Agreements and Commitments As of the date of this Agreement the Company is not a party or subject to any oral or written executory contract or, to the extent expressly enumerated in paragraphs below, commitment, that is material to the Company, its financial condition, business or prospects, including but not limited to the following:
(a) Any contract, commitment, letter agreement or purchase order providing for payments by or to the Company in an aggregate amount of (i) $10,000 or more in the Ordinary Course or (ii) $5,000 or more not in the Ordinary Course;
(b) Any license agreement under which the Company is licensor (except for any nonexclusive software license granted by the Company to customers in the Ordinary Course); or under which the Company is licensee (except for standard "shrink wrap" licenses for off-the-shelf software products with a license fee or purchase price of under $5,000 per copy or seat);
(c) Any material agreement by the Company to encumber, transfer or sell rights in or with respect to any material item of the Company Intellectual Property (as defined in Section 3.11 hereof), excluding non-exclusive software licenses;
(d) Any agreement for the sale or lease of real or tangible personal property involving more than $10,000 per year;
(e) Any dealer, distributor, sales representative, original equipment manufacturer, value-added remarketer or other agreement for the distribution of the Company's products;
(f) Any franchise agreement;
(g) Any stock redemption or agreement obligating the Company to purchase its capital stock;
(h) Any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person, excluding non-exclusive software licenses;
(i) Any instrument evidencing indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee or otherwise, except for trade indebtedness or any advance to any employee of the Company incurred or made in the Ordinary Course, and except as disclosed in the Company Financial Statements;
(j) Any contract containing covenants purporting to limit the Company's freedom to compete in any line of business, market or industry and/or in any geographic area; or
(k) Any contract for the employment of any officer, employee or consultant of the Company or any other type of contract or commitment with any officer, employee or consultant of the Company that is not immediately terminable by the Company without cost or other liability. All agreements, obligations and commitments disclosed in Item 3.10, Item 3.11, Item 3.14.3 or Item 3.14.6 as required by Section 3.10, Section 3.11, Section 3.14.3 or Section 3.14.6, as the case may be, are valid and in full force and effect, except where the failure to be such would not have a Material Adverse Effect on the Company. Neither the Company nor to Shareholder's knowledge any other party is in breach of or default under any material term of any such agreement, obligation or commitment nor has such other party threatened such a breach or default. The Company is not a party to any contract or arrangement that Shareholder believes will have a Material Adverse Effect on the Company. The Company does not have liability for renegotiation of government contracts or subcontracts that can reasonably be expected to have a Material Adverse Effect on the Company.
Commitments and Applicable Percentages 5.01 Loan Parties Organizational Information 5.08(b)(1) Owned Real Estate 5.08(b)(2) Leased Real Estate 5.10 Insurance 5.13 Subsidiaries; Other Equity Investments
Termination and Reduction of Revolving Commitments (a) Unless previously terminated, the Revolving Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Commitments; provided that (i) each partial reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.08, the sum of the Aggregate Total Exposure would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or another transaction, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be applied to the Lenders in accordance with their respective Applicable Percentages.
(d) If, after giving effect to any reduction of the Revolving Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Commitments, such Letter of Credit Sublimit shall be automatically reduced by the amount of such excess.
Objectives and Commitments 7.1 The Objectives of the Parties to this Agreement are:
(a) to promote fair, cooperative and productive workplace relations in the building and construction industry;
(b) to provide a detailed set of agreed employment benefits, conditions, rights and obligations;
(c) to explore the potential for innovation and new technologies;
(d) to consider any benefits of alternative hours of work;
(e) to support the establishment of consultative bodies to consider the impact of climate change on the working conditions in the industry;
(f) to establish practices that support opportunities for a diversified workforce;
(g) to support the implementation of highest possible levels of OHS practices, procedures and training;
(h) to ensure that fair and equitable employment practices are applied in the workplace;
(i) to improve efficiency in the workplace;
(j) to provide for the establishment and observance of an effective disputes settlement procedure that involves Employees and their representatives, when requested, at the earliest stage of any dispute or potential dispute.
7.2 The Parties to this Agreement commit themselves to ensuring that:
(a) The efficiency measures contained in this Agreement are implemented and lead to real gains in productivity.
(b) The principles of industry modernisation are realised during the life of this Agreement (in accordance with Part 11).
(c) Productivity gains will not be achieved at the expense of health and safety standards.
(d) The disputes settlement procedures provided herein are strictly adhered to.
(e) Employment should wherever possible be full time and on going.
Reallocation of Pro Rata Share; Amendments For purposes of determining Lenders’ obligations to fund or participate in Loans or Letters of Credit, Agent may exclude the Commitments and Loans of any Defaulting Lender(s) from the calculation of Pro Rata shares. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 14.1.1(c).
Assignment and Participations (a) Subject to the terms of this Section 9.1, any Lender may make an assignment to a Qualified Assignee of, or sell participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a Lender shall: (i) require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and, so long as no Event of Default has occurred and is then continuing, Borrower (which consent shall not be unreasonably withheld or delayed; provided, that any assignment to Black Diamond Capital Management or any of its Affiliates shall require the consent of Borrower so long as no Event of Default pursuant to Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then continuing), and the execution of an assignment agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to the assigning Lender and Agent that it is purchasing the applicable Loans to be assigned to it for its own account, for investment purposes and not with a view to the distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have Commitments in an amount at least equal to $5,000,000 and the assigning Lender shall have retained Commitments in an amount at least equal to $2,500,000; and (iv) include a payment to Agent of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 9.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all
(a) have been complied with. Agent hereby agrees to provide Borrower with commercially reasonable prior written notice of any assignment or sale contemplated by this Section 9.1(a), the consummation of which does not require consent of Borrower.
(b) Any participation by a Lender of all or any part of its Commitments shall be made with the understanding that all amounts payable by Borrower hereunder shall be determined as if that Lender had not sold such participation, and that the holder of any such participation shall not be entitled to require such Lender to take or omit to take any action hereunder except actions directly affecting (i) any reduction in the principal amount of, or interest rate or Fees payable with respect to, any Loan in which such holder participates, (ii) any extension of the scheduled amortization of the principal amount of any Loan in which such holder participates or the final maturity date thereof, and (iii) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement, the Collateral Documents or the other Loan Documents). Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall give rise to a direct obligation of Borrower to the participant and the participant shall be considered to be a "Lender". Except as set forth in the preceding sentence, neither Borrower nor any other Credit Party shall have any obligation or duty to any participant. Neither Agent nor any Lender (other than the Lender selling a participation) shall have any duty to any participant and may continue to deal solely with the Lender selling a participation as if no such sale had occurred.
Assignments and Participations (a) The provisions of the Loan Documents shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Credit Party (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in the Loan Documents, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of each Credit Party) any legal or equitable right, remedy or claim under or by reason of any Loan Document.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the Loan Documents (including all or a portion of its Commitment or obligations in respect of its LC Exposure and the applicable Loans at the time owing to it), provided that (i) except in the case of an assignment to a Lender or an Affiliate or an Approved Fund of a Lender, each of the Borrower, the Administrative Agent and the Issuing Bank must give its prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed)), (ii) except in the case of an assignment to a Lender or an Affiliate or an Approved Fund of a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless the Borrower and the Administrative Agent otherwise consent, (iii) no assignments to the Borrower or any of its Affiliates shall be permitted, (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement together with, unless otherwise agreed by the Administrative Agent, a processing and recordation fee of $3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire, and provided further, that any consent of the Borrower otherwise required under this paragraph shall not be required if a Default has occurred and is continuing. Subject to
Benefit of Agreement Assignments and Participations (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof.
(b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, to any bank or financial institution with net capital, capital surplus and undivided profits in excess of $500,000,000, provided as follows:
(i) No Lender shall make any assignment, other than an assignment in whole or to a separately organized branch or an affiliate of the same Lender, if, after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes, notwithstanding this provision any Lender may make assignments in any amount to any other existing Lender, subject to the Agent's and the Borrower's consent, which consent will not be unreasonably withheld or delayed, provided that the Borrower's consent will not be required if a Default (other than a de minimus default under the Loan Documents) then exists and is continuing hereunder.
(ii) Any such assignment made other than to a separately organized branch, or an affiliate of, a Lender shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $ 1,000,000, and if greater, shall be an integral multiple of $1,000,000.
(iii) Notwithstanding any provision of this Agreement to the contrary, each Lender may at any time assign all or any portion of its rights under this Agreement and each of the other Loan Documents, including, without limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States); provided that no such assignment shall release a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section.
(iv) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 13(b)(iv) and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement.
(v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes subject to such assignment and payment by the assignee to the Agent of a registration and processing fee of $3,500, the Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the Agent, the assigning Lender shall give notice thereof to the Borrower pursuant to a Notice of Assignment and Acceptance substantially in the form of Schedule 13(b)(y) and addressed to the Agent and the Borrower. Within five (5) Business Days after receipt of such notice, the Borrower shall, execute and deliver to the Agent in exchange for each such surrendered Note a new Note payable to the order of such assignee in an amount equal to the portion of the applicable Commitment(s) assumed by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Section 1.01. Canceled Notes shall be returned to the Borrower upon the execution and delivery of such new Notes.
(vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Notes held by it); provided, however, that, (A) the selling Lender shall remain obligated under this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to Article XII, to the extent that the same require the consent of each Lender hereunder, (D) all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lendees rights and obligations under this Agreement.
(vii) Except for an assignment made to a separately organized branch or an Affiliate of a Lender, no assignment or participation referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed, provided that the Borrower's consent will not be required if an Event of Default (other than a de minimus default under the Loan Documents) then exists and is continuing hereunder.
(viii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder.
(ix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies, the Parent Companies and their respective Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.
Amounts and Terms of Commitments and Loans 2.1 Commitments; Making of Loans; the Register; Notes.
Terms of New Loans and Commitments The terms and provisions of Loans made pursuant to Incremental Commitments shall be as follows and, in each case, as to other terms and conditions not set forth below, as reasonably acceptable to the Administrative Agent and the relevant Lenders:
(i) terms and provisions of Incremental Term Loans shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Term Loans (it being understood that Incremental Term Loans may be a part of the Term Loans) and to the extent that the terms and provisions of Incremental Term Loans are not identical to the Term Loans (except to the extent permitted by clause (iii), (iv) or (v) below) they shall be reasonably satisfactory to the Administrative Agent; provided that in any event the Incremental Term Loans must comply with clauses (iii), (iv) and (v) below;
(ii) the terms and provisions of Revolving Credit Loans made pursuant to new Commitments shall be identical to the Revolving Credit Loans;
(iii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Term Loans;
(iv) the maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity Date”) shall not be earlier than the then Latest Maturity Date;
(v) terms as to prepayments and amortization and pricing for Incremental Term Loans shall be reasonably acceptable to the Administrative Agent and the relevant Lenders (it being understood that terms that are no less favorable to the Borrowers than those of any existing Incremental Term Facility shall be acceptable to the Administrative Agent); and
(vi) the Incremental Term Loans shall not contain additional or different covenants or financial covenants which are more restrictive in any material respect than the covenants in the Loan Documents at the time of the incurrence of such Incremental Term Loan unless either (A) such covenants benefit all of the Lenders or are otherwise consented to by the Administrative Agent or (B) such covenants apply only after the Facility Termination Date. The Incremental Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrowers, the Administrative Agent, each Lender and each Proposed New Lender making such Incremental Commitment, in form and substance reasonably satisfactory to each of them. Notwithstanding the provisions of Section 10.01, the Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions and intent of this Section 2.14. In addition, unless otherwise specifically provided herein, all references in the Loan Documents to Revolving Credit Loans or Term Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Credit Loans made pursuant to Incremental Revolving Commitments and Incremental Term Loans that are Term Loans, respectively, made pursuant to this Agreement.
