-16 5.049% 60.593%
- -------------------------------------------------------------------------------------------------------------
May-16 5.067% 60.805%
- -------------------------------------------------------------------------------------------------------------
June-16 5.085% 61.017%
- -------------------------------------------------------------------------------------------------------------
July-16 5.102% 61.229%
- -------------------------------------------------------------------------------------------------------------
August-16 5.120% 61.441%
- -------------------------------------------------------------------------------------------------------------
September-16 5.138% 61.653%
- -------------------------------------------------------------------------------------------------------------
October-16 5.155% 61.864%
- -------------------------------------------------------------------------------------------------------------
November-16 5.173% 62.076%
- -------------------------------------------------------------------------------------------------------------
December-16 5.191% 62.288%
- -------------------------------------------------------------------------------------------------------------
January-17 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
February 3, 2017 60 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
February-17 5.208% 62.500%
- -------------------------------------------------------------------------------------------------------------
March-17 5.226% 62.712%
- -------------------------------------------------------------------------------------------------------------
April-17 5.244% 62.924%
- -------------------------------------------------------------------------------------------------------------
May-17 5.261% 63.136%
- -------------------------------------------------------------------------------------------------------------
June-17 5.279% 63.347%
- -------------------------------------------------------------------------------------------------------------
July-17 5.297% 63.559%
- -------------------------------------------------------------------------------------------------------------
August-17 5.314% 63.771%
- -------------------------------------------------------------------------------------------------------------
September-17 5.332% 63.983%
- -------------------------------------------------------------------------------------------------------------
October-17 5.350% 64.195%
- -------------------------------------------------------------------------------------------------------------
November-17 5.367% 64.407%
- -------------------------------------------------------------------------------------------------------------
December-17 5.385% 64.619%
- -------------------------------------------------------------------------------------------------------------
January-18 5.403% 64.831%
- -------------------------------------------------------------------------------------------------------------
February-18 61 5.420% 65.042%
- -------------------------------------------------------------------------------------------------------------
March-18 5.438% 65.254%
- -------------------------------------------------------------------------------------------------------------
April-18 5.456% 65.466%
- -------------------------------------------------------------------------------------------------------------
May-18 5.473% 65.678%
- -------------------------------------------------------------------------------------------------------------
June-18 5.491% 65.890%
- -------------------------------------------------------------------------------------------------------------
July-18 5.508% 66.102%
- -------------------------------------------------------------------------------------------------------------
August-18 5.526% 66.314%
- -------------------------------------------------------------------------------------------------------------
September-18 5.544% 66.525%
- -------------------------------------------------------------------------------------------------------------
October-18 5.561% 66.737%
- -------------------------------------------------------------------------------------------------------------
November-18 5.579% 66.949%
- -------------------------------------------------------------------------------------------------------------
December-18 5.597% 67.161%
- -------------------------------------------------------------------------------------------------------------
January-19 5.614% 67.373%
- -------------------------------------------------------------------------------------------------------------
February-19 62 5.632% 67.585%
- -------------------------------------------------------------------------------------------------------------
March-19 5.650% 67.797%
- -------------------------------------------------------------------------------------------------------------
April-19 5.667% 68.008%
- -------------------------------------------------------------------------------------------------------------
May-19 5.685% 68.220%
- -------------------------------------------------------------------------------------------------------------
June-19 5.703% 68.432%
- -------------------------------------------------------------------------------------------------------------
July-19 5.720% 68.644%
- -------------------------------------------------------------------------------------------------------------
August-19 5.738% 68.856%
- -------------------------------------------------------------------------------------------------------------
September-19 5.756% 69.068%
- -------------------------------------------------------------------------------------------------------------
October-19 5.773% 69.280%
- -------------------------------------------------------------------------------------------------------------
November-19 5.791% 69.492%
- -------------------------------------------------------------------------------------------------------------
December-19 5.809% 69.703%
- -------------------------------------------------------------------------------------------------------------
January-20 5.826% 69.915%
- -------------------------------------------------------------------------------------------------------------
February-20 63 5.844% 70.127%
- -------------------------------------------------------------------------------------------------------------
March-20 5.862% 70.339%
- -------------------------------------------------------------------------------------------------------------
April-20 5.879% 70.551%
- -------------------------------------------------------------------------------------------------------------
May-20 5.897% 70.763%
- -------------------------------------------------------------------------------------------------------------
June-20 5.915% 70.975%
- -------------------------------------------------------------------------------------------------------------
July-20 5.932% 71.186%
- -------------------------------------------------------------------------------------------------------------
August-20 5.950% 71.398%
- -------------------------------------------------------------------------------------------------------------
September-20 5.968% 71.610%
- -------------------------------------------------------------------------------------------------------------
October-20 5.985% 71.822%
- -------------------------------------------------------------------------------------------------------------
November-20 6.003% 72.034%
- -------------------------------------------------------------------------------------------------------------
December-20 6.020% 72.246%
- -------------------------------------------------------------------------------------------------------------
January-21 6.038% 72.458%
- -------------------------------------------------------------------------------------------------------------
February-21 64 6.056% 72.669%
- -------------------------------------------------------------------------------------------------------------
March-21 6.073% 72.881%
- -------------------------------------------------------------------------------------------------------------
April-21 6.091% 73.093%
- -------------------------------------------------------------------------------------------------------------
May-21 6.109% 73.305%
- -------------------------------------------------------------------------------------------------------------
June-21 6.126% 73.517%
- -------------------------------------------------------------------------------------------------------------
July-21 6.144% 73.729%
- -------------------------------------------------------------------------------------------------------------
August-21 6.162% 73.941%
- -------------------------------------------------------------------------------------------------------------
September-21 6.179% 74.153%
- -------------------------------------------------------------------------------------------------------------
October-21 6.197% 74.364%
- -------------------------------------------------------------------------------------------------------------
November-21 6.215% 74.576%
- -------------------------------------------------------------------------------------------------------------
December-21 6.232% 74.788%
- -------------------------------------------------------------------------------------------------------------
January-22 6.250% 75.000%
- -------------------------------------------------------------------------------------------------------------
February 3, 2021 65 6.250% 75.000%
- -------------------------------------------------------------------------------------------------------------
(1) Assumes termination on the last day of each month.
(2) Assumes 2/3/1957 date of birth.
(3) Assumes Agreement is entered into on or before 1/1/05.
